State of Connecticut v. Anthony Lee Parowski (2012)

MEMORANDUM OF DECISION

MOTION TO DISMISS

On December 27, 2011, the defendant, Anthony Lee Parowski, filed a Motion to Dismiss pursuant to Practice Book § 41–8(5) ¹ claiming there was insufficient independent evidence to arrest the defendant pursuant to the fourth ² and fourteenth amendments ³ to the United States Constitution, article first, § 7 of the Connecticut Constitution.⁴  The defendant also claims his arrest violated the holding in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. denied, 463 U.S. 237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), in that the application for a search warrant contained no evidence or circumstances to support probable cause for the issuance of said warrant other than the uncorroborated statements of an informer, who was not offered as a reliable informer.⁵  The defendant lastly argues that the affidavit in support of the search warrant contained omissions that were material to the finding of probable cause, in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

On January 25, 2012, the Court heard oral argument on the defendant's motion to dismiss and claim for a Franks hearing.   Subsequent to oral argument, by way of a letter, defendant's counsel informed the court that “upon further study” it was apparent that the claimed deficiencies were not based upon any false statements of the affiants, who “never claimed the informant was a reliable informant.”   The defendant declined to take advantage of the court's offer to file an additional memorandum of law on the applicability of a Franks hearing.   The defendant also has not provided an independent analysis of his claims under the state constitution.   Therefore, the court addresses only his claims under the United States Constitution.

I

Facts

On December 10, 2011, Detectives Trabka and Fusco of the Shelton Police Department, applied for a search warrant for the premises at 45 Marsh Way, Stratford, Connecticut where the defendant Anthony Lee Parowski lived with his father.   The affiants stated they had probable cause to believe that certain property, including a .22 caliber handgun and .22 caliber ammunition used in a robbery of a Buck Stop Gas Station Convenience Store on December 9, 2011, would be located at said premises, along with cash money.   The crimes involved are Robbery 1st degree, General Statutes § 53a–134 and Criminal Possession of a Firearm, General Statutes § 53a–217.⁶  On December 10, 2011, the court (Bellis, J.) found that the affidavit in support of the search warrant established probable cause to believe that an offense had been committed and that evidentiary items involving the offense would be found at the premises where Parowski resided with his father.   As a result of the authorized search of said premises, the sum of $423.00 cash was seized.

On the same date, Detectives Trabka and Fusco also applied for a search warrant seeking a DNA sample from the defendant Parowski, regarding the same Buck Stop robbery, which occurred on December 9, 2011.   On December 10, 2011, Judge Bellis found that the affidavit in support of this second search warrant established probable cause to believe that an offense had been committed and evidence of said offense would be upon the person of Parowski.   The authorized taking of the DNA sample from Parowski, resulted in two Buccal swabs.

The defendant argues that the search warrant affidavits lacked probable cause as they were based on little else than the statements of an informant, who cannot be determined to be a reliable informant.   The defendant in pursuing his motion to dismiss, relies on the decision issued by the United States Supreme Court in Illinois v. Gates, supra, 462 U.S. 312.   A review of the affidavits in support of the applications for the search and seizure warrants is required.   As the two affidavits are nearly identical, the court's summary of the contents and the court's analysis apply to each affidavit.

II

The Affidavits

The affidavits state that a robbery at gunpoint occurred at the Buck Stop Gas Station/Convenience Store in Shelton, Connecticut on December 9, 2011 at 7:47 p.m. A gunshot was fired inside the store by a suspect carrying a handgun.   The convenience store clerk handed the suspect approximately $1,300 cash pursuant to the suspect's demands.   Upon the arrival of the police the store clerk described the suspect as a black male.   The clerk handed the responding police officer an expended .22 caliber shell casing that the clerk had recovered from the floor.   The clerk informed the police that the suspect had also brought a gray plastic shopping bag with black writing into the store at the time of the robbery.

