State v. Siler

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STATE OF CONNECTICUT v. GEORGE SILER
(AC 43351)
Elgo, Suarez and DiPentima, Js.
Syllabus
The defendant, who had been convicted, on a conditional plea of nolo
contendere, of the crimes of possession of narcotics with intent to sell
and criminal possession of a firearm, appealed to this court, claiming
that the trial court improperly denied his motion to suppress certain
evidence that was seized from his residence by the police. Relying on
information from a confidential informant, the police executed a search
and seizure warrant at the defendant’s residence, where they recovered
drugs, firearms and other contraband. The police affidavit that accompa-
nied the warrant application had described two controlled purchases
of heroin and stated that the police surveilled the defendant’s residence
while the confidential informant contacted the defendant and arranged
to meet him at a specific location to complete the transaction. The
confidential informant had given the police a description of the defen-
dant, whom he knew as G, and the car that he drove as well as G’s
telephone number and the location of his residence. The police thereafter
identified the defendant as the person described by the confidential
informant through a check of law enforcement databases and the Office
of Adult Probation after the police learned that he was on probation in
connection with a prior robbery. Prior to the controlled drug purchases,
the police also conducted surveillance at the defendant’s residence,
where they saw a male who matched the description provided by the
confidential informant enter the same type of vehicle that had been
described by the confidential informant. Thereafter, when shown an
unmarked photograph of the defendant by the police, the confidential
informant immediately identified the individual in the photograph as G.
On appeal, the defendant urged this court to overrule our Supreme
Court’s decision in State v. Barton (219 Conn. 529), in which the court
adopted a totality of the circumstances analysis for the determination
of probable cause under article first, § 7, of the Connecticut constitution
and rejected the rigid analytical standards previously required by State
v. Kimbro (197 Conn. 219). The defendant further claimed that the police
affidavit in support of the application for a search warrant did not
establish probable cause because it lacked the necessary nexus between
his residence and the criminal activity alleged in the warrant applica-
tion. Held:
1. This court declined the defendant’s invitation to overrule our Supreme
Court’s decision in Barton to adopt a totality of the circumstances
analysis for the determination of probable cause under article first, § 7;
this court, as an intermediate appellate tribunal, was not at liberty to
modify, reconsider or overrule the precedent of our Supreme Court, a
bedrock precept that the defendant misconstrued in arguing that this
court nonetheless could conduct its own thoughtful review of Kimbro
and Barton, and, apart from that fundamental deficiency, the defendant
provided no federal or state precedent to support his contention that
the test adopted in Barton should be overruled, and his failure to provide
an independent state constitutional analysis in accordance with State
v. Geisler (222 Conn. 672) rendered his claim with respect to the state
constitution abandoned.
2. The trial court properly denied the defendant’s motion to suppress, as
the police warrant application contained sufficient information from
which a judge reasonably could conclude that there was a fair probability
that contraband or evidence of a crime would be found in the defendant’s
residence: the affidavit contained a detailed description of the alleged
heroin dealer that matched the defendant’s physical attributes, shared
his home address and indicated that the heroin dealer drove the same
type of vehicle as did the defendant, the affidavit indicated that the
confidential informant positively identified the defendant immediately
from a photograph he was shown of the alleged heroin dealer, and
surveillance conducted at the defendant’s residence confirmed that he
and the vehicle at issue were at the residence prior to and after the
controlled drug purchases; moreover, although the trial court acknowl-
edged that the affidavit did not identify with any specificity the time
period of the first controlled drug purchase, the court made a practical,
commonsense decision in concluding that the affidavit’s phrase, ‘‘prior
to the buy taking place,’’ could have been found by the court that issued
the warrant to be a period of time in very close approximation to
the arrangements made for the first controlled buy, and the affidavit’s
statement that surveillance showed that the defendant had arrived at
his home just prior to the second buy permitted the inference that
narcotics were stored at the residence.
