State v. Salz

• Decision Date: 15 July 1986
• Docket Number: 2587,Nos. 2586,s. 2586
• Citation: 512 A.2d 921,8 Conn.App. 125
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard SALZ, Sr.

Page 921

512 A.2d 921

8 Conn.App. 125

STATE of Connecticut v. Richard SALZ, Sr.

Nos. 2586, 2587.

Appellate Court of Connecticut.

Argued April 1, 1986.

Decided July 15, 1986.

James M.S. Ullman, Meriden, for appellant (defendant in both cases).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., Thomas V. O'Keefe, Jr., Asst. State's Atty., and Todd Pfister, Legal Intern, for appellee (State).

Before HULL, SPALLONE and BIELUCH, JJ.

HULL, Judge.

After a trial to a jury, the defendant was found guilty of four counts of larceny in the second degree, a violation of General Statutes §§ 53a-119(8) and 53a-123(a)(1). In his appeal from the judgment rendered on the verdicts, the defendant claims the trial court erred in four respects: (1) in refusing to suppress the fruits of a search the police conducted of his garage; (2) in permitting the assistant state's attorney to make derogatory remarks about him during closing argument; (3) in allowing the state to amend the information during trial to cure a defect; ¹ and (4) in denying his motion for judgment of acquittal on the basis of the insufficiency of evidence. We find no error.

On January 8, 1982, detectives Gerald O'Donnell and Frank Bradley of the Cheshire police department, on the basis of information provided by two informants, obtained a warrant to search the buildings on the defendant's property in East Haven, exclusive of his home. On the same day, O'Donnell and Bradley, accompanied by five other police officers, executed the warrant and seized from the defendant's garage a 1978 maroon Ford pickup truck, a 1979 blue Ford pickup truck, a 1979 dual wheel Ford pickup truck, and two Connecticut license plates, one of them mutilated. Prior to trial, the defendant moved to suppress these items and others seized during a subsequent search of his property, claiming that the items taken on January 8 were seized unlawfully and that those seized later, on January 11, were the fruits of that first unlawful seizure. The trial court denied the defendant's motion.

The defendant makes three separate arguments in support of his claim that the trial court erred in denying his motion to suppress. In the first, he asserts that the warrant under which the officers searched his garage was not based on probable cause. " 'Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.' State v. Middleton, 170 Conn. 601, 604, 368 A.2d 66 (1976)." State v. Ralston, 7 Conn.App. 660, 673, 510 A.2d 1346 (1986). There is probable cause to search where " '(1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.' (Emphasis in original; citations omitted.) State v. DeChamplain, [179 Conn. 522, 528-29, 427 A.2d 1338 (1980) ]; see State v. Arpin, [188 Conn. 183, 448 A.2d 1334 (1982) ]." State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, --- U.S. ----, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). In determining whether a warrant was lawfully issued, the reviewing court must consider only the information that was before the magistrate or judge at the time he or she signed the warrant. State v. Ralston, supra, 7 Conn.App. 671, 510 A.2d 1351.

Here, the affiants, O'Donnell and Bradley, provided the following information in their affidavit in support of the warrant: On January 2, 1982, O'Donnell received a phone call from a confidential informant who had previously provided reliable information to the police. The informant told O'Donnell that during the week of December 28, 1981, to January 1, 1982, he had been in the defendant's garage on route 80 near the North Branford-East Haven line visiting one of the defendant's employees who was a friend. The employee told the informant that the defendant was involved in stealing new trucks and, in furtherance of that activity, altered their vehicle identification numbers. The informant also related that while in the garage he saw three trucks, two of which were black and one of which was red. He was told by the employee that one of the three trucks had been stolen in Cheshire during the week of December 20, 1981. Finally, the informant told O'Donnell that the defendant was running an electrical business out of his garage.

On January 4, 1982, O'Donnell received a call from detective Ralph Puglia of the West Haven police department who said that an unnamed informant told him that the defendant had three pickup trucks in his garage, at least two of which were stolen. According to the informant, one of the trucks was stolen from North Branford while another was stolen from a Ford dealership located near routes 10 and 42 in Cheshire. The informant thought that the name of the dealership was Academy Ford. Three days later, the Cheshire police received a complaint from the sales manager at Dowling Ford, Inc., regarding a missing black Ford pickup truck bearing the vehicle identification number (VIN) 2FTCF10EGCCA20229 which he believed had been stolen from the dealership's parking lot. Dowling, which was previously named Academy Ford, is located on route 10 in Cheshire approximately 200 yards from route 42. In an attempt to verify some of this information, Bradley contacted the department of motor vehicles and Southern New England Telephone Company and discovered that the defendant lived in East Haven, and had a phone listing for an electrical business at his home address.

On the basis of the information given in the affidavit, a reasonable man could justifiably believe that the black Ford pickup truck with the VIN 2FTCF10EGCCA20229 was the subject of criminal activity and that it would be found in the defendant's garage. The first unnamed informant told the police that he had been at the defendant's garage within a week before the warrant was sought and that while he was there he had seen three trucks, two of which were black. He also stated that he had been told by a friend, one of the defendant's employees, that the defendant altered VIN numbers on stolen trucks and that one of the trucks then in the garage had been stolen in Cheshire during the week of December 20. This information was reinforced by information relayed by the West Haven police from the second informant who, only four days before the police sought the warrant, told them that the defendant had three trucks, two of them stolen, in his garage, and that one of the trucks had been stolen from Academy Ford. Finally, the day before the warrant was issued, the police received verification that during the time frame given by the employee, a black pickup truck with the VIN 2FTCF10EGCCA20229 had been stolen from Dowling Ford, Inc. This information, coupled with police corroboration of details provided by the informants, was sufficient to establish probable cause to believe that the black pickup truck was stolen and that it was then in the defendant's garage.

It is, of course, axiomatic that the authority who issues the warrant, not the affiants, must determine whether probable cause exists to support the warrant. State v. DeChamplain, supra, 179 Conn. 528, 427 A.2d 1338. In the usual case, the requirement that the issuing authority independently determine probable cause presents no special problem. Where, however, a warrant is sought based on hearsay information provided by an informant who is unnamed and, therefore, unknown to the issuing authority, the magistrate may be hampered in the independent assessment of probable cause. Accordingly, the United States Supreme Court has established, and our Supreme Court has adopted; State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985); ² the two-prong Aguilar-Spinelli test for determining whether or not the judge or magistrate was entitled to authorize a warrant based on information provided by an informant. See Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723 (1964). Under the Aguilar-Spinelli test, the magistrate or judge may credit information provided by an unnamed individual only where the affidavit discloses some of the underlying circumstances from which the informant derived his information and some of the underlying circumstances from which the affiant determined either that the informant was credible in general or that the information he provided was reliable on the occasion in question. Aguilar v. Texas, supra, 114, 84 S.Ct. at 1513; State v. Kimbro, supra, 197 Conn. 235-36, 496 A.2d 498.

The information given by the first unnamed source passes the Aguilar-Spinelli test. The informant acquired part of his or her information through personal observation, and the magistrate was, of course, entitled to find a reliable basis of knowledge for that portion of the information. See State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972). The informant, however, also related information which was not derived from personal observation, that provided by the defendant's employee. Accordingly, we must also determine whether the trial court was entitled to find that the employee had a reliable basis for his knowledge. See Spinelli v. United States, supra, 393 U.S. 425, 89 S.Ct. at 593. (White, J., concurring.) Here, there were factors from which the magistrate could have inferred that the employee had a reliable basis for his knowledge. While the affidavit did not contain an express statement that the employee acquired his information from personal observation, it strongly...