State v. Thompson

• Decision Date: 04 December 2012
• Docket Number: No. 18740.,18740.
• Citation: 57 A.3d 323,307 Conn. 567
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dennis Earl THOMPSON.

307 Conn. 567

57 A.3d 323

STATE of Connecticut

v.Dennis Earl THOMPSON.

No. 18740.

Supreme Court of Connecticut.

Argued Sept. 28, 2012.

Decided Dec. 4, 2012.

Stephan E. Seeger, with whom, on the brief, was Igor G. Kuperman, Stamford, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, supervisory assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.

ZARELLA, J.

The defendant, Dennis Earl Thompson, appeals from the judgment of the Appellate Court, which affirmed the trial court's judgment of conviction following the defendant's conditional plea of nolo contendere to the charge of possession of marijuana with intent to sell by a person who is not drug-dependent. See General Statutes § 21a–278 (b).¹ The defendant entered the plea after the trial court denied his motion to suppress evidence obtained during a search of his recreational vehicle, which was parked on the property of Edward Jevarjian,² and of Jevarjian's home and garage. The plea was conditioned on the defendant's right to appeal from the trial court's denial of the motion to suppress. The defendant appealed to the Appellate Court, claiming that the search was unlawful because it began prior to the time indicated in the search warrant and that he had standing to contest the search of Jevarjian's home and garage, in addition to the search of his own recreational vehicle, because parking on Jevarjian's property entitled the defendant to the constitutional protections afforded to overnight guests. The Appellate Court affirmed the judgment of the trial court. State v. Thompson, 124 Conn.App. 353, 360, 5 A.3d 513 (2010). The defendant then appealed to this court from the Appellate Court's judgment, and we granted certification to appeal, limited to the following two issues. First, “[d]id the Appellate Court properly determine that the contested search was not unreasonably premature?” State v. Thompson, 300 Conn. 905, 12 A.3d 1004 (2011). Second, “did the Appellate Court properly determine that the defendant lacked standing to challenge the search of [Jevarjian's] home and garage?” ³Id. We affirm the judgment of the Appellate Court.

In its opinion, the Appellate Court set forth the following relevant facts and procedural history. “During the late evening hours of May 17, and into the early morning hours of May 18, 2007, law enforcement officials seized approximately 600 pounds of marijuana from Jevarjian's house and garage and from the defendant's recreational vehicle that was parked on Jevarjian's property. The defendant was sleeping in his recreational vehicle when the officials commenced the search. He and Jevarjian were arrested at that time.... The defendant was charged with possession of marijuana with intent to sell by a person who is not drug-dependent in violation of § 21a–278 (b) and conspiracy to possess marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a–48 and 21a–278 (b). Except for sentencing, [the defendant's and Jevarjian's] cases ... were prosecuted simultaneously.

“On August 13, 2007, Jevarjian filed a motion to suppress the evidence that had been seized, claiming that the search had commenced [before] the judge signed the search warrant. The defendant ... requested permission to join in that motion on the second day of a four day evidentiary hearing, and the court granted the defendant's request. The court denied the motion to suppress [on] ... May 13, 2008.... On July 16, 2008, the defendant entered a conditional plea of nolo contendere to one count of possession of marijuana with intent to sell [by a person who is not drug-dependent] in violation of § 21a–278 (b) and was sentenced to eighteen years incarceration, suspended after nine and one-half years, and three years probation.” (Citationsomitted.) State v. Thompson, supra, 124 Conn.App. at 355–57, 5 A.3d 513.

