State v. Holley

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STATE OF CONNECTICUT v. JUBAR T. HOLLEY
(SC 19662)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued October 21—officially released December 28, 2016*
William A. Adsit, for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Jennifer F. Miller, deputy assistant state’s attor-
ney, and John F. Fahey, senior assistant state’s
attorney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Jubar T. Holley,
appeals from the judgment of conviction rendered by
the trial court following his pleas of nolo contendere;
see General Statutes § 54-94a;1 to four counts of criminal
possession of a firearm in violation of General Statutes
(Rev. to 2013) § 53a-217 (a).2 The defendant entered
these pleas after the trial court’s denial of his motion
to suppress certain evidence discovered following the
execution of a search warrant at his house. In this
appeal, the defendant claims that the trial court improp-
erly denied his motion to suppress certain evidence
seized as a result of the search warrant that the defen-
dant claims was issued without a showing of probable
cause in violation of the fourth amendment to the
United States constitution3 and article first, § 7, of the
Connecticut constitution.4 We disagree with the defen-
dant and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In March 14, 2013,
Supervisory Inspector Michael Sullivan of the Connecti-
cut Division of Criminal Justice and Detective Zachary
Sherry of the Hartford Police Department (affiants)
applied for a search and seizure warrant pertaining to
the defendant’s residence, a single-family home located
in the town of East Hartford. The affiants were assigned
to the Greater New Britain Shooting Task Force, which
is described as a multiagency investigative unit charged
with reducing violent crime in the greater New Britain
area. The affiants claim over thirty-five years of com-
bined investigative experience.
In their application for a search warrant, the affiants
averred what may be summarized as follows: On March
4, 2013, Sullivan was in contact with David Pierro, who
claimed he was a retired police officer from Port Ches-
ter, New York. Pierro stated that he had sold a ‘‘M16 AR
15 A2 upper receiver’’ (upper receiver) to the defendant
through the website Gunbroker.com. Pierro stated that
he notified the police regarding this sale because he
had performed an Internet search on the defendant’s
name and discovered that the defendant had previously
been involved in a shooting.
The affiants discovered that the defendant had a prior
conviction for conspiracy to commit assault in the first
degree, stemming from a 1994 shooting in New Britain.
Sullivan informed Pierro of this fact. Having confirmed
the defendant’s felony status, Pierro then forwarded
documents from Gunbroker.com to Sullivan indicating
that the defendant had made eight other transactions
through the website in the previous two years. Pierro
also agreed to ship the upper receiver to Sullivan upon
receipt of payment from the defendant so that the affi-
ants could arrange a controlled delivery of the upper
receiver to the defendant.
The affiants averred that they confirmed relevant
information regarding the defendant’s address. They
confirmed that the shipping address that the defendant
reportedly provided to Pierro belonged to the defendant
by verifying land records and verifying the automobile
registration of a car parked in the driveway. Addition-
ally, the affiants verified that the telephone number the
defendant provided to Gunbroker.com correlated to the
defendant’s address. On March 7, 2013, Sullivan
received an e-mail from Pierro containing a copy of a
money order for the purchase price of the upper
receiver from the defendant, which listed the defen-
dant’s home address. On March 11, 2013, Sullivan
received a package from Pierro through the mail con-
taining the upper receiver and an envelope containing
the money order, which listed the defendant’s address
as the return address.
Pierro informed the police that the ‘‘only reason’’
someone would purchase the upper receiver is if he
were assembling an assault rifle. Pierro elaborated that
the fact that the defendant made eight additional pur-
chases within the previous two years on Gunbroker.
com further supported his conclusion. The Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF),
which was assisting the affiants in their investigation,5
agreed with Pierro’s conclusion. Additionally, ATF Spe-
cial Agent Jacob Berrick informed the affiants that he
was able to access the defendant’s most recent pur-
chase on Gunbroker.com, a ‘‘MGW AR-15 AR15 90
round drum,’’ which the affiants averred is a mechanism
that holds the ammunition for the firearm, for $125.6 The
affiants averred that the discovery of this transaction
supported the conclusion that the defendant was pur-
chasing separate firearm parts in order to assemble a
complete, functioning firearm.
Moreover, the affiants averred that from their training
and experience, they ‘‘know . . . that typical [firearm]
owners do not purchase firearms parts but rather pur-
chase firearms as a whole. Those people that do pur-
chase firearms parts are likely to have a greater interest
and expertise in firearms than a typical firearms owner.
