State v. Williams

Decision Date05 August 1975
Citation169 Conn. 322,363 A.2d 72
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Willie WILLIAMS.

Richard T. Meehan, Sp. Public Defender, for appellant (defendant).

Bernard D. Gaffney, Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The defendant was tried and convicted by a jury on both counts of a two-count information charging possession of a controlled substance with intent to sell in violation of General Statutes § 19&-480(a) (Rev. to 1972) and possession of a narcotic substance in violation of General Statutes § 19&-481(a) (Rev. to 1972). Error has been assigned in the denial of the defendant's motion to suppress evidence, in a number of rulings and in the court's charge to the jury. The defendant has also assigned error in the finding, in the action of the court denying his motion to dismiss, in failing to grant judgment notwithstanding the verdict and in failure to set aside the verdict.

A summary of the evidence at the trial should place the claims of error in proper perspective. From the evidence offered the jury could have found the following: On the evening of November 7, 1972, two police officers of the Hartford police department began the surveillance of premises on Barbour Street in Hartford. The officers were looking for two males, a Buick automobile with a District of Columbia registration, and narcotics activity involving the automobile and the premises on Barbour Street. On November 7, 1972, Detective Ronald Ciak observed four known and suspected users and sellers of drugs enter the premises on Barbour Street. On November 8, 1972, the police observed two males leave the Barbour Street premises and get into a Buick automobile and drive away. The police followed the automobile and observed a known narcotics user walk to the vehicle then parked on Albany Avenue, hand the driver something which appeared to be currency and receive something in exchange. This occurred after 8 p.m. on November 8, 1972. The police obtained a search warrant for the second floor apartment of the Barbour Street premises, the Buick automobile, and two black males known only as Chuck and Joe.

When the officers returned the following evening to execute the warrant, the Buick automobile was parked in front of the premises, and the defendant, who gave Washington, D.C., as his address, was in the apartment. The defendant was the same person the police had observed in the Buick automobile on Albany Avenue the previous evening. In a search of the apartment about $1600, but no narcotics, was found. In searching the automobile, marihuana cigarette butts were found in the automobile ashtray. After this the defendant and another were arrested and transported to police headquarters, and the automobile was taken to the police garage. The search of the vehicle was continued at police headquarters because it had not been thoroughly searched on Barbour Street. The police found forty-five bags of white powder under the front seat of the automobile wedged up between the upholstery and the springs on the underside of the seat. Before the search, the officers obtained the keys to the car from the defendant. According to records in the custody of the registrar of motor vehicles for the District of Columbia, the defendant was the registered owner of the Buick automobile. A certificate of title to the automobile and been issued to the defendant on August 29, 1972. The contents of fifteen of the bags were analyzed and found to be heroin, a narcotic substance.

The finding pertaining to the motion to suppress is not subject to any material correction. This court does not retry facts or pass on the credibility of witnesses. Triano v. Brodowy, 151 Conn. 445, 446, 199 A.2d 164; Practice Book § 628(a). The finding relating to the jury trial is merely a narrative of facts claimed to have been proved, designed to test the correctness of the court's charge and rulings. DePaola v. Seamour, 163 Conn. 246, 253, 303 A.2d 737; State v. Raffone, 161 Conn. 117, 129, 285 A.2d 323. This finding is not subject to any material correction.

The defendant's motion to suppress as evidence certain tangible things, including the heroin, claims that the search warrant was obtained on the basis of an affidavit which is untrue and that the heroin was seized as a result of an illegal, second search of the defendant's automobile. Two affidavits were submitted with the motion, both by out-of-state residents, attempting to establish that the defendant was present in Lowell, Massachusetts, until 8:30 p.m. on the evening of November 8, 1972. At the hearing on the motion, the defendant attempted to question the police officers as to the truth of the matters contained in the affidavit submitted to establish probable cause for the issuance of the search warrant. Although the defendant persisted, the court ultimately sustained objections by the state as to this line of questioning.