Argued January 13—officially released April 27, 2021
Procedural History
Substitute information charging the defendant with
two counts of the crime of criminal possession of a
firearm, and with one count each of the crimes of pos-
session of narcotics with intent to sell by a person who
is not drug-dependent and possession of narcotics with
intent to sell within 1500 feet of a day care center,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Russo, J., denied the defen-
dant’s motion to suppress certain evidence; thereafter,
the state filed a substitute information charging the
defendant with two counts of the crime of criminal
possession of a firearm and with the crime of possession
of narcotics with intent to sell; subsequently, the defen-
dant was presented to the court, Devlin, J., on a condi-
tional plea of nolo contendere to the charges of criminal
possession of a firearm and possession of narcotics
with intent to sell; thereafter, the court, Alexander, J.,
rendered judgment of guilty, from which the defendant
appealed to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
C. Robert Satti, supervisory assistant state’s attorney,
with whom were Joseph T. Corradino, state’s attorney,
and, on the brief, John C. Smriga, former state’s attor-
ney, for the appellee (state).
Opinion
ELGO, J. The defendant, George Siler, appeals from
the judgment of conviction rendered following a condi-
tional plea of nolo contendere to two counts of criminal
possession of a firearm in violation of General Statutes
§ 53a-217 (a), and to violating the state dependency
producing drug laws; see General Statutes § 21a-277
(a); for possession of narcotics with intent to sell. On
appeal, the defendant claims that the trial court improp-
erly denied his motion to suppress certain evidence
seized from his residence. We affirm the judgment of
the trial court.
On December 12, 2017, members of the Stratford
Police Department conducted a search of the residential
property known as 943 Success Avenue in Stratford
(residence) pursuant to a search and seizure warrant
signed by a judge of the Superior Court. They recovered,
inter alia, 84.7 grams of suspected heroin, 5.8 grams of
suspected marijuana, 188 wax paper folds secured by
rubber bands, a digital scale, a ski mask, two firearms,
293 rounds of ammunition, an article of mail addressed
to the defendant, and a credit card issued to the defen-
dant. The defendant thereafter was arrested and charged
with the aforementioned offenses.
On January 17, 2018, the defendant filed a motion to
suppress all evidence discovered during the December
12, 2017 search for lack of probable cause. Following
a hearing, the court denied that motion. The defendant
then entered a conditional plea of nolo contendere to
all charges, thereby preserving his right of appeal.1 On
July 31, 2019, the defendant was sentenced to a total
effective term of fourteen years of incarceration, execu-
tion suspended after eight years, with five years of pro-
bation. This appeal followed.
On appeal, the defendant contends that the court
improperly denied his motion to suppress. His claim is
twofold in nature. First, he urges us to reconsider the
precedent of our Supreme Court in State v. Barton, 219
Conn. 529, 544, 594 A.2d 917 (1991), in which the court
adopted a totality of the circumstances test for deter-
mining whether an affidavit sufficiently establishes
probable cause for the issuance of a warrant. The defen-
dant then asks us to depart from that precedent and
conclude that the affidavit submitted in support of the
search warrant in the present case did not provide the
requisite probable cause. We address each claim in turn.
I
SUPREME COURT PRECEDENT
In this appeal, the defendant asks this court to revisit
the precedent of our Supreme Court with respect to
the legal standard applicable to probable cause determi-
nations pursuant to article first, § 7, of the state consti-
tution when a search warrant is requested by law
enforcement.2 As our Supreme Court has explained,
article first, § 7, ‘‘like the fourth amendment to the fed-
eral constitution that it closely resembles, safeguards
the privacy, the personal security, and the property of
the individual against unjustified intrusions by agents of
the government.’’ (Footnote omitted.) State v. Barton,
supra, 219 Conn. 540.
In State v. Kimbro, 197 Conn. 219, 236, 496 A.2d 498(1985), overruled in part by State v. Barton, 219 Conn.
529, 594 A.2d 917 (1991), a divided Supreme Court3
concluded, as a matter of state constitutional law, that
article first, § 7, required application of ‘‘the more spe-
cific standards of the Aguilar-Spinelli test’’;4 see
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed.
