State v. Ross

• Decision Date: 04 September 1984
• Parties: STATE of Connecticut v. Deborah ROSS. STATE of Connecticut v. Daniel ROSS. STATE of Connecticut v. Maureen CHECK. (Two Cases)
• Court: Connecticut Supreme Court

Page 730

481 A.2d 730

194 Conn. 447

STATE of Connecticut v. Deborah ROSS.

STATE of Connecticut v. Daniel ROSS.

STATE of Connecticut v. Maureen CHECK. (Two Cases)

Supreme Court of Connecticut.

Argued June 8, 1984.

Decided Sept. 4, 1984.

Paul E. Murray, Asst. State's Atty., with whom, on the brief, was Francis M. McDonald, State's Atty., and Catherine J. Capuano, Sp. Asst. State's Atty., for appellant (State).

Donald A. Mitchell, Danbury, for appellee (defendant in the first case.)

William F. Dow III, New Haven, submitted on the brief, for appellee (defendant in the second case).

John R. Williams, New Haven, with whom was Elizabeth M. Inkster, Madison for appellee (defendant in the third and fourth cases).

ARTHUR H. HEALEY, Associate Justice.

The principal issue in these appeals is whether the trial court, Meehan, J., erred in concluding that there was no probable cause to support the state's application for an order authorizing interception of certain telephonic communications under General Statutes § 54-41a et seq.

On May 1, 1981, the state's attorney for the judicial district of Waterbury submitted, under oath, an application to the state wiretap panel ¹ requesting permission to intercept the telephonic communications of certain named individuals, including the defendants, on telephone facility 263-4337 subscribed to by the defendant Maureen Check and located in a private residence at 18 Tamarack Lane, Woodbury, Connecticut. Accompanying the application was the affidavit of Trooper Donald A. Taylor of the Connecticut state police. On May 5, 1981, on the basis of the application of the state's attorney and the affidavit of Taylor, the wiretap panel authorized interception of telephonic communications over the telephone facility of Check. Through those interceptions the state obtained evidence which resulted in its commencement of criminal actions against the defendants.

The defendants filed motions to suppress the evidence obtained through or derived from the telephonic communications intercepted under the authority of the order of the wiretap panel. The trial court, Meehan, J., granted their motions on the basis of its determination that there was a lack of probable cause to justify the order of the wiretap panel and it issued a comprehensive oral memorandum of decision explaining the basis of its ruling. Thereafter, on December 23, 1981, the trial court, Stodolink, J., upon motion of the state, dismissed these prosecutions with prejudice and the state, with permission of the trial court, filed these appeals.

On appeal, the state claims that the trial court, Meehan, J., erred in granting the defendants' motions to suppress. It launches what is essentially a two-pronged attack on the trial court's ruling. ² First, the state claims that the action of the wiretap panel, in issuing its order authorizing the interception of certain telephonic communications over the facility in question, is entitled to "substantial deference" and, therefore, only if the trial court could find that the wiretap panel acted arbitrarily would the trial court have been justified in granting the motions to suppress. Second, the state argues that probable cause could reasonably have been found by the wiretap panel based upon the affidavit of Taylor which, it claims, contained ample information to support the wiretap panel's issuance of its interception order. We find no error.

In its application to the wiretap panel, the state requested permission to intercept the telephonic communications of certain named individuals, including the defendants, ³ "and other unknown persons who have committed or are committing or because such interception may provide evidence of the commission of [the offense of] ... Illegal Sale of Narcotics" and it stated that the named individuals were using the telephone facility at issue in the commission of that crime.

In support of this application, the state supplied the wiretap panel with the affidavit of Taylor. A fair reading of paragraph eight of this affidavit, which alleged the facts upon which the state's application was based and which the state claims is sufficient to establish probable cause for the issuance of the order of the wiretap panel, discloses the following: The affiant was a regular member of the Connecticut state police department for more than thirteen years and had been involved "in the field of Narcotic enforcement and other organized criminal activities" for more than seven years. Within fifteen days prior to the affidavit, which is dated May 1, 1981, Trooper John Dellavolpe had spoken to a confidential source, who had a good reputation for honesty and truthfulness and no criminal record. This source had previously supplied information to the state police which had been confirmed by subsequent police investigation and which had led to the arrest and conviction of criminals. This source stated that he had heard Maureen Check "state that day (the day the source spoke to Trooper Dellavolpe), that RAYMOND RIVERA/DURAN had arranged a meeting in Woodbury with DANNY, whose associate was DEBORAH, for the weekend of April 19-20, 1981, the circumstances of which meeting were that a drug transaction was to be done as only when there are drugs at Woodbury do such meetings take place." The source "[knew] this from statements made by ... CHECK and heard by [him]."