On December 10, 2011, at 3:40 a.m., the police received a call from a homeowner regarding a suspicious vehicle parked in front of his home on Beacon Hill Terrace, Shelton, Connecticut.   Beacon Hill Terrace is within several hundred feet of the Buck Stop store.   The police arrived and determined the 2004 Mitsubishi vehicle had been reported stolen on December 9, 2011 at 10:15 a.m. from Ansonia, Connecticut.   The vehicle was towed to the Shelton Police Department for processing for evidence.

On December 10, 2011, the affiant, Trabka received a 911 call from Jason Terry, who informed Trabka that Terry had information regarding the Buck Stop robbery.   Terry stated that he did not want to get arrested for the robbery and that he knew who did the robbery.   Terry stated that he had been hired by the owner of the Mitsubishi vehicle to burn her car for the insurance money.   Terry related that he picked up the car from the owner and then gave the car to the defendant Parowski, and that Parowski was supposed to burn the car on the evening of December 9, 2011.   Terry stated that he spoke to Parowski on the morning of December 10, 2011, and Parowski admitted to robbing the Buck Stop store on December 9, 2011.   Parowski informed Terry that he had used a .22 caliber Browning hand gun in committing the robbery.   The affiants were familiar with the defendant as a result of previous arrests and investigations and knew that the defendant, at times, resided with his father in Stratford and with his mother in Bridgeport.

The affiants then interviewed the owner of the Mitsubishi automobile, Christina Bowers and informed her that her vehicle had been used in the robbery.   She continued to maintain that her car had been stolen and denied any further knowledge as to how her auto was stolen with the ignition intact.   Terry, the informant spoke to Bowers immediately after she left her interview with the police.   Terry informed the police that Bowers was mad that her vehicle had not been burned.   The police then interviewed Bowers a second time and Bowers stated that the only possible person that may have taken her car was Jason Terry, the informant.   Bowers continued to deny any involvement in a plan to burn her car to collect insurance proceeds.

The affiants then reviewed Buck Stop's surveillance video of the robbery.   The suspect was identified as being tall and thin and his clothing is described in the affidavit.   The suspect is seen carrying a long-barreled handgun.   The suspect puts the cash proceeds of the robbery in a gray plastic bag with black writing.

Later on December 10, 2011, the affiants met with Jason Terry who stated that the defendant Bowers requested that he, Terry, burn Bowers' car.   Terry agreed and directed Bowers to report that the car had been stolen.   After having second thoughts about burning the car, Terry enlisted the assistance of the defendant Parowski to carry out the act.   Parowski agreed, and Terry paid the defendant the sum of $50 to burn Bowers' car.   This meeting occurred at the home of the defendant's father in Stratford, Connecticut.   At this time, the defendant showed Terry a .22 caliber long-barreled Browning handgun.

On the morning of December 10, 2011, Terry, having learned that the car had not been burned, met with Parwoski and Parowski admitted he had not burned the car and had robbed the Buck Stop with an accomplice who was a black male named “George.”   Terry then stated that he realized that he could be implicated in the robbery and called the affiants to protect himself.   Terry then directed the police to the house of Parowski's father where the defendant had showed him the handgun.   Terry also directed the police to the home where “George” lives in Stratford and to the address where the defendant's mother lives in Bridgeport.

From previous investigations and an arrest for car burglaries, the affiant Trabka, recognized the address where “George” lived to be the residence of George Siler.   After viewing a photo array at police headquarters, Terry identified George Siler as Parowski's suspected accomplice in the robbery of the Buck Stop. A criminal background check of Parowski revealed he had a misdemeanor handgun disqualification;  a current protective order issued against him;  and a possession of marijuana and burglary arrests.   A criminal background check of Siler revealed a history of burglaries and larcenies.   The defendant Parowski's address was listed at the Stratford address where Terry took the police and where the defendant allegedly showed him the .22 caliber long-barreled handgun.   Siler's address was shown as the residence that Terry took the police to, as well.

The affiants then applied for a search and seizure warrant for the residence of the defendant's father, where the defendant resided.   The items sought to be seized were listed as the .22 caliber long-barreled handgun;  clothing items matching those worn by the suspected robber;  a gray plastic bag with black writing;  and cash money.   The second search and seizure warrant sought a DNA sample from the defendant Parowski's person.

The search of the residence where the defendant resided was conducted on December 11, 2011, and resulted in the seizure of $423 cash money and two buccal swabs.   Additionally, during the course of the search, the police also seized additional contraband consisting of approximately one pound of marijuana, a Smith and Wesson thirty-eight caliber handgun and bullets.   The handgun was determined to have been stolen.   Parowski was also subject to the terms of a protective order involving an incident with his girlfriend, which prohibited him from possessing a firearm and also had a prior misdemeanor conviction which disqualified him from possessing a handgun.   Thus, Parowski was arrested and charged with criminal Possession of a handgun, General Statutes § 53a–217, criminal possession of a firearm, General Statutes § 53a–212, Larceny 5th degree by possession, General Statutes § 53a–125a, Illegal Possession, General Statutes § 21a–279(b) and Possession with intent to sell, General Statutes § 21a–277(b).

A search warrant for Siler's residence was also issued by Judge Bellis and a search incident to that warrant was also conducted on December 11, 2011.   During that search clothing items consistent with the clothing worn by the black male suspect shown on video of the robbery at the Buck Stop store were seized.   Included in these clothing items was a pair of size 10 1/2 sneakers, which is the same foot size as Siler's.   These items were identified by an independent witness, who was present at the search, as belonging to Siler.   Twenty-two caliber ammunition rounds, similar to the expended round located at the Buck Stop robbery, were also seized.   Additionally, cocaine and heroin packaging materials were discovered in a bag identified as belonging to Siler.

As a result of the searches, in addition to the criminal charges resulting from the seizure of other contraband, Parowski was charged with the crimes of Robbery First Degree, § 53a–134, Larceny Fourth Degree, § 53a–125, Conspiracy to Commit Robbery First Degree, 53a–48, 53a–134, Interference with a Search, 54–33d.

In moving to dismiss the charges, the defendant argues that there is no evidence linking Parowki with the commission of the crimes of Robbery First Degree, § 53a–134, Larceny Fourth Degree, § 53a–125, Conspiracy to Commit Robbery First Degree, 53a–48, 53a–134, Interference with a Search, 54–33d other than the statements of Jason Terry, who was not identified by the affiants as a confidential informant, who had given reliable information in the past.   Parowski argues that Terry is a felon, who was released from incarceration on September 1, 2011, after having been convicted of forgery and drug possession charges approximately three months before the robbery at the Buck Stop and is still on probation.   None of this information was disclosed to Judge Bellis in the warrant affidavits.   According to Parowski, this information would show a strong motive for Terry to implicate someone else for the robbery of the Buck Stop, as Terry has admitted to having possession of the car allegedly used in the commission of the robbery.

III

Franks v. Delaware

The court begins its review of the defendant's claim by detailing the requirements the defendant must satisfy to obtain a Franks hearing.  “In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must:  (1) 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 (2) show that the allegedly false statement is necessary to a finding of probable cause ․ If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary.”  (Internal quotation marks omitted.)  State v. Pappas, 256 Conn. 854, 863, 776 A.2d 1091 (2001);  State v. St. Louis, 128 Conn.App. 703, 710–11, 18 A.2d 648 (2011).  “When reviewing whether a Franks hearing is warranted, we recognize that there is a longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant ․” (Citations omitted;  internal quotation marks omitted.)  State v. Bergin, supra, 214 Conn. 666;  see State v. Salvatore, 57 Conn.App. 396, 402, 749 A.2d 71, cert. denied, 253 Conn. 921, 755 A.2d 216 (2000).

Although the Franks decision referred only to false statements in the affidavit, [Connecticut has] held that material omissions from such an affidavit also fall within the rule.  “Not all omissions ․ even if intentional, will invalidate an affidavit ․ In fact, an affiant may omit facts that he believes to be either immaterial or unsubstantiated ․ Thus, before a defendant is entitled to a Franks hearing for an alleged omission, he must make a substantial preliminary showing that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause ․ Even if the affiant picks and chooses the information that he includes in the affidavit, there is no Franks violation if, had the magistrate been so advised, he still would have been justified in issuing the warrant ․ When reviewing whether a Franks hearing is warranted, we recognize that there is a longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant ․ In summary, there can be no Franks violation when the omissions, if included in the ․ warrant affidavit, would not defeat probable cause.”   (Citations omitted;  internal quotation marks omitted.)  State v. Grant, 286 Conn. 499, 520, 944 A.2d 947, cert. denied, U.S., 129 S.Ct. 271, 172 L.Ed.2d 200 (2008).

The defendant has apparently conceded that the omitted information regarding the informant's background was not omitted with the intent to make the affidavit misleading to the issuing judge.⁷  Rather, the defendant claims the omissions were material to the determination of probable cause by the issuing judge.

IV

Probable Cause

“Where a motion to dismiss an information against an accused is made prior to trial, only probable cause sufficient to justify the continued prosecution need be established.   The probable cause determination is, simply, an analysis of probabilities ․ The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act ․ The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence ․ Furthermore, we have concluded that proof of probable cause requires less than proof by a preponderance of the evidence ․ To establish probable cause, the state was not required to present evidence as to each of the elements of the offense in a form that would be admissible at a later trial.”  (Citation omitted;  internal quotation marks omitted.)  State v. Howell, 98 Conn.App. 369, 378, 908 A.2d 1145 (2006).  “In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state.”  State v. Kinchen, 243 Conn. 690, 702, 707 A.2d, 1255 (1998).   The state, in establishing probable cause to avoid a dismissal, may rely on information contained in, among other things, police reports.   See Id.

In Illinois v. Gates, supra, 462 U.S. 213, the United States Supreme Court established a totality of circumstances approach regarding probable cause.   “Using the Gates methodology, a trial court must examine all of the evidence relating to the issue of probable cause and, on the basis of that evidence, make a common sense, practical determination of whether probable cause existed, i.e., whether there was a fair probability that the defendant had committed or was committing a crime.  Id., 238.   The United States Supreme Court reasoned that the totality of circumstances approach was more consistent with the nature of a probable cause determination, which, as the court noted, involves a practical, nontechnical conception.  Id., 231.”  (Internal quotation marks omitted.)  State v. Velasco, 248 Conn. 183, 191, 728 A.2d 493 (1999).

The decisions in State v. Barton, 219 Conn. 529, 537, 594 A.2d 917 (1991), and Illinois v. Gates, supra, 462 U.S. 230, both reaffirmed that the veracity or reliability and the basis of knowledge inquiries ․ remain highly relevant in the determination of probable cause.  State v. Velasco, supra, 248 Conn. 192.  “In fact, both Gates and Barton stated that an informant's veracity or reliability and basis of knowledge should be regarded as closely intertwined issues that may usefully illuminate the common-sense, practical question of the existence of probable cause ․” (Internal quotation marks omitted.)  Id.;  State v. Barton, supra, 537.

“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 ․ Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred ․ Reasonable minds may disagree as to whether a particular affidavit establishes probable cause ․” State v. St. Louis, supra, 128 Conn.App. 712–13.

“In determining the existence of probable cause to search, the magistrate should make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit ․ there is a fair probability that contraband or evidence of a crime will be found in a particular place.   In making this determination [of probable cause], the 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.”  (Citations omitted;  internal quotation marks omitted.)  State v. Pappas, supra, 256 Conn. 864–65.

