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State v. Joseph E.
STATE OF CONNECTICUT v. JOSEPH E.*
(AC 46582)
Alvord, Moll and Flynn, Js.
Syllabus
Convicted, following a conditional plea of nolo contendere, of the crime of
criminal possession of a firearm, the defendant appealed, claiming that the
trial court had improperly denied his motion to suppress evidence of a
shotgun the police seized during a search of his home. K, who had accused
the defendant of harassing and threatening her, had taken a photograph of
a shotgun in the defendant’s home office when she was there to clean
his house fourteen months before the search warrant was executed. The
defendant contended that the lapse of time between when the photograph
was taken and the date that the search warrant was issued rendered probable
cause lacking to believe that the materials identified in the search warrant
would be in his possession at the time the warrant was issued. Held:
The trial court properly denied the defendant’s motion to suppress, as the
passage of fourteen months did not render the information in the search
warrant affidavit stale, and, on the basis of that information, it was reasonable for the judge who issued the warrant to believe that the items sought
to be seized would be found at the time the warrant was executed.
Argued October 10, 2024—officially released March 25, 2025
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of violation of a protective order and criminal possession of a firearm, brought
to the Superior Court in the judicial district of Danbury,
where the court, Stango, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the
defendant was presented to the court, Stango, J., on a
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
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State v. Joseph E.
conditional plea of nolo contendere to one count of
criminal possession of a firearm; subsequently, the state
entered a nolle prosequi as to the remaining charges;
judgment of guilty, from which the defendant appealed
to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
Russell C. Zentner, senior assistant state’s attorney,
with whom, on the brief, were David R. Applegate, state’s
attorney, Mary-Caitlin E. Harding, assistant state’s
attorney, and Tori L. Ludwig, deputy assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. Following a conditional plea of nolo contendere, entered pursuant to General Statutes § 54-94a,1
the defendant, Joseph E., appeals from the judgment
of conviction of criminal possession of a firearm in
violation of General Statutes (Rev. to 2021) § 53a-217.2
1
General Statutes § 54-94a provides in relevant part: ‘‘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 . . . 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 . . . 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 . . . . 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 2021) § 53a-217 provides in relevant part: ‘‘(a)
A person is guilty of criminal possession of a firearm, ammunition or an
electronic defense weapon when such person possesses a firearm, ammunition or an electronic defense weapon and . . . (4) knows that such person
is subject to (A) a restraining or protective order of a court of this state
that has been issued against such person, after notice has been provided
to such person, in a case involving the use, attempted use or threatened
use of physical force against another person, or (B) a foreign order of
protection, as defined in section 46b-15a, that has been issued against such
person in a case involving the use, attempted use or threatened use of
physical force against another person . . . . For the purposes of this sec-
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State v. Joseph E.
The defendant entered his conditional plea following
the court’s denial of his motion to suppress certain
evidence seized from his home. On appeal, the defendant claims that the court improperly denied his motion
to suppress because the search warrant application and
affidavit failed to establish probable cause for the
search of his home and the seizure of his property
therein. We affirm the judgment of the trial court.
In its memorandum of decision denying the motion
to suppress, the court found the following facts. ‘‘In
May of 2021, a citizen-informant [K] . . . came to the
Bethel Police Department to make a complaint that she
was being harassed and threatened by the defendant.
[K] informed the police that she had loaned the defendant approximately $45,000 and that the defendant’s
efforts to repay the loan had become sporadic. Frustrated at the defendant’s lack of consistent payments
on the debt, [K] informed the defendant by text message
that she ‘would be moving in a different direction,’
implying that she would be taking legal action to help
ensure repayment of the $45,000, and concluded the
text by stating that she believed that the defendant
belonged in jail. The defendant angrily responded to
[K] via text, ‘I’m sick and tired of your harassment and
you telling me I belong in jail.’ He then concluded by
texting, ‘[c]an I tell you something else right now and
tion, ‘convicted’ means having a judgment of conviction entered by a court
of competent jurisdiction, ‘ammunition’ means a loaded cartridge, consisting
of a primed case, propellant or projectile, designed for use in any firearm,
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.