2d 723 (1964); Spinelli v. United States, 393 U.S. 410,
89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); rather than ‘‘the
amorphous [totality of the circumstances] standard’’
adopted by the United States Supreme Court in Illinois
v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527(1983). State v. Kimbro, supra, 236. In his dissenting
opinion, Justice Callahan opined that ‘‘making Aguilar
and Spinelli the test for determining probable cause
under the state constitution is a step backward into
that labyrinthine body of hypertechnical rules concern-
ing the criminal law from which I thought we were
gradually beginning to emerge.’’ Id., 246 (Callahan, J.,
dissenting).
The Supreme Court reconsidered that precedent six
years later. In State v. Barton, supra, 219 Conn. 529,
the court noted that ‘‘the case law applying the Aguilar-
Spinelli test has come to be encrusted with an overlay
of analytical rigidity that is inconsistent with the under-
lying proposition that it is the constitutional function
of the magistrate issuing the warrant to exercise discre-
tion in the determination of probable cause. That discre-
tion must be controlled by constitutional principles and
guided by the evidentiary standards developed in our
prior cases, but it should not be so shackled by rigid
analytical standards that it deprives the magistrate of
the ability to draw reasonable inferences from the facts
presented.’’ Id., 534–35. The court further observed that
‘‘application of the standards mandated by Kimbro has
resulted at times in unduly technical readings of warrant
affidavits, and we reject such an inappropriate method-
ology.’’ Id., 534.
The court also explained that a totality of the circum-
stances analysis is ‘‘more consistent with traditional
assessments of probable cause. . . . [It] permits a
judge issuing a warrant greater freedom to assess the
relative weights of all the various indicia of reliability
(and unreliability) attending an informant’s tip. . . .
[T]he task of the issuing magistrate is simply to make
a practical, commonsense decision whether, given all
the circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of per-
sons supplying hearsay information, there is a fair prob-
ability that contraband or evidence of a crime will be
found in a particular place.’’ (Citation omitted; internal
quotation marks omitted.) Id., 537. The court thus con-
cluded, ‘‘upon careful reconsideration, that the totality
of the circumstances analysis adopted [by the United
States Supreme Court in] Gates will continue to guaran-
tee the people of Connecticut the full panoply of rights
that they have come to expect as their due. . . . We
accordingly depart from the more rigid analytical struc-
ture imposed in Kimbro in order to restore the proper
constitutional authority of magistrates to weigh the suf-
ficiency of the information presented to them in warrant
affidavits and to balance the legitimate needs of law
enforcement officers against the highly prized rights of
privacy and personal security afforded by our constitu-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 546. The appellate courts of this state have
adhered to that precedent in the thirty years since Bar-
ton was decided. See, e.g., State v. Nowell, 262 Conn.
686, 697, 817 A.2d 76 (2003); State v. Velasco, 248 Conn.
183, 189–90, 728 A.2d 493 (1999); State v. DiMeco, 128
Conn. App. 198, 204, 15 A.3d 1204, 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); State v. Cabezudo,
92 Conn. App. 303, 305, 884 A.2d 1033 (2005), cert.
denied, 277 Conn. 901, 891 A.2d 3 (2006).
The defendant now asks this court to reconsider the
wisdom of the Supreme Court’s decision in Barton.5
We refuse to do so. As an intermediate appellate tribu-
nal, this court is not at liberty to modify, reconsider,
or overrule the precedent of our Supreme Court. See
Hartford Steam Boiler Inspection & Ins. Co. v. Under-
writers at Lloyd’s & Cos. Collective, 121 Conn. App.
31, 48–49, 994 A.2d 262, cert. denied, 297 Conn. 918,
996 A.2d 277 (2010). Whether to alter the applicable
legal standard governing probable cause determina-
tions when a search warrant is requested remains the
prerogative of this state’s highest court. See Reville v.
