United States v. Stewart

          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 ...