State v. Garcia

508 A.2d 824, 7 Conn. App. 354, 1986 Conn. App. LEXIS 969
CourtConnecticut Appellate Court
DecidedMay 13, 1986
Docket3405
StatusPublished
Cited by9 cases

This text of 508 A.2d 824 (State v. Garcia) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garcia, 508 A.2d 824, 7 Conn. App. 354, 1986 Conn. App. LEXIS 969 (Colo. Ct. App. 1986).

Opinion

Bieluch, J.

The defendant appeals from his conviction of unlawful possession of cocaine with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480 (a).1 The defendant pleaded nolo contendere [355]*355to the charge after the trial court denied his motion to suppress evidence seized pursuant to a search warrant. On appeal, the defendant claims: (1) that whether probable cause existed for the issuance of the search warrant should have been measured by a stricter standard than that applied under the fourth amendment totality of the circumstances test; and (2) that the information contained in the warrant was “stale.” We find no error.

On July 16, 1981, Troopers Donald A. Taylor and Edwin J. Grohe of the state police department applied for a search and seizure warrant to search the person of the defendant, also known as “Bobby,” and the bar and restaurant premises at 1865 Barnum Avenue in Bridgeport, known as “Bobby’s.” The troopers’ supporting affidavit for the warrant included information provided by a confidential informant, known as CI-581 in order to protect his safety and the security of an ongoing investigation. Paragraph three of the affidavit recited the confidential information obtained from the informant, stating that CI-581 had frequented “Bobby’s” on numerous occasions since its opening four to six weeks earlier; that the defendant managed “Bobby’s”; that CI-581 had known the defendant for a long period of time; that CI-581 had personal knowledge of the defendant’s active involvement in the sale of cocaine; that he had observed the defendant at the business establishment “constantly” in possession of cocaine in varying amounts of up to one ounce; that he observed cocaine being “cut” there by the defendant before being distributed; that CI-581 had observed the defendant selling cocaine to persons on the premises as late as the weekend of July 11, 1981; and that the defendant “always” carried a revolver on his person. In addition, the affidavit provided by Taylor and Grohe recited that their commanding officer, Sergeant [356]*356Manfred Brideau, on July 15, 1981, contacted a reliable, creditable person who is an established business man within the community, who stated that he has known the defendant for a long period of time and “that he has personal knowledge that Garcia is currently and on a continuous basis selling cocaine within his business establishment, ‘Bobby’s.’ ” The affidavit also stated that Brideau, on July 15, 1981, had been informed by federal drug enforcement agent Paul Salute that Salute had received information from a confidential informant that the defendant “has been and is currently, heavily involved in the sale of cocaine in the Bridgeport area.”

On the basis of the underlying affidavit, the search and seizure warrant was issued on July 16, 1981, and the defendant was arrested after a search of “Bobby’s,” and of his person, revealed, among other items, a weapon, ammunition, and thirteen paper packets, each containing what was described in the inventory of items seized as “white powder.” In addition, there were seven “baggies” containing “plant-like material.”

On March 11,1983, the defendant moved to suppress the evidence obtained pursuant to the warrant on the ground that “[s]aid warrant was issued on [stale] information; and failed to establish probable cause to believe that the specified evidence was then probably present in the locus of the search.” That motion was denied. The court’s memorandum of decision briefly concluded: “Read in a common sense manner there are sufficient facts set forth in the affidavit to show continuing criminal activity related to narcotics. The totality of the circumstances set forth in the affidavit furnished the issuing magistrate with probable cause to issue the search warrant in question.”

The defendant subsequently withdrew his not guilty plea and entered a conditional plea of nolo contendere [357]*357under the provisions of General Statutes § 54-94a.2 The court accepted the plea and, after a finding of guilty, sentenced the defendant to imprisonment for two years.

The first issue raised by the defendant is that the finding of probable cause for the issuance of the warrant for the search of the defendant and his place of business should have been determined by a stricter standard than the fourth amendment totality of the circumstances test, and that its review by the trial court should have been made by the same measurement. The standard expressed by the trial court in determining whether probable cause existed for the issuance of the search warrant was the so-called “totality of the circumstances” test enunciated earlier that year by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Our state Supreme Court has recently concluded, however, that the protections afforded under article first, § 7, of the Connecticut constitution are not sufficiently guaranteed by the application of the Gates test. State v. Kimbro, 197 Conn. 219, 236, 496 A.2d 498 (1985). Rather, the court there held that our state constitution requires us to apply the pre-Gates standard established by Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, [358]*35812 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). We hold, therefore, as claimed by the defendant, that it is the test enunciated by Aguilar-Spinelli and their progeny by which we must measure whether probable cause existed for the issuance of the search warrant. Kimhro, therefore, having resurrected Aguilar-Spinelli from the ashes of oblivion like a phoenix, is our guide in testing the defendant’s ultimate claim of error.

It is the defendant’s contention that under AguilarSpinelli, the search warrant was- not issued on sufficient probable cause because the information contained in the application was stale, and, therefore, did not justify the belief that narcotics related evidence would be found on the person and at the place to be searched when the warrant was issued. We disagree.

The Aguilar-Spinelli test for reviewing probable cause is based on an analysis of two key factors: “(1) the basis of the informant’s knowledge — the means by which he acquired his information, and (2) the underlying facts establishing either his general veracity or his reliability in the particular case.” State v. Martin, 2 Conn. App. 605, 610, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, Connecticut v. Martin, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). The defendant’s attack upon the warrant in this case is based upon the second prong of the Aguilar-Spinelli test, the reliability of the information upon which the warrant was issued. See State v. Rose,

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Bluebook (online)
508 A.2d 824, 7 Conn. App. 354, 1986 Conn. App. LEXIS 969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garcia-connappct-1986.