State v. Vallas

• Decision Date: 20 September 1988
• Docket Number: Nos. 5696,5697,5726,s. 5696
• Citation: 547 A.2d 903,16 Conn.App. 245
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Elliot G. VALLAS. STATE of Connecticut v. William CALASH. STATE of Connecticut v. Robert IAQUESSA. STATE of Connecticut v. William GIROLOMONI. STATE of Connecticut v. Frank ROGERS. to 5728, 5732 and 5750.

Page 903

547 A.2d 903

16 Conn.App. 245

STATE of Connecticut v. Elliot G. VALLAS.

STATE of Connecticut v. William CALASH.

STATE of Connecticut v. Robert IAQUESSA.

STATE of Connecticut v. William GIROLOMONI.

STATE of Connecticut v. Frank ROGERS.

Nos. 5696, 5697, 5726 to 5728, 5732 and 5750.

Appellate Court of Connecticut.

Argued May 2, 1988.

Decided Sept. 20, 1988.

William F. Dow III, with whom, on the brief, was Carole C. Cooke, New Haven, for appellant in the first two appeals (defendant Elliot Vallas).

Gary A. Mastronardi, Bridgeport, for appellant in the third appeal (defendant Wiliam Calash).

Daniel A. Lyons, Jr., West Haven, with whom, on the brief, was Lisa A. Riggione, Law Clerk, for appellant in the fourth and fifth appeals (defendant Robert Iaguessa).

Michael J. McClary, with whom, on the brief were Hugh F. Keefe, John J. Keefe, Jr., New Haven, and Charles Tiernan, Branford, for appellant in the sixth appeal (defendant William Girolomoni).

Robert M. Casale, Branford, with whom, on the brief, was Tara L. Knight, for appellant in the seventh appeal (defendant Frank Rogers).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief were Robert Devlin, Former Asst. State's Atty., and Janine D'Angelo, Law Student Intern, for appellee (state).

Before DUPONT, C.J., and SPALLONE and EDWARD Y. O'CONNELL, JJ.

SPALLONE, Judge.

The defendants have filed a total of seven appeals which were argued together. This opinion addresses all of the issues raised in those appeals.

The defendants, William Calash, William Girolomoni, Robert Iaquessa, Frank Rogers and Elliot Vallas appeal their convictions, following their conditional pleas of nolo contendere, ¹ to the crime of conspiracy to violate the state narcotic drug act in violation of General Statutes §§ 21a-277(a) and 53a-48(a). The defendants Iaquessa, Vallas and Rogers also appeal their convictions, following their conditional pleas of nolo contendere, to the crime of possession of a narcotic substance in violation of General Statutes § 21a-279(a). Each plea of nolo contendere was conditioned on our review of the trial court's denial of the defendants' motions to suppress evidence that the defendants claimed was the product of an unreasonable search and seizure.

On January 28, 1986, the state's attorney for the judicial district of New Haven applied to the state wiretap panel, pursuant to Chapter 959a of the General Statutes; General Statutes §§ 54-41a through 54-41t; for authorization to intercept calls to and from telephone facilities registered to the defendant Calash. The supporting affidavit, signed by state police detectives George Nobile and William F. Schaeffer, Jr., alleged that Calash was involved in a network that sold and distributed cocaine. The wiretap order was requested as an aid in discovering the source of the cocaine and the configuration of the distribution network. On January 31, 1986, the wiretap panel granted the application to tap two telephones in the Calash home and issued wiretap order 86-01, which was limited to run from January 31, 1986, to February 14, 1986. In compliance with the order, the Calash phones were tapped from January 31, 1986, until February 11, 1986, when the interceptions were terminated due to information received by the state police that Calash had moved to Florida.

Information gleaned from police surveillance, informants and wiretap order 86-01 led the state police to seek two additional wiretap orders. On February 26, 1986, the state wiretap panel approved the two applications, and wiretap orders 86-03 and 86-04 were issued. Order 86-03 authorized the interception of telephone transmissions received at the home of the defendant Girolomoni. Order 86-04 authorized the tapping of two telephones at a Branford business known as the Rendezvous Cafe, one a private business phone, the other a public pay phone. Both orders were limited to the period of time from February 12, 1986, to March 12, 1986.

