State v. Storey, 2009-178-C.A.

• Decision Date: 03 December 2010
• Docket Number: No. 2009-178-C.A.,2009-178-C.A.
• Citation: 8 A.3d 454
• Parties: STATE v. Kevin H. STOREY.
• Court: Rhode Island Supreme Court

8 A.3d 454

STATE

v.Kevin H. STOREY.

No. 2009-178-C.A.

Supreme Court of Rhode Island.

Dec. 3, 2010.

Jane M. McSoley, Department of Attorney General, for Plaintiff.

Janice M. Weisfeld, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The defendant, Kevin H. Storey (defendant or Storey), appeals from his conviction for possession of a firearm after a previous conviction for a crime of violence (G.L.1956 § 11-47-5); possession of methylenedioxy amphetamine ("Ecstasy") (G.L.1956 § 21-28-4.01(c)(2)(i)); and possession of marijuana (§ 21-28-4.01(c)(2)(ii)). Specifically, the defendant challenges the warrant that was executed to search his residence. He contends that the affidavit supporting the warrant did not provide requisite probable cause, nordid it describe the place to be searched with sufficient particularity. Accordingly, the defendant asks this Court to find the search invalid and reverse the trial justice's denial of his motion to suppress the evidence seized. This case came before the Supreme Court for oral argument on September 28, 2010, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be decided summarily. After an examination of the written and oral submissions of the parties, we are of the opinion that the appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Procedural History

On June 20, 2005, Det. Christopher Francesconi (Francesconi) applied for a warrant to search Storey's residence at 52 Wannisett Avenue in East Providence, Rhode Island for "evidence of illegal narcotics (specifically cocaine) and the sale of illegal narcotics which are stored at [the residence]." To support the warrant, Francesconi submitted to a District Court judge (judge) ¹ an affidavit that contained the following information aimed at justifying probable cause to search the single-family residence. Francesconi first identified his credentials as a five-and-a-half-year veteran of the East Providence Police Department on assignment with the Vice Unit. He included a further explanation that the Vice Unit investigates violations of the Uniform Controlled Substances Act in the City of East Providence. Next, Francesconi's affidavit recounted that "[a]pproximately two months" before the June 20, 2005 warrant application, the Vice Unit received a tip relaying Storey's current involvement in "the sale and distribution of cocaine from his residence."

Francesconi investigated this tip by conducting a criminal-background check of Storey and a "trash pull" at Storey's then-alleged residence at 52 Wannisett Avenue. The criminal-background check revealed that Storey was arrested numerous times between 1989 and 2002 for crimes including assault and battery, assault with a dangerous weapon, assault with intent to commit murder, damaging property, operating a motor vehicle without a license, and driving under the influence. Francesconi included all of this criminal-background information in the affidavit. The affidavit also stated that Francesconi conducted a trash pull at 52 Wannisett Avenue on June 17, 2005, a day scheduled for the city's trash pickup. Francesconi collected refuse placed on the curbside of the residence, took it to the police station, and then searched its contents. According to the affidavit, the garbage included "evidence of illegal narcotic activity." It then elaborated that "twelve cut plastic baggies and two pieces of mail in the name of Kevin Storey" were found in the trash ² and that one of the plastic baggies contained a "white powdery residue" that "tested positive for the presence of cocaine." In addition to the two pieces of mail, Francesconi's affidavitalso declared that he "was able to confirm Storey's address [at 52 Wannisett Avenue] by various other police investigative techniques."

Based on this affidavit, the judge was satisfied that probable cause to search Storey's residence existed and issued the warrant on June 20, 2005. The warrant authorized the search of 52 Wannisett Avenue for "[c]ocaine, other illegal narcotics, ledgers, U.S. currency, scales, paraphernalia and other items related to the sale and distribution of narcotics specifically cocaine."