It is therefore, very likely that [the defendant] has an
advanced knowledge and interest in firearms and proba-
bly has other firearms in his possession.’’ The affiants
further averred that, from their training and experience,
they have found that those who illegally possess fire-
arms commonly store such firearms in their residence.
The search warrant was issued on March 14, 2013, and
executed the following day. The police seized numerous
firearms and firearm related items from the defendant’s
residence. The defendant filed a motion to suppress
evidence claiming that the search warrant was not sup-
ported by probable cause. See Practice Book §§ 41-12
and 41-13 (4). After a hearing on the motion, the trial
court denied the defendant’s motion and later filed a
memorandum of decision. The defendant entered pleas
of nolo contendere to four counts of criminal posses-
sion of a firearm in violation of § 53a-217 (a), condi-
tioned on his right to appeal the denial of his motion to
suppress. See General Statutes § 54-94a; Practice Book
§ 61-6 (a) (2) (A). This appeal followed.7
We begin by setting forth the relevant standard of
review. ‘‘Whether the trial court properly found that
the facts submitted were enough to support a finding
of probable cause is a question of law. . . . The trial
court’s determination on [that] issue, therefore, is sub-
ject to plenary review on appeal.’’ (Internal quotation
marks omitted.) State v. Buddhu, 264 Conn. 449, 459,
825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124 S.
Ct. 2106, 158 L. Ed. 2d 712 (2004).
The legal principles that guide our analysis are well
established. Both the fourth amendment to the United
States constitution and article first, § 7, of the Connecti-
cut constitution prescribe that a search warrant shall
issue only upon a showing of probable cause. ‘‘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 preponderance 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 contexts—not readily, or even use-
fully, reduced to a neat set of legal rules. . . . Conse-
quently, [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, nontechnical decision whether . . .
there is a fair probability that contraband or evidence
of a crime will be found in a particular place.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Shields, 308 Conn. 678, 689–90, 69 A.3d 293 (2013), cert.
denied, U.S. , 134 S. Ct. 1040, 188 L. Ed. 2d 123
(2014). The determination of probable cause is reached
by applying a ‘‘totality of the circumstances’’ test. State
v. Flores, 319 Conn. 218, 225, 125 A.3d 157 (2015), cert.
denied, U.S. , 136 S. Ct. 1529, 194 L. Ed. 2d 615
(2016); see also Florida v. Harris, U.S. , 133 S.
Ct. 1050, 1055, 185 L. Ed. 2d 61 (2013) (‘‘[W]e have
consistently looked to the totality of the circumstances
. . . . We have rejected rigid rules, bright-line tests,
and mechanistic inquiries in favor of a more flexible,
all-things-considered approach.’’ [Citations omitted.]).
‘‘The role of an appellate court reviewing the validity
of a warrant is to determine whether the affidavit at
issue presented a substantial factual basis for the [issu-
ing judge’s] conclusion that probable cause existed.’’
(Internal quotation marks omitted.) State v. Duntz, 223
Conn. 207, 215, 613 A.2d 224 (1992). ‘‘This court has
recognized that because of our constitutional prefer-
ence for a judicial determination of probable 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 con-
tained 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 inferences that the
issuing judge could have and did draw . . . .’’ (Internal
quotation marks omitted.) State v. Flores, supra, 319
Conn. 225; see also State v. Velez, 215 Conn. 667, 673,
577 A.2d 1043 (1990) (‘‘[a] reviewing court should pay
great deference to the trial court’s determination
regarding the existence of probable cause’’). In evaluat-
ing whether the warrant was predicated on probable
cause, a reviewing court may consider only the informa-
tion set forth in the four corners of the affidavit that
was presented to the issuing judge and the reasonable
inferences to be drawn therefrom. State v. Shields,
supra, 308 Conn. 691.
In the present case, the defendant claims that there
were insufficient facts contained in the affidavit accom-
panying the search warrant application to support the
issuing judge’s conclusion that probable cause existed
to search the defendant’s home. Specifically, the defen-
dant claims that his purchase of firearm parts was
merely innocent conduct that was an insufficient basis
to conclude there was probable cause that the defen-
dant possessed a firearm. The defendant further claims
that Pierro was an unreliable source of information and
that the affiants lacked sufficient expertise to conclude
that the defendant’s behavior was consistent with crimi-
nal activity. The state claims that the defendant’s alleged
lawful purchases of firearm parts supported probable
cause, that Pierro was reliable, and that the affiant’s
conclusions were proper. We agree with the state.