‘‘(b) Criminal possession of a firearm, ammunition or an electronic defense
weapon is a class C felony, for which two years of the sentence imposed
may not be suspended or reduced by the court, and five thousand dollars
of the fine imposed may not be remitted or reduced by the court unless the
court states on the record its reasons for remitting or reducing such fine.’’
All references herein to § 53a-217 are to the 2021 revision of the statute.
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State v. Joseph E.
that’s very important that everybody involved understand one thing . . . if I go back to jail at the hand of
anybody else, when I get out, there (sic) DEAD.’
‘‘The affidavit in support of the search and seizure
warrant in question stated that [K] had knowledge of
the defendant’s criminal history consisting of felony
convictions involving domestic violence and firearms.
Further, it stated that the defendant’s text message had
caused her to believe that her personal safety was in
jeopardy because she believed that the defendant had
a firearm in his residence. ln support of that assertion,
[K] provided the Bethel Police Department with information that she had been in the defendant’s residence
located at . . . Portland Avenue in Redding . . . and,
while there, had observed what she believed to be a
pump action shotgun in his office. Further, [K] stated
to the police that the defendant had previously indicated
to her that he sleeps with a firearm next to his bed.
‘‘[K] shared a photo with the Bethel Police Department, dated March 6, 2020, of what appeared to be a
pump action style shotgun laying across a desk. [K]
stated that this was the weapon that she had seen in
the defendant’s home when she had been inside the
home to clean it and that she had taken this picture
of it at that time. [K] expressed to the Bethel Police
Department that she was fearful that the defendant still
had that weapon. She provided all this information via
a sworn written statement.
‘‘The affidavit in support of the search and seizure
warrant concluded by adding that the defendant did,
in fact, have felony convictions and, in addition, was
the respondent to active orders of protection, both of
which would bar him from possessing firearms of any
kind. On May 18, 2021, the court (D’Andrea, J.) authorized the search and seizure warrant for the defendant’s
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State v. Joseph E.
residence. The warrant stated evidence discovered during the execution of the warrant would constitute evidence of violations of . . . General Statutes [§§] 53a-
223 and 53a-217.
‘‘On May 19, 2021, the search warrant was executed
at the defendant’s home, and the search uncovered [a
firearm,3 which was not] the firearm in the picture from
March 6, 2020, at the residence. [This] firearm [was]
seized as evidence.’’ (Footnote added.)
In a substitute information filed November 8, 2022,
the defendant was charged with, inter alia, criminal
possession of a firearm in violation of § 53a-217. On
November 8, 2022, the defendant filed a motion to suppress the evidence seized from his home. The defendant
argued that there was no probable cause for the search
because the search warrant relied on stale information.
Specifically, the defendant contended that the information in the search warrant was stale because K’s picture
of the pump action style shotgun was more than fourteen months old when the search warrant was executed
and, therefore, evidence was lacking that the firearm
was still in the defendant’s home. The state filed a
memorandum of law in opposition to the defendant’s
motion to suppress. The court, Stango, J., heard oral
argument on the motion to suppress. On March 13, 2023,
the court issued a memorandum of decision denying
the defendant’s motion.
Following the denial of the motion to suppress, the
defendant entered a written, conditional plea of nolo
contendere to one count of criminal possession of a
firearm in violation of § 53a-217. In accordance with
3
In its memorandum of decision, the trial court incorrectly stated that
two firearms were seized from the defendant’s residence during the search.
The search warrant return references a single firearm in addition to ammunition. However, this error did not bear on the trial court’s decision to deny
the motion to suppress, and it is not considered in our review of the trial
court’s decision.
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State v. Joseph E.
the plea agreement, he was sentenced to a total effective
term of five years of incarceration, execution suspended after two years, which was the mandatory minimum, followed by three years of probation.4 This appeal
followed.
The defendant’s sole claim on appeal is that the court
improperly denied his motion to suppress because
information relied on in the search warrant affidavit
was stale at the time that the search warrant was issued.