Reville, 312 Conn. 428, 459 n.29, 93 A.3d 1076 (2014)
(‘‘once [the Connecticut Supreme Court] has finally
determined an issue, for a lower court to reanalyze and
revisit that issue is an improper and fruitless endeavor’’
(internal quotation marks omitted)); State v. Fuller, 56
Conn. App. 592, 609, 744 A.2d 931 (‘‘[i]t is not within our
function as an intermediate appellate court to overrule
Supreme Court authority’’), cert. denied, 252 Conn. 949,
748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262,
148 L. Ed. 2d 190 (2000).
In his appellate reply brief, the defendant miscon-
strues that bedrock precept. The defendant argues that,
although this court is bound by Supreme Court prece-
dent, it ‘‘certainly may nonetheless conduct its own
thoughtful review of Kimbro and its rationale, and of
[Barton] and its results.’’ He is mistaken. This court is
not permitted to reconsider or reevaluate the precedent
of our Supreme Court. See, e.g., State v. Brown, 73
Conn. App. 751, 756, 809 A.2d 546 (2002) (‘‘Our Supreme
Court is the ultimate arbiter of the law in this state.
We, as an intermediate appellate court, cannot recon-
sider the decisions of our highest court.’’); State v.
Rodriguez, 63 Conn. App. 529, 532, 777 A.2d 704 (‘‘we,
as an intermediate appellate court, do not reevaluate
Supreme Court decisions and are bound by those deci-
sions’’), cert. denied, 256 Conn. 936, 776 A.2d 1151(2001).
Apart from that fundamental deficiency, the defen-
dant has provided no federal or state precedent to sup-
port his contention that the totality of the circumstances
test adopted by the United States Supreme Court in
Illinois v. Gates, supra, 462 U.S. 213, and by our Supreme
Court in State v. Barton, supra, 219 Conn. 529, should
be overruled. Furthermore, although both Kimbro and
Barton were predicated on the protections of article
first, § 7, of the Connecticut constitution, the defendant
has failed to provide this court with an independent
state constitutional analysis in accordance with State
v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992),
rendering any claim with respect to our state constitu-
tion abandoned. See State v. Bennett, 324 Conn. 744,
748 n.1, 155 A.3d 188 (2017). For all those reasons, we
decline the defendant’s invitation to revisit our Supreme
Court’s decision in Barton.
II
PROBABLE CAUSE
We next turn to the question of probable cause. The
defendant claims that the court improperly denied his
motion to suppress because the affidavit submitted in
support of the search warrant did not establish probable
cause. More specifically, he contends that the necessary
nexus between the residence and the criminal activity
alleged in the warrant application was lacking. We do
not agree.
‘‘The standards for upholding a search warrant are
well established. We uphold the validity of [the] warrant
. . . [if] the affidavit at issue presented a substantial
factual basis for the magistrate’s conclusion that proba-
ble cause existed.’’ (Internal quotation marks omitted.)
State v. Batts, 281 Conn. 682, 699–700, 916 A.2d 788,
cert. denied, 552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed.
2d 524 (2007). ‘‘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.’’ (Internal quotation marks
omitted.) State v. Respass, 256 Conn. 164, 173, 770 A.2d
471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L.
Ed. 2d 392 (2001). ‘‘[I]t is axiomatic that [a] significantly
lower quant[um] of proof is required to establish proba-
ble cause [rather] than guilt. . . . [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 otherwise would be to sub silentio impose
a drastically more rigorous definition of probable cause
than the security of our [citizens] . . . demands. . . .
In making a determination of probable cause the rele-
vant inquiry is not whether particular conduct is inno-
cent or guilty, but the degree of suspicion that attaches
to particular types of noncriminal acts.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Batts,
supra, 701.
Our determination of whether an affidavit sufficiently
establishes probable cause is governed by the ‘‘ ‘totality
of the circumstances’ ’’ test enunciated in State v. Bar-
ton, supra, 219 Conn. 544. That test requires the judge
issuing the warrant ‘‘to make a practical, nontechnical
decision whether there is a fair probability of finding
contraband or evidence of a crime in a particular place.
In coming to that decision, the [judge] must consider
all the circumstances set forth in the affidavit, including
the factual circumstances from which the ‘veracity’ and
the ‘basis of knowledge’ of persons supplying hearsay
information can be determined.’’ Id., 552.
