State v. Verrecchia

• Citation: 880 A.2d 89
• Decision Date: 23 August 2005
• Docket Number: No. 2001-554-C.A.,2001-554-C.A.
• Parties: STATE v. Albert VERRECCHIA.
• Court: Rhode Island Supreme Court

880 A.2d 89

STATE v. Albert VERRECCHIA.

No. 2001-554-C.A.

Supreme Court of Rhode Island.

August 23, 2005.

Virginia M. McGinn, Providence, for Plaintiff.

Dena L. Paolino, Cranston, for Defendant.

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

OPINION

ROBINSON, Justice.

The defendant, Albert Verrecchia, was originally indicted by a grand jury on sixty-nine counts of criminal activity as part of a multiperson, multicount indictment. He was convicted on twenty-nine of those counts, and he appealed the convictions to this Court on various grounds including his contention that certain evidence obtained from a building in Burrillville should not have been admitted into evidence.¹ We sustained that appeal in part and remanded the case to the Superior Court for a hearing on the defendant's motion to suppress the evidence that had been obtained as the result of the search of the building in Burrillville, which search was conducted by the police acting pursuant to a warrant.²State v. Verrecchia, 766 A.2d 377 (R.I.2001). After holding that hearing, the motion justice denied the motion to suppress, and defendant now appeals from that ruling. We deny the defendant's appeal and affirm the judgment of conviction.

Facts and Travel

In 1996, the Rhode Island State Police were investigating what they believed was an extensive criminal enterprise conducted by certain people who frequented the Golden Nugget Pawnshop.³ During the course of the investigation, Michael Rossi, a former associate and alleged criminal partner of defendant in this case, was arrested. While he was being held at the Adult Correctional Institutions (ACI), Rossi agreed to become a confidential informant in exchange for the state's agreement to recommend a lighter sentence than might otherwise have been imposed.

Rossi entered into a cooperation agreement with the state police and, as a demonstration of his good faith, he agreed to help the police locate certain firearms that he alleged Verrecchia had stored on behalf of the Golden Nugget gang. While Rossi was imprisoned at the ACI, Verrecchia visited him several times. During the course of their conversations, Verrecchia informed Rossi that he had stored some firearms in a coffin-like container in a barn⁴ located next to the United States Post Office parking lot in Harrisville.⁵ Upon receiving this information from Rossi, the state police in cooperation with the Federal Bureau of Investigation organized a sting operation focused on Verrecchia.

The state police told Rossi to inform Verrecchia that a soon-to-be-released fellow inmate named Charles Kennedy (whose pseudonym was "the Ghost")⁶ wished to purchase some firearms and that upon his release from prison he would contact Verrecchia. Thereafter, on May 9, 1996, at approximately 10:07 a.m., Det. Sgt. Steven G. O'Donnell of the Rhode Island State Police, while serving in an undercover capacity and posing as "the Ghost," contacted Verrecchia at his auto repair business in Johnston and made arrangements to meet him at the Dunkin' Donuts store on Plainfield Pike in Johnston at 11 a.m. on that same day. When the two men met at that prearranged time and place, the undercover detective informed Verrecchia that he was interested in purchasing an AK-47 assault rifle and a.45-caliber handgun. Verrecchia indicated that he possessed such items, and the two men agreed that the purchase price would be a "G note."⁷ Verrecchia and the undercover detective then drove to Verrecchia's place of business in Johnston. The final purchase arrangements were made, and the two agreed to meet at 2:30 p.m. that afternoon at the Wal-Mart Plaza on Route 14 on the Johnston/Cranston line. During his meeting with Verrecchia, Det. Sgt. O'Donnell was wearing an audio transmitter, and the encounter was recorded by a surveillance team consisting of members of the state police and the FBI.⁸

After the meeting between Verrecchia and Det. Sgt. O'Donnell ended, the surveillance team observed Verrecchia getting into a tow truck at his place of business and driving to Burrillville. The aerial component of the surveillance team followed the tow truck to a United States Post Office parking lot in Burrillville, which parking lot was located next door to a barn-like structure. There, the tow truck was parked, and its only occupant was observed leaving the vehicle and entering the barn. Shortly thereafter, Verrecchia was observed leaving the barn. He was carrying a cardboard box that he placed in the tow truck.

