State of Connecticut v. Tashad Howard (2012)

DECISION RE DEFENDANT'S MOTION TO SUPRESS

Members of the East Central Narcotics Task Force (ECNTF) obtained a search warrant for the residence at 33 Herman Way in the Town of South Windsor.   The warrant was reviewed and signed by the Honorable Kevin A. Randolph at Superior Court, GA# 12, on 1/19/11.

ECNTF executed the search warrant on the same date.   The officers seized various items including quantifies of marijuana, drug paraphernalia, a .32 caliber revolver and U.S. currency totaling $14,740.00.

As a result of the search, ECNTF arrested the defendant, Lisa Serrano and Tommy Serrano for various drug charges.

On 2/3/12, the defendant, through counsel, filed this motion to suppress evidence.¹  The defendant called two witnesses in support of his motion to suppress.

The defendant, through counsel, has argued that the search warrant signed by Judge Randolph was deficient in the necessary probable cause required for its issuance by a judge.

In State v. Batts, the Supreme Court wrote the following:

“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.’  ․ State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992).   ‘[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.’  State v. Barton, 219 Conn. 529, 544–45, 594 A.2d 917 (1991).   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.’  State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991);  see also State v. DeFusco, 224 Conn. 627, 642, 620 A.2d 746 (1993).   Lastly, it is well established that, in reviewing a search warrant affidavit, ‘[t]he reviewing court may consider only the information that was actually before the issuing judge at the time he or she signed the warrant.’  ․ State v. Shifflett, 199 Conn. 718, 746, 508 A.2d 748 (1986).   In the absence of a showing that the information contained in the warrant is false or misleading or that there is a material omission from the affidavit;  see Franks v. Delaware, [supra, 438 U.S. at 154, 98 S.Ct. 2674];  a hearing on a motion to suppress is limited to a review of the four corners of the affidavit.  State v. Diaz, 226 Conn. 514, 543–44 n.16, 628 A.2d 567 (1993).”  State v. Rosario, 238 Conn. 380, 385–86, 680 A.2d 237 (1996).

“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.”  (Internal quotation marks omitted.)  State v. Buddhu, supra, 264 Conn. at 460, 825 A.2d 48.  “[I]t is axiomatic that [a] significantly lower quant[um] of proof is required to establish probable cause [rather] than guilt ․ State v. Bova, 240 Conn. 210, 232, 690 A.2d 1370 (1997).[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.   By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause;  to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens ․ demands ․ In making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts ․ Illinois v. Gates, 462 U.S. 213, 243–44 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).”  (Internal quotation marks omitted.)  State v. Buddhu, supra, at 462–63, 825 A.2d 48.

“Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law.   See, e.g., State v. Bergin, [supra, 214 Conn. at 661–62, 574 A.2d 164].   The trial court's determination on the issue, therefore, is subject to plenary review on appeal.”  State v. Clark, 265 Conn. 268, 279, 764 A.2d 1251 (2001).   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.)   Id., at 280, 764 A.2d 1251.

This court is limited to the information that Judge Randolph had before him when he reviewed the search warrant application.  State v. Shifflett, id.

The court also notes that case law shows a preference for and deference to a judicial determination of probable cause.   See State v. Batts, id. at 700–01;  State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991);  see also State v. DeFusco, 224 Conn. 627, 642, 620 A.2d 746 (1993).

After a review of the affidavit, this court finds that there existed probable cause for Judge Randolph to issue this search warrant on 1/19/11.

The court notes that the officers, in their affidavit, sought to search and seize the following items:

Marijuana, drug paraphernalia including, smoking pipes, snorting tubes, marijuana plants, marijuana cigarettes, marijuana seeds, pots and potting soil used to grow marijuana hookah pipes, cigarette papers, cutting agents, cutting material, grinders, packaging material, glass/plastic vials and/or smoking pipes, glassine envelopes/bags, weighing scales, measuring devices, and plastic baggies.   Any records of proof of residence, illegal drug transactions, documents, notes, cellular and standard telephone bills, address books, tax returns, employment records, bank records including, but not limited to bank statements, bank books, check ledgers, canceled checks, deposit tickets, safe deposit records and keys.   In addition, all trust agreements, business records, stock and security records.   Any financial records either reflecting illegal profits of narcotics trafficking or documenting suspects' movements and activities.   Any cash derived from previous drug sales, or cash to be used to purchase additional narcotics.   All motor vehicle and other conveyance titles.   Photographs, videotapes, answering machines and tape recordings of co-conspirators.   Any electronic paging devices, and cellular telephones.   Any firearms and related ammunition.   Photographs and videotapes showing drug users and/or dealers taking part in the use of the drugs they buy or sell.   Safes and/or strong boxes along with their keys and/or combinations that can contain any contain any of the above mentioned items.

In support of the search warrant, the officers indicated the following:

1.  On 11/16/10, one of the search warrant affiants responded to a medical call at a residence in South Windsor.   The nature of the call was that a 17 year old had smoked too much marijuana.   The officers received information from the teen's mother, who was identified in the affidavit, that he purchased his marijuana from Tommy Serrano and described his motor vehicle.

2. Officers ran a license check on Serrano and ascertained that his residence was at 33 Herman Way, in South Windsor and that his motor vehicle matched the mother's description of it as to its make and color.

3. On 12/21/10 at approximately 2230 hours, two officers from ECNTF conducted a trash pull for signs of narcotic activity at 33 Herman Way. The green trash bin was placed at the curb, inches from the road outside the curtilage of the home.   Inside the bin were several trash bags.   Inside the bags, the officers were able to locate the following items:

1.)  Proof of residency—Lisa Serrano 33 Herman Way South Windsor, CT.