When the decision of a judge to issue a search and
seizure warrant is challenged, the reviewing court
‘‘must determine [whether] the affidavit presented a
substantial factual basis upon which the [judge] could
conclude that probable cause existed. . . . Although
in a particular case it may not be easy to determine
when an affidavit demonstrates the existence of proba-
ble cause, the resolution of doubtful or marginal cases
in this area should be largely determined by the prefer-
ence to be accorded to warrants.’’ (Citations omitted;
internal quotation marks omitted.) Id. ‘‘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 the issue, therefore, is subject to plenary review
on appeal.’’ (Citation omitted; internal quotation marks
omitted.) State v. Batts, supra, 281 Conn. 701. In con-
ducting that review, ‘‘[w]e consider the four corners of
the affidavit and, giving proper deference to the issuing
[judge], determine whether the issuing [judge] reason-
ably could have concluded that probable cause
existed.’’ State v. Rodriguez, 163 Conn. App. 262, 266,
135 A.3d 740, cert. denied, 320 Conn. 934, 134 A.3d 622,
cert. denied, U.S. , 137 S. Ct. 167, 196 L. Ed. 2d
140 (2016).
The warrant affidavit in the present case was exe-
cuted by two detectives with the Stratford Police
Department, who, at that time, were assigned to its
narcotics, vice and intelligence unit. In that affidavit,
the detectives averred that they had spoken with a
confidential informant (informant) in October, 2017,
who indicated that an individual known as ‘‘George’’
had been ‘‘supplying amounts of heroin within the town
of Stratford for approximately [one] year.’’ The infor-
mant described George as ‘‘a black male with dreads
who is in his late twenties’’ who was selling ‘‘heroin
to street level and mid-level narcotics dealers.’’ The
informant also provided George’s telephone number,
which the informant used to call or text him. In addition,
the informant stated that George ‘‘lives in the area of
Success Avenue and operates a silver Nissan Maxima
with Maine plates.’’
The detectives explained that they subsequently iden-
tified the defendant as the person described as George
by the informant through a check of various law enforce-
ment databases. They recited the defendant’s criminal
record and stated that the defendant currently was on
probation for an incident that transpired in 2011, for
which he was charged with robbery in the first degree
with a deadly weapon and reckless endangerment. The
detectives also stated that the residence was listed as
the defendant’s address on file with the Office of Adult
Probation, and his phone number matched the one pro-
vided by the informant.
The detectives stated that they then conducted sur-
veillance at the residence and observed a male who
matched both (1) the description provided by the infor-
mant and (2) probation and booking photographs of
the defendant. They also observed that male enter a
silver Nissan Maxima with Maine license plates parked
in the driveway of the residence. The informant there-
after was shown ‘‘a colored unmarked photo’’ of the
defendant; the informant ‘‘immediately stated that the
individual in the photograph was the person that he/
she knows as ‘George.’ ’’
The affidavit then described two controlled pur-
chases of heroin that were conducted ‘‘[d]uring the
week ending [November 26, 2017],’’ and the ‘‘week end-
ing [December 3, 2017],’’ respectively. On both occa-
sions, the surveillance was conducted at the residence,
where the defendant was observed operating the Nissan
Maxima with a Maine license plate and then entering the
residence. Each time, the informant contacted ‘‘George’’
by calling the defendant’s phone number and arranged
to meet at a specific location in Stratford to purchase
heroin from him. The informant then met with ‘‘George’’
to complete the narcotics transaction while under sur-
veillance by law enforcement. When the transaction
concluded, the informant ‘‘confirmed that the black
male that sold him/her the heroin was the male that
he/she knows as ‘George’ and was the person he/she
[previously] identified in the photograph’’ provided by
law enforcement. Furthermore, after both controlled
purchases concluded, the detectives averred that ‘‘[s]ur-
veillance showed that [the defendant] and the Nissan
Maxima bearing [Maine license plates] were both at the
residence immediately after the buy occurred.’’
