State v. Vincent

• Decision Date: 18 March 1994
• Docket Number: No. 14736,14736
• Citation: 640 A.2d 94,229 Conn. 164
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mark VINCENT.

Page 94

640 A.2d 94

229 Conn. 164

STATE of Connecticut v. Mark VINCENT.

No. 14736.

Supreme Court of Connecticut.

Argued Jan. 12, 1994.

Decided March 18, 1994. ^*

Michael C. Courtney, Asst. Public Defender, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were Walter Flanagan, State's Atty., and David Holzbach, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

NORCOTT, Associate Justice.

The dispositive issue in this appeal is whether, under the circumstances of this case, a search warrant application stated probable cause to believe that a crime had been committed. This statement of the dispositive issue belies a complex factual predicate that complicates the resolution of this appeal.

After a jury trial, the defendant, Mark Vincent, was convicted of criminal possession of a revolver in violation of General Statutes (Rev. to 1989) § 53a-217. ¹ The revolver was discovered on July 31, 1989, by the Wallingford police while executing a search warrant at the home of the defendant's mother in Bethel, where the defendant resided at that time. ² The warrant was issued in response to the sudden and suspicious disappearance of the defendant's twelve year old daughter, Doreen, who has been missing since June, 1988. The warrant, dated July 31, 1989, authorized the police to seize medical records, personal papers, clothing, artifacts and photographs of Doreen. Although the gun was not identified in the warrant, the police seized it as contraband because the defendant previously had been convicted of a felony. ³

Prior to trial, the defendant moved to suppress the revolver, which he claimed had been seized in violation of his rights under both the federal and state constitutions. The trial court denied the defendant's motion to suppress the evidence, concluding that the search had not been pretextual and that the revolver had been discovered "inadvertently and in plain view." Following a jury trial, the trial court rendered a judgment of conviction and sentenced the defendant to a period of four years incarceration.

The Appellate Court affirmed the judgment of conviction concluding, inter alia, that probable cause supported the search warrant application and that inadvertence was not required because the evidence seized was contraband. State v. Vincent, 30 Conn.App. 249, 256-60, 620 A.2d 152 (1993). We granted the defendant's petition for certification. ⁴ State v. Vincent, 225 Conn. 917, 623 A.2d 1026 (1993). We now affirm the judgment of the Appellate Court.

I

The defendant claims that the search warrant affidavit contained an insufficient factual basis to support a conclusion of probable cause that a crime had been committed, in violation of the fourth amendment to the United States constitution, as made applicable to the states by the due process clause of the fourteenth amendment, and article first, § 7, of the Connecticut constitution. ⁵ He argues that because of this deficiency, the warrant was invalid and therefore did not give the police authority to be in a position to make the inadvertent discovery of the revolver. We disagree.

When determining whether an affidavit in support of a search warrant presented a substantial factual basis upon which a magistrate could have found probable cause, an appellate court is confined to the "four corners" of the warrant. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). As the Appellate Court properly stated, "[w]e are confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause." State v. Vincent, supra, 30 Conn.App. at 252, 620 A.2d 152; see Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 2330-31, 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

The Appellate Court has adequately set forth the allegations that appeared in the warrant affidavit upon which the issuing magistrate's conclusion of probable cause could have been based. "On June 5, 1988, the defendant moved from Bridgeport to Whirlwind Hill Road in Wallingford with his wife Sharon, her children, and Doreen Vincent, the defendant's daughter from a previous marriage. Doreen's mother, Donna Jones, lived in Waterbury. On June 15, 1988, at approximately 11:30 p.m., Sharon Vincent returned home from church and was informed by the defendant that Doreen was missing. The defendant said that she had left through the front door. Sharon Vincent later stated that this was impossible because the door was locked with a deadbolt that required a key. Jones then called the defendant's Wallingford home and was told that Doreen was not at home. Jones attempted to contact Doreen several times on June 17, but the defendant had removed the phone from the wall. On Saturday evening, June 18, Jones arrived at the defendant's house to pick up Doreen and was then told that she had run away. Jones asked the defendant to alert the police, but he refused. Only at Jones' insistence did the defendant agree to report Doreen missing. He explained that he did not report her missing right away because he thought she had run away to Jones' house. Doreen had run away to Jones' house three times before, but on each occasion Jones had immediately called the defendant. The defendant also told police that he did not report Doreen missing because he thought Jones had come to get her when, in fact, he knew that at the time of the disappearance Jones did not know where he lived. The defendant did not tell his mother or a longtime family friend that Doreen was missing even though he visited those people on June 19, 1988.

"In 1989, when Sharon Vincent moved from the Wallingford residence to Danbury, she gave Doreen's bedroom furniture and curtains to Jones. She told Jones that the defendant had thrown away Doreen's bedspread because Doreen had 'messed it up.' Sharon refused to turn over to police any of Doreen's school papers, clothing or personal effects.

"On July 10, 1989, search and seizure warrants were issued to seize Doreen's personal effects from Sharon's home in Danbury and her brother's home in Newtown. Property of Doreen's that the defendant said she had taken with her was recovered pursuant to these warrants.

"The defendant admitted to the police that he had a volatile temper and that on June 15, 1988, he had become angry with Doreen, had hit her and had pushed her into a window, breaking it.

"In November, 1988, the defendant moved into a house he shared with Roseann Pelloni. He left no forwarding address with the police, Sharon Vincent or Jones. His whereabouts were discovered after he was involved in a domestic dispute to which the Wallingford police were called.

"The defendant admitted to the police that he had taken photographs of Doreen in her underwear in the weeks prior to her disappearance. Pelloni stated that the defendant often took photographs, but that she searched his personal effects and was not able to find any. The defendant claimed that he no longer had any property of Doreen's when in fact, acting pursuant to a warrant, the police seized from the defendant's truck a jersey similar to Doreen's clothing. Jones consented to a search of her house and turned over to police papers, furniture and magazines belonging to Doreen. The police were unable to recover any personal or medical records of Doreen and believed it valuable to their investigation to obtain any personal articles that might contain fingerprints, hair samples, handwriting samples and medical records that might identify her, and personal artifacts that might contain information concerning her disappearance. Sharon Vincent told police that, after Doreen's disappearance, she found several letters that Doreen had written to her friends but had not mailed. Those letters were not recovered. The defendant had been living at his mother's house in Bethel for several weeks prior to the issuance of the warrant." State v. Vincent, supra, 30 Conn.App. at 252-54, 620 A.2d 152.

The police may lawfully seek and obtain a search warrant for an investigatory search for which it has been established that there is probable cause to believe that the objects sought constitute evidence of a crime and are located at the site to be searched. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967); State v. Weinberg, 215 Conn. 231, 237, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990); State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987); see also State v. Gold, 180 Conn. 619, 650, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). "Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched." (Citations omitted; emphasis in original.) State v. Weinberg, supra, 215 Conn. at 238, 575 A.2d 1003. Findings of probable cause do not lend themselves to any uniform formula because " 'probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules.' " State v. Zarick, 227 Conn. 207, 222, 630 A.2d 565 (1993); see also In re Armand, 454 A.2d 1216, 1218 (R.I.1983).

In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a "practical, nontechnical decision whether ... there is a fair probability that contraband or evidence of a crime...