At the suppression hearing, the defendant argued that the search of his recreational vehicle and Jevarjian's home and garage was unlawfully premature because it began before 10:51 p.m., the time that the issuing judge had specified in the warrant.⁴State v. Jevarjian, 124 Conn.App. 331, 340, 4 A.3d 1231 (2010). The trial court, however, attributed this discrepancy to a scrivener's error and credited the testimony of several police officers, along with other evidence, in concluding that the warrant was in fact signed at 9:51 p.m. and that the search did not begin prematurely.⁵

The defendant then appealed to the Appellate Court, claiming that the trial court improperly denied his motion to suppress the evidence seized from his recreational vehicle and Jevarjian's home and garage because the search was unlawfully premature.⁶ The defendant also argued that he had standing to contest not only the search of his recreational vehicle but also the search of Jevarjian's home and garage because he was Jevarjian's overnight guest at the time of the search. The Appellate Court determined that the finding that the defendant was not an overnight guest in Jevarjian's home was not clearly erroneous. State v. Thompson, supra, 124 Conn.App. at 358–59, 5 A.3d 513.

Relying on its analysis in the companion case of State v. Jevarjian, supra, 124 Conn.App. at 331, 4 A.3d 1231, the Appellate Court also concluded that the trial court's use of parol evidence to evaluate whether the warrant contained a scrivener's error was appropriate and that the conclusion that the time noted in the search warrant was a scrivener's error that did not affect the warrant's validity was not improper. State v. Thompson, supra, 124 Conn.App. at 359–60, 5 A.3d 513; see State v. Jevarjian, supra, at 344, 4 A.3d 1231. Accordingly, the Appellate Court upheld the trial court's denial of the defendant's motion to suppress. See State v. Thompson, supra, at 359–60, 5 A.3d 513. This appeal followed. We address the two certified issues in turn.

I

The defendant claims that the Appellate Court should have concluded that the search was unlawfully premature because the search commenced before 10:51 p.m., the time specified by the judge issuing the warrant, thereby contravening the fourth amendment's guarantee that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”⁷ U.S. Const., amend. IV. In contending that the search was unlawfully premature, the defendant first challenges the trial court's finding that the issuing judge made a scrivener's error, asserting that the court improperly relied on parol evidence in making that finding. The defendant also claims that, even if the court properly considered parol evidence in this instance, the factual basis on which the court relied was inadequate to find a scrivener's error because the issuing judge himself never testified or provided an affidavit regarding whether the time specified in the warrant was indeed incorrect. The defendant argues in the alternative that a scrivener's error would either render the warrant entirely invalid or curtail its effectiveness until after the time specified therein because of the requirements of General Statutes § 54–33a (c) that warrants include the time of issuance.

The state, by contrast, maintains that the Appellate Court correctly determined that the trial court properly relied on parol evidence, consistent with State v. Colon, 230 Conn. 24, 34, 644 A.2d 877 (1994), to ascertain whether the warrant was validly executed. The state also argues that the factual finding that the issuing judge made a scrivener's error by mistakenly specifying 10:51 p.m. when it was in fact 9:51 p.m. was not clearly erroneous in light of the record as a whole. Finally, the state asserts that the erroneous time notation did not require that the police delay the search until after the erroneous time indicated on the warrant. We agree with the state.

We begin by noting that “[o]ur standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [When] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision....” (Internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 642, 998 A.2d 1 (2010).

Turning first to the defendant's claim that the trial court improperly relied on parol evidence to determine whether a scrivener's error was made, we previously have observed that, “although probable cause must be determined from the four corners of the warrant, we are not confined to the four corners of the warrant in determining whether the affidavit in support of probable cause has been validly executed.” State v. Colon, supra, 230 Conn. at 34, 644 A.2d 877. Mere technical defects are likewise insufficient to invalidate an otherwise valid search warrant. See, e.g., State v. Browne, 291 Conn. 720, 743–44, 970 A.2d 81 (2009). Accordingly, we do not agree with the defendant that the trial court's reliance on parol evidence to determine the timing of the warrant's execution was improper.

Second, with respect to the defendant's claim concerning the factual basis of the trial court's findings, the weighing of the evidence is the province of the trial court, and we will disturb the trial court's findings of fact only if they are clearly erroneous on the record as a whole. See, e.g., Gianetti v. Norwalk Hospital, 304 Conn. 754, 765–66, 43 A.3d 567 (2012). “The determination of a witness' credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (...