State v. Rodriguez ( 2016 )

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STATE OF CONNECTICUT v. CARMELITO
RODRIGUEZ
(AC 37023)
Beach, Prescott and Bear, Js.
Argued September 25, 2015—officially released February 23, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Kahn, J. [motion to suppress]; Devlin, J.
[judgment].)
G. Douglas Nash, for the appellant (defendant).
Aimee Lynn Mahon, certified legal intern, with whom
were Nancy L. Chupak, senior assistant state’s attor-
ney, and, on the brief, John C. Smriga, state’s attorney,
and C. Robert Satti, Jr., supervisory assistant state’s
attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Carmelito Rodriguez,
appeals from the judgment of conviction rendered fol-
lowing a conditional plea of nolo contendere1 to two
counts of possession of a narcotic substance with intent
to sell in violation of General Statutes § 21a-278 (b).2 The
defendant claims that the trial court erred in denying his
motion to suppress certain evidence seized from his
residence, on the ground that the affidavit in support
of the search warrant did not provide probable cause
for the issuance of the warrant. We affirm the judgment
of the trial court.
The record reveals the following facts. On September
21, 2012, three individuals were arrested in Bridgeport
for possession of a large quantity of heroin. One of the
arrested individuals provided information to Bridgeport
law enforcement officers about a mid-level drug sup-
plier and provided details about that supplier’s heroin
sales at 144 Cedar Street in Bridgeport, which residence
was owned by a third party. Relying primarily on infor-
mation provided by the informant, police officers
applied for a search warrant and averred in the accom-
panying affidavit: ‘‘That on 09/12/2012, members of the
Bridgeport Police Departments Tactical Narcotics
Team . . . along with members from the FBI Task
Force, arrested three individuals in the City of Bridge-
port. That the three arrested suspects were found in
possession of a large quantity of heroin at the time of
their arrests. . . . That one of the arrested suspects
cooperated with officers, giving us details of a mid
level supplier of heroin in the City of Bridgeport. This
arrested suspect stated a male known to him as ‘Milo’
is supplying numerous drug dealers in Bridgeport with
large amounts of heroin. He/she stated that ‘Milo’
resides on the second [floor] apartment of 144 Cedar
Street in Bridgeport. . . . That this arrested suspect
stated that he/she has been in ‘Milo’s’ apartment more
than a dozen times in the past month. That he/she has
observed ‘Milo’ package the heroin on the table in the
basement on numerous occasions during these times.
He/She added that ‘Milo’ stores several firearms in the
residence, basement and second floor apartment. That
a safe is kept in the basement where ‘Milo’ keeps his
heroin and that money from drug sales are kept in his
apartment. . . . That this arrested suspect stated he/
she has been in ‘Milo’s’ apartment and basement within
the past two days and observed ‘Milo’ in possession of
a large amount of heroin. That this arrested suspect
described ‘Milo’ as a Hispanic male in his late thirties,
approximately six feet tall, medium skin and a stocky
build. ‘Milo’ is also described as having tattoos [on]
both arms. . . . That during the past week, members
of the FBI Task Force and members of the Bridgeport
Police Tactical Narcotics Team conducted a Narcotics
Investigation which led . . . to the arrest of the three
arrested suspects on today’s date. That during this
investigation, Task Force member Officer Daid Reihl
observed one of the arrested suspects entering and
leaving 144 Cedar Street within the last two days.’’ The
next paragraph of the affidavit recited conclusions sup-
porting probable cause based on the knowledge and
experience of the affiants. The warrant application
was granted.
At approximately 1 p.m., members of the Bridgeport
Police Department entered and secured the premises
at 144 Cedar Street and seized, inter alia, a substantial
quantity of illegal narcotics. The defendant was arrested
and charged with, inter alia, two counts of possession
of narcotics with intent to sell. In March, 2013, the
defendant filed a motion to suppress evidence obtained
as a result of the search of 144 Cedar Street. Following
an evidentiary hearing, the court issued a memorandum
of decision denying the defendant’s motion to suppress.
The court found that the affidavit in support of the
search warrant provided a sufficient factual basis as to
the confidential informant’s basis of knowledge, his
veracity, and reliability on which to conclude that prob-
able cause existed for the issuance of the warrant.