We begin with the defendant’s claim that the alleged
lawful firearm part purchases were an insufficient basis
to conclude there was probable cause in the present
case. According to the defendant, because the affidavit
lacked an allegation that the defendant had acquired
the necessary parts to construct a firearm, it was unrea-
sonable to infer from his alleged Gunbroker.com trans-
action history that he could construct, and therefore
possess, a firearm. The state asserts that the affidavit
need not definitively establish that the defendant pos-
sessed a firearm. Rather, the state claims that the defen-
dant’s accumulation of firearm parts supported the
inference that he intended to construct a firearm, which,
in turn, supported probable cause to believe that he
possessed a firearm. We disagree with the defendant
because his claim suffers from the doctrinal flaw that
it requires too high of a degree of certainty for a finding
of probable cause. ‘‘[P]robable cause requires only a
probability or substantial chance of criminal activity,
not an actual showing of such activity. By hypothesis,
therefore, innocent behavior frequently will provide the
basis for a showing of probable cause; to require other-
wise would be to sub silentio impose a drastically more
rigorous definition of probable cause than the security
of our citizens’ demands. . . . In making a determina-
tion of probable cause the relevant inquiry is not
whether particular conduct is innocent or guilty, but
the degree of suspicion that attaches to particular types
of noncriminal acts.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Illinois v.
Gates, 462 U.S. 213, 244 n.13, 103 S. Ct. 2317, 76 L. Ed.
2d 527 (1983).
This court previously has addressed the degree of
suspicion that attaches to noncriminal conduct. In State
v. Buddhu, supra, 264 Conn. 453–54, the search warrant
affidavit included allegations that the defendant’s son
and an informant were involved in a forgery scheme in
which forged checks were deposited in the informant’s
account and the informant would make periodic with-
drawals from the account and transfer the cash and
bank book to the defendant’s son. Before the defen-
dant’s son departed for National Guard duty, he
instructed the informant to make withdrawals and to
give the money and bank book to the defendant in a
sealed envelope and later retrieve an envelope with the
bank book in it from the defendant. Id., 454. After the
police executed a search warrant on the home and
office of the defendant, the trial court suppressed the
evidence recovered therefrom, concluding that the only
reasonable inference was that the defendant was
unaware of the forgery scheme and the only nexus
between the defendant and the crime was the exchange
of sealed envelopes. Id., 462. In reversing the judgment,
we concluded ‘‘that the issuing judge reasonably
inferred that the defendant, having received, on several
occasions, sealed envelopes on [the defendant’s son’s]
behalf from a relatively unfamiliar person, probably was
involved in the underlying illegal activities.’’ Id., 463.
Hence, while the act of exchanging sealed envelopes
with a deployed son’s acquaintance on his behalf is not
guilty conduct, the degree of suspicion that attached
to the defendant’s conduct was sufficient to reasonably
infer that the defendant was involved in the underlying
criminal activity. Id.
In the present case, the issuing judge reasonably
could have inferred that the defendant intended to
assemble a firearm.8 The affidavit alleged that the defen-
dant purchased two specific parts—‘‘M16 AR 15 A2
upper receiver’’ and a ‘‘MGW AR-15 AR15 90 round
drum’’9—to the same model firearm. The defendant
made at least seven additional purchases on Gunbroker
.com. See footnote 6 of this opinion. In assessing
whether there are sufficient facts found in the affidavit,
it is important that firearm parts are of little to no
practical utility outside the assembly of a firearm. It
requires no great logical leap to infer that the defendant
intended to use the parts in their only practical utility,
namely, assembly of a firearm. Indeed, the affidavit
affirms that Pierro indicated that the ‘‘only reason’’
someone would buy an upper receiver is to assemble a
firearm. Moreover, the appropriateness of the inference
that the defendant intended to assemble a firearm was
buttressed by the information provided by both Pierro
and the ATF that the ‘‘likely scenario,’’ given the defen-
dant’s transaction history, was that the defendant
intended to assemble a firearm.
The defendant claims, however, that the information
provided by Pierro should not be accorded any weight
because he was an unreliable informant. We disagree.
First, it is significant that Pierro was a citizen informant.
