State v. Collins ( 2021 )

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STATE OF CONNECTICUT v. JIQUANE
CHRIS COLLINS
(AC 43030)
Bright, C. J., and Elgo and Clark, Js.
Syllabus
The defendant, who had been convicted of two counts of the crime of
possession of narcotics with intent to sell, appealed to this court, claim-
ing that the trial court improperly denied his motions for a mistrial
and his motion to suppress evidence, including, inter alia, 121 bags of
individually packaged crack cocaine, that was seized from his residence
pursuant to a search warrant. At trial, the state offered the expert
testimony of a police detective, P, who testified about the quantities of
drugs usually found in the possession of people who sell drugs as
opposed to people who only use drugs. Answering a hypothetical posed
by the prosecutor, P testified that the possession of 121 bags of crack
cocaine was consistent with someone who sold drugs. Following argu-
ment that this testimony went to the ultimate issue of the defendant’s
intent, the court denied defense counsel’s motion for a mistrial. The
state also offered the testimony of Y, a police sergeant, who testified
that he knew where the defendant lived ‘‘from other situations’’ that
involved the defendant. Defense counsel argued that Y’s testimony
improperly informed the jury that the defendant had prior involvement
with the police but did not request a limiting or curative instruction
following the court’s denial of a motion for a mistrial. The defendant
also argued that the search warrant for his apartment, the application
for which had been based on the affidavit of P and another police
detective, L, referencing in part two sales of narcotics by the defendant to
a confidential informant, had been issued without probable cause. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motions for a mistrial.
a. The trial court did not abuse its discretion in denying the defendant’s
motion for a mistrial after P’s testimony, as P’s response to the state’s
hypothetical questions did not amount to an opinion as to the ultimate
issue of the defendant’s intent to sell narcotics; pursuant to the opinion
of our Supreme Court in State v. Nash (278 Conn. 620), the significance
of the quantity of narcotics found on a suspect is a proper subject of
expert testimony, and P’s testimony concerned a hypothetical individual
and not this defendant.
b. The defendant could not prevail on his claim that the trial court
abused its discretion in denying his motion for a mistrial based on Y’s
testimony; Y’s statement mentioning ‘‘other situations’’ was vague and
did not mention prior misconduct, police investigations or anything
nefarious, and defense counsel, who specifically told the court that he
did not want a curative instruction, could not opt for a mistrial instead.
2. The trial court properly denied the defendant’s motion to suppress evi-
dence, as probable cause existed to support the issuance of the search
warrant for the defendant’s apartment; P and L attested that they had
heard multiple reports that the defendant had been selling narcotics
out of his apartment, a confidential informant made two controlled
purchases of narcotics from the defendant under police observation,
and a reasonable inference could be made that the defendant brought
narcotics from his apartment when he met with the confidential infor-
mant.
Argued April 5—officially released August 3, 2021
Procedural History
Substitute information charging the defendant with
two counts of the crime of possession of narcotics with
intent to sell, brought to the Superior Court in the judi-
cial district of Middlesex, geographical area number
nine, where the court, Suarez, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the mat-
ter was tried to the jury before Suarez, J.; subsequently,
the court denied the defendant’s motions for a mistrial;
verdict and judgment of guilty, from which the defen-
dant appealed. Affirmed.
Freeman J. Demirjian, certified legal intern, with
whom was James B. Streeto, senior assistant public
defender, for the appellant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Michael A. Gailor, state’s
attorney, Kevin M. Shay, senior assistant state’s attor-
ney, and Jacqueline M. Fitzgerald, special deputy assis-
tant state’s attorney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Jiquane Chris Collins,
appeals from the judgment of conviction, rendered by
the trial court in accordance with the jury’s verdict, of
two counts of possession of narcotics with intent to
sell in violation of General Statutes (Rev. to 2017) § 21a-
278 (b). On appeal, the defendant claims that the trial
court (1) improperly denied his motions for a mistrial
following testimony on the ultimate issue of his intent
and following testimony concerning alleged prior mis-
conduct, and (2) erred in denying his motion to suppress
evidence seized during the execution of a search war-
rant that had been issued without probable cause. We
affirm the judgment of the trial court.
The following facts, which reasonably could have
been found by the jury, and procedural history inform
our review of the defendant’s appellate claims. On Octo-
ber 10, 2017, following a narcotics investigation in
which Middletown police officers twice observed the
defendant sell crack cocaine to a confidential infor-
mant, the police officers applied for, and were granted,
a search warrant for the defendant’s Middletown apart-
ment (apartment). Members of the narcotics unit of the
Middletown Police Department executed the warrant
on October 13, 2017. The police arrived outside the apart-
ment between 6 and 6:30 p.m., where they conducted
surveillance before knocking, at approximately 7:40
p.m., on the apartment door. After receiving no response
to their knock, the police breached the door. The police
observed a sparsely furnished and tidy apartment, and
it appeared that no one other than the defendant lived
there. The police detained the defendant, who had been
in bed, without incident.
