State v. Gjini ( 2015 )

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STATE OF CONNECTICUT v. GAZMEN GJINI
(AC 36029)
DiPentima, C. J., and Keller and Mihalakos, Js.
Argued September 18—officially released December 29, 2015
(Appeal from Superior Court, judicial district Stamford-
Norwalk, geographical area number one, Hudock, J.)
Rachel L. Barmack, with whom, on the brief, was
Ryan G. Blanch, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were David
I. Cohen, state’s attorney, and David R. Applegate, assis-
tant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Gazmen Gjini, appeals
from the judgment of conviction, rendered following a
jury trial, of selling narcotics in violation of General
Statutes § 21a-277 (a), engaging police in pursuit (by
failing to stop when signaled and increasing his speed
in an attempt to escape and elude the police) in violation
of General Statutes § 14-223 (b), and possessing a nar-
cotic substance with the intent to sell in violation of
§ 21a-277 (a).1 The defendant claims (1) that the trial
court improperly denied his motion for a Franks hear-
ing,2 and (2) the evidence was insufficient to support
his conviction of possession of a narcotic substance
with the intent to sell. We affirm the judgment of the
trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts. In
2009, the Stamford Police Department was investigating
the defendant for illegal drug related activities. The
police were assisted in their investigation by Dennis
Thurman, an agent with the federal Bureau of Alcohol,
Tobacco, Firearms and Explosives. The police used a
cooperating witness3 to pose as a drug buyer and to
purchase illegal drugs from the defendant. To this end,
on June 13, 2009, under the supervision and surveillance
of the police, the cooperating witness met with the
defendant at a restaurant located on West Main Street
in Stamford, during which interaction the cooperating
witness and the defendant ‘‘talked about drugs.’’
One week following this initial meeting, and under
the supervision and surveillance of the police, the coop-
erating witness contacted the defendant by telephone
for the purpose of purchasing narcotics from him. The
police provided the cooperating witness with $80 and
an automobile to use to complete the transaction. The
cooperating witness met the defendant at an agreed
upon location, the parking lot of the restaurant located
on West Main Street in Stamford, where they had their
first meeting. When the defendant arrived at that loca-
tion, the cooperating witness got into the defendant’s
automobile, at which time she gave the defendant $80
in exchange for slightly less than one ounce of cocaine.
Following this transaction, which took approximately
two minutes, the cooperating witness returned to her
automobile and left the scene. The defendant, likewise,
left the scene in his automobile.
Several weeks later, on July 2, 2009, the defendant
sold drugs to one or more cooperating witnesses at the
same location where the prior interactions at issue had
occurred. After this interaction, one or more police
officers observed the defendant drive to his residence,
a single family home located at 179 Cedar Heights Road
in Stamford.
On August 13, 2009, the police obtained an arrest
warrant for the defendant. That day, the police began
to surveil the defendant’s residence. The police
observed an automobile that they had observed the
defendant driving during the course of their investiga-
tion, a black 2009 Honda Accord with heavily tinted
windows, parked in the driveway. The automobile was
registered to Nahile Gjini, the defendant’s mother. The
police directed the cooperating witness to contact the
defendant and arrange to purchase illegal narcotics
from him. The cooperating witness informed the police
that she had arranged for this transaction to take place
at approximately 12:30 p.m., at the restaurant located
on West Main Street in Stamford.
Shortly thereafter, the police observed the defendant
exit the residence on Cedar Heights Road, get into the
Honda, and drive to the restaurant located on West
Main Street in Stamford, where he previously had sold
narcotics to the cooperating witness. Two police offi-
cers traveling in an unmarked police automobile fol-
lowed the defendant as he drove to the restaurant, and
several other officers were positioned about the parking
area near the restaurant, awaiting the defendant’s
arrival.
Events in the parking area of the restaurant unfolded
quickly. When the defendant arrived, several police offi-
cers, in automobiles with lights and sirens activated,
approached the defendant’s automobile in an attempt
to constrain his movement. One officer, Douglas Deiso,
attempted to apprehend the defendant. While displaying
his police badge, Deiso approached the defendant’s
automobile on foot and yelled, ‘‘police . . . .’’ Deiso
ordered the defendant to turn off his automobile. The
defendant looked at Deiso with a blank stare and,
instead of obeying his command, he accelerated his
automobile in Deiso’s direction. Deiso escaped being
struck only by moving away from the automobile. The
defendant quickly sped away from the scene. In so
doing, he dangerously maneuvered around police auto-
mobiles, drove on the wrong side of the road, and
crossed the double lines on the roadway, ultimately
driving onto a nearby highway. Several police officers
engaged the defendant in a high-speed pursuit, but they
were unable to apprehend him. Police later discovered
the defendant’s abandoned automobile in Greenwich.
The police were unable to locate the defendant at
this time.
Shortly thereafter, two police officers, Christopher
Broems and Steven Perrotta, prepared search warrant
applications covering the defendant’s automobile and
the defendant’s residence on Cedar Heights Road in
Stamford. After obtaining the warrants, the police exe-
cuted the warrant at the defendant’s residence, where
the defendant’s mother and an attorney were present.
