State v. DeChamplain

¶1In an information filed by the state’s attorney for the judicial district of New London, the defendant was charged with possession of over a kilogram of marihuana with intent to sell by a person not drug-dependent in violation of ^ 19-480a (b) of the General Statutes.1 The defendant filed a motion to suppress the use as evidence of marihuana that was seized from apartment 7A, Jedholme Apartments, route 169, Lisbon, on the grounds that the affidavit in support of the application for the search warrant did not establish probable cause to believe that marihuana, in fact, was within these premises. The motion to suppress was granted by the trial court (Spallone, J.). The state’s motion to reargue the motion to suppress was denied, and on the same day the defendant’s *524motion to dismiss was granted. With the permission of the trial court, the state appealed from the judgment of dismissal.

¶2The only issue presented is whether the affidavit in support of the application for the search and seizure warrant established probable cause to believe that marihuana was located at apartment 7A, Jedholme Apartments.

¶3In the application for the search and seizure warrant, the affidavit of the police disclosed, inter alia, the following facts:2 On June 15, 1978, Trooper David Zupnik of the state police learned from Tim Malo that Malo had sold $15,000 worth of marihuana, and that he had acquired the drug from a person named “Doug,” whom he contacted by telephone at number 376-2266. Trooper Zupnik learned from the state police criminal intelligence division that this telephone number was listed to Rita DeChamplain at apartment 7A, Jedholme Apartments. Malo would meet “Doug,” who operated a yellow MG, in Canterbury, and Malo would buy the marihuana for $425 per pound. On June 27, 1978, at 4:05 p.m., Malo telephoned “Doug” at the above number and verified that a $425 deal he previously had made to purchase marihuana would take place at 4:30 p.m. on Depot Road, Canterbury. At about 3:53 p.m. that same day, Officer Frank Gavigan of the Norwich police saw a tan MG3 regis*525tered to Douglas A. DeChamplain parked near the building that houses apartment 7A, Jedholme Apartments. Officer Gavigan observed the MG leave the apartment complex area at 4:20 p.m. and watched it until it turned east onto Depot Road; the car did not stop en route.

¶4Trooper Zupnik observed the MG arrive at the location where the drug sale was arranged to take place and saw it stop behind a vehicle occupied by Tim Malo and state police trooper Michael Meehan, who was working undercover. Trooper Zupnik learned from Trooper Meehan that DeChamplain, the operator of the MG, showed Malo and him a plastic bag containing plant material which DeChamplain represented to be one pound of marihuana. At that time, DeChamplain, “of” apartment 7A, Jedholme Apartments, was arrested on Depot Road, Canterbury and charged with possession of marihuana with intent to sell and with possession of over four ounces of marihuana. Two plastic bags containing plant materials were seized at the time of DeChamplain’s arrest; a field test of this substance confirmed the presence of marihuana.

¶5On the basis of the above facts, a search and seizure warrant was issued by a judge of the Superior Court (Quinn, J.) for the seizure of marihuana, scales, and drug records from apartment 7A, Jedholme Apartments.

¶6As previously noted, the state, with the permission of the trial court, has appealed from the judgment dismissing the case. The state claims that the trial court erred in ordering the suppression of the use of marihuana as evidence when it decided that the affidavit in support of the application for the search and seizure warrant did not establish proba*526ble cause to believe that marihuana was located in apartment 7A.4 We do not agree with the claim of the state and hold that the trial court did not err in ruling that the facts set forth in the affidavit do not establish probable cause to believe that marihuana would be found at apartment 7A.

¶7The fourth amendment to the United States constitution provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation.”5 See also Conn. Const., art. I § 7 (“no warrant to search any place, or to seize any person or things, shall issue without . . . probable cause supported by oath or affirmation”) .6 “ ‘Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states. Ker v. California, 374 U.S. 23, 33, 83 S. Ct. 1623, 10 L. Ed. 2d 726.’ State v. Licari, 153 Conn. 127, 132, 214 A.2d 900.” State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).