The affidavit also indicated that ‘‘[s]urveillance shows
that [the defendant] continues to reside at [the resi-
dence]’’ and that the defendant ‘‘has been seen at the
aforementioned residence during various day, evening
and night hours.’’ The detectives further stated that,
‘‘based on training and experience, the affiants know
that individuals who traffic illegal drugs will store their
drugs in their homes, basements, garages, vehicles and
other residences to avoid law enforcement detection.
. . . They will use various weapons, including but not
limited to firearms for protection. They will maintain
a supply of bullets for those firearms. . . . These drug
traffickers commonly retain these photographs and/or
video. They utilize various materials including, but not
limited to paper, plastic and glassine bags to package
their illegal drugs for street sale. Various types of mea-
suring devices are utilized by drug traffickers to mea-
sure the amount of illegal drugs that they are selling.’’
The affidavit concluded by stating that, ‘‘based on the
aforementioned facts and circumstances, the affiants
have probable cause to believe that evidence of posses-
sion of heroin with intent to sell [in violation of General
Statutes §] 21a-278 (b), is located within [the resi-
dence].’’
On appeal, the defendant claims that the nexus
between the residence and the criminal activity alleged
in the warrant application is lacking. We disagree. As
our Supreme Court has explained, the ultimate question
‘‘is whether there was a fair probability that the contra-
band was within the place to be searched.’’ State v.
Smith, 257 Conn. 216, 223, 777 A.2d 182 (2001). The
affidavit in the present case contains a detailed descrip-
tion of an alleged heroin dealer that matched the defen-
dant’s physical attributes, that shared the defendant’s
home address and telephone number, and who—like
the defendant—drove a silver Nissan Maxima with
Maine license plates. The affidavit also indicates that
when the informant was shown a photograph of the
alleged heroin dealer, the informant positively identi-
fied the defendant ‘‘immediately.’’ Law enforcement
observed the defendant at the residence, where a silver
Nissan Maxima with Maine license plates was parked
in the driveway. Surveillance conducted at the resi-
dence also confirmed that the defendant and that vehi-
cle were at the residence ‘‘[p]rior’’ to the two controlled
purchases and ‘‘immediately after the buy occurred.’’
On that basis, the issuing judge reasonably could have
concluded that probable cause to search the residence
existed. As our decisional law demonstrates, narcotics
dealers commonly store evidence of that illegal activity
in their homes. See, e.g., State v. Couture, 194 Conn. 530,
544, 482 A.2d 300 (1984) (‘‘at the time of the issuance
of the warrant it was reasonable for the [issuing judge]
to infer that the defendant’s residence was the logical
place to conceal not only the fruits but also the instru-
mentalities of the crime’’), cert. denied, 469 U.S. 1192,
105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Castano,
25 Conn. App. 99, 104, 592 A.2d 977 (1991) (‘‘[i]n the
case of drug dealers, evidence is likely to be found
where the dealers live’’ (internal quotation marks omit-
ted)); State v. Vallas, 16 Conn. App. 245, 262, 547 A.2d
903 (1988) (noting that ‘‘it is reasonable to conclude
that the participants [in the drug trade] will maintain
. . . supplies in their homes’’ and that ‘‘[w]hen a sus-
pect has been carrying on an illegal activity for an
extended period of time without detection, it is reason-
able to conclude that evidence of his activity will be
secreted in his home’’), aff’d sub nom. State v. Calash,
212 Conn. 485, 563 A.2d 660 (1989).
Although the defendant relies on State v. DeCham-
plain, 179 Conn. 522, 427 A.2d 1338 (1980), for the
proposition that a likely nexus between his residence
and criminal activity did not exist, that case is readily
distinguishable. Unlike the present case, in which the
residence is described in the warrant application as
a ‘‘[two-story, single-family] residence,’’ DeChamplain
involved an apartment building. More importantly, the
court in DeChamplain ‘‘found a lack of probable cause
to believe that drugs were located in [that] apartment,
because the only [fact] establishing a nexus to the apart-
ment was a single telephone call to the defendant at
his apartment in which he received an order for the
purchase of drugs.’’ (Emphasis added.) State v. Brown,
14 Conn. App. 605, 619, 543 A.2d 750, cert. denied, 208
Conn. 816, 546 A.2d 283 (1988). By contrast, the affiants
here observed multiple controlled narcotics transac-
tions involving the defendant, and each time the defen-
dant and his silver Nissan Maxima with Maine license
plates were observed at the residence prior to the trans-
actions and immediately thereafter.