During their search of the apartment, the police found
a large container on the kitchen table, which contained
121 bags of individually packaged crack cocaine and
14 glassine bags of heroin. The estimated street value
of the crack cocaine and heroin totaled approximately
$3110 and $140, respectively. The police also found
many ‘‘tear bags’’1 behind an electrical outlet cover in
the defendant’s bedroom, and they found a razor blade
with a white substance on it that later was determined
to be cocaine. In addition to seizing those items, the
police also seized $1524 in cash, a laptop computer,
a flat screen TV, jewelry, and mail addressed to the
defendant.
The defendant, thereafter, was charged with two
counts of possession of narcotics with intent to sell.
Following a jury trial that resulted in guilty findings,
the court rendered a judgment of conviction of both
counts and imposed a total effective sentence of twelve
years of incarceration, execution suspended after seven
years, with three years of probation. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
On appeal, the defendant first claims that the trial
court improperly denied his motions for a mistrial fol-
lowing testimony on the ultimate issue of his intent
to sell narcotics and following testimony concerning
alleged prior misconduct. After setting forth our stan-
dard of review of the trial court’s decision to deny a
motion for a mistrial, we will address each claim in turn.
‘‘In our review of the denial of a motion for [a] mis-
trial, we have recognized the broad discretion that is
vested in the trial court to decide whether an occur-
rence at trial has so prejudiced a party that he or she
can no longer receive a fair trial. The decision of the
trial court is therefore reversible on appeal only if there
has been an abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Berrios, 320 Conn. 265, 274,
129 A.3d 696 (2016). Furthermore, ‘‘[w]hile the remedy
of a mistrial is permitted under the rules of practice, it
is not favored. [A] mistrial should be granted only as
a result of some occurrence upon the trial of such a
character that it is apparent to the court that because
of it a party cannot have a fair trial . . . and the whole
proceedings are vitiated. . . . If curative action can
obviate the prejudice, the drastic remedy of a mistrial
should be avoided. . . . On appeal, we hesitate to dis-
turb a decision not to declare a mistrial. The trial judge
is the arbiter of the many circumstances [that] may
arise during the trial in which his function is to assure
a fair and just outcome. . . . The trial court is better
positioned than we are to evaluate in the first instance
whether a certain occurrence is prejudicial to the defen-
dant and, if so, what remedy is necessary to cure that
prejudice.’’ (Internal quotation marks omitted.) State v.
Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006).
A
We first consider whether the court improperly
denied the defendant’s motion for a mistrial following
the testimony of Detective Nathaniel Peck. The defen-
dant alleges that Peck opined on the ultimate issue of
whether the defendant intended to sell narcotics. The
defendant argues that, during trial, he did not contest
the fact that he possessed narcotics; the only issue in
dispute was whether he intended to sell those narcotics.
The defendant contends that Peck opined on the defen-
dant’s intent in this case when Peck testified that pos-
session of 121 individually wrapped bags of crack
cocaine would be consistent with someone who is sell-
ing narcotics, rather than someone who is using narcot-
ics. The state argues that the defendant did not object to
the state’s question about the 121 individually wrapped
bags of crack cocaine, that the question and the answer
both were in compliance with our Code of Evidence,
and that Peck answered a hypothetical question posed
by the state about any person, not a question about
this defendant. We conclude that the court did not
abuse its discretion when it denied the defendant’s
motion for a mistrial on the basis of Peck’s testimony.
The following additional facts and procedural history
are necessary to our resolution of the defendant’s claim.
Prior to the start of evidence, the state declared its
intention to call an expert in the area of trafficking of
narcotics. Specifically, on February 4, 2019, the state
filed a motion in limine to permit expert testimony on
the issue of whether the evidence it intended to present
during its case-in-chief regarding the items seized at
the apartment was consistent with mere drug usage or
whether it was consistent with drug sales. In its motion,
the state represented that ‘‘[t]he expert would not com-
ment on this particular defendant’s intent and indeed
would not even be aware of the allegations surrounding
this particular incident. Rather, such expert would tes-
tify relative as to the customs and trade practices of
drug traffickers generally, which has been held by our
Supreme Court to be proper . . . . Indeed, the expert
who the state would present is not and has never been
a member of the arresting agency in this case . . . .’’
(Citations omitted.) On February 25, 2019, the court
granted the state’s motion.
Before the start of evidence, however, the state noti-
fied the court of its intention to have Detective Peck
testify as both a fact witness and its expert witness on
the trafficking of narcotics. Although the defendant did
not object to Peck testifying both as a fact and as an
expert witness, he did object to Peck testifying to the
ultimate issue of whether the defendant possessed the
narcotics with the intent to sell. The trial court agreed.