¶8*527The fourth amendment “ ‘protects the privacy and security of persons in two important ways. First, it guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In addition, this Court has interpreted the amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the warrant clause. See, e.g., Mincey v. Arizona, 437 U.S. 385, 390 [98 S. Ct. 2408, 57 L. Ed. 2d 290] (1978); United States v. Chadwick, 433 U.S. 1, 9 [97 S. Ct. 2476, 53 L. Ed. 2d 538] (1977); United States v. United States District Court, 407 U.S. 297, 317 [92 S. Ct. 2125, 32 L. Ed. 2d 752] (1972); Katz v. United States, 389 U.S. 347, 357 [88 S. Ct. 507, 19 L. Ed. 2d 576] (1967); Agnello v. United States, 269 U.S. 20, 33 [46 S. Ct. 4, 70 L. Ed. 145] (1925). In the ordinary case, therefore, a search of private property must be both reasonable and performed pursuant to a properly issued search warrant.’ (Emphasis added.) Arkansas v. Sanders, 442 U.S. 753, 757-58, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); Trupiano v. United States, 334 U.S. 699, 705, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948); Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).” State v. Federici, 179 Conn. 46, 51-52, 425 A.2d 916 (1979).

¶9In reviewing an affidavit for a search and seizure warrant we must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for *528the issuance of the warrant. State v. Williams, 169 Conn. 322, 326, 363 A.2d 72 (1975); State v. Rose, 168 Conn. 623, 627-28, 362 A.2d 813 (1975); State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967). The judge is entitled to rely on his own common sense and the dictates of common experience, although the standard for determining probable cause is an objective one. State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972); (the fourth amendment does not deny “the support of the usual inferences which reasonable men draw from evidence”). See also State v. Romano, 165 Conn. 239, 245, 332 A.2d 64 (1973); Spinelli v. United States, 393 U.S. 410, 415, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968). Purely conclusory affidavits by the affiant or informant that he or she believes that probable cause exists, however, cannot be relied upon; the underlying circumstances upon which that belief is based must be detailed in the affidavit. Aguilar v. Texas, 378 U.S. 108, 109, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1963); Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933); State v. Rose, supra, 627; State v. Allen, supra. “The issuing authority must determine for himself the persuasiveness of the facts relied on to show probable cause. Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723.” State v. Allen, supra, 391. The issuing judge must not merely serve as a rubber stamp for the police. State v. Rose, supra, 627.

¶10Probable 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; State v. Doe, 115 N.H. 682, 685, 371 *529A.2d 167 (1975); 1 LaFave, Search, and Seizure: A Treatise on the Fourth Amendment (1978) §§ 3.1 (b) and 3.7; cf. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642,18 L. Ed. 2d 782 (1967); (“mere” evidentiary materials may be validly seized as well as instrumentalities, prints, weapons, and contraband) ; and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. State v. Doe, supra, 685; Carroll v. United States, 267 U.S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543 (1925); 1 LaFave, Search and Seizure, supra, 3.1 (b) and 3.7; comment, “Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment,” 28 U. Chi. L. Rev. 664, 687 (1961). See also Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1963); Husty v. United States, 282 U.S. 694, 51 S. Ct. 240, 75 L. Ed. 629 (1931); State v. Rose, supra, 629-32; Kamisar, LaFave & Israel, Modern Criminal Procedure (1974), pp. 228-29. The factors differ if probable cause to arrest is at issue. In that case, probable cause exists if: (1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime. State v. Doe, supra, 685; 1 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (1978) § 3.7, p. 680; see also Ker v. California, 374 U.S. 23, 36 n.8, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Wong Sun v. United States, 371 U.S. 471, 481 n.9, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).7 “ ‘In the case of arrest, *530the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go [to] the connection of the items sought with crime and to their present location.’ This distinction is a critical one, and is particularly significant in search warrant cases, for it means that the probable cause determination in that context is a much more complex matter; the need to determine the probable ‘present location’ of certain items, for example, gives rise to a question concerning the timeliness of the information which is not ordinarily a matter of concern in arrest cases.” 1 LaFave, Search and Seizure, op. cit. § 3.1 (b), p. 442 (quoting, in part, comment, 28 U. Chi. L. Rev. 664, 687 (1971) (footnote omitted).