The defendant entered pleas of nolo contendere to
two counts of possession of narcotics with intent to
sell, conditioned on his right to appeal from the court’s
denial of his motion to suppress. The trial court deter-
mined that the ruling on the motion to suppress was
dispositive of the case. The pleas were accepted and a
judgment of guilty was rendered. The defendant was
sentenced to a total effective sentence of eighteen years
incarceration, execution suspended after nine years,
followed by five years probation. This appeal followed.
Our review of the question of whether an affidavit in
support of an application for a search warrant provides
probable cause for the issuance of the warrant is ple-
nary. State v. Buddhu, 264 Conn. 449, 459, 825 A.2d 48,
cert. denied, 541 U.S. 1030, 124 S. Ct. 2106, 158 L. Ed.
2d 712 (2004). We consider the four corners of the
affidavit and, giving proper deference to the issuing
magistrate, determine whether the issuing magistrate
reasonably could have concluded that probable cause
existed. See State v. Flores, 319 Conn. 218, 225–26, 125
A.3d 157 (2015); State v. Barton, 219 Conn. 529, 548,
594 A.2d 917 (1991).
We are guided by the following standards. ‘‘The fourth
amendment to the United States constitution prohibits
unreasonable searches and seizures and requires a
showing of probable cause prior to the issuance of a
search warrant. 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. . . . Although [p]roof of
probable cause requires less than proof by a preponder-
ance of the evidence . . . [f]indings 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 con-
texts—not readily, or even usefully, reduced to a neat
set of legal rules. . . . Consequently, [i]n determining
the existence of probable cause to search, the issuing
[judge] assesses all of the information set forth in the
warrant affidavit and should make a practical, nontech-
nical decision whether . . . there is a fair probability
that contraband or evidence of a crime will be found
in a particular place. . . . This determination is made
pursuant to a totality of circumstances test. . . .
‘‘This court has recognized that because of our consti-
tutional preference for a judicial determination of prob-
able cause, and mindful of the fact that [r]easonable
minds may disagree as to whether a particular [set of
facts] establishes probable cause . . . we evaluate the
information contained in the affidavit in the light most
favorable to upholding the issuing judge’s probable
cause finding. . . . We therefore review the issuance
of a warrant with deference to the reasonable infer-
ences that the issuing judge could have and did draw
. . . and we will uphold the validity of [the] warrant
. . . [if] the affidavit at issue presented a substantial
factual basis for the [issuing judge’s] conclusion that
probable cause existed. . . . Finally, [i]n determining
whether [a] warrant was based [on] probable cause,
we may consider only the information that was actually
before the issuing judge at the time he or she signed
the warrant, and the reasonable inferences to be drawn
therefrom. . . .
‘‘When an affidavit is based on hearsay information
from an informant, rather than on the personal observa-
tions of the affiant, the veracity or reliability and basis
of knowledge of [the informant] are highly relevant in
the issuing judge’s analysis of the totality of the circum-
stances. . . . In cases where an informant is as yet
untested, this court has employed several methods by
which to judge the information’s reliability or the infor-
mant’s credibility. Three of the most common factors
used to evaluate the reliability of an informant’s tip
are (1) corroboration of the information by police, (2)
declarations against penal interest by the informant-
declarant, and (3) the reputation and past criminal
behavior of the suspect.’’ (Citations omitted; internal
quotation marks omitted.) State v. Flores, supra, 319
Conn. 224–26.
While this appeal was pending, our Supreme Court
decided State v. Flores, supra, 319 Conn. 218.3 That case
is similar in many respects to the present case. In Flores,
the affidavit in support of the search and seizure war-
rant averred the following facts: ‘‘On January 27, 2010,
Rafley Santiago was arrested by Meriden [p]olice for
crimes related to being in possession of a stolen dirt
bike, and various other motor vehicle charges. Santiago
requested to speak with someone regarding information
he had, that would be of interest to [p]olice. . . .
[Detective Angelo] Stavrides [of the Meriden Police
Department] notified Santiago of his Miranda4 rights,
which he waived. . . . Stavrides conducted an inter-
view of Santiago. The interview was audio recorded,
in a patrol interview area, at [p]olice [h]eadquarters.
. . . Santiago stated among other things that he regu-
larly purchases marijuana, approximately every [three]
days, from [the] 215 Camp Street, third floor apartment.