As a fact witness, Peck testified about the execution
of the search warrant on October 13, 2017, and what
the police found at the apartment. Thereafter, the state
laid a foundation to qualify Peck as an expert in the area
of crack cocaine and heroin trafficking. When asked
by the trial court, the defendant did not object to Peck’s
qualifications. As an expert witness, Peck testified
about the items that crack cocaine and heroin dealers
usually have in their homes, noting that dealers often
have digital scales, customer lists, crack cocaine broken
down into individual baggies, heroin broken down into
individual glassine bags, spoons, razor blades, and
money. Peck then explained that in homes of users of
cocaine and heroin, police would find glass tubes with
burnt ends, copper wool, torn bags, crack pipes, burnt
spoons, needles, cotton, Q-tips, and straws. Peck also
explained how crack cocaine and heroin are ingested.
The state then asked Peck to opine about the quanti-
ties of drugs in the possession of drug dealers versus
those in the possession of drug users. Specifically, the
following colloquy took place between the prosecutor
and Peck:
‘‘[The Prosecutor]: And now I’m going to ask you a
series of hypothetical questions that pertain to crack
cocaine. So, based on your training and experience, if
you found an individual in possession of 121 individually
wrapped [baggies] consisting of crack cocaine, would
that be consistent, based on your training, with some-
one who was selling or using?
‘‘[Peck]: That’s consistent, in my opinion, with some-
one [who] is selling crack cocaine.
‘‘[The Prosecutor]: And how would you make that
determination?
‘‘[Peck]: By the sheer volume of the crack cocaine
as—as one, in addition to the fact that it’s individually
wrapped. That is typically done for prepackaged for
street level sales.
‘‘[The Prosecutor]: And how would you determine
whether items seized are for personal use versus for
sale?
‘‘[Peck]: You can determine that based on what else
you find in the area, though the entire scene would
have to be—to understand it, but you’d have to find
devices used to smoke crack cocaine. If the person
smoking it—that’s really the only way to take it—you
would find those items in the residence.
‘‘[The Prosecutor]: Based on your training and experi-
ence, if someone is using crack cocaine, would they
usually have large amounts of crack cocaine in reserve?
‘‘[Peck]: No.
‘‘[The Prosecutor]: And—and why is that, Detective?
‘‘[Peck]: Typically, the addiction to crack cocaine is
pretty overwhelming . . . . I haven’t been in any resi-
dences . . . where individuals were inside using crack
cocaine that weren’t unkempt. You’re going to find torn
bags. You—you would see these things all—all through-
out the residence. The sheer quantity of crack cocaine
itself is astronomical to price to—to acquire that much.
Individuals typically go out and buy what they need at
the time.
‘‘[The Prosecutor]: And so, this leads me to my ques-
tion. If someone is a—a crack cocaine user, would they
usually have large amounts of cash?
‘‘[Peck]: Also, no. They would be spending what they
had at the time to get high and then sorting out the
next time they needed to get high by selling, trading,
stealing, whatever—whatever they had to do to get
more crack cocaine.
‘‘[The Prosecutor]: I think you’ve already testified to
this, but what . . . [is] the street value of crack cocaine
[in] Middlesex County?
‘‘[Peck]: It’s sold at—the street value is $10 per 0.1
gram[s] of crack cocaine.
‘‘[The Prosecutor]: So, if someone had 31.1 grams of
crack cocaine, what would be the value of that crack?
‘‘[Peck]: $3110.
‘‘[The Prosecutor]: Now, I’m going to switch gears
and ask you some hypothetical questions about heroin.
Based on your training and experience, if you found an
individual in possession of fourteen glassines of heroin,
would that be consistent with someone selling and—
‘‘[Peck]: That could be either way.
‘‘[The Prosecutor]: Would you please explain that?
‘‘[Peck]: If an individual [is] involved in the use of
heroin, fourteen bags is not an exceptional amount for
a person to be using heroin. However, you would have
items that you would see associated with that. It would
be, again, if they’re [intravenous] users, they would have
needles, they would have cotton, [and] they would have
spoons. If they’re snorting it, typically they’re using a
device to ingest into [their] body. Again, rolled—rolled
bills, rolled pieces of paper, straws. One without the
other would say that it makes it clear that you’re either
involved in the sale or involved in the use.
‘‘[The Prosecutor]: And based on your training and
experience, if someone is a heroin user would they usu-
ally have a large reserve of heroin on them or with them?
‘‘[Peck]: Not usually, no.
‘‘[The Prosecutor]: And why is that?
‘‘[Peck]: Again, similar to the—the crack cocaine
[addiction], heroin is significantly overwhelming. The
addiction to it is substantial. Individuals that are
involved in using it are going to buy what they need
for the time they need to get high, and, at the next time
they need to get high, they’re going to sort that out.
‘‘[The Prosecutor]: And . . . Detective . . . what is
the street value of heroin in Middlesex?
‘‘[Peck]: Middlesex is approximately $10 per bag of
heroin.
‘‘[The Prosecutor]: So, if someone has fourteen bags
of heroin, what would be the street value?