The defendant contends that the information was stale
because the information was fourteen months old ‘‘with
zero indication of subsequent criminal activity, no reasonable basis for an assumption of ongoing criminal
activity, and no additional corroboration . . . .’’ The
defendant argues that, as a result of the lapse of time,
there was no probable cause to believe that the materials identified in the search warrant would be in his
possession when the warrant was issued. We disagree.
We begin by setting forth the applicable standard of
review. ‘‘When reviewing the trial court’s denial of a
motion to suppress, the standard of review to be applied
depends on whether the challenge asserted on appeal
is to the factual basis of the trial court’s decision or to
its legal conclusions. . . . [T]o the extent that the trial
court has made findings of fact, our review is limited
to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide
4
The defendant also entered a conditional plea of nolo contendere in a
separate docket, to one count of threatening in the second degree in violation
of General Statutes § 53a-62 and was sentenced to a concurrent term of 364
days of incarceration, execution suspended, followed by three years of
probation. The defendant, in a third docket, also entered a plea of nolo
contendere to violation of the conditions of his release in violation of General
Statutes § 53a-222 and was sentenced to a concurrent term of five years of
incarceration, execution suspended, followed by five years of probation.
The defendant does not challenge these convictions in this appeal.
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State v. Joseph E.
whether those conclusions are legally and logically correct in light of the findings of fact. . . . Whether the
trial court properly found that the facts submitted were
enough to support a finding of probable cause is a
question of law. . . . Accordingly, [o]ur review of the
question of whether an affidavit in support of an application for a search [and seizure] warrant provides probable cause for the issuance of the warrant is plenary.’’
(Citations omitted; internal quotation marks omitted.)
State v. Hanisko, 187 Conn. App. 237, 245–46,
202 A.3d
375 (2019). ‘‘Because this issue implicates a defendant’s
constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision
was supported by substantial evidence.’’ (Internal quotation marks omitted.) State v. Shields, 124 Conn. App.
584, 592,
5 A.3d 984 (2010), aff’d,
308 Conn. 678,
69 A.3d
293 (2013), cert. denied,
571 U.S. 1176,
134 S. Ct. 1040,
188 L. Ed. 2d 123 (2014).
The following legal principles are relevant to our
resolution of the defendant’s claim. ‘‘Both the fourth
amendment to the United States constitution and article
first, § 7, of the Connecticut 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 usefully, reduced to a neat
set of legal rules. . . . Consequently, [i]n determining
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State v. Joseph E.
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. . . . The determination of probable cause is reached by applying a totality of the circumstances test. . . .
‘‘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 [issuing judge’s] conclusion that probable cause existed.
. . . [Our Supreme Court] has recognized that because
of our constitutional preference 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 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. . . . In evaluating whether the warrant
was predicated on probable cause, a reviewing court
may consider only the information set forth in the four
corners of the affidavit that was presented to the issuing
judge and the reasonable inferences to be drawn therefrom.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Hanisko, supra, 187 Conn. App. 246–
47.
‘‘It is undisputed that [t]he determination of probable
cause to conduct a search depends in part on the finding
of facts so closely related to the time of the issuance
of the warrant as to justify a belief in the continued
existence of probable cause at that time. . . . Although
it is reasonable to infer that probable cause dwindles as
time passes, no single rule can be applied to determine
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State v. Joseph E.
when information has become too old to be reliable.
The likelihood that the evidence sought is still in place
is a function not simply of watch and calendar but of
variables that do not punch a clock: the character of the
crime (chance encounter in the night or regenerating
conspiracy?), of the criminal (nomadic or entrenched?),
of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place
to be searched (mere criminal forum of convenience
or secure operational base?), etc.’’ (Citation omitted;
internal quotation marks omitted.) State v. Vincent, 229
Conn. 164, 174,
640 A.2d 94 (1994). ‘‘Accordingly, we
have refused to adopt an arbitrary cutoff date,
expressed either in days, weeks or months, beyond
which probable cause ceases to exist.’’ (Internal quotation marks omitted.) State v. Buddhu, 264 Conn. 449,
