State of Connecticut v. Jeton Hidri et al. (2010)

MEMORANDUM OF DECISION

This is a Motion for “Franks Hearing.”   There are five co-defendants as follows:

Jeton Hidri-CR10-390428

Nebije Hidri-CR10-390982

Vetim Hidri-CR10-390421

Shpetim Hidri-CR10-390418

Valdrin Hidri-CR10-390429

The defendant, Jeton Hidri, filed a Motion for Franks v. Delaware hearing and corresponding Motion to Dismiss.

The defendant, Nebije Hidri, filed a motion for Franks v. Delaware hearing and corresponding Motion to Suppress and Motion to Dismiss.

The defendant, Vetim Hidri, filed a Motion to Adopt, in its entirety, the motion filed by Nebije Hidri.

The defendant, Shpetim Hidri, filed a Motion to Suppress and/or for return of property.   He also made an oral motion for a Franks hearing.

The defendant, Valdrin Hidri, made an oral Motion to Adopt on the morning of argument.   However, he did not state which motion he was adopting or state any grounds to support the motion.   The court denied that motion.

The state filed objections to the motions.

PROCEDURAL HISTORY

On May 10, 2010, the court (Schuman, J.) issued a search and seizure warrant for the premises located at 59 High Meadow Road, Watertown, Connecticut.

On May 12, 2010, the court (Matasavage, J.) issued search and seizure warrants for financial records and moneys as follows:

1.  Held in the name of Jeton Hidri at Webster Bank, 712 Main Street, Watertown, Connecticut.

2. Held in the name of Nebije Hidri at CSE Credit Union, 84 Wadsworth Street, Hartford, Connecticut.

3. Held in the name of Vetim Hidri at Bank of America, 1171 Main Street, Watertown, Connecticut.

4. Held in the name of Vetim Hidri at TD Bank, 1247 Main Street, Watertown, Connecticut.

5. Held in the name of Hidri Construction, owned by Shpetim Hidri at Chase Bank, 30 Church Hill Road, Newtown, Connecticut.

6. Held in the name of Hidri Construction owned by Shpetim Hidri at People's Bank, 763 Straits Turnpike, Watertown, Connecticut.

7. Held in the name of Shpetim Hidri, at Greater Waterbury Health Care FCU at 64 Robbins Street, Waterbury, Connecticut.

On May 12, 2010, the court (Damiani, J.) issued search and seizure warrants for financial records and moneys as follows:

1.  Held in the name of Shpetim Hidri, at Webster Bank, 712 Main Street, Watertown, Connecticut.

2. Held in the name of Shpetim Hidri at Wachovia Bank, 365 Main Street, Watertown, Connecticut.

3. Held in the name of Shpetim Hidri at Thomaston Savings Bank, 565 Main Street, Watertown, Connecticut.

No information was submitted to the court concerning financial records held in the name of Valdrin Hidri.

On May 13, 2010, the court (Matasavage, J.) issued a search and seizure warrant for the financial records and money for a specific account number at Bank of America, 1171 Main Street, Watertown, Connecticut.   This was attached to the Motion to Adopt filed by Vetim Hidri.

On May 12, 2010, the court (Damiani, J.) issued a warrant for the following vehicles:

1. 2000 BMW registered to Nebije Hidri.

2. 1997 Acura, Connecticut Registration 593UFB,

attached to Vetim Hidri's motion.

3. A Toyota Tacoma, registered to Shpetim Hidri.

No information was submitted to this court for any vehicle registered to either Valdrin or Jeton Hidri.

In support of the Motion for “Franks” hearing, the defendants have asserted that the warrant affidavit contained false and intentionally misleading information, and material omissions.   Such information, had the court been aware of it, would not have found probable cause to issue the search and seizure warrants for the residence and financial records.

The defendant, Nebije Hidri, further alleged that the affiant intentionally omitted the following information:  a) she is the joint owner of several bank accounts seized under the warrants for Shpetim Hidri's account interests (Shpetim Hidri is not making this claim);  b) no nexus or basis existed for probable cause to believe that a CSE Credit Union account held in her name contained proceeds from, or evidence of sale, purchase or package of marijuana.

The defendants, Shpetim, Nebije, and Vetim Hidri, had included the arrest warrants in their motion alleging a Franks violation.   However, the arrest warrants were not attached and no argument was advanced concerning the arrest warrant affidavits other than a Franks violation.