In ruling on the defendant’s motion to suppress, the
court acknowledged that, in describing the first con-
trolled purchase, the affidavit does not identify the time
period with any specificity other than stating that the
defendant was observed at the residence ‘‘prior to the
buy taking place . . . .’’ (Internal quotation marks
omitted.) As our precedent instructs, the task of the
judge in issuing a search warrant ‘‘is simply to make a
practical, commonsense decision’’ based on the totality
of the circumstances presented in the warrant affidavit.
State v. Barton, supra, 219 Conn. 537. Applying that
precept, the court concluded that ‘‘[t]he logical and
reasonable inference that could have been drawn by
the issuing court is that the language [in question] . . .
helped explain when the surveillance may have been
conducted. The practical and nontechnical translation
of ‘prior to the buy taking place’ in terms of time, for
purposes of probable cause analysis, could have been
found to be a period of time in very close approximation
to the arrangements made for the first controlled buy.’’
We concur with that assessment. We further note that,
with respect to the second controlled purchase, the
affiants stated that ‘‘[s]urveillance showed that just
prior to the buy taking place [the defendant] arrived at
[the residence],’’ from which it may be inferred that
narcotics were stored at the residence.
‘‘Probable cause does not depend upon the incanta-
tion of certain magic words.’’ State v. Barton, supra,
219 Conn. 549. Moreover, we are mindful of our obliga-
tion to ‘‘evaluate the information contained in the affida-
vit in the light most favorable to upholding the issuing
judge’s probable cause finding.’’ State v. Shields, 308
Conn. 678, 691, 69 A.3d 293 (2013), cert. denied, 571
U.S. 1176, 134 S. Ct. 1040, 188 L. Ed. 2d 123 (2014).
Having carefully examined the record before us, we
conclude that the warrant application contained suffi-
cient information from which the judge reasonably
could infer that there was a fair probability that contra-
band or evidence of a crime would be found in the
defendant’s residence. For that reason, the court prop-
erly denied the defendant’s motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere condi-
tional 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 consid-
ered 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 in this case made such a determination at the defendant’s
May 16, 2019 plea hearing.
2
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.’’
3
Justices Dannehy and Santaniello joined Justice Healey’s majority opin-
ion. Justices Shea and Callahan issued dissenting opinions.
4
‘‘The Aguilar-Spinelli test provides a method for evaluating the existence
of probable cause . . . when a search warrant affidavit is based upon infor-
mation supplied to the police by a confidential informant. . . . Under the
Aguilar-Spinelli test, [t]he issuing judge must be informed of (1) some of
the underlying circumstances relied on by the informant in concluding that
the facts are as he claims they are, and (2) some of the underlying circum-
stances from which the officer seeking the warrant concluded (a) that the
informant, whose identity need not be disclosed, was credible, or (b) that
the information was reliable. . . . When the information supplied by the
informant fails to satisfy the Aguilar-Spinelli test, probable cause may still
be found if the warrant application affidavit sets forth other circumstances—
typically independent police corroboration of certain details provided by
the informant—that bolster the deficiencies.’’ (Citation omitted; internal
quotation marks omitted.) State v. Respass, 256 Conn. 164, 174 n.12, 770
A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).
5
In his principal appellate brief, the defendant insists that ‘‘our Supreme
Court’s rejection of Kimbro should be revisited’’; that ‘‘Kimbro should be
revived’’; that ‘‘[t]he ‘‘loosening of the Aguilar-Spinelli test was unneces-
sary’’; and that, ‘‘[i]t is, therefore, now, more than ever, time to revisit’’
Barton . . . .’’