2.)  Four empty blunt wrappers

3.) 1 gram of marijuana in baggie

4.)  Several additional empty blunt wrappers were found within the trash bags.

5.) Tobacco shavings, typically found within the blunts, were found scattered throughout the trash.

4. The affiants indicated that, based on their training and experience, they knew that marijuana users typically remove the tobacco shavings, or “guts,” from the blunt and replace it with marijuana.

5. The suspected marijuana was field-tested and proved positive for the presence of marijuana.

6. The affiants also indicated that, subsequent to the positive trash pull, information was received from a confidential informant known as C/I # 1133 regarding narcotics activity at 33 Herman Way. The affiants noted that C/I # 1133 has proven credible and reliable on several occasions in assisting the ECNTF with ongoing narcotics investigations.   C/I # 1133 stated that Tommy Serrano's mother, Lisa Serrano, and her boyfriend, only known to C/I # 1133 as “Santana,” regularly travel to Springfield MA to pick up large amounts of marijuana to distribute to dealers in the South Windsor area.   C/I # 1133 said that “Santana” fronts several dealers with marijuana, and then collects money from them after they sell the marijuana.   C/I # 1133 stated that “Santana” used to reside in Springfield, but now lives at 33 Herman Way. C/I # 1133 also said that “Santana” is several years younger than Lisa Serrano.

7. The affiants conducted a PRIORS check, which related certain information:

a) A 21 year old male, Tashad T. Howard (DOB 05/05/89), resided at 33 Herman Way.

b) On 08/21/10, Howard was involved in a domestic dispute at 33 Herman Way and was arrested for disorderly conduct after getting into an argument with Lisa Serrano.

c) During the call, Tommy Serrano referred to Howard as his “step-dad.”

d) The age difference between Lisa Serrano and Howard is 14 years, which was similarly described by C/I # 1133.

e) South Windsor Police Department most recently had contact with Lisa Serrano and Howard on 12/17/10 regarding an animal problem.

8. On 1/18/11, two officers from ECNTF conducted a trash pull for signs of narcotic activity at 33 Herman Way. The green trash bin was placed at the curb, inches from the road outside the curtilage of the home.   Inside the bin were several trash bags.   Inside the bags, the officers were able to locate the following items:

a) Proof of residency

b) 1 small marijuana stem

c) 1 “Foodsaver” air-lock bag with marijuana residue.

9. The suspected marijuana was field-tested and proved positive for the presence of marijuana.

In the search warrant, the affiants indicated that, based on their training and experience, that individuals involved in the use and/or sale of illegal drugs often dispose of drug-related materials in the household trash, include packaging materials, drug paraphernalia, and unused portions of the drug itself, and that finding such material inside the trash may be a good indicator that the use and/or sale of drugs may be taking place within the residence.

The officers indicated that, on 11/16/10, they received information from the mother of a youth ill from marijuana use.   The mother indicated that the youth received his marijuana from Tommy Serrano.   He also described Tommy Serrano's motor vehicle.

Upon doing a motor vehicle check, the officers ascertained that Tommy Serrano lived at 33 Herman Way, South Windsor and that his motor vehicle matched the mother's description of it as to its make and color.

On 12/21/10 and 1/18/11, the officers conducted trash pulls at 33 Herman Way, South Windsor.   On both occasions, the officers recovered quantities of marijuana, drug paraphernalia and proof of residency.

The officers indicated that, subsequent to the first trash pull, they received information from a confidential informant known as C/I # 1133 regarding narcotics activity at 33 Herman Way. The officers noted that C/I # 1133 had proven credible and reliable on several occasions in assisting the ECNTF with ongoing narcotics investigations.   C/I # 1133 stated that Tommy Serrano's mother, Lisa Serrano, and her boyfriend, only known to C/I # 1133 as “Santana,” regularly travel to Springfield MA to pick up large amounts of marijuana to distribute to dealers in the South Windsor area.   C/I # 1133 said that “Santana” fronts several dealers with marijuana, and then collects money from them after they sell the marijuana.   C/I # 1133 stated that “Santana” used to reside in Springfield, but now lives at 33 Herman Way. C/I # 1133 also said that “Santana” is several years younger than Lisa Serrano.

The officers conducted a PRIORS check, which related certain information:

a) A 21–year–old male, Tashad T. Howard (DOB 05/05/89), resided at 33 Herman Way.

b) On 08/21/10, Howard was involved in a domestic dispute at 33 Herman Way and was arrested for disorderly conduct after getting into an argument with Lisa Serrano.

c) During the call, Tommy Serrano referred to Howard as his “step-dad.”

d) The age difference between Lisa Serrano and Howard is 14 years, which was similarly described by C/I # 1133.

e) South Windsor Police Department most recently had contact with Lisa Serrano and Howard on 12/17/10 regarding an animal problem.

Summary

The court finds that sufficient probable cause existed to believe that evidence of drug offenses would be found within the residence that was the subject of the search.   For the foregoing reasons, the court denies the defendant's motion to suppress.

BY THE COURT,

C. Taylor, P.J.

FOOTNOTES

FN1. The defendant also filed a request for a hearing pursuant to Franks v. Delaware.   After a hearing, this court denied the request for a Franks hearing..  FN1. The defendant also filed a request for a hearing pursuant to Franks v. Delaware.   After a hearing, this court denied the request for a Franks hearing.

Taylor, Carl E., J.