DISCUSSION

“When reviewing whether a “Franks” hearing is warranted ․ There is “a longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant.”  State v. Berger, 21 Conn. 657, 666 (1990).

To be entitled to a “Franks” hearing a defendant must make a “substantial preliminary showing that a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit and the allegedly false statement is necessary to a finding of probable cause.”  Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

Subsequent cases have extended “Franks” to include material omissions from such affidavits.  State v. Grant, 286 Conn. 499, 520 (2008).

SEARCH AND SEIZURE WARRANT-RESIDENCE 1

A. The defendants, Jeton Hidri, Nebije Hidri and Vetim Hidri have made several allegations of material omissions as follows:

1.  Information on how the conversation with DEA Agent Dosche came about, if such conversation occurred.

2. Agent Dosche is currently assigned in Detroit, therefore, he was not involved, played a role or witnessed events concerning Andre Poag.

3. The detail about the statement Poag made relating to a criminal enterprise came from a second hand source as Agent Dosche was not directly involved.

4. There is no pending criminal action or asset forfeiture action in the Federal Court in the Northern District of California in which Andre (sic) Poag is a named defendant or party.   However, the affiant led the court to believe there was a pending prosecution of a ring leader of sorts of a nationwide marijuana trafficking organization.

5. The basis of Agent Dosche's knowledge as he had no first hand knowledge.   The affiant's information was therefore “third hand,” and he failed to verify the information for truthfulness or accuracy.

6. The specific addresses in California from which two of the boxes retrieved from the trash had been shipped.   This was omitted to mislead the court into presuming they had come from Poag's residence when they had not.

The defendants failed to submit an affidavit concerning the first five above listed alleged omissions.   The only facsimile of an affidavit is Attorney Serafinowicz's statement that he had contacted the office of the clerk for the Northern District of California, which includes San Francisco, on July 29, 2010, four days before argument on August 3, 2010.   However, he does not know the name of the person with whom he had the conversation.   This person informed him of the procedures to secure the information he wanted about pending cases or the return of the search and seizure warrant.   He made no attempt to follow the procedure to secure the information.   The defendant does not know if the investigation is over, whether there had been an arrest, or if there had been an arrest whether the case had been disposed of.   To conclude that there was no such warrant based on counsel's statement would require a leap of faith as it is pure speculation.

The defendants have asked the court to adopt their conclusion that the affiant's omissions were intentionally misleading as they undermine any finding of probable cause.   However, to reach the conclusion suggested by the defendant would require the court to draw unreasonable inferences.   Furthermore, the fact that Agent Dosche would not comment on an ongoing investigation does not lead to the conclusion that a conversation did not occur.

The affiant is clear that there is a nationwide investigation into an extensive national marijuana sales ring, originating in California.   It had reached Michigan, [which includes Detroit, the alleged location of agent Dosche's current assignment], and other parts of the country, including Watertown, Connecticut.   Additionally, the state at the hearing represented that a copy of the search and seizure warrant from California was available and would be provided to the defendants forthwith.

The defendant has stated definitively that the address on the boxes was not Poag's.   However, there is no evidence on which to reach such a conclusion.   Whether the boxes came from Poag or elsewhere in California does not defeat the finding of probable cause as there was an ongoing investigation into a nationwide marijuana distribution ring, originating in California.

Finally, whether first, second or third hand, the information provided by agent Dosche was corroborated by the items seized from the garbage pull, the weekly shipments by Valdrin Hidri, (including one of approximately $15,000.00 in cash) to Andrew Poag, and the items seized after the execution of the warrant.  “Not all omissions, even if intentional, will invalidate an affidavit ․ An affiant may omit facts that he (or she) believes to be either immaterial or unsubstantiated.”  State v. Bergin, 214 Conn. 657, 666 (1990).

Here, the defendant's offer falls short of showing an intentional or reckless disregard for the truth.   Furthermore, there is no offer of proof from which to conclude that if the alleged omissions had been included in the affidavit it would defeat the finding of probable cause.

B. The affiants intentionally omitted information related to personal relationships with interested parties as follows:

1. The defendants assert that Jason Schiffmiller's mother was engaged in a personal relationship with the Watertown Police Chief.²

2. Jason Schiffmiller's uncle was employed by the Watertown Police Department for a lengthy period of time.

At argument the defendant provided the following details:  Jason and Vetim Hidri have known each other for years.   In the early part of July 2010 outside of Vetim Hidri's house, Jason told him that his mother dated the chief of police for the months of April and May 2010.   If the relationship existed as claimed, it might explain why nothing of evidentiary value was found in the garbage pull at Schiffmiller's residence, not that Jason and Valdrin were not engaged in a criminal activity.