‘‘[Peck]: Approximately $140.’’
The defendant did not object to this testimony, or
ask that it be stricken from the record, or request that
the court give a cautionary instruction to the jury. Imme-
diately after the state concluded its examination of
Peck, however, defense counsel asked that the court
excuse the jury, which it did, and he then requested
that the court declare a mistrial. The following colloquy
occurred:
‘‘[Defense Attorney]: Your Honor, at this time, I would
move for [a] mistrial. Something of the fact that [the] state
did bring up the issues. I understand it was in a hypo-
thetical format, but [it] used the 121 bags and the 14
bags, more so on the crack cocaine, that was very—I
think it was going almost to the ultimate issue based
on this officer’s testimony that it was his opinion and
it was for sale. If—if the state had used a more—a
safer approach in talking as [it] did with the—with the
witness about what commonly is observed in the homes
of users versus the home of—of dealers, certainly that
was sufficient in order to establish that what was down
in the apartment was more consistent with drug dealing
than—than not drug dealing. But once the state went
further and then asked specifically about the 121 bags
and the 14 bags—the 14 glassine bags and the 121 bags
of crack cocaine, it went beyond that and it went to
the ultimate issue.
‘‘The Court: All right. Well, you wish be heard on that?
‘‘[The Prosecutor]: I don’t think it went to the ultimate
issue—issue, Your Honor. I said consistent with. I did
not say whether or not it was his opinion whether or
not the defendant was possessing it with intent to sell.
‘‘The Court: Well, certainly, experts can give an opin-
ion based on their training and expertise, and, also,
they can give an opinion on hypotheticals. Hypotheti-
cals have to, however, be based on—on some evidence
that would be introduced. [The prosecutor] did use 121
bags of cocaine and 14 bags of heroin, but this witness
gave an opinion based on his expertise. [The state] cer-
tainly has to follow up on the issue of the number of bags
of heroin and—and crack cocaine. I don’t think this
witness’ opinion has gone beyond that of just a—just
a general opinion based on his expertise and training.
‘‘[Defense Attorney]: Thank you, Your Honor.
‘‘The Court: So, I’ll—I’ll deny the motion—the motion
[for] a mistrial.’’
On appeal, the defendant argues: ‘‘The state, through
its expert, made clear to the jury that the state’s ques-
tions were referring to [the defendant] and the drugs in
his apartment, not some hypothetical defendant. Peck’s
testimony left the jury with no other possible conclusion
than [the defendant] had the intent to sell. [The defen-
dant] was not convicted by a jury of his peers, but by
his arresting officer. This constituted reversible error;
the defendant’s motion for mistrial was improperly
denied.’’ We disagree.
Section 7-2 of the Connecticut Code of Evidence pro-
vides: ‘‘A witness qualified as an expert by knowledge,
skill, experience, training, education or otherwise may
testify in the form of an opinion or otherwise concerning
scientific, technical or other specialized knowledge, if
the testimony will assist the trier of fact in understand-
ing the evidence or in determining a fact in issue.’’ Sec-
‘‘Testimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the
trier of fact, except that, other than as provided in
subsection (b), an expert witness may give an opinion
that embraces an ultimate issue where the trier of fact
needs expert assistance in deciding the issue.’’
Pursuant to General Statutes § 54-86i, ‘‘No expert wit-
ness testifying with respect to the mental state or condi-
tion of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did
or did not have the mental state or condition consti-
tuting an element of the crime charged or of a defense
thereto, except that such expert witness may state his
diagnosis of the mental state or condition of the defen-
dant. The ultimate issue as to whether the defendant
was criminally responsible for the crime charged is a
matter for the trier of fact alone.’’
Finally, § 7-4 of the Connecticut Code of Evidence
provides: ‘‘(a) Opinion testimony by experts. An expert
may testify in the form of an opinion and give reasons
therefor, provided sufficient facts are shown as the
foundation for the expert’s opinion.
‘‘(b) Bases of opinion testimony by experts. The facts
in the particular case upon which an expert bases an
opinion may be those perceived by or made known to
the expert at or before the proceeding. The facts need
not be admissible in evidence if of a type customarily
relied on by experts in the particular field in forming
opinions on the subject. The facts relied on pursuant
to this subsection are not substantive evidence, unless
otherwise admissible as such evidence.
‘‘(c) Hypothetical questions. An expert may give an
opinion in response to a hypothetical question provided
that the hypothetical question: (1) presents the facts in
such a manner that they bear a true and fair relationship
to each other and to the evidence in the case; (2) is not
worded so as to mislead or confuse the jury; and (3)
is not so lacking in the essential facts as to be without
value in the decision of the case. A hypothetical ques-
tion need not contain all of the facts in evidence.’’
