Opinion
No. CR 05-222048
January 30, 2007
CORRECTED MEMORANDUM OF DECISION ON MOTION TO SUPPRESS TANGIBLE EVIDENCE
The defendant, William D. Howell, has moved this Court, pursuant to Article I, Section 20 of the North Carolina Constitution and Article I, Section 7 of the Constitution of Connecticut, to suppress as the fruits of unreasonable searches and seizures all items seized during the execution of separate North Carolina and Connecticut search warrants, on April 22 and May 4, 2004, respectively, with respect to a blue 1985 Ford Econoline van registered to one Dorothy L. Holcomb of 307 Washington Street, New Britain, Connecticut. The defendant asserts, and the State does not dispute, that the defendant has standing to prosecute this Motion because at all times relevant to this case, he had an actual and justifiable expectation of privacy in the subject van.
Article I, Section 20 of the North Carolina Constitution provides as follows:
General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.
I. THE DEFENDANT'S CLAIMS
The defendant claims, more particularly, that neither challenged warrant was supported by sufficient facts, submitted on oath or affirmation to the judicial authority who signed and issued it, to establish probable cause that the subject van or any of its contents then constituted or contained items lawfully subject to seizure, such as illegal contraband or the fruits, evidence or instrumentalities of any criminal offense. Proof of either such claim by a fair preponderance of the evidence would entitle the defendant to the suppression at trial of all evidence obtained during or as a result of the execution of the warrant in question, whether or not the officers who procured and/or executed it were acting in good faith. See generally, State v. Marsala, 225 Conn. 10, 620 A.2d 1293 (1984) (holding that there is no exception to the exclusionary rule under Article I, Section 7 of the Constitution of Connecticut for evidence seized under the putative authority of a constitutionally defective warrant which was applied for and executed in good faith); and State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988) (similarly holding that there is no good-faith exception to the exclusionary rule under Article I, Section 20 of the North Carolina Constitution). Cf. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (adopting a good-faith exception to the exclusionary rule under the Fourth Amendment to the United States Constitution for evidence obtained by officers acting in reasonable reliance on a search warrant issued by a neutral and detached magistrate but ultimately found to have been unsupported by probable cause).
II. FACTUAL AND PROCEDURAL HISTORY
The claims presented on this Motion arise in the following historical and procedural context, as detailed for the Court in the challenged search warrants, the affidavits upon which they were sought and issued, and the returns to court which were filed by the officers who executed them. The North Carolina Warrant was signed and issued by a magistrate in Bertie County, North Carolina on April 21, 2004. The basis for its issuance was a sworn affidavit prepared by Detective Sergeant Ed Pittman of the Bertie County Sheriff's Office, which in turn was based entirely upon the sworn affidavit of Detective Robert E. DeRoehn, Jr. of the Wethersfield (CT) Police Department, which was attached thereto and incorporated therein. Detective DeRoehn's affidavit, which was signed and sworn to on April 5, 2004, described the results to date of his Department's investigation of a missing person complaint concerning the abrupt disappearance of one Nilsa Arizmendi (DOB 1/29/70) of Wethersfield on or about July 25, 2003. Detective DeRoehn averred that Ms. Arizmendi was last seen alive in the early morning hours on that date as she entered the van described in the Warrant, which was then being operated by the defendant, William D. Howell, in the area of Broad Street and New Britain Avenue in Hartford, Connecticut.
As no testimony has yet been presented as to the manner in which the challenged searches and seizures were conducted or the reasons why any items not specified in the warrant were seized, the Court cannot yet decide if any such unspecified item was properly seized under the plain view doctrine.
Curiously, the only information in Detective DeRoehn's affidavit as to the particular place where Mr. Sanchez last saw Ms. Arizmendi entering the defendant's van on the night of her disappearance—the area of Broad Street and New Britain Avenue in Hartford—was a single third-hand hearsay statement attributed to Mr. Sanchez, who has since contradicted that statement in his testimony at trial. The statement in question was reported to the Wethersfield Police Department by Ms. Arizmendi's sister, Brenda Torres, as part of her missing person complaint on July 31, 2003. According to Ms. Torres, she had learned of the statement from her missing sister's son, Joshua Suarez, to whom Mr. Sanchez had reportedly made it within days of his mother's disappearance. At trial, by contrast, Mr. Sanchez has testified that he saw Ms. Arizmendi enter the defendant's van on the night of her disappearance in the parking lot of the Super Stop and Shop on the Berlin Turnpike in Wethersfield, Connecticut.