It was also disclosed at the hearing that an uncle of Schiffmiller's retired from the police department in 2005 and has since died.   There was another uncle whose last known association with the department was 1999.   The defendant abandoned this claim at oral argument.

The above information is not relevant to finding of probable cause therefore the defendants have failed to show that including this information would defeat a finding of probable cause.

The defendants failed to make a substantial showing that information allegedly omitted was true, and if included there would not have been a finding of probable cause to issue the warrant.

SEARCH AND SEIZURE WARRANTS-FINANCIAL RECORDS 3

A. The defendants argue that the description of the basement in a phrase in paragraph number six (6) is false and misleading, and there were material omissions, all of which were pivotal to the finding of probable cause.

The phrase in paragraph number six (6) reads as follows:  “That the marijuana grow set up was in plain view of all of the residents of the house ․” The affidavits of the defendants Vetim, Nebije ⁴ and Shpetim ⁵ Hidri include a description of the layout of the basement in which they disagree that the contraband was in plain view.

The court notes that Jeton Hidri stated that there was only one access to the basement via the garage.   However, his parents stated the basement is accessible from two doors, one from the garage which opens to the driveway and the other which opens to the backyard.

They all agree that the laundry area is at the bottom of the stairs and a wall divides the basement into two areas.   One is a small alcove, which has the furnace and heating equipment.   The parents stated there is also a junk drawer and some paint stored there.   Nebije and Shpetim include in their description there is a large rectangular area as you go into the basement.

The court summarizes the remainder of the claim as follows:  you have to go to each area of the basement and turn the lights on for that area (Jeton) and they can live without going to the grow area in the basement and they don't (Nebije and Shpetim Hidri).   They have urged the court to conclude since it takes an effort to go to the grow area it was not in plain view and they use the basement to do laundry but do not go to the grow area.

When reviewing a search warrant affidavit, “the reviewing court may consider only the information that was before the issuing judge at the time he or she signed the warrant.”  State v. Shifflett, 199 Conn. 718, 746 (1986).

In determining whether the affidavit established probable cause one looks to the totality of circumstances.  State v. Barton, 219 Conn. 529, 544 (1991).   The question then is whether, given all the circumstances set forth in the warrant affidavit ․ there is a probability that contraband or evidence of a crime will be found in a particular place.  State v. Rodriguez, 223 Conn. 127, 135 [1992].

Paragraph number six (6) in its entirety reads as follows:  “That the marijuana grow set up was in plain view of all the residents of the house, and was not locked separate from anyone.   The basement is a common area where the washing machine and dryer are located.   The affiants believed that all of the occupants of the residence were aware of the illegal activity taking place in the household.”

The court in looking at the totality of the circumstances in this case finds the affidavit included the following information:  the affiants had executed a search and seizure warrant on the Hidri residence on May 12, 2010.   They were working in conjunction with the Drug Enforcement Administration during an ongoing nationwide marijuana distribution investigation.  (Paragraph # 3.)   At the time of the application they were still conducting the search at the residence.   They had located a self-contained grow canopy with approximately forty (40) marijuana plants in various sizes and stages of growth during the preliminary search.   They also found soil, fertilizer, lamps and a heating pad.  (Paragraph # 4.)   They located marijuana packaged for sale hidden in the rafters in the basement, vacuum sealer for drug packaging, scales, drug paraphernalia, other packaging material and small amounts of marijuana in various areas in the residence.   They also found $9,200.00 in counterfeit bills in the bedroom of Jeton Hidri and bank records in various locations.   (Paragraph # 5.)

The affiants further explained, that based on their training and experience those involved in purchase, sale and shipping of controlled substances use bank checks, money orders, and several different financial institutions to hide assets.  (Paragraph # 7.)

Jeton Hidri and Shpetim Hidri were present at the residence at the time of the execution of the search and seizure warrant.   The affiants also located mortgage papers showing the house was owned by Nebije and Shpetim Hidri.

The court therefore had a substantial amount of information from which to find probable cause with the deletion of the phrase “in plain view.”

B. The defendant Nebije Hidri further alleged that the affiant omitted that she was co-owner on some accounts with Shpetim Hidri.   The affiant requested the records pertaining to each individual.   The defendant did not offer an affidavit identifying accounts which were joint or any documentation from the bank showing joint accounts.   Even if there were joint accounts, including that information would not defeat the finding of probable cause as the affiants specifically identified the records they were seeking.