In the present case, Peck was presented both as a
fact witness and as an expert, without objection. Peck
was asked hypothetical questions by the state, to which
the defendant did not object. Those questions did not
refer to this particular defendant, but, rather, they
referred generally to someone who sells narcotics, and
Peck was asked to opine, as a qualified expert, on whether
a particular amount of narcotics was consistent with sales
as opposed to usage. As our Supreme Court explained
in State v. Nash, 278 Conn. 620, 651, 899 A.2d 1 (2006),
‘‘the significance of the quantity of narcotics found on
a suspect is not within the common knowledge of the
average juror and, therefore, is a proper subject of
expert testimony.’’ (Internal quotation marks omitted.)
We conclude that Nash is directly on point.
In Nash, an expert witness had testified about ‘‘the
practices of street level narcotics dealers, including
whether possessing certain quantities of narcotics is
consistent with the sale, rather than personal use, of
the narcotics and how street level dealers sell narcotics
and what type of packaging they generally use.’’ Id.,
649. Similar to the present case, the defendant in Nash
then contended that the expert’s testimony ‘‘was more
prejudicial than probative because [he] essentially had
offered an opinion on the sole disputed issue at trial—
whether the defendant possessed the cocaine with the
intent to sell.’’ Id., 650–51. Our Supreme Court dis-
agreed, stating that the defendant was unable to cite
any Connecticut case that stood ‘‘for the proposition
that the testimony improperly was admitted because it
is within the average jurors’ ability and common knowl-
edge to determine whether a person possessing thirty-
eight small bags of cocaine intends to sell the narcotics
or buys it in bulk to keep it for personal consumption.’’
Id., 652. Our Supreme Court concluded: ‘‘To the extent
that [the expert] opined that, under a hypothetical set
of facts similar to those at issue here, the conduct was
more consistent with the sale of narcotics than the pur-
chase of narcotics, we do not construe this testimony
as an opinion as to the ultimate issue of fact.’’ Id., 653.
Under the clear guidance of Nash, we conclude that
Peck’s response to the state’s hypothetical questions
did not amount to an opinion as to the ultimate issue
in the case, namely, the intent to sell narcotics. As was
the case in Nash, the testimony in the present case
concerned a hypothetical individual, not this particular
defendant. Accordingly, the court did not abuse its dis-
cretion in denying the defendant’s motion for a mistrial
after Peck’s testimony.
B
We next consider the defendant’s claim that the court
improperly denied his motion for a mistrial following
the testimony of Sergeant George Yepes, which the defen-
dant alleges contained a reference to prior misconduct
by the defendant. He argues that the court specifically
had prohibited the introduction of prior misconduct
evidence in its ruling in limine. The state argues that
the court properly ruled on the motion for a mistrial
because Yepes’ answer was responsive to defense coun-
sel’s question and, therefore, was invited. The state
also argues that Yepes’ testimony did not refer to prior
misconduct. We agree with the state.
The following additional facts inform our review of
this claim. The state had filed a motion to permit the
introduction of prior misconduct evidence, which the
defendant opposed. On the first day of evidence, the
court ruled that such evidence was not admissible. Later
that day, during cross-examination, the following collo-
quy occurred between defense counsel and Yepes:
‘‘Q. Now, you’re—you’re familiar with—with the evi-
dence that was seized from [the defendant’s] apart-
ment?
‘‘A. Yes, sir.
‘‘Q. And that included five tear bags from an outlet?
‘‘A. From an outlet, sir, yes.
‘‘Q. Before going into the apartment, did you have
any knowledge how long [the defendant had] lived in
that apartment?
‘‘A. He was there for a while. I’m not sure exactly
how long though.
‘‘Q. You know that? That was part of your investiga-
tion to determine how long he lived there?
‘‘A. I believe from other situations that involved
him, yes.’’
Defense counsel immediately asked for the jury to be
excused, and he requested that the court declare a mis-
trial. He argued that the answer was nonresponsive and
that it informed the jury that the defendant had had
prior involvement with the police. The court explained
that it appeared that the question asked Yepes how he
knew that the defendant lived at the apartment and that
Yepes’ answer was responsive to that question. The state
argued that Yepes merely stated that he knew the defen-
dant lived there ‘‘from other situations,’’ but that Yepes
did not give any type of details or indicate that it was
from prior misconduct by the defendant. The trial court
denied the motion, and defense counsel stated that he
did not want the court to give a limiting or curative instruc-
tion. The court, however, instructed Yepes not to dis-
cuss prior arrests or convictions. It then recalled the
jury. The defendant claims that the court abused its dis-
cretion in denying his motion for a mistrial. We are not
persuaded.
‘‘[A]s a general rule, evidence of a defendant’s prior
crimes or misconduct is not admissible. . . . The ratio-
nale of this rule is to guard against its use merely to show
an evil disposition of an accused, and especially the pre-
disposition to commit the crime with which he is now
charged.’’ (Internal quotation marks omitted.) State v.
Nash, supra, 278 Conn. 658.
