State v. Spaziano

• Decision Date: 29 November 1996
• Docket Number: No. 96-105-C,96-105-C
• Citation: 685 A.2d 1068
• Parties: STATE v. Leo E. SPAZIANO, Jr. A.
• Court: Rhode Island Supreme Court

Page 1068

685 A.2d 1068

STATE v. Leo E. SPAZIANO, Jr.

No. 96-105-C.A.

Supreme Court of Rhode Island.

Nov. 29, 1996.

Lauren Sandler Zurier, Aaron Weisman, Providence, for Plaintiff.

Paula Lynch Hardiman, Paula Rosin, Providence, for Defendant.

OPINION

PER CURIAM.

The defendant, Leo E. Spaziano, Jr. (Spaziano), was convicted by a Superior Court jury of possessing with the intent to sell certain electronic devices (referred to as "black boxes") used to filch cable-television transmissions. See G.L.1956 § 11-35-25, subsections (a) and (b). Spaziano is before us on a multifaceted appeal, but only the probable-cause issue he raises has arguable merit. We asked him to show cause why this matter should not be determined summarily. After due consideration, we detect no cause and shall therefore decide this appeal without further briefing or argument.

Spaziano faults the trial court's decision not to suppress the wealth of incriminating evidence seized during a search of his home. His primary complaint is that the affidavit in support of the search warrant contained stale (and therefore unusable) information. He contends that if this information were excised from the affidavit, nothing would be left to support a finding of probable cause. We disagree.

Probable cause is determined under a commonsense test, e.g., State v. Pacheco, 481 A.2d 1009, 1020-21 (R.I.1984), and the state need not show the same quantum of proof as is necessary to convict, e.g., State v. Pratt, 641 A.2d 732, 736 (R.I.1994). Probability of criminal activity is the benchmark. E.g., Pratt, 641 A.2d at 736. When confronted with a search-warrant application, the magistrate's task is to consider the totality of the circumstances set forth in the affidavit and to decide whether there is a fair probability that evidence of a crime will be found in a particular place. See id. at 736-37. In reviewing a decision to issue a warrant, we give "great deference" to the magistrate's appraisal of the supporting affidavit, reversing if there is no "substantial basis" for finding that probable cause existed. Id. at 737. With these judicial yardsticks in mind, we turn to the chronology surrounding the search of Spaziano's home.

March 1993: John Fuscaldo, network security coordinator for Cox Communications (Cox), speaks with Lieutenant Joseph Matarese regarding an unsigned letter Fuscaldo has received accusing Leo Spaziano of 21 Rosemont Avenue, Johnston, Rhode Island, of distributing black boxes. Matarese puts Spaziano's home under surveillance, but nothing comes of this action.

September 1994: Fuscaldo receives an anonymous phone call from a concerned Cox customer fingering Spaziano in an illegal black-box selling scheme. Fuscaldo contacts Matarese, and once again Spaziano's home is watched to no avail. The police note, however, that Spaziano's basement windows, through which a cable-feed wire conspicuously ran, had been blackened so that no one could see in.

February 1995: Fuscaldo tells Matarese that a national cable television organization in Washington, D.C., has received an unsigned letter implicating Spaziano in a black-box selling scam. The police again set up a surveillance detail outside Spaziano's home, and this time they see plenty. Over the next few days they notice a number of packages being delivered to Spaziano's residence c.o.d. by United Parcel Service to a company called Rhode Island Radio. However, there is no such entity registered to do business in Johnston. Matarese soon learns from Fuscaldo that...