State v. Rosario

SCHALLER, J.,

dissenting. I respectfully disagree with the result reached in the majority opinion. I agree with the majority’s statement of the pertinent law. I disagree, however, with respect to the pivotal issue, that is, whether the trial court, in applying the substantial factual basis test, engaged in de novo review or whether it gave proper deference to the reasonable inferences drawn by the issuing judge. I believe the trial court reached its own decision as to what reasonable inferences should be drawn concerning staleness rather than deferring to the issuing judge’s reasonable inferences that led him to find probable cause.

The majority has accurately stated the facts contained within the four comers of the affidavit. As the state’s brief indicates, however, the warrant in question was the second of two search warrants pertaining to *56057 Benton Street in Hartford, issued on January 6,1993, by different judges. The first warrant affidavit related facts relating to a controlled purchase of narcotics on January 5, 1993, at the first floor apartment at that address. The first warrant application, which concerned the first floor apartment, was signed by Judge Samuel S. Goldstein and executed on January 6, 1993. Because the police obtained information that the narcotics had been moved to the basement of the building, they did not pursue the matter and, instead, applied for a second warrant, the subject of this case. All the information contained in the second warrant affidavit, in fact, was obtained on January 6, 1993, not 1992, as the affidavit incorrectly stated.

Judge Raymond R. Norko found probable cause and issued the second search warrant on January 6, 1993. That search resulted in the seizure of a substantial amount of cash and narcotics. It is evident from the fact that Judge Norko found probable cause that he reasonably inferred from the facts in the affidavit that the references to January 6, 1992, were scrivener’s errors and that the underlying information actually was obtained on January 6,1993. We are entitled to presume that the issuing judge properly considered all the facts submitted for his consideration. Cf. Solomon v. Aber-man, 196 Conn. 359, 376, 493 A.2d 193 (1985). Because the underlying information, therefore, was not stale, probable cause existed.

When determining if an affidavit in support of a search warrant presented a substantial factual basis on which a magistrate could have found probable cause, “[w]e are confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause.” State v. Vincent, 30 Conn. App. 249, 252, 620 A.2d 152 (1993); *561see Illinois v. Gates, 462 U.S. 213, 235-36, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

The trial court, however, in ruling on the motion to suppress, declined to defer to the issuing judge’s inferences and, instead, reached its own decision as to what inferences were reasonable. I note that, in doing so, the trial court had before it the factors on which the issuing judge drew his reasonable inferences. The trial court took judicial notice of the fact that “upon embarking upon a new year often times one may, in error, record the previous calendar year.” The trial court also noted that it was unlikely that the police officers “could have sat on the warrant before they brought it to a magistrate for the year.” The attention of the trial court was also drawn to the body of the affidavit that contained a reference to Hartford police case number 93-922 for information about the controlled purchase, a crucial factor supporting the warrant application. As the issuing judge was obviously aware, it is not possible for a controlled purchase on January 6, 1993, to form the basis for a warrant issued on January 6, 1992. See State v. Amendola, 152 Conn. 166, 204 A.2d 836 (1964).

Those factors, in my view, provided Judge Norko with a sufficient basis fully within the four corners of the affidavit on which to draw a reasonable inference that the information in the warrant affidavit was timely. Our law is clear that “[w]hen a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inference drawn by the magistrate.” State v. Barton, 219 Conn. 529, 544-45, 594 A.2d 917 (1991). Our Supreme Court has repeatedly held that a reviewing court must uphold “the validity of [the] warrant . . . [if] the affidavit at issue presented a substantial factual *562basis [including the inferences reasonably drawn from the affidavit] for the magistrate’s conclusion that probable cause existed.” (Internal quotation marks omitted.) State v. DeFusco, 224 Conn. 627, 642, 620 A.2d 746 (1993).

Our Supreme Court has also stated that “[i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s . . . conclusion that the affidavit established probable cause.” (Citations omitted; internal quotation marks omitted.) Id. “[Affidavits for search warrants . . . must be tested and intexpreted by magistrates in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, supra, 380 U.S. 108. “Probable cause is a flexible common sense standard. ... It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act.” (Citations omitted; internal quotation marks omitted.) Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 549-50, 636 A.2d 1360 (1994). “It was former Chief Justice Roger J. Traynor of the Supreme Court of California who once stated that judges must keep ‘the peace between the Constitution and common sense.’ R. Traynor, ‘The Devils of Due Process in Criminal Detection, Detention, and Trial,’ 33 U. Chi. L. Rev. 657, 680 (1966).” State v. Miller, 29 Conn. App. 207, 246, 614 A.2d 1229 (1992) (Norcott, J., dissenting), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993). Because the trial court in this case did not defer appropriately to the issuing judge’s reasonable inferences, I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent.