State v. Rosario

665 A.2d 152, 39 Conn. App. 550, 1995 Conn. App. LEXIS 429
CourtConnecticut Appellate Court
DecidedSeptember 26, 1995
Docket13317
StatusPublished
Cited by7 cases

This text of 665 A.2d 152 (State v. Rosario) 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. Rosario, 665 A.2d 152, 39 Conn. App. 550, 1995 Conn. App. LEXIS 429 (Colo. Ct. App. 1995).

Opinions

FOTI, J.

In this case, the state appeals, with the permission of the trial court,1 from a decision of the trial court granting the defendant’s motion to suppress certain evidence obtained pursuant to a search warrant. The sole issue presented on appeal is whether the trial court improperly granted the defendant’s motion to suppress the evidence seized in a search of the defendant’s residence. We affirm the trial court’s judgment.

On January 6, 1993, an application for a search warrant, including a supporting affidavit, was submitted to and signed by a judge of the Superior Court. The information in the affidavit may be summarized as follows. On January 6, 1992, Anthony Battistone and Arvid Leftwich, detectives with the Hartford police [552]*552department (affiants), met with a confidential informant who told them that the defendant was selling drugs and that the defendant lived in the first floor apartment at 57 Benton Street in Hartford. The informant stated that he had been in the defendant’s apartment when another man came in and asked for a “package.” “Package” is the street term for 100 single packets of heroin. The man then handed the defendant money. The defendant took the money and told the informant to follow him to the basement. Once in the basement, the defendant told the informant to open the icebox and to remove a red plastic bag containing heroin. The defendant then opened a gray safe on the floor of the basement that contained more heroin and money. The defendant brought the heroin to the man and the informant then left the apartment and contacted the affiants.

The informant worked with the affiants to conduct a controlled purchase of narcotics from the defendant’s residence. Information about the controlled purchase formed the basis for a search warrant that, according to the affidavit, was executed on January 6,1992. The affidavit does not describe the controlled purchase but provides the following: “See Hartford Police Case Number 93-922 for information concerning the controlled purchase.” The affidavit also provides that when the affiants executed the first of two search warrants on January 6, 1992, a woman named Alida Nieves, who lived with the defendant, said that the drugs were in the basement. On the basis of that information, the affiants obtained a second search warrant for the basement area of 57 Benton Street. The affidavit was signed and dated January 6, 1993, by the affiants and the issuing judge. The warrant was also signed and dated January 6, 1993. The search yielded $11,761 in cash, a clear plastic bag containing a white powdery substance, [553]*553414 yellow glassine bags containing a white powdery substance, a scale, a grinder, a bottle of white lactose powder, and other drug paraphernalia. The defendant was arrested and charged with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),2 conspiracy to distribute narcotics by a person who is not drug-dependent in violation of General Statutes §§ 2 la-278 (b) and 53a-48,3 and possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a).4

On November 18, 1993, the defendant moved to suppress the evidence obtained pursuant to the warrant on the ground that the information contained in the supporting affidavit was stale. He noted that the affidavit, which supported a warrant that was signed on January 6, 1993, referred to information allegedly obtained on January 6, 1992. The state argued that the references to 1992 contained in the affidavit were scrivener’s errors that did not invalidate the warrant. The defendant made a subsequent oral motion to suppress on November 24, 1993, and on January 5, 1994, the trial court, [554]*554Miaño, J., issued an oral decision granting that motion. On January 26, 1994, the trial court dismissed the charges against the defendant on the state’s representation that, without the evidence, the state could not proceed. The trial court then granted the state permission to appeal pursuant to General Statutes § 54-96.

On appeal, the state argues that the trial court improperly granted the defendant’s motion to suppress evidence and that the trial court should have deferred to the issuing judge’s determination that timely probable cause existed to support the warrant. The state contends that a common sense reading of the affidavit establishes that the events described in the affidavit occurred in 1993 and that the references to 1992 were scrivener’s errors that did not affect the defendant’s substantive rights. The state notes that it was reasonable for the issuing judge to reach that conclusion and that the trial court improperly failed to defer to the reasonable conclusions drawn by the issuing judge. We disagree.

“The standard of review of an issuing judge’s determination that probable cause existed to issue a search warrant is to consider the information before the issuing judge at the time of the issuance of the warrant, together with the reasonable inferences drawn from such information, in the light most favorable to the issuing judge’s determination of probable cause. ... In determining whether probable cause exists to conduct a search, a totality of the circumstances test is used. ... In determining the existence of probable cause to search, the magistrate should make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 141-42, 646 A.2d 169 (1994).

[555]*555“ ‘The determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time. . . . Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable.’ ” (Emphasis added.) Id., 145-46. While the question of staleness must be determined on a case-by-case basis; State v. Ives, 37 Conn. App. 40, 47, 654 A.2d 789 (1995); the facts and circumstances set forth in a supporting affidavit should be current and timely, so as to indicate that the premises, person, place or thing to be searched presently contains the fruits of the crime. State v. Rose, 168 Conn. 623, 631, 362 A.2d 813 (1975).

“[I]n determining the adequacy of an affidavit in support of a search warrant, the information to establish probable cause must be found within the affidavit’s four comers.” State v. Colon, 230 Conn. 24, 34, 644 A.2d 877 (1994); see State v. Zarick, 227 Conn. 207, 217-18, 630 A.2d 565 (1993). “We have laid heavy emphasis on the need for protecting the integrity of the warrant-issuing process .... When a police officer seeks a search warrant in this state ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kaczynski v. Kaczynski
951 A.2d 690 (Connecticut Appellate Court, 2008)
State v. Greenstreet
875 A.2d 177 (Court of Special Appeals of Maryland, 2005)
State v. Motta, No. Cr960172275 (Apr. 28, 1997)
1997 Conn. Super. Ct. 3774 (Connecticut Superior Court, 1997)
Rawlinson v. Rawlinson, No. Fa95 032 49 08 S (Jun. 5, 1996)
1996 Conn. Super. Ct. 4506 (Connecticut Superior Court, 1996)
State v. Rosario
667 A.2d 1270 (Supreme Court of Connecticut, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
665 A.2d 152, 39 Conn. App. 550, 1995 Conn. App. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rosario-connappct-1995.