Later, Verrecchia and Det. Sgt. O'Donnell met at the Wal-Mart Plaza in accordance with their arrangement, and Verrecchia produced the requested firearms for Det. Sgt. O'Donnell's inspection. Upon the latter's approval of the firearms, Verrecchia transferred them to Det. Sgt. O'Donnell's vehicle. At that point, the undercover detective signaled the members of the surveillance team to come forward and arrest Verrecchia.

During the subsequent search of Verrecchia's truck, the police discovered a sawed-off shotgun and a brown paper bag containing what was later determined to be stolen jewelry. Meanwhile, a criminal information clearinghouse indicated to the police that the firearms that Verrecchia had placed in Det. Sgt. O'Donnell's vehicle were stolen.⁹

After defendant's arrest, the police sought, obtained, and executed a search warrant¹⁰ for the barn in Burrillville, from which the surveillance team had observed defendant leaving with a package shortly before he was arrested near the border between Johnston and Cranston. It is the validity of this search warrant that is the subject of this appeal.

At the suppression hearing, which was conducted by the Superior Court after our decision and remand in State v. Verrecchia, 766 A.2d 377, 381 (R.I.2001), Verrecchia maintained that the affidavit that Cpl. Joseph S. DelPrete of the Rhode Island State Police submitted to support the application for a warrant to search the barn in Burrillville was defective in that it did not provide the issuing magistrate with sufficient evidence upon which to base a determination of probable cause. At that hearing, Verrecchia also requested that the motion justice conduct a so-called Franks hearing.¹¹ To support that request, he asserted that the affidavit¹² submitted by the state police in support of the search warrant contained numerous false statements and omissions.

After reviewing the evidence submitted by the parties¹³ and after considering the arguments of counsel, the motion justice denied the relief sought by Verrecchia, who then timely appealed.

On appeal, Verrecchia contends that the motion justice erred in denying the motion to suppress; he argues that there was an insufficient showing of probable cause to justify the issuance of the search warrant. He also argues that he was entitled to a Franks hearing because, in his view, he made a "substantial preliminary showing" that the affidavit submitted in support of the search warrant contained "deliberate and/or reckless falsehoods and omissions of material information." Accordingly, he asserts that the motion justice abused his discretion by not granting him a Franks hearing.

We reject defendant's contentions in their entirety.

Analysis

1. The Motion to Suppress the Search Warrant.

Verrecchia challenges the validity of the search warrant for the barn. He maintains that the supporting affidavit contained numerous misleading statements and unsubstantiated allegations concerning the police surveillance operation. He contends that the existence of those purported misrepresentations and unsubstantiated allegations becomes clear when one compares the affidavit with subsequent trial testimony describing the same surveillance operation. Verrecchia asserts that, by failing to give sufficient weight to those inconsistencies, the motion justice erred when he denied the motion to suppress.¹⁴ The Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of probable cause.¹⁵See State v. Pratt, 641 A.2d 732, 736 (R.I.1994)

; see also Rule 41(c) of the Superior Court Rules of Criminal Procedure; State v. Correia, 707 A.2d 1245, 1249 (R.I.1998); State v. Jeremiah, 696 A.2d 1220, 1222 (R.I.1997).

The United States Supreme Court has indicated that the existence of probable cause should be determined pursuant to a flexible "totality-of-the-circumstances analysis." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Supreme Court in Gates elaborated on this analytical approach as follows:

"The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for * * * conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. 2317 (citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)).

In other words, the approach to the probable cause question should be pragmatic and flexible. See State v. Spaziano, 685 A.2d 1068, 1069 (R.I.1996)

("Probable cause is determined under a commonsense test * * *."); see also Correia, 707 A.2d at 1249; State v. Hightower, 661 A.2d 948, 959 (R.I.1995). The magistrate is permitted to draw reasonable inferences from the affidavit presented to him or her. Pratt, 641 A.2d at 736 ("[A] judicial officer may draw reasonable inferences from the affidavit in order to reach a determination of probable cause * * *.").

Moreover, as we have previously stated, "an affidavit offered in support of a search warrant should not be judged as if it had been...