465,
825 A.2d 48 (2003), cert. denied,
541 U.S. 1030,
124
S. Ct. 2106,
158 L. Ed. 2d 712 (2004).
We first consider the character of the crime, which,
here, was the criminal possession of a firearm. Although
our appellate courts have not addressed a claim of
staleness with respect to information about a firearm
contained in a search warrant affidavit, decisions from
other courts are instructive to our analysis. As the
United States Court of Appeals for the Sixth Circuit
stated in determining that a search warrant affidavit’s
information was not stale based on a five month period
between the date the firearm in question was stolen
from another person’s home and the date that firearm
was found in the defendant’s residence: ‘‘The illegal
firearm possession alleged in the affidavit is not a onetime occurrence but rather a continuous and ongoing
offense. Possession is a course of conduct, not an act
. . . . The element of possession and the fact that a
weapon has continuing value suggests these crimes are
more like ‘regenerating conspiracies’ than ‘chance
encounters,’ and therefore this factor weighs against
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State v. Joseph E.
a finding that the information was stale.’’ (Citations
omitted.) United States v. Goodwin, 552 Fed. Appx.
541, 544–45 (6th Cir.), cert. denied,
572 U.S. 1128,
134
S. Ct. 2324,
189 L. Ed. 2d 199 (2014).5
We next consider the second and fourth factors, the
character of the criminal and the place to be searched.
During oral argument before this court, the defendant’s
appellate counsel conceded that the defendant was not
a ‘‘nomad.’’ The address listed in the warrant was the
defendant’s home where he was living. Because the
defendant was entrenched, rather than nomadic, his
staleness argument is undermined. See United States
v. Goodwin, supra,552 Fed. Appx. 545 (‘‘If a criminal
defendant moves frequently with the hope of avoiding
detection or capture, the probability that evidence of
his criminal conduct will be found in a given location
diminishes rapidly with the passage of time. . . . Here,
however, the affidavit supported the conclusion that
[the defendant] was an ‘entrenched’ criminal because
the ongoing possession crimes were likely to have
occurred at [the defendant’s] residence.’’ (Citation omitted.)). Our Supreme Court has recognized that the place
identified by the search warrant can be considered a
‘‘ ‘secure operational base’ ’’ when it is the defendant’s
home. State v. Johnson, 219 Conn. 557, 568,
594 A.2d
5
Similarly, in United States v. Lancaster, 145 Fed. Appx. 508, 513 (6th
Cir. 2005), the Sixth Circuit determined that information in a search warrant
affidavit was not stale when an informant had witnessed the defendant fire
a machine gun two years earlier.
The defendant emphasizes the fact that the weapons in question in Goodwin and Lancaster were machine guns, whereas the weapon described in
the search warrant was a pump action style shotgun. However, in both
Goodwin and Lancaster, the court’s analysis did not turn on the type of
the firearm used. See United States v. Goodwin, supra,552 Fed. Appx.
544 (explicitly discussing ‘‘illegal firearm possession’’); United States v.
Lancaster, supra,145 Fed. Appx. 513 (emphasizing that ‘‘firearms are not
perishable items’’ and that firearm owners generally keep their firearms for
long periods of time). Therefore, we are not persuaded by the defendant’s argument.
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State v. Joseph E.
933 (1991); see also United States v. Goodwin, supra,
546. In turn, the information in the warrant here is ‘‘less
likely to be stale’’ because the defendant’s home is not
merely a ‘‘ ‘criminal forum of convenience . . . .’ ’’
State v. Respass, 256 Conn. 164, 180,
770 A.2d 471, cert.
denied, 534 U.S. 1002,
122 S. Ct. 478,
151 L. Ed. 2d
392 (2001).
Finally, we consider the third factor, the thing to be
seized, and whether it is ‘‘perishable and easily transferable or of enduring utility to its holder . . . .’’ (Internal
quotation marks omitted.) State v. Vincent, supra,229
Conn. 174. The search warrant here sought a firearm,
specifically ‘‘a pump action style shotgun,’’ which qualifies as a durable good. See id., 174–75. ‘‘In contrast to
perishable goods, durable goods can, by their nature,
remain in a defendant’s possession for a longer period
of time.’’ United States v. Goodwin, supra,552 Fed.