‘‘Courts have properly distinguished between . . .
confidential informants and the average citizen who,
as a victim or a witness, happens to have information
useful to the police. Such citizen informers are consid-
ered more deserving of credibility than are underworld
informers, and courts have accordingly tended to exam-
ine the basis and sufficiency of a citizen informer’s
information more closely than his credibility.’’ (Internal
quotation marks omitted.) State v. Mordowanec, 259
Conn. 94, 112, 788 A.2d 48, cert. denied, 536 U.S. 910,
122 S. Ct. 2369, 153 L. Ed. 2d 189 (2002). Second, Pierro
was named in the affidavit and communicated directly
with the affiants via telephone and e-mail. ‘‘[A]s this
court has repeatedly recognized, [t]he fact that an infor-
mant’s identity is known . . . is significant because the
informant could expect adverse consequences if the
information that he provided was erroneous. Those con-
sequences 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.’’ (Internal quotation marks omitted.) State
v. Flores, supra, 319 Conn. 228.
Additionally, the affiants corroborated information
that Pierro had provided to them. If, through corrobora-
tion, it is shown that the informant has provided reliable
information, the issuing judge may credit other informa-
tion provided by the informant. See State v. Ruscoe,
212 Conn. 223, 231, 563 A.2d 267 (1989) (‘‘[t]he theory
of corroboration is that a statement [that] has been
shown true in some respects is reasonably likely to
be true in the remaining respects’’ [internal quotation
marks omitted]), cert. denied, 493 U.S. 1084, 110 S. Ct.
1144, 107 L. Ed. 2d 1049 (1990); see also State v. Morrill,
205 Conn. 560, 567, 534 A.2d 1165 (1987) (previous
reliability in other cases is basis for crediting informant
in case at hand). In the present case, Pierro provided
the defendant’s name and address to the affiants, which
the affiants subsequently confirmed. Pierro then pro-
vided the actual envelope and money order payable to
Pierro that the defendant sent as payment for the upper
receiver. That envelope included the defendant’s return
address. In addition, an ATF agent confirmed that the
defendant had made an additional purchase of an
assault rifle part in close temporal proximity with the
transaction that Pierro reported. Consequently, greater
weight may be accorded the remaining information that
Pierro provided, namely, the information regarding the
defendant’s additional transactions and the fact that
Pierro is a retired police officer and sells firearm parts
as a hobby.10
The defendant claims, however, that, with respect to
Pierro’s claim regarding the intended purpose of the
upper receiver, the affiants improperly treated Pierro
as an ‘‘expert’’ on firearms and firearm parts. We dis-
agree with this characterization of Pierro. In light of
our previous conclusion that the issuing judge may
credit the averment that Pierro was a retired police
officer who sold firearm parts as a hobby, we also
conclude that the issuing judge reasonably could have
determined that Pierro’s opinion was worthy of at least
some weight. Indeed, the issuing judge reasonably could
have relied on Pierro’s experience in the private sales of
firearm parts on Gunbroker.com for Pierro’s conclusion
with respect to the intended purpose of the upper
receiver. The issuing judge reasonably could have
inferred that Pierro, as a hobbyist, had at least some
general knowledge regarding the likely end use of the
firearm parts he has sold from his interactions with
buyers. Pierro’s opinion, however, was not the sole
basis for this conclusion. To the contrary, the affiants
sought the opinion of the ATF, which concurred with
the conclusion reached by Pierro.11 Accordingly, we
conclude it was proper for the issuing judge to rely on
the information provided by Pierro.
Nevertheless, the defendant posits alternative infer-
ences that reasonably could have been drawn. The
defendant asserts that, contrary to the conclusion
reached by Pierro that the ‘‘only reason’’ someone
would purchase an upper receiver would be to con-
struct an operable firearm, Pierro’s possession of an
upper receiver for the purpose of selling it as a hobby
demonstrates a reasonable legitimate purpose for
acquiring an upper receiver. The defendant cites United
States v. Vigeant, 176 F.3d 565 (1st Cir. 1999), in support
of his argument. Vigeant is distinguishable on its facts.
In that case, the United States Court of Appeals for the
First Circuit addressed whether there was sufficient
information for probable cause to conclude that the
defendant had laundered drug money. Id., 569. The
court concluded that there was an insufficient nexus
between alleged drug activity, which itself was insuffi-
ciently substantiated, and the bank activity that took
place six months thereafter. Id. In addition, the court
concluded that the banking and investment activity, the
most suspicious of which was a large deposit of small
bills, was not of a character to infer the criminal activity.
Id. 569–70. Unlike the provenance of sums of money
deposited in a bank account, there are far fewer infer-
ences to be drawn from the purchase of firearm parts.