We, again, are guided by our Supreme Court’s deci-
sion in Nash. See id., 656–60. In Nash, the trial court had
granted a motion in limine to exclude prior misconduct
evidence related to the defendant. Id., 655–56. During
the state’s direct examination of a police officer, the
officer testified that he knew the defendant ‘‘from previ-
ous related police intervention in the area in the past.’’
(Internal quotation marks omitted.) Id., 656. The defen-
dant thereafter moved for a mistrial, arguing that this
testimony was akin to the officer telling the jury that he
knew the defendant from the defendant’s prior criminal
misconduct. Id., 656–57. Our Supreme Court concluded
that the trial court had not abused its discretion in
denying the motion for a mistrial because the officer’s
statement was ‘‘vague as to whether the defendant had
engaged in any misconduct to prompt the police inter-
vention . . . [and the] statement conceivably could
have been a reference to a situation in which the defen-
dant had been a victim, a witness or an innocent
bystander.’’ Id., 658. The court also stated that the offi-
cer’s statement did ‘‘not reference explicitly a notorious
criminal past.’’ Id., 658–59. The court then noted that,
even if the jury, arguably, could have interpreted the
officer’s statement to be a comment about the defen-
dant’s prior criminal conduct, the trial court had pro-
vided a curative instruction that would have cured any
possible prejudice. Id., 659–60.
In the present case, Yepes’ statement merely men-
tioned ‘‘other situations,’’ which, as in Nash, could have
referred to anything. Yepes did not mention prior mis-
conduct, police investigations, or anything nefarious.
As was the case in Nash, Yepes’ statement that he was
familiar with the defendant from ‘‘other situations’’ that
involved him ‘‘conceivably could have been a reference
to a situation in which the defendant had been a victim,
a witness or an innocent bystander.’’ State v. Nash,
supra, 278 Conn. 658. Although the trial court in this
case did not give a curative instruction, defense counsel
specifically told the court that he did not want such an
instruction. ‘‘Defense counsel cannot opt for a mistrial
instead of a curative instruction, as if the two were inter-
changeable. If defense counsel decides to move for [a]
mistrial and altogether eschews the instruction, the trial
court cannot be compelled by that decision to go further
than it otherwise would.’’ (Internal quotation marks omit-
ted.) State v. Coltherst, 87 Conn. App. 93, 102, 864 A.2d
869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005).
We conclude that the defendant has failed to establish
that the court abused its discretion in denying his motion
for a mistrial on the basis of Yepes’ testimony.
II
The defendant also claims that the trial court abused
its discretion in denying his motion to suppress evi-
dence seized during the execution of the search warrant
because the warrant had been issued without probable
cause. The defendant argues that ‘‘the affidavit for [the
search] warrant failed to state with particularity the
probable cause to believe drugs or evidence of sales
could be found at [the defendant’s apartment]. The affi-
davit failed to establish a nexus between the items
sought and the subject of the search. Finally, the affida-
vit was utterly devoid of factual bases for knowledge
and credibility concerning the use of the [apartment],
and therefore failed the ‘totality of the circumstances
test’ of Illinois v. Gates, [462 U.S. 213, 238, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983)].’’ In response, the state
argues that the trial court properly denied the defen-
dant’s motion to suppress after determining that the
warrant application was supported by probable cause.
We agree with the state.
The following additional facts inform our review of
the defendant’s claim. The defendant filed a motion to
suppress the evidence that the police had seized during
the execution of the search warrant for his apartment.
In his motion, he claimed, inter alia, that ‘‘the police
lacked probable cause to enter the [apartment].’’2 In its
memorandum in opposition to the defendant’s motion
to suppress, the state argued that the warrant applica-
tion was supported by probable cause, that a judge prop-
erly had signed the warrant after determining that prob-
able cause existed, and that any evidence seized from
the apartment was admissible at trial. The state further
argued that the defendant had failed to explain how or
why the warrant lacked probable cause.
During the hearing on the motion to suppress, the
defendant presented the testimony of Detectives Justin
Lathrop and Peck, both of whom were affiants on the
search warrant application. The defendant thereafter
argued to the trial court that Lathrop and Peck had
failed to ‘‘establish the credibility, the veracity, [and]
the reliability of the confidential informant.’’ He argued
that the affidavit failed to provide information ‘‘about
the confidential informant, his criminal history, whether
. . . he has a pending case to establish whether . . .
he has a motive to be dishonest or untruthful’’ and that
it also failed to state whether the confidential informant
knew the defendant. Finally, the defendant argued that,
although ‘‘the officers did establish [during their testi-
mony] that they had familiarity with [the defendant]
and that . . . the confidential informant had previous
dealings with [the defendant] prior to the controlled
buys, the four corners of the warrant [do] not set forth
that information, and, therefore, a neutral and detached
[judge] would not have been able to verify that infor-
mation just through the language of the affidavit, and,
therefore, the affidavit was insufficient to establish
probable cause.’’ The state argued that the affidavit
provided more than sufficient facts to establish prob-
able cause. After setting forth the relevant allegations
from the search warrant application, including the affi-
davit of Peck and Lathrop, the court issued an oral
ruling in which it concluded that there had been ‘‘proba-
ble cause for the warrant.’’ The court then denied the
defendant’s motion to suppress.