Appx. 545; see also United States v. Hampton,
760 Fed.
Appx. 399, 403 (6th Cir. 2019).
Consistent with courts in other jurisdictions, our
Supreme Court has recognized that firearms have an
enduring utility to their holder. See, e.g., State v. Carbone, 172 Conn. 242, 251,
374 A.2d 215 (‘‘people who
own pistols generally keep them at home or on their
persons’’ (internal quotation marks omitted)), cert.
denied, 431 U.S. 967,
97 S. Ct. 2925,
53 L. Ed. 2d 1063
(1977), and cert. denied, 431 U.S. 967,
97 S. Ct. 2925,
53 L. Ed. 2d 1063 (1977); United States v. Piloto,
562
Fed. Appx. 907, 913 (11th Cir.) (‘‘unlike narcotics, firearms are not consumable items; it would be reasonable
to believe that [the defendant] continued to possess his
gun in his home for at least 13 months’’), cert. denied,
574 U.S. 913,
135 S. Ct. 291,
190 L. Ed. 2d 213 (2014);
United States v. Neal, 528 F.3d 1069, 1074 (8th Cir.
2008) (‘‘[i]nformation that someone is suspected of possessing firearms illegally is not stale, even several
months later, because individuals who possess firearms
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State v. Joseph E.
tend to keep them for long periods of time’’); United
States v. Pritchett, 40 Fed. Appx. 901, 906 (6th Cir.)
(‘‘[f]irearms are durable goods and might well be
expected to remain in a criminal’s possession for a long
period of time’’), cert. denied, 537 U.S. 1023,
123 S. Ct.
532,
154 L. Ed. 2d 433 (2002).6 In the present case, the
continued utility of the defendant’s firearm is particularly apparent considering K’s sworn written statement,
which provided that the defendant stated that he slept
next to a firearm. As a result, the third factor supports
a finding that the information was not stale.
All of the Vincent factors weigh against a claim of
staleness. In light of the foregoing, we conclude that
the passage of fourteen months between the date K
took a photograph of the shotgun laying across the
defendant’s desk and the date that the search warrant
was issued did not render the information in the search
warrant affidavit stale. It was reasonable for the issuing
6
The defendant also argues that ‘‘there still should be something in the
affidavit . . . showing that a person is still in possession of the weapon.’’
We conclude that, contrary to the defendant’s contention, there existed
evidence reasonably suggesting that the defendant still possessed the firearm. Pursuant to the laws governing the transfer of firearms, including
General Statutes § 29-37a (d), certain authorization and documentation is
required for the legal transfer of firearms. As described in the search warrant
affidavit, a police officer conducted a check with the special licensing and
firearms unit of the Department of Emergency Services and Public Protection to confirm whether the defendant had a history of an authorized transfer
of ‘‘any long gun matching the description of the firearm seen in the [photograph] provided by [K].’’ However, the officer could not find evidence that
the shotgun was lawfully transferred to or from the defendant. Therefore,
the issuing court reasonably could have considered the information that a
search of firearm transfer records revealed no sale as a circumstance from
which it could be inferred that probable cause continued to exist. See United
States v. Rahn, 511 F.2d 290, 293 (10th Cir.), cert. denied,
423 U.S. 825,
96
S. Ct. 41,
46 L. Ed. 2d 42 (1975); see also State v.
Carbone, supra,172 Conn.
251 (citing United States v.
Rahn, supra, 292–93, as holding that ‘‘warrant
to search for guns issued on information eighteen months old not stale
when affidavit showed the defendant had said guns would appreciate in
value if kept, had been seen making personal use of one gun, and search
of records of area pawnshops revealed no sales by the defendant’’).
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State v. Joseph E.
judge to believe, on the basis of that information, that
there was a fair probability that the items sought to be
seized would be found at the time that the search warrant was executed. Accordingly, we conclude that the
court properly denied the defendant’s motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.