There were three bedrooms in the residence: one used
by the defendant’s mother, one used by the defendant’s
brother, and one used by the defendant. During their
search of the defendant’s bedroom, the police found
approximately fifty grams of cocaine in a nightstand.
Also in the bedroom, the police found a number of
items (including rubber gloves, plastic bags, a digital
scale, a substance frequently used as a cutting agent
for drugs and six cell phones) that were consistent with
the illegal sale of narcotics. The police found approxi-
mately $13,000 in the residence, a large portion of which
was found concealed in a bathroom that was located
near the defendant’s bedroom.4
Several days later, on August 18, 2009, the defendant,
facing arrest under two warrants, turned himself in to
the police. The present appeal followed his conviction
after the jury found him guilty of illegally selling narcot-
ics, possessing a narcotic substance with the intent to
sell, and engaging the police in pursuit.5 Additional facts
will be set forth as necessary.
I
First, the defendant claims that the court improperly
denied his motion for a Franks hearing. We disagree.
The following additional facts and procedural history
underlie this claim. Prior to the start of trial, the defen-
dant filed a motion for a Franks hearing.6 The defendant
requested that, following such hearing, the court should
suppress, as the fruit of an illegal search, evidence that
was seized by the police at the residence on Cedar
Heights Road in Stamford, and dismiss ‘‘the narcotics
charges’’ in the present case. In support of the motion,
the defendant argued that, in the application for a war-
rant to search the residence, Broems and Perrotta,
engaged in illegal and improper conduct in that they
made false and misleading affirmative representations
in their signed and sworn affidavit that was submitted
with the application. The defendant argued that, absent
these false representations, there were insufficient alle-
gations to support a finding of probable cause to search
the residence.
In paragraph two of the affidavit, the officers averred
in relevant part that the defendant ‘‘is currently on pro-
bation.’’ In paragraph four of the affidavit, the officers
averred as follows: ‘‘[During a controlled purchase] that
took place on July 2, 2009, Affiant Broems observed
[the defendant] leave the meet location after conducting
the narcotics transaction and drive to his house located
at 179 Cedar Heights Drive, Stamford, CT, without stop-
ping and speaking with anyone.’’ The defendant, refer-
ring, in part, to a National Crime Information Center
report that he attached to his motion, represented that
the averment at issue in paragraph two was false
because he had never been on probation. The defendant
argued that this statement was deliberately false or
was made with a reckless disregard for its truth. The
defendant, referring in part to arrest reports that he
attached to his motion and the arrest warrant applica-
tion itself, represented that an averment in paragraph
four was false. Specifically, in paragraph four, the offi-
cers averred in relevant part that on July 2, 2009, Broems
observed the defendant drive directly to the residence
on Cedar Heights Drive following a controlled narcotics
purchase. The defendant observed that police records
that he submitted with the motion reflected that, follow-
ing the controlled narcotics purchase on July 2, 2009,
Broems followed the cooperating witness to a prear-
ranged meeting location. The records did not reflect
that, following the purchase, Broems followed the
defendant. The defendant argued that the statement of
Broems’ activity was deliberately false or was made
with a reckless disregard for its truth.
The state objected to the defendant’s motion. The
state conceded that the averment that the defendant
was on probation was not correct. With regard to the
second averment at issue in the defendant’s motion,
that Broems had observed the defendant drive directly
to his residence following the controlled narcotics pur-
chase on July 2, 2009, the state argued that the veracity
of this statement presented a question of fact. The state
argued, however, that the two statements at issue were
not essential to a finding of probable cause. The state
requested that the court review the application without
regard for the statements at issue and conclude that,
in their absence, probable cause to search the resi-
dence existed.
In its oral decision denying the defendant’s motion,
the court stated in relevant part: ‘‘My general comment
is that I certainly have seen more articulate warrants.
However, my evaluation of the case law allows me to
consider the entire document . . . . I can consider the
entire document as it relates to a finding of probable
cause. . . .
‘‘[P]aragraph one describes the experience of Offi-
cer[s] Broems . . . and Perrotta . . . as far as their
experience in the narcotics division is concerned. Para-
graph two describes an investigation into the defendant
during the months of June, July, and August, 2009.
‘‘That a cell phone number was being utilized based
on that investigation to conduct cocaine deals. That the
defendant was utilizing a black Honda Accord . . . to
deliver cocaine in Stamford. That the vehicle in question
was registered to another individual . . . [Nahile] Gjini
. . . of 179 Cedar Heights Road.
‘‘The investigation revealed that the defendant had
been arrested for [the] sale of hallucinogen, possession
of marijuana, smuggling, public indecency, failure to
appear. And that he is a convicted felon.
‘‘That paragraph three—June 20, 2009, July 2, 2009,
and July 14, 2009, a confidential informant was deemed
credible and reliable by the Bureau of Alcohol, Tobacco
and Firearms, and that this confidential informant made
purchases of powder cocaine using government funds
recorded on video and audio, if applicable. Tested posi-
tive for cocaine.
‘‘That paragraph five indicates that on the thirteenth
of . . . August, 2009, Officer Perrotta had an arrest
warrant that was reviewed and signed for the defendant,
and the arrest warrant was for the three counts of sale
of narcotics. . . .