As a result of the investigation conducted, which included information accumulated from police surveillance, informants and the successful wiretaps, the defendants were arrested and charged with various offenses arising out of their alleged narcotics dealings. Pursuant to a warrant, the residences of three defendants, Vallas, Iaquessa and Rogers, were searched and various items were seized, including the narcotics that provided the basis of the charges of possession levied against those defendants. They filed motions to suppress those items seized during the searches of their residences, and all five defendants moved to suppress evidence obtained via the wiretap orders. The motions to suppress the evidence obtained pursuant to the search warrants were denied. Similarly, after an extensive evidentiary hearing, the motions to suppress evidence obtained as a result of wiretap orders 86-01, 86-03 and 86-04 were denied, with the exception of one transmission, concerning the defendant Vallas, which was intercepted during wiretap order 86-01. ²

All five defendants subsequently withdrew their earlier pleas of not guilty and entered conditional pleas of nolo contendere, reserving their rights to appeal from the denial of their motions to suppress.

The defendants, individually in some instances, and collectively in others, raise the following claims of error: (1) the trial court erred in denying the motions to suppress wiretap evidence (a) because the wiretap order did not authorize twenty-four hour surveillance, (b) because the affidavit for order 86-04 did not support the finding of a "special need" which was required to lawfully tap the public pay phone at the Rendezvous Cafe, and (c) because there was an undue delay between the completion of the taping authorized by orders 86-03 and 86-04 and the delivery of the tapes to the wiretap panel which was in violation of General Statutes § 54-41i; (2) the trial court erred as to the defendant Vallas when it denied his motion to suppress the interceptions garnered under wiretap order 86-04 as the illegal fruit of the suppressed conversation intercepted under 86-01; and (3) the trial court erred in denying the claims of the defendants Iaquessa, Rogers and Vallas that there was insufficient information in the affidavit to support a finding that probable cause existed to search their residences.

I

A

As part of their first claim of error, all of the defendants urge upon us the proposition that the orders issued by the wiretap panel limited the telephone monitoring to twelve hours per day. The three wiretap orders all expressly stated that the interceptions were authorized "during the hours of 12:00 a.m. to 12:00 p.m." The defendants claim that the language used restricted the monitoring activities to the hours between 12 noon and 12 midnight. The state contends that no such limitation was ordered, and that a common sense review of the orders, the application and the affidavits indicate that the police were authorized to maintain a twenty-four hour wiretap. We agree with the state's position.

During the lengthy hearing on the defendants' motions to suppress, the trial court determined that the wiretap panel's reference to the hours of "12:00 a.m. to 12:00 p.m." was ambiguous. As is proper when faced with an ambiguity; see State v. Santiago, 8 Conn.App. 290, 304-305, 513 A.2d 710 (1986); the trial court looked beyond the face of the order to the wiretap application and accompanying affidavits to determine the intent of the panel's order. In addition to these documents, the court considered testimony that the investigating officers were seeking authorization for twenty-four hour surveillance. ³ Schaeffer reiterated the statements contained in his affidavit accompanying the wiretap application to the effect that narcotics dealing is not confined to any specific hours in a day, and that only twenty-four hour monitoring would yield productive results. In addition, Schaeffer testified that the officers in charge of the investigation, on receipt of the panel's order, presumed their request for twenty-four hour surveillance had been granted. On the basis of the evidence adduced at the evidentiary hearing, the order and its appurtenant supporting documents, the court concluded that the intent of the wiretap panel was to authorize a twenty-four hour wiretap. ⁴

The trial court was correct in its determination that the term "12:00 a.m. to 12:00 p.m." is inherently ambiguous. ⁵ See, e.g., United States v. Rosario, 820 F.2d 584, 585 (2d Cir.1987); Warshaw v. Atlanta, 250 Ga. 535, 299 S.E.2d 552 (1983); Hurwitz v. Boyle, 117 N.J.Super. 196, 284 A.2d 190 (1971); 51 A.L.R.3d 1061. It therefore acted properly in looking to the order's supporting documents to determine the intent of the panel. "Just as an ordinary search warrant must not be read in a vacuum but must be evaluated together with its accompanying application and affidavit; see State v. Santiago, [supra, 8 Conn.App. at 304-305, 513 A.2d 710]; so must a wiretap order be evaluated together with its accompanying application and affidavit. See United States v. Tortorello, 480 F.2d 764, 781 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); Moore v. United States, 461 F.2d 1236, 1238 (D.C.Cir.1972)." State v. Chiarizio, 8 Conn.App. 673, 683, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986). If the information contained in these appurtenant documents is sufficient to clarify the meaning and intent of the order, any factual ambiguity in the order is cured by reference to those documents. State v Santiago, supra, 8 Conn.App. at 304, 513 A.2d 710.

Furthermore, having properly determined that the language of the panel's order was unclear, the trial court was required to conduct a common sense review of the evidence before it, including testimony, the order itself, any supporting documents and prior predilections of the panel, and to make a factual finding as to the panel's intent. See ...