State v. Telesca

• Decision Date: 13 May 1986
• Citation: 199 Conn. 591,508 A.2d 1367
• Parties: STATE of Connecticut v. Caesar TELESCA. STATE of Connecticut v. Steven BOUCINO.
• Court: Connecticut Supreme Court

Page 1367

508 A.2d 1367

199 Conn. 591

STATE of Connecticut v. Caesar TELESCA.

STATE of Connecticut v. Steven BOUCINO.

Supreme Court of Connecticut.

Argued Feb. 6, 1986.

Decided May 13, 1986.

Timothy C. Moynahan, Waterbury, with whom, on brief, was John P. McKeon, for appellant (defendant in the first case).

John F. Kavanewsky, Jr., Norwalk, for appellant (defendant in the second and third cases).

Richard D. Arconti, Sp. Asst. State's Atty., for appellee (State).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and DEAN, JJ.

SHEA, Associate Justice.

The defendants, Caesar Telesca and Steven Boucino, have appealed from their convictions upon conditional pleas of nolo contendere to various charges deriving from evidence obtained through the use of a court-ordered wiretap. ¹ The defendants have raised two claims of error: (1) the denial of their motions to suppress the evidence culled from the intercepted wire communications and (2) the denial of their motions to reopen the suppression hearing on the ground that they had made a substantial preliminary showing that essential portions of the wiretap affidavit were false. ² We find error in the trial court's, Fishman, J., refusal to reopen the suppression hearing. Accordingly, we remand the case to the trial court with direction to conduct further proceedings in accordance with this opinion.

On April 1, 1980, the state's attorney submitted an application, pursuant to General Statutes § 54-41b, to a judicial wiretap panel for a wiretap of a telephone in the apartment of Karen Hyde, with whom the defendant Boucino was known to be living, in Naugatuck. The three judge panel approved the wiretap for a period from April 1 through and including April 10, 1980. During the wiretap period certain conversations between Telesca and Boucino were intercepted. Based on these conversations, the police obtained various search warrants, including one enabling them to conduct a search of Telesca's home. While at the Telesca residence, the police observed Boucino exiting the premises. As Boucino entered his car, the officers executed a search warrant for his person and discovered money and numerous packets of cocaine. A search of the Telesca residence yielded marijuana, cocaine, amphetamines, $8000 in cash and drug paraphernalia. Pursuant to a warrant, the police subsequently searched the apartment where Boucino resided, the same apartment which was the subject of the wiretap, and discovered 1.68 ounces of white powder containing cocaine.

The wiretap application, which directly led to the search and the seizure of evidence, was based solely on the affidavit of inspector Joseph Lawlor. The affidavit indicated that an informant had been at the apartment building where Boucino resided and had heard several conversations involving Boucino. Some of the conversations contained references to "delivery," "coke," "morphine," "private flights," "shipment," "pilot," and money in a "bank vault." The informant also overheard Hyde say, presumably to Boucino, "keep this up and you are going back to jail." The affidavit also stated that numerous people visited Boucino's apartment, typically ten minutes after an incoming call had been received, and that the informant had overheard Boucino planning a bank robbery. According to the affidavit, the informant provided the license plate number of one vehicle belonging to a man who visited Boucino's building on one occasion and of another vehicle belonging to a frequent visitor of the building. In order to verify the informant's report, police investigation of the plate numbers established that one car was registered to the wife of a convicted bank robber, while the other was registered to a man the police had recently observed watching a local bank.

Challenging both the sufficiency and veracity of Lawlor's affidavit the defendants filed pretrial motions to suppress the contents of the intercepted communications, and the evidence derived therefrom, pursuant to General Statutes § 54-41m. ³ At an evidentiary hearing, conducted on March 25, 1981, Lawlor's affidavit in support of the wiretap was introduced into evidence. He also testified that although the informant was known to be reliable, he was unaware whether the informant had ever furnished information to the police in the past that had led to an arrest or a conviction.