Thus, while it is possible that someone could purchase
parts for lawful resale, Pierro and the ATF explained
that the likely purpose was to construct a firearm. As
we previously have noted, ‘‘[i]n determining whether
the search warrant was supported by probable cause
. . . the trial court was not required to consider
whether some possible state of facts that was consistent
with the facts presented in the affidavit would preclude
a finding of probable cause.’’ (Emphasis omitted.) State
v. Grant, 286 Conn. 499, 515, 944 A.2d 947, cert. denied,
555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).12
In sum, we find that the facts alleged in the affidavit
furnished a sufficient basis to infer that the defendant
intended to assemble a firearm.
The defendant also attacks the sufficiency of the affi-
ants’ knowledge and expertise as a basis to reach their
conclusions with respect to the behavior patterns of
firearm owners. Specifically, the defendant claims that
the affiants failed to demonstrate any expertise in fire-
arms and firearms parts. The affidavit recited conclu-
sions with respect to habits and behaviors of people
who purchase firearm parts as compared to the typical
firearm owner, i.e., that people who purchase firearm
parts likely have greater interest and expertise in fire-
arms and, therefore, likely to possess firearms. In addi-
tion, the affiants averred that people who possess
firearms illegally commonly store such firearms in their
homes. These are not the kinds of conclusions that
require a demonstration of sophisticated technical
expertise. We find that the affiants provided sufficient
information for crediting their conclusion, namely, their
thirty-five years of combined investigative experience,
including their experience on the Greater New Britain
Shooting Task Force. See State v. Shields, supra, 308
Conn. 693 (‘‘[i]n light of [the police officer’s] training
and experience with the evidence unit and the Internet
crimes against children task force, there was a substan-
tial basis for crediting [his] general observations about
. . . the behavioral patterns of persons who engage in
the sexual exploitation of children, including his asser-
tion that persons who sexually abuse children also are
prone to collect child pornography’’);13 State v. DiMeco,
128 Conn. App. 198, 206, 15 A.3d 1204 (judge issuing
warrant to search for child pornography entitled to
credit opinion of affiant with training and experience
in matters concerning pedophiles and sexual predators
of children), cert. denied, 301 Conn. 928, 22 A.3d 1275,
cert. denied, 565 U.S. 1015, 132 S. Ct. 559, 181 L. Ed.
2d 398 (2011). Accordingly, the issuing judge reasonably
relied on the conclusion reached by the affiants.
Finally, the defendant claims that the trial court made
improper findings outside the scope of the search war-
rant affidavit. The defendant claims there is nothing in
the warrant affidavit to support the trial court’s conclu-
sion that the issuing judge reasonably could have con-
cluded that the defendant ‘‘was in possession of a
firearm, which he was disqualified from possessing as
a convicted felon. The defendant was storing a firearm
at his residence. He was involved in the illegal traffick-
ing of firearms.’’ As we previously have discussed in
this opinion, the first two findings are reasonable infer-
ences to be drawn from the facts alleged in the affidavit.
With respect to the finding that the issuing judge could
have concluded that the defendant was trafficking in
firearms, even if the finding was improper, such a find-
ing was not necessary to uphold the search warrant.
This is so because the affiants alleged a violation of
§ 53a-217 (a), the statute criminalizing possession of
firearms, which the trial court found probable cause
to believe the defendant violated. It was immaterial
whether the trial court further found probable cause
to believe that the defendant was trafficking firearms
because the affiants did not allege that the defendant
was engaged in such conduct. A review of the affidavit
demonstrates that such a finding was not necessary to
conclude that there was probable cause to believe that
the defendant simply possessed a firearm. We conclude
that, on the basis of our review of the search warrant
affidavit as a whole, the trial court properly found that
the facts submitted were sufficient to support a finding
of probable cause.
The judgment is affirmed.
In this opinion the other justices concurred.
* December 28, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 54-94a provides: ‘‘When a defendant, 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. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
2
General Statutes (Rev. to 2013) § 53a-217 (a) provides in relevant part:
‘‘A person is guilty of criminal possession of a firearm . . . when such
person possesses a firearm . . . and (1) has been convicted of a felony
. . . . For the purposes of this section, ‘convicted’ means having a judgment
of conviction entered by a court of competent jurisdiction, and a motor
vehicle violation for which a sentence to a term of imprisonment of more
than one year may be imposed shall be deemed an unclassified felony.’’ All
references hereinafter to § 53a-217 (a) are to the 2013 revision of the statute.
