Opinion
HHBCR180292448T H15NCR170287074S
02-22-2019
STATE of Connecticut v. Raymond GLOWICKI
UNPUBLISHED OPINION
OPINION
Hon. Vernon D. Oliver
The defendant moves to exclude the admission into evidence of alleged child pornography and other items based on a claimed violation of the United States and Connecticut Constitutions. The defendant asserts that, as the affidavit in support of the search and seizure warrant contains an incorrect address, law enforcement’s failure to satisfy the constitutional particularity requirement renders the warrant invalid and the items seized pursuant thereto excludable. On February 21, 2019, the Court took testimony from Detective Samantha McCord and accepted three full exhibits for consideration at a hearing on the motion.
The defendant also argues that law enforcement’s failure to check a box indicating that a previous warrant had been reviewed by another magistrate renders the subject search and seizure warrant invalid. As that claim was neither briefed nor argued by the defendant, the court deems the claim abandoned. Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, cert. denied, 289 Conn. 902 (2008).
Law
General Rule Under the Fourth Amendment
The exclusionary rule, first applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961), requires the suppression of evidence obtained in violation of the fourth amendment’s prohibition against unreasonable searches and seizures. The exclusionary rule serves a twofold purpose: to deter police misconduct, and to remove inducements to unreasonable invasions of privacy by government agents. See United States v. Leon, 468 U.S. 897, 916-19 (1984).
The Warrant Requirement
A warrantless search is per se unreasonable under both the U.S. and Connecticut constitutions, subject to only a few specifically established and well-delineated exceptions. See Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); California v. Carney, 471 U.S. 386, 390 (1985); United States v. Ross, 456 U.S. 798, 824-25 (1982); State v. Blades, 225 Conn. 609, 617 (1993). A search warrant protects an individual’s interest in the privacy of home and possessions against the unjustified intrusion of the police. Steagald v. United States, 451 U.S. 204, 212-13 (1981). Application for the warrant must be accompanied by affidavits that establish probable cause for the search or arrest. Information must be found within the affidavit’s "four corners." State v. Colon, 230 Conn. 24, 34 (1994). The affidavits must establish a factual basis to support probable cause to believe that an item was used during the commission of a crime, was stolen or embezzled, or constitutes evidence of a crime, or a particular person participated in a crime, and the item or person is in a particular location. State v. Vincent, 229 Conn. 164, 172-74 (1994) (items need only be evidence of criminal activity, not that owner or possessor committed a crime).
Under Connecticut’s State Constitution
Connecticut’s Supreme Court has joined other states in interpreting its own constitution as affording "more expansive protection to fundamental rights of their citizens, particularly in the area of civil liberties including searches and seizures." State v. Dukes, 209 Conn. 98, 114 (1988). The state’s policy in favor of warrants has led the Supreme Court to narrowly construe exceptions to the state constitutional warrant requirement of article first, § 7. See State v. Miller, 227 Conn. 363, 386 (1993).
Private Residences
Private residences and the areas immediately surrounding them are accorded the strongest constitutional protection. See Oliver v. United States, 466 U.S. 170, 178, 180 (1984). Once it is determined that the search was constitutionally protected, the focus shifts to the question of the reasonableness of the particular search or seizure. The analysis turns on whether it was conducted pursuant to a warrant or under circumstances that do not require a warrant. See State v. Zindros, 189 Conn. 228, 236-37 (1983), cert. denied, 465 U.S. 1012 (1984).
Identifying Items with Specificity
The warrant must identify the property and name or describe the person, place or thing to be searched. "The description of items to be seized in a warrant need only be as specific as the circumstances and the nature of the activity under investigation permit." State v. Zarick, 227 Conn. 207, 225, cert. denied, 510 U.S. 1025 (1993); State v. Ruscoe, 212 Conn. 223, 234 (1989), cert. denied, 493 U.S. 1084 (1990). The affidavits must establish a nexus between the objects to be seized and the premises to be searched. State v. Couture, 194 Conn. 530, 536 (1984), cert. denied, 469 U.S. 1192 (1985).
Scrivener’s Errors
A scrivener’s error in the affidavit as to the date of alleged activity was clearly an error and did not invalidate the warrant. State v. Rosario, 238 Conn. 380, 386 (1996).