It is elementary that a search warrant may issue only on a showing of probable cause supported by oath or affirmation. A person aggrieved by a search and seizure may move to suppress for use as evidence anything obtained upon a warrant when there is not probable cause for believing the existence of the grounds on which the warrant was issued. General Statutes § 54-33f. An affidavit supporting a search warrant must contain sufficient information for the issuing judge to make an independent, commonsense determination of probable cause. State v. Grayton, 163 Conn. 104, 106, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495. There is a disparity of opinion in the courts on the question of to what extent a probable cause affidavit, valid on its face, may be challenged for lack of veracity. 1 North Carolina v. Wrenn, 417 U.S. 973, 94 S.Ct. 3180, 41 L.Ed.2d 1144 (opinion of White, J., dissenting from denial of certiorari). See also annot., 5 A.L.R.2d 344 and Later Case Service. In Rugendorf v. United States, 376 U.S. 528, 532, 84 S.Ct. 825, 11 L.Ed.2d 887, the court assumed for the purpose of the decision that such an attack may be made but refrained from deciding the precise question. Recently, in a case involving an affidavit in support of a bench warrant upon which an arrest was made, we mentioned that the recent weight of federal jurisdictions appears to support the allowance of an evidentiary hearing, not as a matter of right but in the discretion of the court and upon an initial showing of falsehood or other imposition upon the issuing magistrate. We ultimately decided, however, that the finding of the trial court that the defendant had failed to make such required 'initial showing' did not constitute an abuse of the court's discretion. State v. Clemons, 168 Conn. 395, 399-400, 363 A.2d 33 (36 Conn.L.J., No. 44, pp. 1, 2).

Both the fourth amendment to the constitution of the United States and article first, § 7, of the Connecticut constitution provide that no such warrant shall issue except upon probable cause supported by oath or affirmation. Whether there is probable cause must be determined on an ex parte basis by the issuing judge upon facts stated in the affidavit purporting to establish grounds for issuing the warrant. General Statutes § 54-33a; State v. Allen, 155 Conn. 385, 391, 232 A.2d 315; State v. DeNegris, 153 Conn. 5, 9, 212 A.2d 894. See State v. Rose, 168 Conn. 623, 628-29, 362 A.2d 813 (36 Conn.L.J., No. 52, pp. 1, 3). Historically, the sufficiency and credibility of an affidavit supporting probable cause is tested by the issuing judge or magistrate from the facts recited therein. United States v. Harris,403 U.S. 573, 579, 91 S.Ct. 2075, 29 L.Ed.2d 723; Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723. 'The question is the reasonableness of the magistrate's belief at the time he acts upon the information, not the ultimate truth or falsity of the information.' United States v. Wong, 470 F.2d 129, 132 (9th Cir.).

The case of State v. Petillo, 61 N.J. 165, 293 A.2d 649, is convincing authority for the proposition that an evidentiary hearing should not be allowed once there has been a determination of probable cause by the judge issuing the warrant. In the Petillo case it is stated (p. 178, 293 A.2d p. 656) that: 'If the function of the judge issuing the warrant is to be meaningful, and if the independent exercise of his judgment is to be encouraged whenever the supporting affidavit sufficiently shows probable cause, the truthfulness thereof should not be relitigated on a motion prior to plenary trial of the issue of guilt or innocence. We think such a rule adequately serves the purpose of the Fourth Amendment, and that sufficient deterrence to the rare false affidavit that may slip by the issuing judge is provided by the sanctions of perjury, contempt and civil damages.' See also State v. Anonymous (1973-6), 30 Conn.Sup. 211, 228-33, 309 A.2d 135, which gives cogent and practical reasons why such a hearing should not be held. The logic of the reasoning in the Petillo decision is particularly applicable to the facts in this case. The factual allegations in the defendant's motion to suppress concern the whereabouts of the defendant and his Buick automobile on the dates when they were claimed to have been observed by an informant and the police. The two-pronged test enunciated in Aguilar v. Texas, supra, 378 U.S. 114, 84 S.Ct. 1514, requiring 'some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable", was sufficient to test the credibility of the hearsay information given by the confidential informer. McCray v....

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