‘‘That on the thirteenth of August, 2009, the affiants
. . . [contacted] the same [confidential informant] we
utilized on the previous three narcotics purchases, and
we instructed the confidential informant to contact the
defendant by phone and order up an amount of powder
cocaine to lure the defendant out of his residence and
arrest him on the outstanding arrest warrant. . . .
‘‘It’s clear that this is the same [confidential infor-
mant] who has conducted the three previous sales for
which . . . [the police had obtained an arrest warrant
for the defendant on August 13, 2009].
‘‘That the [confidential informant] indicated that at
about twelve o’clock that the defendant indicated he
would meet the [confidential informant] at the same
location as the three last narcotics deals in thirty
minutes and that the affiants knew this location to be
the parking lot of 1980 West Main Street, Stamford, Con-
necticut.
‘‘Surveillance was set up at the purported residence
of the defendant, which was 179 Cedar Heights Road
. . . affording the officers a clear view of the residence
and of the vehicle that he had been utilizing, [with the]
same [Connecticut] registration . . . .
‘‘Paragraph nine. That at 12:25, pursuant to all the
information that the officers had accumulated up to
that point, that this was the residence of the defendant,
that he would be meeting the [confidential informant] at
12:30, the defendant exited that residence and a pursuit
occurred and a stop, which is described in paragraph[s]
ten, eleven, twelve . . . and thirteen . . . .
‘‘It is not unreasonable for a magistrate to find that
based upon the officers’ information that 179 Cedar
Heights Road was the residence of the defendant based
on their prior knowledge and also based upon the fact
that it’s corroborated by what occurred at 12:25 . . .
on August 13.
‘‘It is not unreasonable for a magistrate to have found
that out of that residence drugs were placed in that car.
‘‘Certainly, the idea that one would use a car for
storage of narcotics is not practical . . . it was not his
car, it was another individual’s automobile, and simply
because he was not carrying a suitcase or a bag clearly
visible to the officers does not mean that he did not
have an illegal substance on his person when he exited
the house.
‘‘[C]ertainly, the actions of the defendant . . . [as
described in] paragraphs eight . . . nine, ten, eleven
and twelve certainly show consciousness of guilt; his
efforts to elude the police and follow up activities by
the defendant further corroborate the reliability in the
court’s mind of the information that the police
already had.
‘‘As I indicated, we’re not looking for proof beyond
a reasonable doubt; we’re looking for probable cause.
I find that the information . . . that he was on proba-
tion to be, frankly, harmless at this point in light of the
. . . fact that he had been arrested for various charges
and was a convicted felon.
‘‘I find that the information in paragraph four, even
without that [information concerning Broems observa-
tions of the defendant on July 2, 2009], a finding of
probable cause can be made for the issuance of a search
warrant based upon the remaining paragraphs [of the
search warrant application].
‘‘I don’t see where any of this information [at issue
in paragraphs two and four] was deliberate falsification
by the officers; I don’t see a reckless disregard of the
truth.
‘‘I see mistakes that were made in the warrant; as I
indicated, it is not, certainly, not the most articulate
search warrant I have ever reviewed. However, I find
no indication that there was a deliberate falsification
or a reckless disregard of the truth, and certainly with
those paragraphs removed, that portion . . . removed,
I find that an independent, detached magistrate could
find probable cause for the search of 179 Cedar
Heights Road.’’
The defendant’s arguments on appeal echo those that
he raised before the trial court. The defendant focuses
on the two alleged inaccuracies in the application,
namely, that he was on probation and that Broems
had followed him home after the controlled narcotics
purchase on July 2, 2009. He argues, partially on the
basis of the trial testimony of Broems and Perrotta, that
these inaccuracies were intentional misrepresentations
by the officers or, at the least, were statements made
with a reckless disregard for their truth. Further, the
defendant argues that these ‘‘indisputably false state-
ments’’ misled the court at the time it issued the warrant.
He argues, contrary to the conclusion of the trial court,
that, absent a consideration of the two statements at
issue, the facts alleged in the remainder of the warrant
do not support a finding of probable cause to search
the residence. He argues that nothing in the affidavit
ties him to the residence ‘‘as a resident’’ or affords
probable cause to believe that there were narcotics in
the residence.
In Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.
Ct. 2674, 57 L. Ed. 2d 667 (1978), the United States
Supreme Court held: ‘‘[W]here the defendant makes a
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is neces-
sary to the finding of probable cause, the Fourth Amend-
ment requires that a hearing be held at the defendant’s
request. In the event that at that hearing the allegation
of perjury or reckless disregard is established by the
defendant by a preponderance of the evidence, and,
with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish
probable cause, the search warrant must be voided and
the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.’’
‘‘In order for a defendant to challenge the truthfulness
of an affidavit underlying a warrant at a Franks hearing,
he must: (1) make a substantial preliminary showing
that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by
the affiant in the warrant affidavit; and (2) show that
the allegedly false statement is necessary to a finding
of probable cause. . . . If the allegedly false statement
is set aside, however, and there remains sufficient evi-
dence to establish probable cause, a Franks hearing is
not necessary. . . . Although the Franks decision
referred only to false statements in the affidavit, we
have held that material omissions from such an affidavit
also fall within the rule . . . . As the Supreme Court
noted in Franks, [t]here is, of course, a presumption
of validity with respect to the affidavit supporting the
search warrant. To mandate an evidentiary hearing, the
challenger’s attack must be more than conclusory
. . . . There must be allegations of deliberate false-
hood or of reckless disregard for the truth . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) State v.
