State v. Salvatore

• Decision Date: 25 April 2000
• Docket Number: (AC 18993)
• Citation: 749 A.2d 71,57 Conn. App. 396
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ROBERT SALVATORE

57 Conn. App. 396

749 A.2d 71

STATE OF CONNECTICUT v. ROBERT SALVATORE

(AC 18993)

Appellate Court of Connecticut.

Argued October 29, 1999.

Officially released April 25, 2000.

Lavery, Schaller and Vertefeuille, Js.¹ William T. Koch, Jr., special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom were Geoffrey E. Marion, senior assistant state's attorney, and, on the brief, Kevin T. Kane, state's attorney, for the appellee (state).

Opinion

VERTEFEUILLE, J.

The defendant, Robert Salvatore, appeals from the judgment of conviction, following a jury trial, of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b), possession of a controlled substance in violation of General Statutes § 21a-279, manufacturing a controlled substance in violation of § 21a-277 (b) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). On appeal, the defendant claims that the trial court improperly (1) found that he did not have standing to challenge the validity of the search and seizure warrant pursuant to which the marijuana was discovered, (2) applied the rule in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.2d 667 (1978), and denied the defendant's motion to suppress, and (3) denied the defendant's claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During June and August, 1997, police were advised by three people that the defendant, who resided at the North American Wildlife Refuge at 11 Mountain View Road, East Lyme, was cultivating large amounts of marijuana on the property, that approximately fifty marijuana plants were located on the northwest corner of the property and that he kept buds from the marijuana plants in his bedroom. One of the three also brought police a marijuana leaf and several buds of marijuana from the property. On August 18, 1997, Detective Robert Bardelli of the Connecticut state police, a trained aerial marijuana spotter, and a police officer from the East Lyme police department flew over the property in an airplane. During the flight, Bardelli readily saw numerous marijuana plants on the property. Many of the plants were planted in white buckets that were lined up in rows and they were, therefore, easily observed.

A search and seizure warrant was obtained for the property. The house, the land adjacent to it and various outbuildings were searched. Police found marijuana in the defendant's bedroom and three marijuana stalks on top of the canopy of his bed. The police also found a marijuana grow light, a notebook concerning marijuana cultivation in the defendant's bedroom closet, marijuana, a marijuana pipe and rolling papers in other locations within the house. The defendant had $1402 on his person. Paths from the house led to two groves approximately 3000 feet from the house, where police found fifty-nine marijuana plants. Three of the plants had only remnants of stalks that had been cut and removed. Other paths led to a tunnel that contained a special area equipped with reflective siding and plastic sheeting to retain warmth and humidity. The defendant was arrested on numerous drug charges.

Prior to trial, the defendant filed two motions to suppress the evidence collected during the search. After an evidentiary hearing, the trial court denied the motions in a ruling from the bench. The court found that the property was comprised of two parcels, one being the house and approximately one acre of land that was leased by the defendant from the owner, the North American Wildlife Association (association). The defendant was president of the association. The second parcel, where the fifty-nine marijuana plants were found, was adjacent to the first and was comprised of twenty-two acres of land owned by Patricia Ader, who leased the land to the association. The court found that the address, 11 Mountain View Road, referred to both parcels. The court concluded, sua sponte, that the defendant lacked standing to challenge the warrant with respect to the twenty-two acre parcel. With respect to the house parcel, the court found that the affidavit in the search warrant application provided an adequate factual basis for the issuance of the search warrant. The court further found that the defendant had not made the necessary preliminary showing to have a Franks hearing and concluded that none of the alleged omissions from the search warrant affidavit was material.

I

The defendant first contends that the trial court improperly found that he lacked standing to challenge the search warrant with respect to the twenty-two acre parcel of land where the fifty-nine marijuana plants were located. The defendant urges us to adopt the rule of "automatic standing" under our state constitution. We decline to do so.

"Under the rule of automatic standing, a defendant may seek to suppress evidence as the fruit of an illegal search if he or she was legitimately on the invaded premises or has been charged with an offense of which possession of the seized item is an element." State v. Hill, 237 Conn. 81, 107, 675 A.2d 866 (1996) (Norcott, J., dissenting). Automatic standing was originally the applicable rule under the federal constitution; Jones v. United States, 362 U.S. 257, 264, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled, United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed.2d 619 (1980); but "was subsequently abandoned in favor of the more restrictive `reasonable expectation of privacy' test." Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed.2d 387 (1978). Whether the state constitution embraces the principle of automatic standing remains an open but important question. See State v. Maia, 243 Conn. 242, 244, 703 A.2d 98 (1997). The state correctly points out that the defendant failed to raise his claim of automatic standing before the trial court and that he failed to request in his initial brief that we review this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. In his reply brief, the defendant claimed review under Golding, but failed to provide analysis of this claim.

We decline to review this claim for two reasons. First, "[c]laims on appeal that are inadequately briefed are deemed abandoned.... This rule applies to claims that the defendant is entitled to ... Golding review." (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 599, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). Second, even if the defendant had adequately briefed the issue, the defendant cannot request Golding review for the first time in a reply brief. State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). By waiting until his reply brief to make the request for review under Golding, the defendant deprived the state of the opportunity to brief the merits of his claim for automatic standing. It would be inappropriate for us to decide this significant question when it has been briefed by only one party. We, accordingly, decline to review the defendant's claim.

II

The defendant next claims that the trial court improperly applied the rule in Franks v. Delaware, supra, 438 U.S. 154, and denied his motions to suppress. We disagree.

The defendant contends that the affiants in the search warrant affidavit intentionally omitted three material facts from the affidavit: (1) that Bardelli's observation of the marijuana plants on the property was made from an airplane flying at altitudes between 300 and 800 feet; (2) that the so-called "concerned citizens" referred to in the affidavit had some relationship to the association; and (3) that the property to be searched was comprised of two separate parcels of land that had different owners.

We begin by recognizing that we have a "`longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant.' " State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990). "Not all omissions, however, even if intentional, will invalidate an affidavit.... [A]n affiant may omit facts that he believes to be either immaterial or unsubstantiated." (Citation omitted.) Id. Before a defendant is entitled to a Franks hearing, he must "make a substantial preliminary showing that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause." Id., 666-67.

Paragraph eight of the search warrant affidavit states that Bardelli observed several marijuana plants on the property. The affidavit does not disclose that Bardelli made that observation from an airplane flying at altitudes between 300 and 800 feet. The defendant contends that by omitting this allegedly material fact from the affidavit, the police precluded the issuing judge from determining whether the observation was made as part of an illegal search.

The defendant, however, failed to satisfy the first part of the required showing for a Franks hearing because he presented no evidence with respect to the police officers' intent in omitting the fact that Bardelli's observation was aerial. The defendant also fails to cite any case from Connecticut or any other jurisdiction that holds that the fact that the search was aerial is a material fact that must be disclosed in the warrant affidavit. Both of the leading cases addressing the legality of aerial searches have in fact upheld the validity of these searches. In California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986), the United States Supreme Court held that observation of marijuana plants in the respondent's backyard by trained officers in an airplane at an...