State v. Rose

• Decision Date: 24 June 1975
• Parties: STATE of Connecticut v. Joseph ROSE, Jr.
• Court: Connecticut Supreme Court

Page 813

362 A.2d 813

168 Conn. 623

STATE of Connecticut v. Joseph ROSE, Jr.

Supreme Court of Connecticut.

June 24, 1975.

Ralph F. Scofield, Special Public Defender, for appellant (defendant).

Arlen D. Nickowitz, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.

HOUSE, Chief Justice.

In 1968, the defendant was convicted, on a trial to the jury, of having heroin under his control in violation of Public Act No. 555, adopted in the 1967 session of the General Assembly. See General Statutes § 19-481. He was also found guilty of being an habitual offender under the provisions of what was then § 54-121 of the General Statutes. He appealed from the judgment assigning error in (1) the denial of his motion to suppress evidence; (2) certain rulings on the admissibility of evidence; (3) the denial of his motion for mistrial; (4) the denial of his motion to dismiss the habitual offender part of the information; and (5) the sentence imposed.

At the hearing on his pretrial motion to suppress and on this appeal, the defendant has claimed that the affidavit in support of the application for a warrant to search an apartment at 584 Berkshire Avenue in Bridgeport, prepared by the police and submitted to a judge of the Circuit Court (Eielson, J.) on December 28, 1967, did not support a finding of probable cause to believe that evidence of criminal activity existed within the apartment alleged by the affiants to be premises where such evidence was concealed. The defendant asserts that the judge acted improperly in issuing the search warrant, and that under the provisions of the fourth amendment to the constitution of the United States as applied to the states by the fourteenth amendment, his motion to suppress should have been granted and the items seized in that apartment pursuant to the authority of the warrant should not have been admitted in evidence.

Specifically, the defendant contends that the affidavit supporting the application for the search warrant does not contain any facts which connect the asserted illegal activity with the apartment sought to be searched. The application for the warrant was predicated upon information supplied to the police by two informants whom they represented to be reliable. In the first two paragraphs of the affidavit and application for the warrant the apartment to be searched and in which it was complained that narcotic drugs and paraphernalia were located was specifically described as '(a) 3 story dwelling, with grey imitation brick siding, the 1st floor apartment on the right side front numbered 584 Berkshire Ave., Bridgeport, Conn.' After reciting that one of the reliable informants had stated that Rose bought heroin out of town, mixed it with sugar, packaged it in small which packets, scotch taped it, and sold it to addicts, the affidavit then described the paraphernalia used by Rose and stated: 'These items are kept in a closet just right of the entrance door to the apartment.' This reference to 'the apartment' is the first reference to any apartment after the specific earlier description of the apartment at 584 Berkshire Avenue, Bridgeport, for which the search warrant was sought. Clearly the premises to be searched and the illegal activity being conducted on those premises by Rose were sufficiently identified to support the issuance of the search warrant.

As Justice Goldberg said in United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, referring to the historical development of constitutional standards in the area of search and seizure: 'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

'This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. See Aguilar v. Texas, . . . (378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723). Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypetechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.'

This court has also had occasion to observe: '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. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 110-11, 84 S.Ct. 1509, 12 L.Ed.2d 723; State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517.' 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; see also State v. Saidel, 159 Conn. 96, 98, 267 A.2d 449.

Keeping in mind the fact that the reviewing court may consider only information brought to the issuing judge's attention; Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503; we conclude that the judge issuing the warrant, taking this commonsense approach, could reasonably and logically find that there was probable cause to search the apartment specified in the warrant and to issue the warrant. In view of the contrary conclusion reached in the dissenting opinion, we have printed in full the affidavit and application ¹ for the search and seizure warrant on the basis of which the warrant was issued.

The defendant next contends that the judge who issued the search warrant could not have reasonably found probable cause to issue it because the affidavit supporting the application for the warrant did not state the date on which the informant made his observations of narcotic activity. In support of this contention the defendant relies primarily on Rosencranz v. United States, 356 F.2d 310 (1st Cir.). In the first place, this reliance is misplaced. The determinative issue in Rosencranz was not the date the informant made the observations of suspected criminal activity but rather the date when he related these observations to the affiant-police officer. Id., 315. In the present case, the dates on which the Bridgeport police received the information from each of two different informants is stated. While there is no fixed test for finding the existence of probable cause, proof of its existence must include facts so closely related to the time of the issuance of the warrant as to justify a finding of the existence of probable cause at that time. As we observed in State v. Carbone, Conn. (36 Conn.L.J., No. 37, pp. 5, 8): "The facts and circumstances set forth in an affidavit submitted in support of the issuance of a search warrant should be current and timely, so as to indicate that the premises, person, place or thing to be searched PRESENTLY contains the fruits of the crime. . . .' Markle, 'The Law of Arrest and Search and Seizure,' p. 223. An exception to this rule is where the court finds facts indicating the likelihood that there is a continuing criminal activity. United States v. Mustone, 469 F.2d 970 (1st Cir.); United States v. Johnson, 461 F.2d 285 (10th Cir.); State v. Austria, Haw., 524 P.2d 290; Johnson v. State, 14 Md.App. 721, 288 A.2d 622; note, 100 A.L.R.2d 525, 542; Markle, supra, 226. The facts indicating this continuity must satisfy the same requisites of reliability as other facts within the affidavit that purport to evidence probable cause.' Whether the proof meets this test must be determined by the circumstances of each case. Sgro v. United States, 287 U.S. 206, 211, 53 S.Ct. 138, 77 L.Ed. 260; State v. DeNegris, 153 Conn. 5, 8-9, 212 A.2d 894. The basic cirterion as to the duration of probable cause is the inherent nature of the crime. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.). As the court there noted: 'The Circuits hold that where an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance.' In the present case, the facts recited in the affidavit disclose that the defendant received 86 percent pure heroin from out of town, diluted it with milk sugar and packaged it in smaller packets in his apartment for later distribution. From such a portrayal of ongoing criminal activity, presented to the officers by two different...