Date: 02-12-2016

Case Style: STATE OF CONNECTICUT v. CARMELITO RODRIGUEZ

Case Number: AC 37023

Judge: Robert E. Beach, Jr.

Court: Connecticut Appellate Court

Plaintiff's Attorney: Aimee Lynn Mahon, Nancy L. Chupak, John C. Smriga, C. Robert Satti, Jr.,

Defendant's Attorney: G. Douglas Nash

Description: The defendant, Carmelito Rodriguez, appeals from the judgment of conviction rendered following a conditional plea of nolo contendere1 to two countsofpossessionofanarcoticsubstancewithintent tosellinviolationofGeneralStatutes§ 21a-278(b).2The defendantclaimsthatthetrialcourterredindenyinghis motion to suppress certain evidence seized from his residence, on the ground that the affidavit in support of the search warrant did not provide probable cause fortheissuanceofthewarrant.Weaffirmthejudgment of the trial court. Therecordrevealsthefollowingfacts.OnSeptember 21, 2012, three individuals were arrested in Bridgeport for possession of a large quantity of heroin. One of the arrestedindividualsprovidedinformationtoBridgeport law enforcement officers about a mid-level drug supplier and provided details about that supplier’s heroin salesat144CedarStreetinBridgeport,whichresidence was owned by a third party. Relying primarily on information provided by the informant, police officers applied for a search warrant and averred in the accompanying affidavit: ‘‘That on 09/12/2012, members of the Bridgeport Police Departments Tactical Narcotics Team . . . along with members from the FBI Task Force, arrested three individuals in the City of Bridgeport. That the three arrested suspects were found in possession of a large quantity of heroin at the time of their arrests. . . . That one of the arrested suspects cooperated with officers, giving us details of a mid level supplier of heroin in the City of Bridgeport. This arrested suspect stated a male known to him as ‘Milo’ is supplying numerous drug dealers in Bridgeport with large amounts of heroin. He/she stated that ‘Milo’ resides on the second [floor] apartment of 144 Cedar Street in Bridgeport. . . . That this arrested suspect stated that he/she has been in ‘Milo’s’ apartment more than a dozen times in the past month. That he/she has observed ‘Milo’ package the heroin on the table in the basement on numerous occasions during these times. He/She added that ‘Milo’ stores several firearms in the residence, basement and second floor apartment. That a safe is kept in the basement where ‘Milo’ keeps his heroin and that money from drug sales are kept in his apartment. . . . That this arrested suspect stated he/ she has beenin ‘Milo’s’ apartment andbasement within the past two days and observed ‘Milo’ in possession of a large amount of heroin. That this arrested suspect described ‘Milo’ as a Hispanic male in his late thirties, approximately six feet tall, medium skin and a stocky build. ‘Milo’ is also described as having tattoos [on] both arms. . . . That during the past week, members of the FBI Task Force and members of the Bridgeport Police Tactical Narcotics Team conducted a Narcotics Investigation which led . . . to the arrest of the three
arrested suspects on today’s date. That during this investigation, Task Force member Officer Daid Reihl observed one of the arrested suspects entering and leaving 144 Cedar Street within the last two days.’’ The nextparagraphofthe affidavitrecitedconclusionssupporting probable cause based on the knowledge and experience of the affiants. The warrant application was granted. At approximately 1 p.m., members of the Bridgeport Police Department entered and secured the premises at 144 Cedar Street and seized, inter alia, a substantial quantityofillegalnarcotics.Thedefendantwasarrested and charged with, inter alia, two counts of possession of narcotics with intent to sell. In March, 2013, the defendantfiledamotiontosuppressevidenceobtained as a result of the search of 144 Cedar Street. Following anevidentiaryhearing,thecourtissuedamemorandum ofdecisiondenyingthedefendant’smotiontosuppress. The court found that the affidavit in support of the search warrant provided a sufficient factual basis as to the confidential informant’s basis of knowledge, his veracity,andreliabilityonwhichtoconcludethatprobable cause existed for the issuance of the warrant. The defendant entered pleas of nolo contendere to two counts of possession of narcotics with intent to sell, conditioned on his right to appeal from the court’s denial of his motion to suppress. The trial court determined that the ruling on the motion to suppress was dispositive of the case. The pleas were accepted and a judgment of guilty was rendered. The defendant was sentencedtoatotaleffectivesentenceofeighteenyears incarceration, execution suspended after nine years, followed by five years probation. This appeal followed. Our review of the question of whether an affidavit in support of an applicationfor a search warrant provides probable cause for the issuance of the warrant is plenary. State v. Buddhu, 264 Conn. 449, 459, 825 A.2d 48, cert. denied, 541 U.S. 1030, 124 S. Ct. 2106, 158 L. Ed. 2d 712 (2004). We consider the four corners of the affidavit and, giving proper deference to the issuing magistrate, determine whether the issuing magistrate reasonably could have concluded that probable cause existed. See State v. Flores, 319 Conn. 218, 225–26, 125 A.3d 157 (2015); State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991). Weareguidedbythefollowingstandards.