“The police may lawfully seek and obtain a search warrant for an investigatory search for which it has been established that there is probable cause to believe that the objects sought constitute evidence of a crime and are located at the site to be searched.”  State v. Vincent, supra, 229 Conn. 171.  “When reviewing an application [for a warrant], courts must also bear in mind that search warrants are directed ․ not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of [a] crime will be found ․ The affidavit in support of a warrant need not present information that would justify the arrest of the individual in possession of or in control of the property.   Nor is it required that the owner be suspected of having committed a crime.   Property owned by a person absolutely innocent of any wrongdoing may nevertheless be searched under a valid warrant.”  (Internal quotation marks omitted.)  State v. Buddhu, 264 Conn. 449, 463–64, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2106, 158 L.Ed.2d 712 (2004);  State v. St. Louis, supra, 128 Conn.App. 713–14.

“When determining whether an affidavit in support of a search warrant presented a substantial factual basis upon which a magistrate could have found probable cause, a reviewing court is confined to the “four corners” of the warrant.  State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991).   The court is 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 court found probable cause.”  State v. Vincent, supra, 229 Conn. 168;  see 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).

“In determining the existence of probable cause to search, the issuing magistrate 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.   We view the information in the affidavit in the light most favorable to upholding the magistrate's determination of probable cause.   In a doubtful or marginal case ․ our constitutional preference for a judicial determination of probable cause leads us to afford deference to the [issuing judge's] determination.   Furthermore, it is axiomatic that a significantly lower quanta of proof is required to establish probable cause than guilt.”   (Citations omitted and internal quotation marks omitted.)  State v. Vincent, supra, 229 Conn. 172.  “[T]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.”  (Internal quotation marks omitted.)  State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992).

V.

The Informant and His Reliability

In determining the reliability of the informant Terry, the court reviews factors set forth in State v. Johnson, 286 Conn. 427, 944 A.2d 297 (2008).   “The first factor supporting an inference of the informant's reliability or veracity is the fact that the informant was not anonymous ․ The fact that an informant's identity is known to police is significant because “the informant could expect adverse consequences if the information that he provided was erroneous.   Those consequences might range from a loss of confidence or indulgence by the police to prosecution for the class A misdemeanor of falsely reporting an incident under General Statutes § 53a–180, had the information supplied proved to be a fabrication.”  (Citations omitted.)  Id., 438.

Additionally, the fact that Terry was an individual with whom police had met face-to-face, rather than a mere anonymous tipster, renders the informant more reliable because the police can observe the informant's demeanor to determine his ․ credibility ․” (Internal quotation marks omitted;  citations omitted.)  Id.;  see also State v. Hammond, 257 Conn. 610, 622, 778 A.2d 108 (2001) (face-to-face conversations with informants are more credible and reliable because “the officer ․ has the opportunity to assess the informant's credibility and demeanor”).

Adding to Terry's reliability was the fact that he informed the affiants that he had previously engaged in conversations with Parowski to enlist him in the scheme to burn the motor vehicle to recover insurance proceeds and had paid Parowski $50 to do so.   It is highly probative that Terry related to the police the details of this insurance scam.  Id.

It is also significant that Terry made incriminating statements regarding his involvement in criminal activity regarding the vehicle burning for insurance proceeds.   This factor weighs in favor of finding the informant reliable.   See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (“[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search”).  Id., 439.

“Partial corroboration of an informant's report by facts developed by police, as the court emphasized in Illinois v. Gates, supra, 426 U.S. 213, is another way to establish the reliability of an untested informant's tip ․” (Internal quotation marks omitted;  citations omitted.)  Id. Terry informed the affiants that previous to the robbery, Parowski had showed him a .22 caliber long-barreled Browning handgun, and the day after the robbery Parowski had admitted to Terry that he used the gun in the commission of the robbery.   A .22 caliber shell casing was recovered by the police at the scene of the robbery.   The informant also told the affiants that Parowski admitted that he committed the robbery with a black male accomplice named “George.”   Terry provided the affiants with the location of Siler's residence and identified Siler from a photo array.   A subsequent search of Siler's residence resulted in the seizure of clothing items matching the description of the clothing worn by the black male who robbed the Buck Stop, as well as .22 caliber ammunition rounds.   Siler's physical appearance was consistent with that of the black male shown in the store's surveillance video.