The North Carolina Warrant expressly authorized any officer with authority to seize subject van, which was then located in the vicinity of 121 Spring Branch Lane, Windsor, North Carolina, then to search it, within forty-eight (48) hours of the Warrant's issuance, for
Evidence of the crime of murder such as, but not limited to a tie-dyed T-shirt, jean shorts, women's black sneakers, a man[']s metal watch with gold metal band, women's blue "rock" watch with blue band, credit cards, identification, fingerprints, palm prints, footprints, shoe prints, traces of blood, physiological fluids and secretions, hair, fibers, dirt, dust and soil in order to conduct a conclusive examination and comparison.
North Carolina Warrant (4/21/04), pp. 1-2, 5.
On April 22, 2004, the North Carolina Warrant was timely served and executed by Detective Thomas E. Northcott, Jr. of the Bertie County Sheriff's Department, who seized the van as authorized at 121 Spring Branch Lane, Windsor, North Carolina, then visually searched its interior without opening its doors or entering it. Detective Northcott's purpose in so searching the van without entering it or disturbing its contents was preserve the integrity of any potentially significant evidence that might later be found therein by Connecticut authorities, who hoped and intended to search it in furtherance of their investigation of the disappearance of Nilsa Arizmendi. Following the completion of a North Carolina Inventory of Items Seized Pursuant to Search form based upon his observations through the windows of the van, Detective Northcott had the van towed to the secure impound yard at the Bertie County Sheriff's Office, where it remained until April 27, 2004. On that day, Detective Northcott and a wrecker operator working for his Office assisted Detective DeRoehn and Detective Craig Davis from the Wethersfield Police Department to load the van onto a flatbed trailer to be transported to Connecticut. Detectives DeRoehn and Davis then towed the van directly to Wethersfield Police Headquarters, where they secured it in a taped-off area inside the sally port.
Thereafter, on May 4, 2004, Detectives DeRoehn and Davis applied to this Court for the issuance of a Connecticut Warrant to search the van for the following items, which they claimed to be evidence of the murder of Nilsa Arizmendi:
Personal items belonging to Nilsa Arizmendi, D.O.B. 01/29/1970, including but not limited to a tie-dyed T-shirt, jean shorts, women's black sneakers, man's metal watch with metal band (gold), women's blue "rock" watch with blue band, credit cards, identification, fingerprints, palm prints, footprints, shoe prints, as well as traces of blood, physiological fluids and secretions, hair, fibers, dirt, dust, and soil within the interior and exterior of a 1985 Ford Econoline van color blue, bearing CT combination registration 2CS704, VIN #1FTEE25F5FHB30009 and to submit such property to the forensic laboratory for physical examination, biological and chemical testing and instrumental analysis comparison and reconstruction.
The Connecticut Warrant was issued, as requested, on May 4, 2004 on the basis of the sworn affidavit of Detectives DeRoehn and Davis of even date.
Thereafter, the Connecticut Warrant was duly executed at Wethersfield Police Headquarters by Detectives DeRoehn and Davis and officers from the Connecticut State Police Department, who reported the results of their search on a Return For and Inventory of Property Seized on Search and Seizure Warrant ("Return") which was filed with this Court on May 6, 2004. According to their Return, the searching officers seized the following items from the van's interior:
Item #1 Hairs and fibers from the rearmost portion of CT combination 2CS704, VIN #1FTEE25F5FHB30009
Item #2 Rock containing stains and attached hair/hairlike fibers from the rearmost portion of the aforementioned van
Item #3 One (1) blue in color carpet sample from the floor of the rearmost portion of the aforementioned van
Item #4 One (1) light blue in color carpet sample from the driver's side rear door of the rear cargo area of the aforementioned van
Item #5 One (1) light blue in color carpet sample from the passenger side vertical wall of the rear cargo area of the aforementioned van
Item #6 One (1) light blue in color carpet sample from the driver's side vertical wall of the rear cargo area of the aforementioned van
Item #7 Red in color bloodlike flakes from the carpet of the driver's side interior rear wheel well of the aforementioned van
Item #8 One (1) steak type knife with a black in color plastic handle with red in color bloodlike stains on the cutting portion, from the floor behind the driver's side front seat of the aforementioned van
Item #9 Hairs and fibers from the middle section (floor and seat) of the aforementioned van
Item #10 One (1) pink in color carpet sample from the floor of the middle section of the aforementioned van
Item #11 One (1) blue in color fabric covered seat/back portion containing red in color blood like stains from the rear seating area of the aforementioned van
Item #12 Hairs and fibers from the frontmost section (floor and seats) of the aforementioned van
Item #13 Latent print lifts numbered LP#1 through LP#7 from interior surfaces of the aforementioned van.