¶11There is no question that marihuana is connected to the criminal activity for which DeChamplain was arrested. Possession of marihuana is an element of the crime of possession of marihuana with intent to sell in violation of § 19-480a (b) of the General Statutes. With respect to the place to be searched, however, the affidavit in the application for the search and seizure warrant did not provide the issuing judge with sufficient facts to permit the determination of the probable “present location” of the marihuana.

¶12The issuing judge, in determining whether probable cause exists, must consider only the information contained in the affidavit. General Statutes *531§ 54-33a (c) ;8State v. Williams, 170 Conn. 618, 628, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); see also State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967); State v. DeNegris, 153 Conn. 5, 9, 212 A.2d 894 (1965). The consideration of other information is improper. State v. Williams, 170 Conn. 618, 628, 368 A.2d 140 (1976). In considering the sufficiency of the affidavit, we confine ourselves “to the facts which appear on the face of the affidavit or which properly may be inferred therefrom.” Id., 629. Whether a search is unreasonable under the fourth amendment depends upon the facts and circumstances of each case. Cooper v. California, 386 U.S. 58, 59, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1966), reh. denied, 386 U.S. 988, 87 S. Ct. 1283, 18 L. Ed. 2d 243 (1967); State v. Tully, 166 Conn. 126, 135, 348 A.2d 603 (1974).

¶13As previously stated, the trial court did not err in concluding that the facts set forth in the affidavit do not establish probable cause to believe that marihuana would be found at apartment 7A.

¶14The affidavit here contained a conclusory statement to the effect that the affiants had probable cause and reasonable grounds to believe that there was marihuana in apartment 7A. To the extent *532that underlying circumstances appear in the affidavit, these circumstances do not logically support the conclusion that there was probable cause to believe that marihuana ever was located in the apartment in question, much less that it was located there at the time the warrant was issued. There is no indication in the affidavit that either Trooper Zupnik or Officer Gavigan, the affiants, or the informant, Tim Malo, ever saw or learned from other sources that marihuana was located in apartment 7A. The affidavit contains no statement to the effect that either of the affiants or the informant was ever in apartment 7A. Compare State v. Bose, supra. Nor does it set forth facts observed or perceived by any of these persons from which the presence of marihuana in apartment 7A reasonably could have been inferred.

¶15Telephone calls by an informant to a particular number to “order” illicit drugs do not per se establish probable cause to believe that the drugs themselves are located in the same premises as the telephone at which the “order” is received. Further, the other underlying circumstances in the affidavit do not add anything which would support probable cause to believe that marihuana was located in apartment 7A. Although Officer Gavigan saw the MG parked “near” the building that houses apartment 7A, there was no indication in the affidavit that anyone saw DeChamplain leave apartment 7A or that he was carrying a package when he exited from that apartment. It was just as likely that the marihuana sought to be seized was in another location — for example, in another apartment in the complex or in the MG — as it was that it was in apartment 7A. Certainly the allegation that telephone number 376-2266 was listed to a Rita DeChamplain *533at apartment 7A does not provide the additional support needed to establish probable cause. In and of itself the listing of a telephone number to this individual suggests no criminal activity. See Spinelli v. United States, 393 U.S. 410, 418, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968). Compare State v. Romano, 165 Conn. 239, 332 A.2d 64 (1973).

¶16We recognize that “in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, and that their determination of probable cause should be paid great deference by reviewing courts.” Spinelli v. United States, supra, 419. Nonetheless, the distinction between probable cause and mere conjecture still exists. “[T]he grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests.” (Emphasis added.) Torres v. Puerto Rico, 442 U.S. 465, 471, 99 S. Ct. 2425, 61 L. Ed. 2d 1 (1979). Although one may surmise that there was a chance that marihuana might have been found at apartment 7A, such conjecture does not rise to the level of probable cause to believe that marihuana, in fact, was located there.

¶17There is no error.

¶18In this opinion Cotter, C. J., Peters and Healey, Js., concurred.

¶19Appendix follows the dissenting opinion.