He stated [that] he has been making such purchases,
for the last month or two. Santiago stated he purchases
[one] or [two] bags of marijuana each time, from a male
subject he only knew as ‘John.’ He stated he pays ‘John’
$10 for each bag of marijuana. Santiago stated [that]
‘John’ has long hair, and many people frequent the apart-
ment. . . . Each of the estimated [twenty] purchases
Santiago made from [the] apartment, all came from
within that apartment, within the last two months. Santi-
ago stated [that] the last time he purchased marijuana
[from the apartment] was [four] days prior to the date
of the statement he made to . . . Stavrides. Santiago’s
last purchase was made on Saturday, January 23, 2010.
. . . The affidavit also described the officers’ knowl-
edge regarding the conduct of individuals who are
involved in the sale and use of controlled substances,
including that, through their experience, they know that
such persons routinely store illegal contraband in the
location from which they base their sales.’’ (Footnote
in original; internal quotation marks omitted.) Id., 221–
22. A search warrant was issued on the basis of the
facts contained in the affidavit. Id., 222.
The defendant sought to exclude the fruits of the
subsequent search on the ground that the warrant had
been issued without probable cause. Id., 223. Our
Supreme Court reasoned: ‘‘[T]here is no dispute that
Santiago was a first time informant and that the officers
did not undertake any independent corroboration of
his statement, nor did they have any information regard-
ing the defendant’s past criminal behavior that might
bolster the reliability of Santiago’s statement. Indeed,
for these reasons, we recognize that these facts present
a particularly close case as to whether the issuing judge
reasonably could have concluded that the information
relayed by Santiago was reliable, and that his statement
therefore supported a finding of probable cause. In light
of the deference we give to an issuing judge’s finding
of probable cause, however, because Santiago was a
named informant who gave a statement against his
penal interest, we agree with the state that the judge
could have reasonably credited his statement.
‘‘First, that Santiago was named in the affidavit and
gave his statement in person at police headquarters
can be significant in the determination of whether the
information he provided was reliable. In such circum-
stances, the police can observe the informant’s
demeanor to determine his . . . credibility, and the
informant runs the greater risk that he may be held
accountable if his information proves false. . . .
Indeed, as this court has repeatedly recognized, [t]he
fact that an informant’s identity is known . . . is signif-
icant because the informant could expect adverse con-
sequences if the information that he provided was
erroneous. Those consequences might range from a loss
of confidence or indulgence by the police to prosecution
for . . . falsely reporting an incident under General
Statutes § 53a-180[c], had the information supplied
proved to be a fabrication. . . . We disagree with the
defendant’s contention that naming Santiago in the affi-
davit provided no indicia of reliability because his state-
ment relayed historical information. Because Santiago
indicated that marijuana was being sold out of the apart-
ment on a continuous basis, had the officers not uncov-
ered any evidence of contraband, he could have
expected adverse consequences for relaying false infor-
mation. More importantly, however, Santiago made a
statement against his penal interest when he admitted
to purchasing marijuana, not once, but on as many
as twenty occasions in the two months preceding the
issuance of the search warrant, with the most recent
purchase occurring only four days before he gave his
statement to police.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 227–28.
Our Supreme Court stated that Flores was a ‘‘particu-
larly close case’’ in light of the facts that the warrant
was based on a statement given by ‘‘a first time infor-
mant and that the officers did not undertake any inde-
pendent corroboration of his statement, nor did they
have any information regarding the defendant’s past
criminal behavior that might bolster the reliability of
[the informant’s] statement.’’ Id., 227. Applying the
required degree of deference to the reasonable infer-
ences the issuing judge could have drawn from the
information provided in the affidavit in support of the
warrant; see id., 225–26; including that the informant’s
identity was known5 and that he gave a statement
against his penal interest in that he admitted that he had
purchased marijuana from the defendant on multiple
occasions, the issuing judge reasonably could have con-
cluded that the information was reliable and that his
statements supported a finding of probable cause. Id.,
227–28, 233.