III. CONTROLLING LAW
In determining the existence of probable cause for the issuance of a search warrant, both North Carolina and Connecticut take essentially the same approach as the United States Supreme Court in deciding that issue under the Fourth Amendment to the United States Constitution. See, e.g., State v. Peterson, 63 S.E.2d 594 (2006) (using the "totality-of-the circumstances" approach of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) in deciding the issue of probable cause to search under the North Carolina Constitution); State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991) (similarly adopting the Gates totality-of-the-circumstances approach for determining probable cause to search under the Constitution of Connecticut). Those Fourth Amendment standards are well summarized as follows in State v. Sivri, 231 Conn. 115, 141-42, 646 A.2d 169 (1994):
Under the fourth amendment, "[p]robable 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." (Emphasis in original; internal quotation marks omitted.) State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994). "The standard of review for an issuing judge's determination that probable cause existed to issue a search warrant is to consider the information before the issuing judge at the time of the issuance of the warrant, together with the reasonable inferences drawn from such information, in the light most favorable to the issuing judge's determination of probable cause . . . In determining whether probable cause exists to conduct a search, a totality of the circumstances test is used. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Johnson, [ 219 Conn. 557, 562, 594 A.2d 933 (1991)]; State v. Barton, 219 Conn. 529, 545, 594 A.2d 917 (1991). [P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. Illinois v. Gates, supra, 232. In determining the existence of probable cause to search, the magistrate should make a practical, common sense 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. Id., 238; State v. Johnson, supra, 563. 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. Zarick, 227 Conn. 207, 222-23, 630 A.2d 565 (1993).
State v. Sivri, supra, 231 Conn. at 141-42.
At oral argument on this Motion, the defendant not only invoked and relied on the foregoing statement of principles from Sivri as the proper basis for deciding the claims here presented, but urged this Court to employ the specific analysis used in Sivri on the basis of those principles, for determining, if there was probable cause to search the last place a missing person had been seen or heard from alive for evidence of foul play. In Sivri, the challenged search was of the residence of the defendant, where a 21-year-old masseuse had last been heard from before her sudden, unexpected disappearance when she called in to her employer to report her arrival at that location to perform a full-body massage upon the defendant, whom she identified by name and driver's license number. She had called in to her employer under standard procedures she had always followed, which required her to call in both at the start of each appointment, to report her safe arrival and identify her client as aforesaid, and at the end of the appointment, to report that she was safely on her way. On the day in question, however, the missing woman failed for the first time to call her employer at the scheduled end of her appointment, and failed thereafter to pick up her infant son and boyfriend although she had always been timely in handling those responsibilities. Her car, which had been seen by a paper boy outside the defendant's residence at or about the time of the scheduled appointment, was later found abandoned several miles away.
In Sivri, as in this case, the challenged search was for evidence tending to connect the missing person to the place of the search and/or to establish that her sudden disappearance after last being seen there might have resulted from foul play. There, as here, the police had no direct evidence that the missing person had been the victim of foul play. Instead, they only had proof that her disappearance had occurred so unexpectedly, and in a manner constituting such an inexplicable break in her established routine and such an abandonment of her personal responsibilities to loved ones, as to suggest that it had not occurred voluntarily, and thus that it may have resulted from another person's criminal activity. On the basis of such evidence, the Court initially "conclude[d] that the [challenged] affidavit set out sufficient facts to support probable cause that a crime had been committed." Id. at 145.
Upon making that initial determination, the Sirvi Court turned to the question of whether, on that basis, a search for evidence of such criminal activity was legally justified at the defendant's residence. The Court concluded as follows that it was:
In view of the fact that there was probable cause to believe that a crime had been committed upon the victim, there was probable cause to search the last place the victim had been seen, particularly when that place was the house of the last person to have seen her.