Factual Findings
The Court makes the following findings of fact and reaches the conclusions of law herein by a preponderance of the evidence, based on the four corners of the combined search and seizure application, affidavit and warrant as introduced as a full exhibit during the suppression hearing:
1. In October 2016, Connecticut state law enforcement authorities, while conducting investigations into the online sharing of files of suspected child pornography, developed as a potential target a computer associated with a specific Internet Protocol (hereinafter "IP") address;
2. In October and November 2016, after confirming the IP address, state authorities determined that several images and a video of apparent child pornography had been uploaded from that IP address to a certain file sharing website. Law enforcement successfully downloaded still images and a video of suspected child pornography originating from that IP address;
3. In November 2016, law enforcement authorities identified the IP address as being assigned to Comcast Communications. A subsequent ex parte warrant directed to Comcast for basic subscriber information, obtained in December 2016 resulted in the name of Maryjane Glowicki, of 55 Henry Street in New Britain, a telephone number and an email address containing the subscriber’s last name;
4. In late December 2016, law enforcement conducted further investigation of the physical address of 55 Henry Street in New Britain (described in the affidavit as "a small single story white house with black shutters with the number ‘55’ posted by the front door"), including visual surveillance and a background check of the occupants, including the defendant. Law enforcement also confirmed that the present occupants had resided at the aforementioned address since 2004;
5. The final paragraph (16) of the affidavit in support of the search warrant is a summary of the affiants’ facts in support of their claim of probable cause to search a premises. That paragraph, however, describes the subject premises as "110 Shrub Rd Bristol, CT";
6. The search warrant application represents that the suspected child pornography is within the "[r]esidence at 55 Henry Street in New Britain, a small single story white house with black shutters with the number ‘55’ posted to the left of the front door";
7. The search and seizure warrant itself authorizes law enforcement to search the "[r]esidence at 55 Henry Street in New Britain, a small single story white house with black shutters with the number ‘55’ posted to the left of the front door";
8. The Honorable John Cronan signed the combined application and affidavit, as well as the search and seizure warrant, on February 17, 2017.
Analysis
Although the defendant fashions his argument in favor of suppression as one challenging the lack of sufficient particularity of the premises to be searched, the proper challenge is to the accuracy of the information provided to the magistrate within the affidavit in support of the search seizure warrant. In this regard, the court finds State v. Lucas on point with the facts in the instant matter. State v. Lucas, 63 Conn.App. 263, cert. denied, 256 Conn. 930 (2001). In an abundance of caution, however, this court, after due consideration, finds that the description of the premises to be searched, when read from the affidavit as a whole, does describe the premises to be searched, 55 Henry Street in New Britain, the items to be searched and seized, the suspected criminal offenses, and the nexus between the three, with sufficient particularity.
In Lucas, the defendant challenged the trial court’s denial of his motion to suppress based on an inaccuracy contained within a paragraph of the affidavit in support of the search and seizure warrant. State v. Lucas, supra, n.6. The law enforcement affiants in Lucas mistakenly replaced the proper premises to be searched with the address of the future co-defendant in the closing paragraph of the affidavit in support of the search and seizure warrant. Elsewhere in the documents, including the application, the affidavit and the search and seizure warrant itself, the defendant’s address is properly and accurately referenced, including facts in support of the search of the defendant’s premises at that address. Id., at 271. In affirming the ruling of the trial court, the Appellate Court wrote:
The defendant first claims that the court improperly denied his motion to suppress the evidence seized at the Willow Street apartment because the warrant was defective. We disagree.
The following facts pertain to this claim. Prior to trial, the defendant filed a motion to suppress the evidence found pursuant to the Willow Street warrant because paragraph seven of the affidavit in support of the warrant application stated that there was probable cause to search 112-114 Cooke Street, not the Willow Street apartment. The defendant claimed that the search violated both the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut.
The court denied the motion to suppress, finding that the mistake in the affidavit was merely a scrivener’s error, citing State v. Santiago, 8 Conn.App. 290, 513 A.2d 710 (1986).