Establishing the informant's basis of knowledge can also be an important part of assessing probable cause under the totality of the circumstances approach.   “[T]he surest way to establish a basis of knowledge is by a showing that the informant is passing on what is to him first-hand information ․ [as] when a person indicates he has overheard the defendant planning or admitting criminal activity ․” (Internal quotation marks omitted.)  State v. Smith, 257 Conn. 216, 225, 777 A.2d 182 (2001) (noting that informant overhearing defendant planning or admitting criminal activity “highly relevant” to establishing probable cause under Gates ), on appeal after remand, 94 Conn.App. 188, 891 A.2d 974, cert. denied, 278 Conn. 906, 897 A.2d 100 (2006).   Firsthand information is a sure way of demonstrating an informant's basis of knowledge.   State v. Orellana, 89 Conn.App. 71, 82, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).

All of these facts together with the affiant's belief that Terry was knowledgeable about the details of the Buck Stop robbery and Parowski and Siler's involvement, support the informant's reliability.   Information related to the affiants by the informant was corroborated by information the affiants already possessed and were able to develop, as a result of the informant's information.   Terry's statements to the affiants withstands the veracity and basis of knowledge inquiries set forth in State v. Barton, 219 Conn. 529, 537, 594 A.2d 917 (1991), and Illinois v. Gates, supra, 462 U.S. 230, to determine his reliability.

Even if this court entertains some doubt as to an informant's motives, his information about his relationship with Parowski and knowledge of Siler;  his detailed description of the .22 caliber handgun shown to him by Parowski;  and the admission of Parowski regarding the commission of the robbery, entitles Terry's tip to greater weight than might otherwise be the case.   The totality-of-the-circumstances analysis permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip.  Illinois v. Gates, supra, 462 U.S. 234.  “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.   And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ․ conclud [ing] that probable cause existed.”  Id., 238–39.

VI

Conclusion and Orders

The court does not find that the omission of Terry's criminal record from the affidavits in support of the search and seizure warrants was critical;  nor was it information that was required to be recited in the search warrant affidavit.   However, even if that information had been included and made available to the issuing judge, the court concludes that other sufficient facts existed and were included in the affidavits to sustain a finding of probable cause.   Our Supreme Court has stated that even if a violation of Franks v. Delaware, supra, 438 U.S. 154, exists, an affidavit's remaining content can independently establish probable cause, rendering the warrant valid.  State v. Johnson, 286 Conn. 427, 944 A.2d 297 (2008).   In that event, evidence seized pursuant to such warrant need not be suppressed.  State v. Mordowanec, 259 Conn. 94, 107, 788 A.2d 48 (2002);  State v. Delmonaco, 194 Conn. 331, 335, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984).

In reviewing the “four corners” of the search warrant and the accompanying affidavits, the Court finds that the defendant has not established the initial requirements for a Franks evidentiary hearing.   Sufficient probable cause existed to believe that evidence of the robbery at the Buck Stop store would be found within the residence that was the subject of the search.   For the foregoing reasons, the Court denies the defendant's request for a full evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. 155–56.

Regarding the finding of probable cause for Parowski's arrests on all of the various criminal charges for which he stands accused, a review of the search warrant affidavits and the accompanying police reports establishes that there was sufficient probable cause for the arrest of Parowski.   This includes his arrest for criminal charges relating the Buck Stop robbery and his arrests for contraband items which were discovered at the time of the search, including items which were not the original subject of the search and seizure warrant, but rather, were discovered incident to the execution of the valid search and seizure warrants. PC⌑Summary

The defendant's motion for a Franks hearing and his motion to dismiss for a lack of probable cause are denied.

