United States District Court, D. Connecticut
RULING AND ORDER
Robert
N. Chatigny, United States District Judge.
Defendant
Denzil Stewart is charged with possession of a firearm in
furtherance of a drug trafficking crime and possession with
intent to distribute cocaine. The firearm and cocaine were
seized during a search of an apartment located on the second
floor of a two-story, multi-family house at 90 Spring Street
in West Haven. Mr. Stewart's girlfriend lived in the
apartment, which was accessible by an exterior stairway. The
search was conducted pursuant to a warrant issued by the
Connecticut Superior Court. The warrant was obtained by
members of a federal-state task force after a confidential
informant made three controlled purchases of narcotics from a
seller who was seen at 90 Spring Street in close temporal
proximity to all three transactions.
Defendant
has moved to suppress the fruits of the search on the grounds
that (1) the affidavit submitted in support of the warrant
application was (a) facially insufficient to establish the
requisite nexus between the items sought and the apartment
and (b) tainted by misstatements essential to the existence
of probable cause; and (2) the affidavit omitted to disclose
that one of the two affiants, Bryan Kelly, was himself
involved in illegal activity at the time, specifically,
selling anabolic steroids, to which he pleaded guilty last
year.[1]
An
evidentiary hearing has been held at the defendant's
request. At the hearing, testimony was provided by the second
affiant on the warrant application, Special Agent Brian Ross
of the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF). Ross testified that he believed drugs would be found
in the second-floor apartment at 90 Spring Street based on
the results of surveillance of that location in connection
with the three controlled purchases. He further testified
that the investigation of the defendant was in no way
compromised by any misconduct on the part of Kelly. I credit
Ross's testimony and deny the motion to
suppress.[2]
I.
Facts
In
2017, a confidential informant (CI) gave Ross the telephone
number of a black male who was selling drugs out of a
residence in West Haven. The CI had worked with Ross before
and Ross had become the CI's “handler.” The
CI stated that the black male was known to carry a firearm
and drive a rental car when conducting drug transactions.
Ross proceeded to work with the CI to investigate the seller
in West Haven and used the investigation as a training
opportunity for other members of the task force.
At
Ross's request, the CI called the drug contact number. A
series of three controlled purchases soon followed, each one
involving the CI and the defendant. On each occasion, the CI
wore a wire transmitter so the transactions could be
monitored by members of the task force. In addition to Ross,
the task force included ATF Special Agents Michael Zeppieri,
Sean Brackett, Michael Sorrentino and Mark Essing. The task
force also included two local police officers, one of whom
was Kelly.
After
the third controlled purchase, an application for a search
warrant was prepared for the second-floor apartment at 90
Spring Street. Kelly created the warrant application in a
cut-and-paste manner from written reports that had been
prepared by ATF Special Agent Brackett after each controlled
purchase. Kelly submitted his draft of the affidavit to Ross,
who checked the draft for accuracy relying on Brackett's
reports and his own recollection of events. Both Kelly and
Ross signed the affidavit on March 2, 2017. Superior Court
Judge Denise Markle issued the search warrant that day
authorizing a search of the apartment for narcotics,
narcotics-related items, and firearms. Execution of the
warrant led to the arrest of the defendant, who was present
in the apartment along with his girlfriend. The search
resulted in the seizure of a loaded firearm, various
quantities of narcotics, and a large sum of cash.
The
warrant affidavit submitted to Judge Markle stated that
probable cause existed to search the second-floor apartment
at 90 Spring Street because it was being used in connection
with the illegal possession and sale of narcotics. In support
of this conclusion, the affidavit summarized the three
controlled purchases and provided the following information
concerning the nexus between the purchases and the apartment.
After the first controlled purchase, members of the task
force saw the seller of the narcotics drive directly to an
apartment building located at the corner of Spring Street and
Front Avenue, where he parked in the driveway. This location
was later identified as 90 Spring Street. After the second
controlled purchase, the seller again drove directly to the
same building at 90 Spring Street and parked in the driveway.
Prior to the third controlled purchase, a surveillance team
saw a blue SUV enter the driveway at 90 Spring Street and
park. A man got out of the SUV and entered the second-floor
apartment using the exterior stairway. About five minutes
later, a Mazda was seen entering the driveway. A man exited
the second-floor apartment, sat in the Mazda for a few
minutes, then returned to the second-floor apartment as the
driver of the Mazda drove away. Not long after that, a man
exited the second-floor apartment, got into the blue SUV, and
drove directly to the scene of the third controlled purchase,
where he sold narcotics to the CI.[3]
The
affidavit submitted to Judge Markle was accurate with the
following relevant exceptions:
- Paragraph 14 of the affidavit states that in a telephone
call preceding the second controlled purchase, the defendant
instructed the CI to meet him at “Spring.” The
audiotape of this call shows that the defendant actually
instructed the CI to meet him at “Front.”
- Paragraph 16 of the affidavit states that in another call
preceding the second transaction, the defendant stated he
would need to pick up the heroin from his residence before
delivering it to the CI. The audiotape shows that although
the defendant said he would need to pick up the heroin, he
said nothing about his residence.
Because
these inaccuracies provide the primary basis for the
defendant's motion to suppress, they ...