Ferguson, 260 Conn. 339, 363–64, 796 A.2d 1118 (2002).
In general terms, the issue of ‘‘[w]hether the defen-
dant is entitled to a hearing pursuant to Franks . . .
is a mixed question of law and fact that [is reviewable]
on appeal.’’ State v. Bergin, 214 Conn. 657, 662 n.4,
574 A.2d 164 (1990). When, however, the focus of the
reviewing court’s inquiry is not on whether challenged
statements in a warrant affidavit were knowingly or
intentionally false, or made with reckless disregard for
their truth, but on whether such statements were neces-
sary to an issuing court’s determination of probable
cause, the issue is one that invokes the reviewing court’s
plenary review. ‘‘Whether the trial court properly found
that the facts submitted were enough to support a find-
ing of probable cause is a question of law. . . . The
trial court’s determination on [that] issue, therefore, is
subject to plenary review on appeal. . . . 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.
. . . Probable cause, broadly defined, [comprises] such
facts as would reasonably persuade an impartial and
reasonable mind not merely to suspect or conjecture,
but to believe that criminal activity has occurred. . . .
Reasonable minds may disagree as to whether a particu-
lar affidavit establishes probable cause. . . .
‘‘In determining the existence of probable cause to
search, the magistrate should make a practical, com-
monsense decision whether, given all of the circum-
stances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will
be found in a particular place. . . . In making this
determination [of probable cause], the magistrate is
entitled to draw reasonable inferences from the facts
presented. When a magistrate has determined that the
warrant affidavit presents sufficient objective indicia
of reliability to justify a search and has issued a warrant,
a court reviewing that warrant at a subsequent suppres-
sion hearing should defer to the reasonable inferences
drawn by the magistrate.’’ (Citations omitted; internal
quotation marks omitted.) State v. Pappas, 256 Conn.
854, 864–65, 776 A.2d 1091 (2001). ‘‘On appeal, a court’s
factual findings underlying its probable cause determi-
nation are subject to review under the clearly erroneous
standard. . . . We accord plenary review, however, to
the determination that the facts as found amount to
probable cause.’’ (Citation omitted; emphasis added.)
State v. Robinson, 105 Conn. App. 179, 191, 937 A.2d
717 (2008), aff’d, 290 Conn. 381, 963 A.2d 59 (2009).
The present claim centers around two statements in
an arrest warrant affidavit. The state acknowledged
before the trial court that the statement in paragraph
two of the affidavit, concerning the defendant’s proba-
tionary status, was false. Before the trial court, the state
disputed whether the defendant made a substantial pre-
liminary showing that the other statement, in paragraph
four of the affidavit, concerning Broems’ observations
on July 2, 2009, was knowingly and intentionally false
or whether it was made with reckless disregard for
its truth. In contesting the defendant’s claim, the state
pursues this factual argument before this court. We
need not resolve such issues, however, because, having
carefully reviewed the warrant affidavit, we agree with
the trial court’s conclusion that a Franks hearing was
unnecessary in the present case because the two state-
ments at issue were not necessary to a finding of proba-
ble cause.
As a preliminary matter, we observe that the aver-
ment that the defendant was ‘‘currently on probation’’
was not necessary to a finding of probable cause. Inso-
far as the defendant’s criminal history was, in a consid-
eration of all of the circumstances, relevant to a finding
of probable cause, the affidavit set forth ample and
more significant facts related to the defendant’s crimi-
nal history and, specifically, his history of illegal drug
offenses. In paragraph two, the officers averred in rele-
vant part: ‘‘[A National Crime Information Center]
check revealed that . . . [the defendant] has been
arrested for, among other charges, sale of a hallucino-
gen, possession of marijuana, smuggling in prison, pub-
lic indecency, and failure to appear. It also shows that
. . . [the defendant] is a convicted felon . . . .’’
The other challenged statement in paragraph four
provided: ‘‘That on buy number two that took place on
July 2, 2009, affiant Broems observed . . . [the defen-
dant] leave the meet location after conducting the nar-
cotics transaction and drive to his house located at 179
Cedar Heights Drive, Stamford, CT, without stopping
and speaking with anyone.’’ Certainly, this averment
could be viewed as significant in an analysis of probable
cause because it tended to link the defendant’s criminal
enterprise in selling narcotics with the place to be
searched. Moreover, insofar as the averment was evi-
dence that the defendant was observed at the residence
on July 2, 2009, it linked the defendant to the place to
be searched just weeks prior to the time that the police
sought the warrant.
Despite these observations, however, we conclude
that the other facts set forth in the affidavit were suffi-
cient to find probable cause that illegal drugs or items
connected to the defendant’s criminal drug-selling
enterprise would be found in the residence. The affida-
vit set forth the facts that the defendant had been inves-
tigated by the police during June, July, and August,
2009; that he was utilizing a cell phone to sell cocaine;
that he was using a black Honda Accord to deliver
cocaine in Stamford; that the Honda Accord was regis-
tered to Nahile Gjini of 179 Cedar Heights Road in
Stamford, the premises to be searched; and that the
defendant was a convicted felon with a history of drug
related charges. The affidavit set forth facts from which
it was fair to infer that on June 20, 2009, July 2, 2009,
and July 14, 2009, during controlled drug purchases
recorded by the police, the defendant had sold cocaine
to a cooperating witness who was deemed to be a credi-
ble and reliable witness by the Bureau of Alcohol,
Tobacco and Firearms.