C. The defendant, Jeton Hidri, alleges omission of information that he did not live at the residence but lived in Danbury.

The affidavit from Vetim Hidri does not specify where Jeton lived in Danbury.   Furthermore the parents stated in their affidavit they lived at the residence with their three sons.   The defendant Jeton is one of their sons and on occasion his wife and son also lived there.   The parents' statements therefore contradict Jeton's claim.

Additionally, paragraph number eight (8) of the search and seizure warrant states Jeton was in the house at the time they executed the warrant for the house.   He was also listed as a resident.

D. Jeton further alleges through his brother, Vetim, that failure to state the printer found in his bedroom was the only such device in the house and he did not use it during this period of time (presumably 1/10 through 3/5/10).   The defendant further alleged in his motion a failure to state there was only one such device and all the individuals living there used it.

It is unclear which information should have been included, that he didn't use the printer found in his room or everyone used the printer.   If this information were included the court could draw a reasonable inference that everyone, including Jeton Hidri, was responsible for the counterfeit bills.   Additionally, nothing was offered to show the affiant knew which household members used the printer.

The inclusion of this information does not defeat the finding of probable cause.

SEARCH AND SEIZURE WARRANTS-VEHICLES 6

The defendants also claim an insufficient nexus between the vehicles in the driveway and the crimes alleged.   Shpetim further argues although the phrase “in plain view” was not in the warrant, the Judge must have considered the phrase when reviewing it because it had been included in the warrant for the financial records.   This too is speculation by the defendants.

The warrant return lists the items seized from the residence, the trained K-9 detected marijuana in both vehicles, and rolling papers were in plain view in the front seat of the BMW. Green plant like substance was also seized from each vehicle.

There is sufficient information for finding of probable cause.   If the state seeks forfeiture of the seized assets the state would have to show the connection to illegal activity and the defendant would be afforded the opportunity to show the vehicle and moneys were not connected to drug activity but acquired legitimately.

There was ample information to support the request to seize the vehicles.

CONCLUSION

The court has reviewed the motions, memoranda of law, affidavits, and has considered the arguments.   In determining whether the search warrant affidavit established probable cause, the court looks to the totality of circumstances test.

The defendants have failed to make a substantial preliminary showing that there were any false statements or material omissions.   Furthermore, if one concludes there were, then such alleged false statement (or statements) or omitted statements must be made knowingly and intentionally or with reckless disregard for the truth.   Additionally, the inclusion of any alleged omissions, or the deletion of any claimed false statement would not invalidate the probable cause as there was substantial information to support the court's finding.   Therefore, there is no Franks violation.

Accordingly, since there is no Franks violation each defendants' motion for Franks hearing is denied.

The motion to suppress based on Franks violation is denied.

The Motion to Dismiss based on Franks violation is denied.

Crawford, J.

FOOTNOTES

FN1. Attachment # 1-Warrant affidavit for residence.Editor's Note:  The attachment has not been reproduced herein..  FN1. Attachment # 1-Warrant affidavit for residence.Editor's Note:  The attachment has not been reproduced herein.

FN2. Attachment # 2-Affidavit of Vetim Hidri.Editor's Note:  The attachment has not been reproduced herein..  FN2. Attachment # 2-Affidavit of Vetim Hidri.Editor's Note:  The attachment has not been reproduced herein.

FN3. Attachment # 3-affidavit for financial records.Editor's Note:  The attachment has not been reproduced herein..  FN3. Attachment # 3-affidavit for financial records.Editor's Note:  The attachment has not been reproduced herein.

FN4. Attachment # 4-Affidavit of Nebije Hidri.Editor's Note:  The attachment has not been reproduced herein..  FN4. Attachment # 4-Affidavit of Nebije Hidri.Editor's Note:  The attachment has not been reproduced herein.

FN5. Attachment # 5-Affidavit of Shpetim Hidri.Editor's Note:  The attachment has not been reproduced herein..  FN5. Attachment # 5-Affidavit of Shpetim Hidri.Editor's Note:  The attachment has not been reproduced herein.

FN6. Attachment # 6-warrant affidavit for vehicle.Editor's Note:  The attachment has not been reproduced herein..  FN6. Attachment # 6-warrant affidavit for vehicle.Editor's Note:  The attachment has not been reproduced herein.

Crawford, Juliett L., J.