‘‘The legal principles guiding our probable cause anal-
ysis are well established. Both the fourth amendment
to the United States constitution and article first, § 7,
of the Connecticut constitution prohibit the issuance
of a search warrant in the absence of probable cause.
. . . Probable cause to search is established if there is
probable cause to believe that (1) . . . the particular
items sought to be seized are connected with criminal
activity or will assist in a particular . . . conviction
. . . and (2) . . . the items sought to be seized will be
found in the place to be searched. . . . There is no
uniform formula to determine probable cause—it is not
readily, or even usefully, reduced to a neat set of legal
rules—rather, it turns on the assessment of probabili-
ties in particular factual contexts . . . . Probable
cause requires less than proof by a preponderance of
the evidence . . . . There need be only a probability
or substantial chance of criminal activity, not an actual
showing of such activity. By hypothesis, therefore, inno-
cent behavior frequently will provide the basis for a
showing of probable cause . . . . [T]he relevant
inquiry is not whether particular conduct is innocent
or guilty, but the degree of suspicion that attaches to
particular types of noncriminal acts. . . . The task of
the issuing [judge] is simply to make a practical, [com-
monsense] decision whether, given all 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 our review of whether there was probable cause
to support the warrant, we may consider only the infor-
mation that was actually before the issuing judge . . .
and the reasonable inferences to be drawn therefrom.
. . . The judge is entitled to rely on his own common
sense and the dictates of common experience, although
the standard for determining probable cause is an objec-
tive one. . . . [B]ecause of our constitutional prefer-
ence for a judicial determination of probable cause, and
mindful of the fact that [r]easonable minds may dis-
agree 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 review the issuance of a warrant with defer-
ence to the reasonable inferences that the issuing judge
could have and did draw . . . and . . . uphold the
validity of [the] warrant . . . [if] the affidavit at issue
presented a substantial factual basis for the [judge’s]
conclusion that probable cause existed. . . . The fact
that we might draw different reasonable inferences
from the affidavit than the issuing judge does not alter
our conclusion. On the contrary, we defer to the issuing
judge’s reasonable inferences, even when other infer-
ences also might be reasonable, or when the issuing
judge’s probable cause finding is predicated on permis-
sible, rather than necessary, inferences. . . . In a
doubtful or marginal case . . . our constitutional pref-
erence for a judicial determination of probable cause
leads us to afford deference to the [issuing judge’s]
determination.’’ (Citations omitted; internal quotation
marks omitted.) State v. Sawyer, 335 Conn. 29, 37–39,
225 A.3d 668 (2020).
We now must determine whether, on the basis of the
totality of the circumstances described in the affida-
vit in support of the arrest warrant, and the reasonable
inferences drawn therefrom, the trial court properly
ruled that the issuing judge reasonably could have con-
cluded that there was a substantial chance that the
defendant had drugs in his apartment. We conclude that
the affidavit reasonably supports this conclusion and
that, therefore, the trial court properly denied the defen-
dant’s motion to suppress.
Peck and Lathrop, being duly sworn, attested that
they had probable cause to believe that the defendant
had crack cocaine, cocaine, and related paraphernalia
in his apartment. They provided an affidavit that con-
tained the following relevant facts, which they stated
they knew from their own personal observations and
knowledge, as well as from other officers and official
police reports and statements: ‘‘Since January of 2017,
the [n]arcotics [u]nit has received multiple reports from
[reliable confidential informants, informants, arrested
persons, concerned citizens, anonymous callers and
police officers] that [the defendant] . . . has been sell-
ing crack cocaine from both his [apartment] and
throughout Middletown, CT. . . . A check of the
[Department of Motor Vehicles] records, Middletown
[P]olice [Department] records, and [the National Crime
Information Center] shows [the defendant] as a resident
of [the apartment]. . . . During the month of August,
2017, Detective Peck met with a confidential informant.
. . . This informant has provided information concern-
ing narcotic dealing in the past, which had been corrob-
orated and found to be true and accurate. . . . Peck
supplied the [confidential informant] with an amount
of [n]arcotic [u]nit funds. The [confidential informant]
was searched prior to being supplied with said funds
. . . . Peck was present when the [confidential infor-
mant] contacted [the defendant] via his phone and
arranged this purchase. [The defendant] advised the
[confidential informant] to meet him at a specific prear-
ranged meet location. Detective Peck followed the [con-
fidential informant] directly to this location, and the
[confidential informant] never stopped or met with any-
body [else]. . . . Detective Lathrop . . . observed
[the defendant exit] the common door of his residence/
apartment building. Detective Dirga observed [the
defendant arrive] at the meet location and [meet] with
the [confidential informant]. An exchange between the
two took place . . . . Detectives Dirga and Lemieux
followed the [confidential informant] from the area and
observed as the [confidential informant] returned
directly to the prearranged location to meet Detective
Peck without stopping or meeting anyone [else]. [The
defendant] also exited the area, and [he] returned to
[his apartment]. . . . At the prearranged meet location
the [confidential informant] turned over an amount of
an off-white colored [rock like] substance suspected to
be crack cocaine. . . . Detective Peck transported the
suspected crack cocaine to [headquarters] and tested
the suspected crack cocaine . . . which resulted in a
positive reaction . . . .