The affidavit also set forth the fact that, on August
13, 2009, the date on which the police sought the search
warrant, the police had obtained a warrant for the
defendant’s arrest for three counts of sale of narcotics.
Additionally, the affidavit set forth the facts that on
August 13, 2009, the cooperating witness who had par-
ticipated in the earlier controlled narcotics transactions
involving the defendant had contacted the defendant
via telephone and arranged to purchase powder cocaine
from him ‘‘to lure . . . [the defendant] out of his resi-
dence and [to] arrest him on the outstanding arrest
warrant.’’ At approximately noon on August 13, 2009,
the cooperating witness informed the police that the
defendant had agreed to meet her at approximately
12:30 p.m., at a parking lot in Stamford where he had
conducted earlier narcotics sales with the cooperat-
ing witness.
In the application, the officers averred that, at approx-
imately 12:10 p.m., they began to surveil the residence
at 179 Cedar Heights Road, which they described as
the defendant’s ‘‘residence,’’ where they observed the
Honda Accord registered to Nahile Gjini. At 12:25 p.m.,
the officers observed the defendant exit the residence
and enter the Honda Accord. The officers then followed
the defendant as he drove to the parking lot at West
Main Street in Stamford, the location where he had
agreed to meet the cooperating witness. There, as offi-
cers surrounded the defendant’s automobile (with lights
and sirens activated) and attempted to approach the
defendant’s automobile, the defendant accelerated at a
high rate of speed toward Deiso, who had to leap out
of the way to avoid being struck. The defendant fled
the scene, made his way to Interstate 95, and eluded
police capture by traveling at speeds ‘‘upward of 90
miles per hour, swerving from lane to lane to elude the
police and avoid hitting other motorists.’’ The police
located the defendant’s automobile, which had been
abandoned in Greenwich, but did not locate the
defendant.
On the basis of these facts set forth in the affidavit,
it would be reasonable for a magistrate to find that, on
the date that the police applied for the warrant, the
defendant, while inside the subject residence, had
agreed to sell narcotics to a cooperating witness with
whom he had made illegal sales of a similar nature in
the recent past. Consistent with the information that
the cooperating witness provided to the police about
the agreed upon criminal transaction, the defendant left
the subject residence and drove directly to the parking
lot at West Main Street in Stamford. In light of his recent
conduct in selling drugs, as well as the defendant’s
agreement to sell narcotics to the cooperating witness
on August 13, 2009, the defendant’s dangerous conduct
in eluding the police, and later abandoning the Honda
Accord in Greenwich, strongly supported an inference
that the defendant possessed narcotics when he drove
to the parking lot.
Broems and Perrotta averred that the subject resi-
dence at 179 Cedar Heights Road was the defendant’s
‘‘residence.’’ What was more significant in an evaluation
of probable cause, however, were the facts set forth
upon which a magistrate reasonably could infer that the
defendant was present in the subject residence when he
agreed to sell narcotics and exited the subject resi-
dence, with the narcotics, and drove directly to the
agreed upon sale location, where he engaged the police
in pursuit before abandoning the automobile in which
he had been driving. The facts supported an inference
that the defendant exited the residence with narcotics
on his person before getting into the Honda Accord,
which was not registered to him, but to Nahile Gjini.
Although it is not a necessary inference, it would be
reasonable for a magistrate to infer, based on the facts
in the affidavit that the defendant was selling drugs out
of his residence, that he stored narcotics and other
evidence related to the sale of narcotics in his residence,
rather than in an automobile that was registered to a
third party.
‘‘We have recognized that the business of dealing in
illegal drugs often involves a course of conduct that
continues over a long period of time and is usually
considered to be a regenerating activity. . . . When a
suspect has been carrying on an illegal activity for an
extended period of time without detection, it is reason-
able to conclude that evidence of his activity will be
secreted in his home. . . . In the case of drug dealers,
evidence is likely to be found where the dealers live.
. . . Actual observations of illegal activity or contra-
band in the premises to be searched, however, are not
required to establish probable cause.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) State v. Nazario, 38 Conn. App. 588, 597, 662 A.2d
1313 (1995). ‘‘The nexus between the object to be seized
and the premises to be searched [need] not rest on
personal observation, but can be inferred from the type
of crime, the nature of the items sought, the extent of
an opportunity for concealment and normal inferences
as to where a criminal would hide [the evidence].’’
(Internal quotation marks omitted.) State v. Vallas, 16
Conn. App. 245, 261–62, 547 A.2d 903 (1988), aff’d sub
nom. State v. Calash, 212 Conn. 485, 563 A.2d 660 (1989).
