State v. Rodriguez, 10094

• Decision Date: 07 April 1992
• Docket Number: No. 10094,10094
• Citation: 27 Conn.App. 307,606 A.2d 22
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Teofilo RODRIGUEZ.

Page 22

606 A.2d 22

27 Conn.App. 307

STATE of Connecticut v. Teofilo RODRIGUEZ.

No. 10094.

Appellate Court of Connecticut.

Argued Jan. 22, 1992.

Decided April 7, 1992.

Carolyn K. Longstreth, Asst. State's Atty., with whom were Devin T. Stillson, Asst. State's Atty., and, on the brief, Walter D. Flanagan, State's Atty., for appellant (state).

Peter N. Buzaid, Danbury, for appellee (defendant).

Before EDWARD Y. O'CONNELL, LANDAU and FREEDMAN, JJ.

LANDAU, Judge.

The state of Connecticut appeals, with the permission of the trial court, from the court's judgment granting the defendant's motion to suppress evidence and its judgment dismissing the charge of illegal possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278(b). The state claims that the trial court incorrectly ruled that the affidavit in support of a search warrant authorizing searches of the defendant's house, his business and his person failed to establish probable cause. The state also argues that, viewed together, the four tips supplied by three confidential informants established a "fair probability" that evidence of drug trafficking would be found in the defendant's house and business and on his person.

The defendant claims that the affidavit failed to establish probable cause in the following ways: (1) it contained no factual basis as to the manner in which the three confidential informants acquired their knowledge of the narcotic trafficking and the defendant's involvement with this activity; (2) it did not establish the veracity of the confidential informants; and (3) it failed to meet the standard for probable cause as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We agree with the state and reverse the judgment of the trial court.

The record discloses the following pertinent facts. On June 19, 1990, Detectives James Fisher and Daniel Trompetta of the Danbury police department obtained three search warrants authorizing searches of the defendant's residence at 50 Westville Avenue, Danbury, as well as his business, Nova Importing, and his person. The same affidavit was used to support each of the three warrant applications. The affidavit consisted of six substantive paragraphs that outlined information related to the Danbury police by three confidential informants over a period of three months.

Paragraph one addressed the background of the two affiants, Fisher and Trompetta, stating that they were both regular members of the Danbury police department with combined experience of more than fifteen years. It further stated that both detectives are members of the special investigations division, the primary function of which is to investigate drug activity in the Danbury area, and that both detectives have participated in numerous drug investigations that have led to arrests and convictions.

The second paragraph stated that in the first week of April, 1990, the detectives met with a confidential informant, A, whom they had known "a short period of time" but who had previously provided information proven to be true and accurate upon independent investigation. A informed them that a Dominican male named Teofilo Rodriguez and his wife, Lauretta, were selling cocaine in Danbury from two locations: a store called Nova Importing, at 130 West Street, which the informant stated was owned and operated by the defendant and his wife; and the defendant's residence at 50 Westville Avenue in Danbury. A also stated that a person named Gilberto Genao worked for the defendant, that some sales were made at Nova Importing, and that the drug deliveries from New York were made to the residence. A also indicated that the drugs were stored at the residence. The affidavit did not indicate the basis of A's knowledge of the defendant's narcotics activity.

The third paragraph of the affidavit indicated that during the third week of April, 1990, a similar tip was received from a second confidential informant, B, whom the detectives had known for over two years and who had previously provided information proven to be accurate and which had led to two seizures of narcotics and three felony arrests. B stated that the defendant was selling large quantities of cocaine in the Danbury area and that his wife played an active part in this operation and was totally familiar with most aspects of the drug selling operation. B further stated that the cocaine is delivered to the defendant's residence and then is moved, as needed for sales, to Nova Importing where the sales are conducted. B also indicated that two other Dominican males, Gilberto Genao and the defendant's nephew Carlos Espinal, worked for the defendant by picking up the cocaine in New York City and bringing it to Danbury and making sales and contacts with buyers for the defendant. The affidavit also did not disclose the basis of knowledge for B's tip.

The fourth paragraph of the affidavit indicated that during the third week of May, 1990, the detectives met with a third confidential informant, C, who had been known to them for over ten months and who had provided information that had led to three seizures of narcotics and one felony arrest. C stated that Genao was working with the defendant selling cocaine. He further stated that he had personal knowledge of cocaine sales from Nova Importing, had personally observed cocaine in the store and had overheard numerous conversations concerning drug dealings at the store, although no basis of knowledge was indicated in the affidavit.

Paragraph five indicated that during the third week of May, 1990, C made a controlled buy of a package of cocaine at Nova Importing under the supervision of members of the Danbury police department. The affidavit indicated that prior to entering the store the police thoroughly searched C for money and drugs and found none. C was then given a predetermined sum of money and was observed entering the store and being directed to an office near the rear of the store. He remained in the store for between two and three minutes and was then observed leaving the store and traveling to a prearranged location to meet with Trompetta. C gave the detective a packet containing a white powder substance that field-tested positive for cocaine, and told the detective that he had purchased the cocaine from Genao.

Paragraph six indicates that early in the third week of June, 1990, C informed the detectives that he had personally observed cocaine that was to be sold in the defendant's residence and that it was under the defendant's control. No time or date was indicated.

On June 19, 1990, search warrants were issued authorizing the police to conduct searches of the defendant's house, his business and his person. Evidence of narcotics trafficking, including plastic and paper packets containing white powder, drug sale records and drug paraphernalia, was seized from the defendant's house and the defendant was placed under arrest. The defendant moved to suppress the evidence and, after a hearing, the trial court found that the affidavit supporting the warrants failed to establish probable cause as defined by state and federal law. Specifically, the trial court found that probable cause was lacking because the affidavit did not include the informants' basis of knowledge; C did not provide dates of the sales or conversations he overheard; the detectives did not keep C under constant surveillance during the controlled buy; and B did not state when he observed cocaine at the defendant's residence. Additionally, the trial court found that the affidavit did not sufficiently incriminate the defendant, as opposed to Genao, and the detectives did not corroborate that Nova Importing and 50 Westville Avenue were the defendant's business and his home address respectively. We disagree with the trial court and conclude that under the totality of the circumstances test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); and subsequently adopted by our state in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991); there was sufficient probable cause to issue the search warrants. ¹

The fourth amendment "protects people from unreasonable government intrusions into their legitimate expectation of privacy." ² United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). The latter part of the fourth amendment, customarily referred to as the warrant clause, makes it apparent that a valid arrest warrant or search warrant may issue only upon a showing to the magistrate that there is probable cause for the arrest or for the search. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) (arrest); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (search).

A warrant may be issued to search any property "at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found." Zurcher v. Stanford Daily, 436 U.S. 547, 554, 98 S.Ct. 1970, 1975, 56 L.Ed.2d 525 (1978). Two conditions necessary for a search warrant to issue are (1) that there is probable cause to believe a crime has been committed and that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction, and (2) that there is probable cause to believe that the items sought to be seized will be found in the place to be searched. ³ United States v. Harris, supra, 403 U.S. at 584, 91 S.Ct. at 2082; State v. Weinberg, 215 Conn. 231, 238, 575 A.2d 1003, cert. denied, --- U.S. ----, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990); State v. Morrill, 205 Conn. 560, 565, 534 A.2d 1165 (1987); State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980); State v. Dixon, 25 Conn.App. 3, 11, 592 A.2d 406 (1991).

The conclusion concerns the connection between the...