3
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’
The fourth amendment is applicable to the states by incorporation through
the due process clause of the fourteenth amendment to the United States
constitution. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L.
Ed. 2d 1081 (1961).
4
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.’’
In contrast to the federal constitution, the Connecticut constitution does
not contemplate a ‘‘good faith’’ exception to the exclusion rule pursuant to
which evidence seized in the execution of a warrant lacking probable cause
may nevertheless be used against the defendant. See State v. Marsala, 216
Conn. 150, 171, 579 A.2d 58 (1990).
5
ATF had reportedly served a subpoena upon Gunbroker.com in order
to gather more information regarding the defendant’s transactions on the
website. At the time the search warrant application was filed, Gunbroker.
com had not responded to the subpoena.
6
It is not clear whether this transaction is one of or in addition to the
eight other Gunbroker.com transactions Pierro reported to the affiants.
7
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
8
We disagree with the defendant that the trial court improperly treated
his 1994 conviction of conspiracy to commit assault as propensity evidence.
The trial court stated, ‘‘[t]he defendant was previously convicted of a firearms
related felony offense, which disqualified him from possessing a firearm.’’
This demonstrates that the trial court considered his prior conviction only
as an element of the suspected crime upon which the search warrant was
predicated, not as a basis for drawing inferences with respect to the intended
purpose of the firearm parts.
9
We note that possession and transfer of a large capacity magazine,
defined to include ‘‘any . . . drum . . . that has the capacity of . . . more
than ten rounds of ammunition,’’ was not regulated by the state at the time
of the search warrant application. General Statutes § 53-202w (a) (1). The
regulation of such a part took effect April 4, 2013. Public Acts 2013, No. 13-
3, § 23.
10
The defendant claims that Pierro was unreliable because, when he spoke
to the affiants, he exaggerated the crime the defendant had committed that
disqualified him from owning a firearm. Specifically, the defendant points
to the fact that Pierro informed the police that the defendant was ‘‘involved
in a New Britain shooting several years ago,’’ whereas the defendant was
convicted of conspiracy, but not the underlying substantive offense, nineteen
years before his attempted purchase of the upper receiver. Even assuming
that Pierro’s statement was an exaggeration, the issuing judge reasonably
could find that Pierro was a reliable informant because of the corroborating
information regarding the purchase of the upper receiver, which was more
pertinent to the probable cause determination.
11
The defendant also claims that the affidavit is not sufficiently clear as
to with what the ATF concurred. The affidavit provides in relevant part:
‘‘Pierro informed police that the only reason someone would purchase [an
upper receiver] is if they were assembling [an] assault rifle. Pierro indicated
that with [the defendant] making eight additional purchases from Gunbroker-
.com that this was the likely scenario. Possession of [an] upper receiver is
necessary in order to assemble a functioning . . . assault rifle. The ATF
does agree with Pierro’s conclusion.’’ The trial court found that the issuing
judge reasonably could have interpreted this paragraph to mean that the
‘‘ATF agreed with Pierro’s conclusion regarding the reason for the defen-
dant’s purchase of the parts—to assemble an assault rifle.’’ We agree. In
keeping with this court and the United States Supreme Court’s constitutional
preference for judicial determination of probable cause, we abjure applying
hypertechnical, exacting scrutiny of the grammar and usage in an affidavit
in favor of a reasonable interpretation of information set forth within the
four corners of the affidavit in the light most favorable to the issuing judge’s
determination of probable cause. See State v. Shields, supra, 308 Conn. 691;
see also United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L.
Ed. 2d 684 (1965) (‘‘If the teachings of the [c]ourt’s cases are to be followed
and the constitutional policy served, affidavits for search warrants, such as
the one involved here, must be tested and interpreted by magistrates and
courts in a commonsense and realistic fashion. They are normally drafted
by nonlawyers in the midst and haste of a criminal investigation. Technical
requirements of elaborate specificity once exacted under common law plead-
ings have no proper place in this area. A grudging or negative attitude by
reviewing courts toward warrants will tend to discourage police officers
from submitting their evidence to a judicial officer before acting.’’).
12
We are also unpersuaded by the other nonbinding out-of-state and Supe-
rior Court cases cited by the defendant.
13
We are not persuaded by the defendant’s claim, relying solely on the
out-of-state, intermediate appellate court case Burnett v. State, 848 So. 2d
1170 (Fla. App. 2003), that the affiants are required to recite more details
regarding their training and experience.