It is significant, as well, that the facts surrounding
the defendant’s attempted sale of narcotics to the coop-
erating witness occurred on the same day that the police
applied for the search warrant for the residence. The
contemporaneous nature of these events made it highly
likely that contraband related to the sale of narcotics
would be found in a location to which the defendant
had ready access, such as the residence from which he
attempted to sell drugs earlier that day. ‘‘The determina-
tion 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 proba-
ble cause dwindles as time passes, no single rule can
be applied to determine when information has become
too old to be reliable.’’ (Citation omitted.) State v. John-
son, 219 Conn. 557, 566, 594 A.2d 933 (1991). Here, in
light of the fact that the controlled buy was arranged
on the same day that the police applied for the warrant,
the facts also supported an inference that, although the
defendant left the residence with narcotics, additional
evidence of criminal activity related to the sale of nar-
cotics remained in the residence at the time that a
magistrate was considering the application. The affida-
vit set forth facts that demonstrated that the defendant
had a criminal history and had engaged in several drug
sales. It was reasonable to infer that a drug dealer, such
as the defendant, likely maintained an inventory of the
drugs that he sold, instrumentalities related to the sale
of narcotics, and records related to his narcotics sales,
and that such contraband would have been present in
the residence from which the defendant attempted to
sell narcotics to the cooperating witness earlier that
very day.
For the foregoing reasons, after excluding those facts
challenged by the defendant, we agree with the court’s
analysis of the remaining facts set forth in the affidavit
of Broems and Perrotta. Accordingly, we conclude that
the court properly denied the defendant’s motion for a
Franks hearing.
II
Next, the defendant claims that the evidence was
insufficient to support his conviction of possession of
a narcotic substance with the intent to sell. We disagree.
To support a conviction under § 21a-277 (a),7 the state
bore the burden of proving beyond a reasonable doubt
two essential elements: (1) that the defendant pos-
sessed narcotics and (2) that the defendant intended
to sell such narcotics to another person. The defendant
claims that the evidence was insufficient to support a
finding that he possessed the narcotic substance,
approximately fifty grams of cocaine, which was found
in a nightstand in one of the bedrooms of the residence
located at 179 Cedar Heights Road in Stamford on
August 13, 2009. The defendant argues that the state
attempted to prove that he constructively possessed the
cocaine merely by presenting evidence that the cocaine
was found in a bedroom in his ‘‘family’s home’’ or his
‘‘parents’ home’’8 in which the police found an envelope
that had been addressed to him. Also, among other
arguments, he argues that neither the defendant nor any
member of his family stated that the bedroom was his.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
‘‘Possess,’’ as defined in our Penal Code, ‘‘means to
have physical possession or otherwise to exercise
dominion or control over tangible property . . . .’’ Gen-
eral Statutes § 53a-3 (2). ‘‘[T]o prove illegal possession
of a narcotic substance, it is necessary to establish that
the defendant knew the character of the substance,
knew of its presence and exercised dominion and con-
trol over it. . . . Where . . . the [narcotics were] not
found on the defendant’s person, the state must proceed
on the theory of constructive possession, that is, posses-
sion without direct physical contact. . . . One factor
that may be considered in determining whether a defen-
dant is in constructive possession of narcotics is
whether he is in possession of the premises where the
narcotics are found. . . . Where the defendant is not
in exclusive possession of the premises where the nar-
cotics are found, it may not be inferred that [the defen-
dant] knew of the presence of the narcotics and had
control of them, unless there are other incriminating
statements or circumstances tending to buttress such
an inference. . . . While mere presence is not enough
to support an inference of dominion or control, where
there are other pieces of evidence tying the defendant
to dominion and control, the [finder of fact is] entitled
to consider the fact of [the defendant’s] presence and
to draw inferences from that presence and the other
circumstances linking [the defendant] to the crime.
. . . Numerous cases hold that the test for illegal pos-
session of drugs is that the accused must know that
the substance in question is a drug, must know of its
presence and exercise dominion and control over it.’’
(Citation omitted; internal quotation marks omitted.)
State v. Williams, 110 Conn. App. 778, 785–86, 956 A.2d
1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).
The state presented the case to the jury on the theory
that the defendant constructively possessed the cocaine
found in one of the bedrooms of the residence that was
searched by the police on August 13, 2009. Thus, our
inquiry is whether the state presented enough evidence
for the jury to have found that the defendant was aware
of the presence of the narcotics in that bedroom and
exercised dominion or control over them.
Turning to the evidence presented at trial, the state
presented evidence that, beginning in 2004 and continu-
ing through the time of the events at issue, the license
history of the defendant, on file with the Department
of Motor Vehicles, listed 179 Cedar Heights Road in
Stamford as the defendant’s address. Christopher
Baker, a lieutenant with the Stamford Police Depart-
ment, testified that the police had determined that the
defendant was living at 179 Cedar Heights Road, a sin-
gle-family private residence, during the time that the
defendant was under investigation between June and
August, 2009. Baker testified that he had observed the
defendant enter or leave that residence approximately
four or five times during the course of his surveillance
of the residence in 2009. Baker testified that he had not
seen any evidence suggesting that, at that time, the
defendant was residing anywhere else.