On June 23, 2005, Francesconi and Det. Karl Jacobson (Jacobson), with several uniformed East Providence police officers, executed the search warrant at 52 Wannisett Avenue. After knocking, Francesconi served Danielle Saleeba (Saleeba), Storey's then-girlfriend and now wife, who also lived at the residence during the relevant period, with the search warrant. Francesconi testified that Storey soon emerged from the bathroom, acknowledged the police and their warrant, and upon Francesconi's query whether there was "any contraband inside the residence[,]" admitted that he had two rifles underneath his bed. Francesconi located the two weapons, a Marlin .22-caliber rifle and a loaded Springfield 12-gauge shotgun, and then proceeded to search other parts of the bedroom. There, the police discovered ammunition for the two weapons they had found, ammunition for a weapon of a caliber not found at the residence, two Ecstasy tablets, "a small quantity" of marijuana, an apparatus for smoking marijuana, and $1,587 in cash. After the weapons were located, Jacobson discovered bags containing cocaine inside Saleeba's purse. After the search and seizure of the weapons and drugs, the police took both Storey and Saleeba into custody. During questioning by the police at the station, Storey proceeded to make several incriminating statements about his ownership of the weapons and drugs.

On September 30, 2005, a criminal information was filed charging Storey with six counts, including the possession of cocaine with the intent to deliver (count 1), possession of a firearm after a previous conviction for a crime of violence (count 2), possession of a controlled substance with the intent to deliver while armed (count 3), possession of Ecstasy (count 4), conspiracy with Saleeba to possess a controlled substance (count 6), and possession of marijuana (count 7). Under the same information number, Saleeba was charged with possession of cocaine (count 5).

On February 20, 2006, during pretrial motions, Storey waived his right to a jury trial and moved to suppress the evidence seized from his residence. ³ With regard to the motion to suppress, defendant argued that the judge erred by issuing the search warrant based on an affidavit that did not establish probable cause.⁴ The defendant asserted that the two-month-old, anonymous tip was unreliable and stale. He further contended that even combining the tip with defendant's several non-drug-related convictions and the trash pull revealingtwelve cut plastic baggies, residue of cocaine, and two pieces of mail addressed to defendant, the affidavit still did not provide the requisite probability that criminal activity, specifically drug sales and distribution, was occurring at 52 Wannisett Avenue.

The trial justice disagreed. He first found that anonymous tips, such as the one included in Francesconi's affidavit, are not per se unreliable, and first-time, untested informants can provide information that supports a finding of probable cause. Furthermore, he determined that despite the two-month period between the tip and the trash pull, the tipster's "information [was] verified and corroborated by the fact that Storey still lives there, and within his trash the police do find a residue of cocaine." Essentially, the trial justice determined that the tip provided to the Vice Unit sometime around April 20, 2005 "was still correct with respect to what was still happening in that residence two months later in June [2005]." As to the non-drug-related arrests included in the affidavit, the trial justice recognized that "an individual's criminal background can play a part in the probable cause matrix" and the "recitation of [defendant's] assaultive behavior" was "not without some relevance." He then articulated that probable cause is determined using the "totality of [the] circumstances test," which requires the issuing magistrate to "make[ ] a practical, common sense decision * * * given all the circumstances set forth in the affidavit [that] there is, in fact, the probability that contraband or evidence of a crime would be found in a particular place." Based on this standard, the trial justice agreed with the judge that there was "sufficient information in the four corners of that affidavit and the fair inferences therefrom" to conclude probable cause existed to search defendant's residence. Accordingly, the trial justice found the search warrant valid and declined to suppress any evidence seized from defendant's residence.⁵

At the subsequent, jury-waived trial that commenced on February 20, 2006, defendant was convicted of three offenses: possession of a firearm after a previous conviction for a crime of violence (count 2), possession of Ecstasy (count 4), and possession of marijuana (count 7).⁶ On April 27, 2006, defendant was sentenced to a mandatory two years on count 2; three years suspended on count 4; and one year suspended on count 7. The sentences were consecutive. Judgment of conviction was entered on May 4, 2006, and defendant filed a timely notice of appeal the next day.

IIStandard of Review

"When reviewing a trial justice's decision granting or denying a motion tosuppress, 'we defer to the factual findings of the trial justice, applying a "clearly erroneous" standard.' " State v. Flores, 996 A.2d 156, 160 (R.I.2010) (quoting State v. Barkmeyer, 949 A.2d 984, 995 (R.I.2008)). Our review of "a trial justice's determination of the existence or nonexistence of probable cause" necessitates de novo treatment. Id. (quoting State v. Foster, 842 A.2d 1047, 1050 (R.I.2004)). However, "[...