State v. Ruscoe

• Decision Date: 25 July 1989
• Docket Number: No. 13447,13447
• Citation: 212 Conn. 223,563 A.2d 267
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Larry RUSCOE.

Page 267

563 A.2d 267

212 Conn. 223

STATE of Connecticut v. Larry RUSCOE.

No. 13447.

Supreme Court of Connecticut.

Argued March 30, 1989.

Decided July 25, 1989.

Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, were Eugene J. Callahan, State's Atty., Warren Murray, Deputy Asst. State's Atty., and Christine Marsching, Legal Intern, for appellee (State).

Before SHEA, GLASS, COVELLO, HULL and SANTANIELLO, JJ.

SHEA, Associate Justice.

The defendant appeals from his convictions for larceny in the second degree; General Statutes § 53a-123(a)(2); ¹ possession of drug paraphernalia; General Statutes § 21a-267(a); ² and three counts of selling equipment with defective identification marks. General Statutes § 53-132. ³

From the evidence at trial, the jury could reasonably have found the following facts. On January 5, 1987, several members of the Norwalk and Wilton police departments arrived at the defendant's house in Norwalk to execute a search warrant for silver candleholders, napkin rings and a mug, which had been stolen during a recent burglary in Wilton. The officers announced their presence and purpose, and, upon receiving no reply, forcibly entered the defendant's house. They found the defendant standing in the living room. The living room was filled with electronic equipment, much of it stacked in piles. The police conducted a sweep of the premises and gathered the defendant and the other occupants of the house into the living room. After the defendant read the warrant, he pointed to two candleholders, four napkin rings, and a candy dish on the dinette table and told the officers that these were the items they were looking for, and therefore, that they were not entitled to search the house any further. The police undertook a thorough search of every room of the defendant's house and of the attached garage. They continued to search for the silver mug listed in the warrant and for additional candleholders and napkin rings. In the defendant's house the police found a large assortment of stacked up stereo equipment, VCRs and televisions; jewelry; a box of car stereo components; and drug paraphernalia. In the defendant's garage, the police found a variety of major appliances, many of which were in their original packing and some of which had their shipping labels still attached. The police also seized a key to the defendant's safe deposit box. On January 7, 1987, the police searched the defendant's safe deposit box pursuant to a second warrant and seized more jewelry and a large amount of cash.

The defendant has raised a constellation of claims challenging every aspect of this case. We decline to address the defendant's claims of error that are related to the January 7, 1987 search of his safe deposit box, because the state introduced sufficient evidence from the search of the defendant's house to sustain the convictions. ⁴ With respect to the remaining issues, we find error in the sentencing of the defendant on the counts relating to equipment with defective identification marks and no error on the other claims.

I

The defendant's first claim is that the trial court erred in finding that the January 5, 1987 search warrant was based on sufficient probable cause under the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution.

The affidavit in support of the January 5 warrant was based primarily on information from a confidential police informant. This informant had worked with the affiants for four years and had demonstrated his reliability by providing accurate information that had resulted in the arrests of several burglars. The affidavit relates that on January 1, 1987, the informant visited the defendant's house. The defendant asked the informant if he knew anyone who wanted to buy some "stuff," and told him to look around the basement. In the basement the informant observed numerous appliances, including televisions and stereos, and sterling silver, including "candleholders, napkin holders, and a silver mug." The affidavit also reported that the informant had information that these items were stolen during a burglary in Wilton; that the Wilton police department reported that a burglary had taken place on December 12, 1986, at the Cooper residence in Wilton, and in that burglary sterling silver had been stolen, including a mug, napkin holders and candlesticks; and that a check of the defendant's record revealed "an extensive criminal history, including convictions for Burglary 2nd, Larceny 1st, Theft of a Firearm, forgery, violation of probation, and possession of marijuana."

In State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), we concluded that article first, § 7, of the Connecticut constitution "affords more substantive protection to citizens than does the fourth amendment to the federal constitution in the determination of probable cause." Accordingly, we held that the determination of probable cause under article first, § 7, is to be examined under the two-prong analysis of the Aguilar-Spinelli test, rather than under the less strict "totality of the circumstances" analysis set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). State v. Kimbro, supra, 197 Conn. at 235-36, 496 A.2d 498; see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The Aguilar- Spinelli test for reviewing a finding of probable cause consists of two prongs: " 'The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.' " State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). The defendant claims that the affidavit in this case satisfied neither prong of the Aguilar- Spinelli test.

The defendant asserts that the first prong of the test, the "basis of knowledge" prong, was not satisfied because there is nothing in the affidavit to indicate how the informant learned that the silver items were stolen from a house in Wilton. We conclude, however, that consistent with our holding in State v. Delmonaco, supra, the trial court properly found that the "basis of knowledge" requirement was satisfied.

In State v. Delmonaco, supra, at 340, 481 A.2d 40, we recognized that "[e]ven where the Aguilar- Spinelli test is applied rigidly ... there are certain circumstances in which a reliable or credible informant's tip that fails to satisfy the "basis of knowledge" prong may be credited for the purpose of establishing probable cause." We held, therefore, that " '[w]hen a tip not meeting the Aguilar test has generated police investigation and this has developed significant corroboration or other "probative indications of criminal activity along the lines suggested by the informant" ... the tip, even though not qualifying under Aguilar, may be used to give such additional color as is needed to elevate the information acquired by police observation above the floor required for probable cause.' " (Emphasis ommitted; citations omitted.) Id., at 341, 481 A.2d 40, quoting United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir.1972).

In the present case, the Norwalk police corroborated the information provided by the informant. Sergeant Bartek of the Wilton police department, when contacted by members of the Norwalk police department, reported that on December 12, 1986, three weeks before the informant had been in the defendant's home, sterling silver items had been stolen from a residence in Wilton. Those items included "a mug, napkin holders and candlesticks." That information, though later challenged by the defendant as inaccurate, when combined with the tip from the informant, "relate[d] sufficient facts from which a judge reasonably could conclude that the [informant] based [his] allegations of criminal activity on sufficient underlying circumstances." State v. Delmonaco, supra, 194 Conn. at 339, 481 A.2d 40.

The defendant raises the additional claim that the police had insufficient information to corroborate the informant's allegations. The defendant bases this claim of insufficiency on the difference in sizes between "candlesticks," which he states are tall, and "candleholders," which he maintains are short. We note that the American Heritage Dictionary defines "candlestick" as "[a] holder, often ornamental, with cups or spikes for a candle or candles. Also called 'candleholder.' " Unconstrained by standard lexicographical sources, the defendant apparently would prefer the world of Lewis Carroll: "When I use a word ... it means just what I choose it to mean--neither more nor less." L. Carroll, Through the Looking-Glass, c. 6. We decline to adopt such a subjective approach to language.

We similarly conclude that the affidavit satisfied the second prong of the Aguilar- Spinelli test, known as the "reliability" prong. "An affiant need not recite the precise factors on which he judged his informant credible or reliable.... If they are apparent to the common-sense reader of the affidavit--whether by necessary implication or recital--it is enough." State v. Jackson, 162 Conn. 440, 452-53, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972).

In State v. Just, 185 Conn. 339, 361, 441 A.2d 98 (1981), we stated that "[o]ne of the most common factors used to evaluate the reliability of an informant's information is the corroboration of the information by the police.... 'The theory of corroboration is that a statement ...