On April 23, 1981, the affiant proceeded to Check's apartment and observed her and Rivera/Duran leave the apartment and drive away in a 1978 BMW later found to be registered to Charles E. Check, the father of Maureen Check. The car was followed to the Bazaar located in Heritage Village in Southbury where both occupants left the car and proceeded inside. They subsequently returned to the car and proceeded to the Southbury Plaza where Check entered a jewelry store while Rivera/Duran utilized the outside telephone facility located there. After the completion of his call, Rivera/Duran entered the jewelry store. Check and Rivera/Duran later exited the store "and met with an older white male tentatively identified as CHARLES E. CHECK ...." Maureen Check then utilized a telephone facility outside the store. Surveillance was terminated at that time.

On April 24, 1981, the affiant spoke with Agent Gene Weinschenk of the United States Customs Service regarding Rivera/Duran. Weinschenk related information concerning Rivera/Duran's background, including his criminal record. ⁴ Additional information received from the Florida Department of Law Enforcement included a photograph of Rivera/Duran and that he was "President/Director/Resident Agent" of Stills, Inc., and Photography Association, Inc. These companies "appear to be merely 'fronts' which is a commonly used method by those involved in narcotics trafficking to disguise their income from illegal activities." ⁵ Further information from the Florida Department of Law Enforcement showed that Rivera/Duran was arrested by the federal drug enforcement administration on February 6, 1975, in Charleston, South Carolina, in possession of 3000 pounds of marijuana for which he was convicted and sentenced to eighteen months confinement and two years of probation. ⁶

On April 24, 1981, "the affiant received two anonymous letters that had been sent to the 17th. Precinct in New York City ..." and forwarded to him. ⁷ The first anonymous letter stated: "There is a lot of cocaine dealing going on in the following location-DUSTIN GOLD (very strong business) resides at 310 East 46th. Street, N.Y., N.Y. Apt-19M Turtle Bay Towers and also: Private residence in Coconut Grove, Fla. He operates between N.Y., Miami and Los Angeles. PAUL DEVICO, ROY (LAST NAME UNKNOWN) residing [194 Conn. 453] at 310 East 46th. St., N.Y. Studio Apt. on the 21st floor. Paul operates between Fla. and N.Y. and is presently staying with ROY at Turtle Bay Towers." The second anonymous letter stated: "To whom it concerns. There is more cocaine floating around this building than anyone could imagine. It is really quite annoying especially to the neighbors and other tenants. You'll have a picnic in Apt-19M and 3Q with all the dealing going on. (Signed) Turtle Bay, 310 E. 46th. St., N.Y." Through investigation by a New York detective, it was discovered that apartment 19M is the residence of Robert E. Gold and apartment 3Q is the residence of Lorraine Devico.

According to toll records obtained from the Woodbury telephone company through search warrants, a call was made from Maureen Check's telephone facility to the telephone facility subscribed to by Dustin Gold at his New York address stated above on February 11, 1981. On March 15, 1981, a call was reflected on Check's facility from the telephone facility subscribed to by Lorraine Devico at her New York address as stated above.

Numerous calls were also made from the Check telephone facility to the telephone facility subscribed to by Daniel Ross in New Fairfield, Connecticut. During the period April 18 through April 20, 1981, (the time during which the Woodbury meeting was to occur) three calls were made from the Check facility to the Daniel Ross facility. ⁸ Daniel Ross had been arrested by New Haven police "on narcotics charges in 1969 and convicted." He "was also the subject of an investigation conducted by the affiant of drug violations in January, 1980, while he (ROSS) was employed at Fairfield Hills Hospital in Newtown, Connecticut. ROSS suddenly resigned from his position as director of the Drug Rehabilitation Unit ... as the investigation was initiated and [he] allegedly moved to New Jersey." Through the Connecticut motor vehicle department, it had been ascertained that his wife's first name is Deborah.

The 1980 city telephone directory for the town of Southbury, Connecticut, revealed no listing for telephone number (203) 263-4337. According to telephone company records this number was newly assigned, nonpublished, and installed on September 10, 1980. It was subscribed...