‘‘Thefourth amendment to the United States constitution prohibits unreasonable searches and seizures and requires a showing of probable cause prior to the issuance of a search warrant. Probable cause to search exists if . . . (1)thereisprobablecausetobelievethattheparticular 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 probablecauserequireslessthanproofbyapreponderance of the evidence . . . [f]indings of probable cause donotlendthemselvestoanyuniformformulabecause probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. . . . Consequently, [i]n determining the existence of probable cause to search, the issuing [judge] assesses all of the information set forth in the warrantaffidavitandshouldmakeapractical,nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . This determination is made pursuant to a totality of circumstances test. . . . ‘‘Thiscourthasrecognizedthatbecauseofourconstitutionalpreferenceforajudicialdeterminationofprobable cause, and mindful of the fact that [r]easonable minds may disagree as to whether a particular [set of facts] establishes probable cause . . . we evaluate the information contained in the affidavit in the light most favorable to upholding the issuing judge’s probable cause finding. . . . We therefore review the issuance of a warrant with deference to the reasonable inferences that the issuing judge could have and did draw . . . and we will uphold the validity of [the] warrant . . . [if] the affidavit at issue presented a substantial factual basis for the [issuing judge’s] conclusion that probable cause existed. . . . Finally, [i]n determining whether [a] warrant was based [on] probable cause, wemayconsideronlytheinformationthatwasactually before the issuing judge at the time he or she signed the warrant,and thereasonable inferencesto bedrawn therefrom. . . . ‘‘When an affidavit is based on hearsay information fromaninformant,ratherthanonthepersonalobservations of the affiant, the veracity or reliability and basis of knowledge of [the informant] are highly relevant in theissuingjudge’sanalysisofthetotalityofthecircumstances. . . . In cases where an informant is as yet untested, this court has employed several methods by which to judge the information’s reliability or the informant’s credibility. Three of the most common factors used to evaluate the reliability of an informant’s tip are (1) corroboration of the information by police, (2) declarations against penal interest by the informantdeclarant, and (3) the reputation and past criminal behavior of the suspect.’’ (Citations omitted; internal quotation marks omitted.) State v. Flores, supra, 319 Conn. 224–26. While this appeal was pending, our Supreme Court decidedStatev.Flores,supra,319Conn.218.3 Thatcase issimilarinmanyrespectstothepresentcase.InFlores, the affidavit in support of the search and seizure warrant averred the following facts: ‘‘On January 27, 2010,
Rafley Santiago was arrested by Meriden [p]olice for crimes related to being in possession of a stolen dirt bike,andvariousothermotorvehiclecharges.Santiago requestedtospeakwithsomeoneregardinginformation he had, that would be of interest to [p]olice. . . . [Detective Angelo] Stavrides [of the Meriden Police Department] notified Santiago of his Miranda4 rights, which he waived. . . . Stavrides conducted an interview of Santiago. The interview was audio recorded, in a patrol interview area, at [p]olice [h]eadquarters. . . . Santiago stated among other things that he regularly purchases marijuana, approximately every [three] days,from[the]215CampStreet,thirdfloorapartment. He stated [that] he has been making such purchases, for the last month or two. Santiago stated he purchases [one]or[two]bagsofmarijuanaeachtime,fromamale subjectheonlyknewas‘John.’Hestatedhepays‘John’ $10 for each bag of marijuana. Santiago stated [that] ‘John’haslonghair,andmanypeoplefrequenttheapartment. . . . Each of the estimated [twenty] purchases Santiago made from [the] apartment, all came from withinthatapartment,withinthelasttwomonths.Santiago stated [that] the last time he purchased marijuana [from the apartment] was [four] days prior to the date of the statement he made to . . . Stavrides. Santiago’s last purchase was made on Saturday, January 23, 2010. . . . The affidavit also described the officers’ knowledge regarding the conduct of individuals who are involved in the sale and use of controlled substances, includingthat,throughtheirexperience,theyknowthat such persons routinely store illegal contraband in the location from which they base their sales.’’ (Footnote in original; internal quotation marks omitted.) Id., 221– 22. A search warrant was issued on the basis of the facts contained in the affidavit. Id., 222. The defendant sought to exclude the fruits of the subsequent search on the ground that the warrant had been issued without probable cause. Id., 223. Our Supreme Court reasoned: ‘‘[T]here is no dispute that Santiagowasafirsttimeinformantandthattheofficers did not undertake any independent corroboration of hisstatement,nordidtheyhaveanyinformationregarding the defendant’s past criminal behavior that might bolster the reliability of Santiago’s statement. Indeed, forthesereasons,werecognizethatthesefactspresent aparticularlyclosecaseastowhethertheissuingjudge reasonably could have concluded that the information relayedbySantiagowasreliable,andthathisstatement thereforesupportedafindingofprobablecause.Inlight of the deference we give to an issuing judge’s finding of probable cause, however, because Santiago was a named informant who gave a statement against his penal interest, we agree with the state that the judge could have reasonably credited his statement. ‘‘First, that Santiago was named in the affidavit and gave his statement in person at police headquarters