The affidavit in the present case more strongly sup-
ports a finding of probable cause than the affidavit in
Flores. As in Flores, the identity of the informant in the
present case was known to the police and he gave a
statement against his penal interest, in which he
described the defendant’s drug dealing operation con-
ducted in the defendant’s residence. The informant in
the present case reported that he had made more than
a dozen visits to the defendant’s residence in the preced-
ing month and one within two days of the issuance of
the warrant. The defendant in the present case argues
that the informant did not make a direct admission of
criminal activity and that there was no basis for infer-
ring criminal activity by the informant; thus, the state-
ments were not made against the informant’s penal
interest. A magistrate reasonably could infer, however,
that the informant’s recitation of the frequent visits to
the defendant’s heroin packaging facility, as described
in the affidavit, including one visit two days before his
arrest, at which time, a large quantity of heroin was
found in his possession, was contrary to his penal inter-
est. The informant’s detailed description of the criminal
activity which he observed during his visits was also
consistent with his own potential criminal liability.
Additionally, the informant’s information in this case
was more detailed than that in Flores: here the infor-
mant stated that he had observed the defendant with
large amounts of heroin, observed him package heroin
on the table in the basement of the residence, and saw
that the defendant stored several firearms in the base-
ment and second floor apartment and that the defendant
kept a safe in the basement, where he stored heroin
and money received from drug sales. The physical
description of the defendant was detailed as well. The
level of detail in a confidential informant’s tip can be
a factor to consider in assessing reliability. See Illinois
v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 76 L. Ed.
2d 527 (1983) (‘‘[an] explicit and detailed description
of alleged wrongdoing, along with a statement that the
event was observed firsthand, entitles [a] tip to greater
weight than might otherwise be the case’’); see also
State v. Ocasio, 112 Conn. App. 737, 749, 963 A.2d 1109(level of detail of confidential informant’s tip one factor
in weighing credibility), cert. denied, 292 Conn. 904,
973 A.2d 106 (2009).
Furthermore, here, unlike in Flores, there was some
independent corroboration by the police of the infor-
mant’s statement. Members of the task force arrested
the informant and two others on drug charges relating
to a large quantity of heroin in their possession, on the
same day as, but prior to, the arrest of the defendant.
Additionally, within the two day period immediately
preceding the arrests, the police task force had
observed one of the arrested suspects enter and leave
144 Cedar Street. This observation provided some cor-
roboration of the informant’s statement that the defen-
dant was a drug dealer. The defendant argues that the
observation was partial corroboration at best and not
sufficiently significant to support the reliability of the
informant’s tip. Although the corroboration was not
especially detailed or strong, it nonetheless provided
some additional support, in the totality of the circum-
stances, for the finding that the informant’s information
was reliable.
On the basis of the record and the standards enunci-
ated in our Supreme Court’s decision in Flores, we
conclude that the issuing judge reasonably could have
concluded, on the basis of the facts recited in the affida-
vit and reasonable inferences drawn therefrom, that, in
the totality of the circumstances, the affidavit contained
probable cause for the issuance of the warrant. Accord-
ingly, the trial court did not err in denying the defen-
dant’s motion to suppress the evidence seized from his
residence during the execution of the search warrant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-94a provides in relevant part that ‘‘[w]hen a defen-
dant, prior to the commencement of trial, enters a plea of nolo contendere
conditional on the right to take an appeal from the court’s denial of the
defendant’s motion to suppress or motion to dismiss, the defendant after
the imposition of sentence may file an appeal within the time prescribed
by law provided a trial court has determined that a ruling on such motion
to suppress or motion to dismiss would be dispositive of the case. The issue
to be considered in such an appeal shall be limited to whether it was proper
for the court to have denied the motion to suppress or the motion to dismiss.
. . .’’ The trial court made such a determination in this matter.
2
The defendant also was charged with two counts of possession of narcot-
ics in violation of § 21a-278 (a) and one count of possession of narcotics
with intent to sell within 1500 feet of a public school in violation of General
Statutes § 21a-278a (b). The state entered a nolle prosequi as to those
charges.
3
Following oral argument in this court, we gave the parties the opportunity
to file simultaneous supplemental briefs ‘‘addressing the effect of State v.
Flores, [supra] 319 Conn. 218 . . . if any, on the resolution of the appeal
in this case.’’ Both parties filed supplemental briefs.
4
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5
If the police know the identity of the informant, they ‘‘can observe the
informant’s demeanor . . . and the informant runs the greater risk that he
may be held accountable if his information proves false.’’ (Internal quotation
marks omitted.) State v. Flores, supra, 227.