Additionally, Perrotta testified that after the con-
trolled narcotics purchase involving the defendant and
the cooperating witness had occurred on July 2, 2009,
a member of the police department, possibly Broems,
had observed the defendant return to 179 Cedar Heights
Road. There was testimony from several witnesses that
Broems and Perrotta, conducting surveillance of the
residence on August 13, 2009, observed the defendant
exit the residence on Cedar Heights Road and drive
directly to the parking lot on West Main Street in Stam-
ford after he had arranged to sell narcotics to the coop-
erating witness. The state presented testimony from
Baker that Nahile Gjini resided at 179 Cedar Heights
Road and that the Honda Accord used by the defendant
was registered to her at that address.
The state presented testimony from Broems, who
participated in the search of the residence on Cedar
Heights Road, that there were three bedrooms in the
residence. Baker, who also participated in the search,
testified that the defendant’s mother had identified one
of the bedrooms as belonging to her. Perrotta, another
participant in the search, testified that he had identified
another bedroom as belonging to the defendant’s
brother because it contained personal effects of the
defendant’s brother.9 Perrotta agreed that this room did
not look ‘‘like it had been lived in recently’’ and was
not ‘‘messy’’ at all.
Perrotta agreed during his testimony that the third
bedroom, which the police identified as that of the
defendant, appeared to be ‘‘lived in.’’ Broems testified
that, in contrast with the bedroom that the police identi-
fied as belonging to the defendant’s brother, the defen-
dant’s bedroom contained an unmade bed, and that
found inside the bedroom were sneakers, bottles of
cologne, and ‘‘tons of hats . . . .’’ Baker testified that,
while searching the bedroom that they identified as that
of the defendant, the police discovered an envelope
that was addressed to the defendant at ‘‘179 Ceader
Heights Rd’’ in Stamford. The envelope was introduced
into evidence as state’s exhibit fifteen. There was testi-
mony that, in this same bedroom, the police discovered
approximately fifty grams of cocaine as well as para-
phernalia that the jury reasonably could have found to
be instrumental in the sale of drugs, including dispos-
able rubber gloves; Ziploc bags; plastic baggies; ‘‘fish
scale,’’ which police know to be used as a cutting agent
for powder cocaine; six cell phones; and a digital scale.
On the basis of the foregoing evidence and the reason-
able inferences to be drawn therefrom, it was reason-
able for the jury to find that on August 13, 2009, the
defendant resided at 179 Cedar Heights Road. In addi-
tion to the foregoing evidence concerning the residence,
the jury was presented with evidence that in the months
prior to the search, the defendant sold cocaine to the
cooperating witness on different occasions leading up
to the search and, on August 13, 2009, the day of the
search, he left the residence for the purpose of selling
cocaine to the cooperating witness. On the basis of all
of the evidence presented, it was reasonable for the
jury to find that the bedroom in which the police discov-
ered the cocaine at issue was a bedroom that was occu-
pied by and under the control of the defendant.
Moreover, in light of the defendant’s criminal conduct
leading up to the search, including his conduct on the
day of the search, it was reasonable for the jury to find
that the defendant was aware of the presence of the
illegal substance in the bedroom, approximately fifty
grams of cocaine, and that he, rather than another occu-
pant of the residence searched, exercised dominion or
control over that substance. See State v. Winfrey, 302
Conn. 195, 211–13, 24 A.3d 1218 (2011) (accused’s his-
tory of using related contraband or his possession of
related contraband at time of his arrest may help to
establish his constructive possession of contraband in
question). The state presented strong evidence that the
bedroom at issue was, in fact, his. The evidence of the
defendant’s drug related activities, both prior to and on
the day of the search, along with the other evidence
presented by the state, supported a finding beyond a
reasonable doubt that the defendant constructively pos-
sessed the narcotics that were seized by the police
during the search of that bedroom.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court sentenced the defendant to serve a total effective term of
incarceration of ten years. In addition to the previously mentioned offenses,
by way of the state’s amended joint form information, the defendant also
was charged with one count of attempting to assault public safety personnel
in violation of General Statutes §§ 53a-49 (a) (2) and 53a-167c (a) (1), and
possessing a narcotic substance in violation of General Statutes § 21a-279
(a). The jury found the defendant not guilty of the former offense. The jury
found the defendant guilty of the latter offense but, at the close of trial, the
court vacated that conviction on double jeopardy grounds.
2
See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 57 L. Ed.
2d 667 (1978).
3
The cooperating witness had a lengthy history of assisting law enforce-
ment in operations of this nature. She had worked with the Bureau of
Alcohol, Tobacco and Firearms for several years and, in exchange for her
assistance in prior cases, she received both money and what she agreed
could be described as ‘‘consideration,’’ in the form of favorable sentencing,
in association with charges that were pending against her. The cooperating
witness testified that, in connection with the present case, she was not
promised anything except reimbursement for travel expenses associated
with her presence in court to testify on the state’s behalf.
4
During their search of the bedroom used by the defendant’s mother, the
police found a quantity of marijuana. This discovery is not at issue in the
present case. During their search of the defendant’s automobile, the police
found $84, but no illegal substances.
5
The conviction of illegally selling narcotics was based on the defendant’s
conduct on June 20, 2009. The conviction of possessing a narcotic substance
with the intent to sell and engaging the police in pursuit were based on the
defendant’s conduct on August 13, 2009.