THE COURT

By Judge Richard E. Arnold

FOOTNOTES

FN1. Practice Book Sec. 41–8(5), regarding a Motion to Dismiss, reads as follows:The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial..  FN1. Practice Book Sec. 41–8(5), regarding a Motion to Dismiss, reads as follows:The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial.

FN2. Amendment IV of the United States Constitution regarding unreasonable searches and seizures reads as follows:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized..  FN2. Amendment IV of the United States Constitution regarding unreasonable searches and seizures reads as follows:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

FN3. Amendment XIV of the United States Constitution provides:.  FN3. Amendment XIV of the United States Constitution provides:

FN4. Article 1, section 7 of the Connecticut Constitution reads “[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures;  and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”.  FN4. Article 1, section 7 of the Connecticut Constitution reads “[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures;  and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

FN5. The defendant filed a Motion to Dismiss, Motion to Suppress and a Memorandum of Law regarding these motions on December 27, 2011.   On January 24, 2012, the defendant filed a second Memorandum of Law regarding these motions.   The Motion to Suppress evidence will be addressed at a later date..  FN5. The defendant filed a Motion to Dismiss, Motion to Suppress and a Memorandum of Law regarding these motions on December 27, 2011.   On January 24, 2012, the defendant filed a second Memorandum of Law regarding these motions.   The Motion to Suppress evidence will be addressed at a later date.

FN6. Robbery 1st Degree, General Statutes § 53a–134 reads as follows:(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime:(1) Causes serious physical injury to any person who is not a participant in the crime;  or (2) is armed with a deadly weapon;  or (3) uses or threatens the use of a dangerous instrument;  or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.   Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.Criminal Possession of a Firearm, General Statutes § 53a–217 reads as follows:(a) A person is guilty of criminal possession of a firearm or electronic defense weapon when such person possesses a firearm or electronic defense weapon and (1) has been convicted of a felony, (2) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b–120, (3) 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 and an opportunity to be heard 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, (4) knows that such person is subject to a firearms seizure order issued pursuant to subsection (d) of section 29–38c after notice and an opportunity to be heard has been provided to such person, or (5) is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 USC 922(g)(4).   For the purposes of this section, “convicted” means having a judgment of conviction entered by a court of competent jurisdiction.(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court..  FN6. Robbery 1st Degree, General Statutes § 53a–134 reads as follows:(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime:(1) Causes serious physical injury to any person who is not a participant in the crime;  or (2) is armed with a deadly weapon;  or (3) uses or threatens the use of a dangerous instrument;  or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.   Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.Criminal Possession of a Firearm, General Statutes § 53a–217 reads as follows:(a) A person is guilty of criminal possession of a firearm or electronic defense weapon when such person possesses a firearm or electronic defense weapon and (1) has been convicted of a felony, (2) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b–120, (3) 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 and an opportunity to be heard 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, (4) knows that such person is subject to a firearms seizure order issued pursuant to subsection (d) of section 29–38c after notice and an opportunity to be heard has been provided to such person, or (5) is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 USC 922(g)(4).   For the purposes of this section, “convicted” means having a judgment of conviction entered by a court of competent jurisdiction.(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.

FN7. The truthfulness of the affiant, and not the informant, is the issue.   Federal precedent limits the Franks challenge to the veracity of the affiant.   See State v. Glenn, 251 Conn. 567, 574–75, 740 A.2d 856 (1999), and cases cited therein..  FN7. The truthfulness of the affiant, and not the informant, is the issue.   Federal precedent limits the Franks challenge to the veracity of the affiant.   See State v. Glenn, 251 Conn. 567, 574–75, 740 A.2d 856 (1999), and cases cited therein.

Arnold, Richard E., J.