can be significant in the determination of whether the information he provided was reliable. In such circumstances, the police can observe the informant’s demeanor to determine his . . . credibility, and the informant runs the greater risk that he may be held accountable if his information proves false. . . . Indeed, as this court has repeatedly recognized, [t]he fact that an informant’s identity is known . . . is significant because the informant could expect adverse consequences if the information that he provided was erroneous.Thoseconsequencesmightrangefromaloss ofconfidenceorindulgencebythepolicetoprosecution for . . . falsely reporting an incident under General Statutes § 53a-180[c], had the information supplied proved to be a fabrication. . . . We disagree with the defendant’scontentionthatnamingSantiagointheaffidavitprovidednoindiciaofreliabilitybecausehisstatement relayed historical information. Because Santiago indicatedthatmarijuanawasbeingsoldoutoftheapartmenton acontinuousbasis, hadtheofficers notuncovered any evidence of contraband, he could have expectedadverseconsequencesforrelayingfalseinformation. More importantly, however, Santiago made a statement against his penal interest when he admitted to purchasing marijuana, not once, but on as many as twenty occasions in the two months preceding the issuance of the search warrant, with the most recent purchase occurring only four days before he gave his statement to police.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 227–28. OurSupremeCourtstatedthatFloreswasa‘‘particularly close case’’ in light of the facts that the warrant was based on a statement given by ‘‘a first time informant and that the officers did not undertake any independent corroboration of his statement, nor did they have any information regarding the defendant’s past criminal behavior that might bolster the reliability of [the informant’s] statement.’’ Id., 227. Applying the required degree of deference to the reasonable inferences the issuing judge could have drawn from the information provided in the affidavit in support of the warrant; see id., 225–26; including that the informant’s identity was known5 and that he gave a statement againsthispenalinterestinthatheadmittedthathehad purchased marijuana from the defendant on multiple occasions,theissuingjudgereasonablycouldhaveconcluded that the information was reliable and that his statements supported a finding of probable cause. Id., 227–28, 233. The affidavit in the present case more strongly supports a finding of probable cause than the affidavit in Flores. As in Flores, the identity of the informant in the present case was known to the police and he gave a statement against his penal interest, in which he described the defendant’s drug dealing operation conducted in the defendant’s residence. The informant in
the present case reported that he had made more than adozenvisitstothedefendant’sresidenceinthepreceding month and one within two days of the issuance of the warrant. The defendant in the present case argues that the informant did not make a direct admission of criminal activity and that there was no basis for inferring criminal activity by the informant; thus, the statements were not made against the informant’s penal interest. A magistrate reasonably could infer, however, that the informant’s recitation of the frequent visits to the defendant’s heroin packaging facility, as described in the affidavit, including one visit two days before his arrest, at which time, a large quantity of heroin was foundinhispossession,wascontrarytohispenalinterest.Theinformant’sdetaileddescriptionofthecriminal activity which he observed during his visits was also consistent with his own potential criminal liability. Additionally, the informant’s information in this case was more detailed than that in Flores: here the informant stated that he had observed the defendant with large amounts of heroin, observed him package heroin on the table in the basement of the residence, and saw that the defendant stored several firearms in the basementandsecondfloorapartmentandthatthedefendant kept a safe in the basement, where he stored heroin and money received from drug sales. The physical description of the defendant was detailed as well. The level of detail in a confidential informant’s tip can be a factor to consider in assessing reliability. See Illinois v. Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (‘‘[an] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [a] tip to greater weight than might otherwise be the case’’); see also State v. Ocasio, 112 Conn. App. 737, 749, 963 A.2d 1109 (levelofdetailofconfidentialinformant’stiponefactor in weighing credibility), cert. denied, 292 Conn. 904, 973 A.2d 106 (2009). Furthermore, here, unlike in Flores, there was some independent corroboration by the police of the informant’s statement. Members of the task force arrested the informant and two others on drug charges relating to a large quantity of heroin in their possession, on the same day as, but prior to, the arrest of the defendant. Additionally, within the two day period immediately preceding the arrests, the police task force had observed one of the arrested suspects enter and leave 144 Cedar Street. This observation provided some corroboration of the informant’s statement that the defendant was a drug dealer. The defendant argues that the observation was partial corroboration at best and not sufficiently significant to support the reliability of the informant’s tip. Although the corroboration was not especially detailed or strong, it nonetheless provided some additional support, in the totality of the circumstances,forthefindingthattheinformant’sinformation
was reliable. On the basis of the record and the standards enunciated in our Supreme Court’s decision in Flores, we conclude that the issuing judge reasonably could have concluded,onthebasisofthefactsrecitedintheaffidavit and reasonable inferences drawn therefrom, that, in thetotalityofthecircumstances,theaffidavitcontained probablecausefortheissuanceofthewarrant.

Outcome: Accordingly, the trial court did not err in denying the defendant’s motion to suppress the evidence seized from his residence during the execution of the search warrant. The judgment is affirmed.

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