6
The defendant filed an initial motion dated March 26, 2013, and a supple-
mental motion dated April 16, 2013. The defendant’s attorney represented
that the defense had filed the supplemental motion after she learned of a
discrepancy between the copy of the search warrant application in her
possession (which comprised six pages) and the search warrant application
in the custody of the court clerk (which comprised eight pages) on which
the state relied. The defendant’s attorney represented that she had received
her copy from prior defense counsel, who had received it from yet another
prior defense counsel. The defendant’s attorney represented that the original
defense counsel believed that she had received the application ‘‘from the
state,’’ but that ‘‘the state denies providing it and believes that the defendant
most likely obtained that copy from either the police directly through the
mail, or from the clerk’s office.’’
Before the trial court, the defendant correctly observed that the clerk’s
copy of the application contained two additional pages, both of which were
numbered as pages ‘‘2 of 6.’’ Relying on this irregularity on the pages that
were not originally in its possession, as well as what it deemed to be other
variations in font, capitalization, and spacing between the additional two
pages and the remainder of the application, the defendant characterized the
additional two pages as ‘‘questionable’’ and of ‘‘[a] suspicious nature.’’ The
defendant argued that ‘‘without some evidence from the affiants as to why
these discrepancies exist, the court must presume that the correctly pagi-
nated six page affidavit provided to the defendant is a true and correct copy
of the original.’’ It is not in dispute that the two additional pages at issue
set forth eleven additional paragraphs, consisting of averments by Broems
and Perrotta in support of the warrant.
When the court considered the defendant’s motion for a Franks hearing,
it resolved the preliminary issue of what comprised the search warrant
application. The state presented testimony from Broems concerning the
issue, which was a topic of considerable argument by counsel. Essentially,
Broems testified that the page numbering inaccuracy resulted from a format-
ting problem in the computer system used by the police to generate the
application, and that he and Perrotta had completed, signed, and submitted
the complete, eight page application to the court. The prosecutor represented
that, although Perrotta was unavailable to testify at the hearing, his testimony
would have been of a similar nature.
The court resolved this preliminary issue of what comprised the applica-
tion by accepting as true Broems’ testimony, and determining that any
irregularities, including the inaccurate page numbering, on which the defen-
dant relied, did not reflect any type of wrongdoing or deception on the part
of the police or on the part of the state. The court determined that there
were ‘‘reasonable explanations’’ for why the defendant’s attorney did not
have the complete application at an earlier time. Accordingly, the court
rejected the defendant’s argument that the court, in its analysis of the
application, should not consider the additional two pages at issue.
Before this court, the defendant does not raise a claim of error related
to the court’s resolution of this preliminary issue of fact. Yet, in his analysis
of the present claim, challenging the court’s denial of his motion for a Franks
hearing, the defendant fails to refer to or to address the significance of the
complete, eight page warrant application that the court considered in ruling
on his motion. Instead, he explicitly draws our attention to the information
and averments contained in the six page application that he originally pos-
sessed. Likewise, in the appendix to his brief, the defendant attached what
he labels as the ‘‘SEARCH WARRANT AFFIDAVIT’’ that the police filed with
the court, yet, by virtue of the court’s unambiguous ruling, this affidavit is
incomplete. It sets forth only five of the sixteen numbered paragraphs in
the affidavit that is part of the complete application.
We will confine our analysis to those claims adequately raised and pre-
sented to this court on appeal. See State v. Carattini, 142 Conn. App. 516,
529, 73 A.3d 733, cert. denied, 309 Conn. 912, 69 A.3d 308 (2013). In light
of the court’s unchallenged ruling with regard to the content of the applica-
tion, we will consider the entire eight page application that the court consid-
ered when it ruled on the defendant’s motion for a Franks hearing. This
complete application includes sixteen separately numbered paragraphs set-
ting forth averments by Broems and Perrotta.
7
General Statutes § 21a-277 (a) provides: ‘‘Any person who manufactures,
distributes, sells, prescribes, dispenses, compounds, transports with the
intent to sell or dispense, possesses with the intent to sell or dispense,
offers, gives or administers to another person any controlled substance
which is a hallucinogenic substance other than marijuana, or a narcotic
substance, except as authorized in this chapter, for a first offense, shall be
imprisoned not more than fifteen years and may be fined not more than
fifty thousand dollars or be both fined and imprisoned; and for a second
offense shall be imprisoned not more than thirty years and may be fined
not more than one hundred thousand dollars, or be both fined and impris-
oned; and for each subsequent offense, shall be imprisoned not more than
thirty years and may be fined not more than two hundred fifty thousand
dollars, or be both fined and imprisoned.’’
8
Although there was evidence that the defendant’s mother resided at 179
Cedar Heights Road, there was no evidence as to who owned the residence.
9
The defendant suggests that evidence that police found marijuana in his
mother’s bedroom and that his brother was under police investigation for one
or more drug related offenses weighed against a finding that he possessed the
cocaine found in the residence. Also, the defendant emphasizes that the
police did not find ‘‘photos or any readily identifiable personal effects that
were connected to [him].’’ Although this evidence or lack thereof may have
supported a finding in the defendant’s favor, it did not preclude a finding
that he constructively possessed the cocaine at issue. In rejecting this argu-
ment, we reiterate that our role in reviewing the evidence following the
defendant’s conviction is to view the evidence in the light most favorable
to a finding of guilt. See State v. Crespo, supra, 317 Conn. 16–17.