‘‘Within [forty-eight] hours of October 2, 2017, Detec-
tive Peck [again] supplied the [confidential informant]
with an amount of [n]arcotic [u]nit funds. The [confi-
dential informant] was searched prior to being supplied
with said funds and was found to be free of any [mon-
eys] or contraband. The [confidential informant] was
instructed to contact [the defendant] and arrange the
purchase of crack cocaine. . . . Detective Peck was
present when the [confidential informant] contacted
[the defendant] via his phone and arranged this pur-
chase. [The defendant] advised the [confidential infor-
mant] to meet him at a specific prearranged [meeting]
location. Detective Peck followed the [confidential
informant] directly to this location and the [confidential
informant] never stopped or met with anybody. Detec-
tive Lathrop . . . observed with a clear and unob-
structed view, as [the defendant] exited the common
door of his residence/apartment building. Sergeant
Yepes observed [the defendant arrive] at the [meeting]
. . . with the [confidential informant]. An exchange
between the two took place and the [confidential infor-
mant] exited the area. Detectives Dirga and Lemieux
followed the [confidential informant] from the area
and observed as the [confidential informant] returned
directly to the prearranged location to meet Detective
Peck without stopping or meeting anyone. [The defen-
dant] also exited the area and returned to [his apart-
ment]. . . . [The confidential informant] turned over
an amount of an off-white colored [rock like] substance
. . . which resulted in a positive reaction for the pre-
sumptive presence of crack cocaine.’’
Peck and Lathrop also averred that they knew ‘‘that
individuals involved in the illegal possession of and sale
of narcotics . . . receive at their residence . . . a
large quantity of substance that they would cut into
smaller quantities for sale to other persons.’’ They fur-
ther averred: ‘‘[A] [s]tate [p]olice [r]ecord [c]heck . . .
revealed that [the defendant] has two previous arrests
from [their] agency for [p]ossession of [n]arcotics
([two] counts), [s]ale of [n]arcotics, [p]ossession with
[i]ntent to [s]ell, [and that] [t]hese cases are currently
pending . . . . Based on the preceding information,
[Peck and Lathrop averred that they] believe that [the
defendant] is currently storing narcotics with the intent
for further distribution within his residence . . . .’’ We
conclude that this affidavit, under the totality of the
circumstances, supported a finding of probable cause.
The defendant contends that the information in the
affidavit provided an insufficient nexus to his apart-
ment. Specifically, he argues: ‘‘This affidavit fails to
establish the factual basis for the conclusion that [the
defendant’s] home was being used as [a] base of opera-
tions, and fails to remedy that defect with corroborating
evidence.’’ We disagree.
Peck and Lathrop averred that they had received
multiple reports of the defendant selling narcotics out
of his apartment. The police then used a confidential
informant, who previously had provided them with reli-
able information, to set up two controlled purchases from
the defendant. Immediately before both purchases, the
confidential informant telephoned the defendant, who
was at his apartment. The confidential informant then
went to the prearranged meeting location. The defendant
left his apartment also to go to the prearranged meeting
location, where the controlled buy took place, under
police observation. The defendant thereafter returned
to his apartment. Although the defendant argues that
there was no nexus between the controlled buys and his
apartment, a reasonable inference readily can be made
that the defendant left his apartment with the drugs
when he went to the prearranged meeting location. On
the basis of the totality of the circumstances, including
the reasonable inferences drawn from the facts set forth
in the affidavit, we conclude that there was probable cause
to support the issuance of the search warrant for the
defendant’s apartment, and that the trial court, there-
fore, properly denied the defendant’s motion to sup-
press.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Sergeant Frederick Dirga testified that tear bags are plastic sandwich
bags used to package drugs for sale. He explained that individuals ‘‘involved
in the narcotics trade will take drugs . . . put [them] into the bag, and . . .
tear off the end of the bag . . . so they’re able to tie [the bag] around the
drugs, so [the drugs are] protected in plastic and easier to carry for sale.
It doesn’t break apart.’’
2
In his motion to suppress, the defendant also claimed that the police
had ‘‘made affirmative false and misleading representations in the search
warrant to secure a probable cause finding against the defendant.’’ The trial
court rejected that claim, and the defendant on appeal has not claimed error
in this regard.