The defendants then informed the court of their desire to pursue the adequacy of the affidavit beyond its allegations and requested an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). The court denied the motion because the defendants failed to make the requisite showing of deliberate falsehood in the affidavit. The defendants filed a supplemental motion to suppress the contents of the intercepted communications on May 1, 1981, and submitted counteraffidavits in an effort to bolster their earlier unsuccessful Franks claim. On July 3, 1981, the trial court, Fishman, J., denied the defendants' motion to suppress, concluding that the affidavit met constitutional requirements as enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and that the preliminary showing necessary under Franks v. Delaware, supra, was not made by the defendants.

Jury selection in the joint trial of the two defendants began in May, 1982. On May 13, while jury selection was still in progress, the defendants filed motions to reopen the suppression hearings on the basis of a recently obtained sixty-seven page sworn statement of Joan Wilcox, who the defendants suspected was the informant named in the Lawlor affidavit. The defendants claimed that this statement directly challenged the truth of Lawlor's affidavit and requested a Franks hearing to demonstrate conscious falsehood in the affidavit. The motion was denied by the court on May 24, 1982, on the basis that the defendants, even in light of the Wilcox statement, did not make the required preliminary showing under Franks because they did not "conclusively establish" that she was the informant.

The trial began on June 8, 1982, and continued until July 20, when the court declared a mistrial for the purpose of allowing the defendants to enter conditional pleas of nolo contendere pursuant to Public Acts 1982, No. 82-17. ⁴ On the same date, the defendants entered conditional pleas of nolo contendere to all charges, specifically reserving the right to appeal the court's denial of their motions to suppress. General Statutes § 54-94a; State v. Madera, 198 Conn. 92, 98-99, 503 A.2d 136 (1985). On October 4, 1982, Boucino and Telesca were sentenced to effective terms of imprisonment of not less than five nor more than six years, and not less than two nor more than four years, respectively.

I

The defendants claim that the trial court erred in refusing to grant their motions to suppress the evidence obtained as a product of the court-ordered wiretap. They level their attack on the sufficiency of Lawlor's affidavit, claiming that the affidavit was inadequate because it did not indicate the unavailability of other less intrusive investigative techniques as required by General Statutes § 54-41c(6) and that it failed to establish probable cause necessary to authorize the wiretap under General Statutes (Rev. to 1979) § 54-41c(12). ⁵

A

The defendants claim that the affidavit failed to meet the requirements of General Statutes § 54-41c(6), which provides that an application for a wiretap should include "a full and complete statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ." See General Statutes § 54-41d(4). The state claims, however, that the affidavit satisfied this requirement by stating: "The use of physical surveillance and undercover officers is too dangerous to employ as Boucino and his associates have proved wary of surveillance and in the past it has proven impossible to make direct undercover officer buys from Boucino. The use of search warrants will not reveal the means and principals making shipments by pilot to Boucino and supplying cocaine and morphine. With respect to the projected robbery the only technique which will give more definite information concerning the projected robbery is by use of electronic surveillance over the telephone in Boucino's apartment."

The statutory requirement of § 54-41c(6) is "designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983, 39 L.Ed.2d 225 (1974); see United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). "Without question, it would be in some sense more efficient to wiretap whenever a telephone was used to facilitate the commission of a crime. But the statutory requirement that other investigative procedures be exhausted before wiretapping reflects a [legislative] judgment that the cost of such efficiency in terms of privacy interests is too high. See United States v. Kalustian, 529 F.2d 585, 589 (9th Cir.1975)." United States v. Lilla, 699 F.2d 99, 105 n. 7 (2d Cir.1983). "[Wiretap] procedures [are] not to be routinely employed as the initial step in a criminal investigation." United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied sub nom. Canter v. United States, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976) and cert. denied sub nom. Bates v. United States, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 783 (1977). The statute does not, however, prohibit electronic surveillance until all other alternative methods of investigation have actually been exhausted. Id.

We point out that the statutory requirement of "a full and...