State v. Romano

• Citation: 165 Conn. 239,332 A.2d 64
• Court: Supreme Court of Connecticut
• Decision Date: 29 June 1973
• Parties: STATE of Connecticut v. Carmelo O. ROMANO.

Page 64

332 A.2d 64

165 Conn. 239

STATE of Connecticut v. Carmelo O. ROMANO.

Supreme Court of Connecticut.

June 29, 1973.

Richard W. Wright, Hartford, with whom, on the brief, was Joseph E. Fazzano, Hartford, for appellant (defendant).

George D. Stoughton, Chief Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLEE, MacDONALD and BOGDNASKI, JJ.

MacDONALD, Associate Justice.

The defendant, Carmelo O. Romano, was found guilty by a jury of the crimes of pool selling in violation of § 53-295 of the General Statutes, destruction of property in violation of § 54-33e, and interference with search in violation of § 54-33d. In his appeal from the judgment rendered on the verdict, he has assigned as error (1) the court's denial of his motion to suppress evidence; (2) two rulings on the admissibility of evidence, and (3) the denial of his motion to set aside the verdict as against the evidence.

The defendant's first assignment of error, the denial of pretrial motion to suppress evidence, raises two issues: (1) whether the search warrant under which the arresting officers entered the defendant's home was invalid because of the insufficiency of the affidavit on the basis of which the warrant was issued; and (2) whether the warrant was illegally executed because of a three-day delay between its issuance and execution.

The facts as found by the court for the purpose of the motion to suppress may be summarized as follows : On August 22, 1969, officers of the West Hartford police department made application to a judge of the Circuit Court for a warrant to search the defendant's home at 192 Brace Road, West Hartford. The property sought and specifically listed in the warrant included various devices customarily used to record bets, a telephone with the number 521-1541, and money. The affidavit in support of the application recited that 'information (was) received from a previously reliable informant' who had, in the past, given accurate information resulting in the arrests and convictions of gamblers. It stated that the informant had been present on many occasions when gaming bets had been called in to telephone number 521-1541, which number the police had verified as being listed in the name of the defendant at the premises to be searched. The affidavit further stated that the informant had been present on August 12, 1969, when two different bets on horses were, called in to 521-1541, one in a form of code, and that the police had established independently that a horse specifically named in one of the bets was, in fact, running at the track named on that day. The affidavit also contained information received form the Hartford police department to the effect that the defendant was 'very active with known gamblers,' that he had a prior arrest record for gambling offenses, and that the 'information received is that he is now conducting gambling operations at his home, 192 Brace Road, West Hartford.' Finally, the affidavit disclosed that a surveillance on the defendant's home from August 5, 1969, to August 19, 1969, had indicated that someone was at the home during what were considered prime hours for betting on horses, and that an investigative telephone call made to 521-1541 had been answered by a male voice giving the name of Collins.

The search warrant was issued on Friday, August 22, 1969, but was not executed on that day because of insufficient police personnel. It was not executed on Saturday, August 23, because the automobiles normally seen at the defendant's house were not present, nor on Sunday, August 24, because the racetracks were closed on that date, but it was executed on the following day, Monday, August 25. During the search made pursuant to the warrant the police, after a physical struggle with the defendant, seized four telephones, a tin can containing paper, pens, and a piece of 'dissolvo paper' (paper which when placed into water dissolves into a jellied mass), about $1500 found under the mattress in the defendant's bedroom and about $700 found on the person of the defendant. The police also answered a number of incoming telephone calls.

We consider first the attack on the sufficiency of the affidavit to establish probable cause. 'The principles by which we test the adequacy of an affidavit have been designed to insure that a disinterested judicial officer make his own common-sense judgment that there is probable cause for the issuance of the warrant.' State v. Grayton, 163 Conn. 104, 106, 302 A.2d 246, 248, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495; Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723; State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed,2d 121. 'Aguilar v. Texas, . . . (378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723), states the standard for determining whether an affidavit containing hearsay is sufficient for such an independent judgment: The magistrate must be informed of some of the underlying circumstances (1) relied on by the informant and (2) some of the underlying circumstances from which the affiant could conclude that the informant was credible or his information reliable.' State v. Grayton, supra.

The affidavit before us clearly sets out such circumstances. The informant personally had been present on many occasions when bets were called in to telephone number 521-1541, which the police had verified as the defendant's number at the premises in question. Information as to a specific bet recounted by the informant had been verified. The informant was considered reliable and previously had given information which led to the conviction of gamblers. The previous reliability of an informant, though not constitutionally required, is a basis for crediting his information. See United States v. Harris, 403 U.S. 573, 581-582, 91 S.Ct. 2075, 29 L.Ed.2d 723; State v. Grayton, supra. Affidavits reciting considerably less in the way of underlying circumstances as to the credibility of the informant have been held sufficient to establish probable cause. See, e.g., United States v. Harris, supra, 575, 91 S.Ct. 2075.

The defendant claims that, since the informant did not state that he actually had seen the property sought, namely the record-keeping materials, the telephone, and other items, but merely said that he had been present when bets were telephoned in to the defendant's number, the property in question was linked insufficiently to the premises to be searched to establish probable cause. The gist of this contention is that the Circuit Court judge, on the basis of information from a reliable informant that numerous bets were being called in to a telephone located at the premises to be searched, could not permissibly infer that there was probable cause to believe that materials to record those bets and the telephone over which they were taken were present at the premises. The defendant cites United States v. Dubin, 217 F.Supp. 206 (D.Mass.), and United States v. Conway, 217 F.Supp, 853 (D.Miss.) in support of this proposition, but thet are clearly distinguishable from the case at bar because in each of them the premises to be searched, a bar and a grocery store, were held open to the use of the public. In neither case did the affidavit recite the circumstances of the taking of the wagers involved, nor did it establish any connection between the person taking bets and the premises to be searched. Here the address of the defendant was his own private residence not a public establishment, and the telephone listed in the affidavit had been verified as being registered in the defendant's name and at the premises in question, thus constituting a definite connection with those premises.

A magistrate is entitled to rely on the ordinary dictates of common experience and on his own common sense; Spinelli v. United States, 393 U.S. 410, 415, 419, 89 S.Ct. 584, 21 L.Ed.2d 637, State v. Jackson, supra, 162 Conn. 445, 294 A.2d 517; and is 'allowed to draw normal inferences from the facts alleged in the requesting officer's affidavit, . . . including inferences based upon the usual procedures of the offenders of the statute in question.' Rutledge v. United States, 283 A.2d 213, 215 (D.C.App.). 'As the term probable cause implies, the issue is one of probabilities.' State v. Jackson, supra. The ordinary dictates of common experience and common sense could have led the issuing judge in the case at bar to the conclusion that, where bets are being received over the telephone, sometimes in a form of code, very probably materials customarily associated with the taking of bets, and certainly the telephone itself, would be present at the address where that telephone was located. We find no error in the reaching of such a conclusion on the basis of the facts alleged in the affidavit before us.

The remaining contentions of the defendant concerning probable cause are readily disposed of. Given the information transmitted by the informant, the judge issuing the warrant did not have to 'rely' on the results of the surveillance, on the reputation of the defendant among other police officers, nor on his prior arrest record. This information, however, properly could be considered in terms of adding further credibility to the informant's tip. The information received from the Hartford police, including the prior arrest record, pertaining as it did to the reputation of the defendant, clearly was "a practical consideration of...