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 probable cause existed ... [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When 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 inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories ... We are also reminded 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 determination. (Citations omitted; internal quotation marks omitted.) State v. Rosario, 238 Conn. 380, 385, 680 A.2d 237 (1996). The federal standard for challenging a warrant affidavit is the standard to be applied under article first, § 7, of our state constitution. State v. Glenn, 251 Conn. 567, 578, 740 A.2d 856 (1999).
Although we disagree with the trial court that Santiago is on point with the factual issues here, that case accurately states the law controlling the validity of the warrants at issue here. "The particularity clause of the fourth amendment requires that no warrants issue except those particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., amend. IV. This standard is met with respect to the place to be searched if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." (Internal quotation marks omitted.) State v. Santiago, supra, 8 Conn.App. at 304, 513 A.2d 710.
"There are three purposes behind the particularity clause: (1) to prevent general searches; (2) to prevent the seizure of objects in the mistaken belief that they are within the scope of the issuing magistrate’s authorization; and (3) to prevent the issuance of warrants on vague or doubtful factual bases." Id. "In determining whether the description given the executing officer was sufficiently detailed, it is of course important initially to examine the description which appears in the warrant itself." (Internal quotation marks omitted.) Id., at 304-05, 513 A.2d 710. Here, the defendant does not question that the Willow Street warrant stated with particularity the place to be searched.
Before this court, the state argues that the error in the warrant is merely a scrivener’s error and that the court that issued the warrant would know that by comparing the applications and affidavits for the Cooke Street and Willow Street warrants. The defendant responded that this argument violates the rule that a magistrate may consider only the allegations within the four corners of the affidavit when issuing a warrant. See State v. Diaz, 226 Conn. 514, 543, 628 A.2d 567 (1993).
Although the affidavit for the Willow Street apartment contains a scrivener’s error, the court properly denied the defendant’s motion to suppress because the affidavit presented a substantial factual basis for the magistrate’s conclusion that probable caused existed to issue the Willow Street warrant. A reliable confidential informant told police that the defendant participated in a conspiracy to sell narcotics whereby several individuals packaged the narcotics at the Willow Street apartment and sold them at the Cooke Street apartment. Both apartments were integral to their scheme.
Although the defendant is correct that a magistrate may not look to facts outside an affidavit to find probable cause, paragraph seven of the Willow Street affidavit is merely a summary of the attesting police officers’ opinion as to the existence of probable cause. The magistrate, however, is charged with the responsibility of determining probable cause.
While the magistrate undoubtedly noticed the scrivener’s error, the warrant applications and the warrants themselves were accurate as to the place and the persons to which they applied. This is not an instance where the magistrate relied on something other than the facts in the affidavits to find probable cause. The court, therefore, properly denied the motion to suppress.State v. Lucas, supra, 267-71. In the instant matter, the facts are almost identical to Lucas, with the notable exception that there was no nexus at all between the defendant’s address and premises to be searched in New Britain and the mistakenly included address in Bristol. The Bristol address appears nowhere else in the application, affidavit or warrant.
Within the four corners of the affidavit and with reasonable inferences to be drawn therefrom, it is clear to this court that the reviewing magistrate had sufficient facts to support a finding of probable cause to believe that electronic devices used in the commission of crimes related to the possession and/or dissemination of child pornography were present within the premises of 55 Henry Street, New Britain, Connecticut.
To the extent there was a need to consider the additional extrinsic evidence adduced at the hearing related to the underlying investigation, it is even more clear to this court that the inclusion of the address at 110 Shrub Road, Bristol was a "cut and paste" scrivener’s error. The court, crediting the entirety of the testimony of Det. McCord, finds that there was no question that the premises at 55 Henry Street, New Britain was the actual and proper subject of the search and seizure warrant.
Conclusion
This court finds that the offending words within paragraph 16 are of no moment in determining the validity of the search and seizure in the instant matter as that paragraph simply contains a brief factual summary and the opinion of the affiants as to the existence of probable cause. The actual determination of probable cause was properly left to and decided by the magistrate. The aforementioned scrivener’s error does not invalidate the search and seizure warrant.
Accordingly, the defendant’s motion to suppress is DENIED.