Id.The final question raised by the Sivri Court was whether, in the circumstances before it, the timing of the proposed search was premature since, by that time, the missing person had only been missing for three days. In response to this inquiry, the Court acknowledged that the longer the interval between the time a missing person is last seen or heard from and the time of a proposed search, the stronger the inference that her disappearance has resulted from foul play. Id. at 145-46. In the case before it, however, where the missing person's disappearance and loss of contact with her employer, her boyfriend and her child were so sudden, unexpected and out of character, enough time had passed to support a reasonable inference that she had been a victim of foul play, and thus that there was probable cause to search the last place where she had been heard from before she disappeared. "It was not unreasonable," the Court concluded, for the issuing magistrate to infer that evidence of the victim's whereabouts, or evidence that the victim had been physically assaulted, would be found at the defendant's residence several days after the victim's disappearance." Id. at 146.
IV. ANALYSIS
When the sworn affidavits upon which the warrants herein challenged were issued in this case are evaluated in the same manner as the affidavit found sufficient to justify the warranted search of the defendant's residence in Sivri, it is apparent that such affidavits must be found sufficient to justify the warranted seizure and searches of the defendant's van as well. Each such affidavit, like the affidavit reviewed in Sivri, detailed the circumstances in which a missing person, Nilsa Arizmendi, had disappeared in support of an application for a warrant to search the last place she had been seen alive. The threshold question thus presented as to each such affidavit is whether the facts set forth in it, when viewed in the light most favorable to the issuance of the warrant in question, established probable cause to believe that a crime had been committed. If they did, then by the Sivri Court's analysis there would also be probable cause to believe that evidence of her whereabouts, or evidence that she had been physically assaulted, would be found in the defendant's van, which was the last place she was seen alive before her sudden, unexpected disappearance, provided only that so much time had not elapsed since the date of her disappearance as to reduce the likelihood that such evidence would remain there to less than a fair probability—that is, less than probable cause.
Looking first at the April 5, 2004 affidavit of Detective DeRoehn, upon which the North Carolina Warrant was sought and issued, the issuing magistrate could have drawn the following factual conclusions upon reading that affidavit in the light most favorable to issuing the warrant. Nilsa Arizmendi, who had resided in Room 123 of the Almar Motel, located at 35 Arrow Road, Wethersfield, Connecticut, since March of 2003, had not been seen or heard from since July 25, 2003. According to her long-time boyfriend and roommate, Angel Rafael Sanchez, he had last seen her alive in the early morning hours on that date when, after he and she had gotten into an argument, she got into an older blue Ford Econoline van driven by a mutual male acquaintance named "Devin," in the area of Broad Street and New Britain Avenue in Hartford. According to Ms. Arizmendi's sister, Brenda Torres, who filed a missing person complaint about her with the Wethersfield Police Department on July 31, 2003, Ms. Arizmendi spent most of her time in the aforementioned area of Broad Street and New Britain Avenue, where members of her family would visit her on a daily basis. Ms. Torres reported that her sister had never before been out of contact with family members for so long a period of time.
In following up on Ms. Torres' missing person complaint concerning Nilsa Arizmendi, Detective DeRoehn spoke with their mother, Carmen Arizmendi. Carmen Arizmendi had no personal knowledge of the circumstances of her daughter Nilsa's disappearance, yet she voiced suspicions that Nilsa's boyfriend, Angel Sanchez, may have been responsible for it. In this regard, she noted specifically that Mr. Sanchez had failed to contact her personally about Nilsa's disappearance, that he had recently cut his long hair in an apparent effort to change his personal appearance, and that it had been rumored on the street that he consistently beat her daughter and had recently killed her. The source of the latter rumor was not identified in the affidavit.
Although police responded to these unsubstantiated suspicions concerning Mr. Sanchez, who had been arrested and detained in lieu of bond on unrelated charges not long after Nilsa's disappearance, by causing personnel from the Department of Correction to monitor his telephone calls and his written correspondence, Mr. Sanchez did nothing to confirm those suspicions. To the contrary, he wrote letters from his jail cell to both the Connecticut State Police and the Wethersfield Police Department as to what he had seen on the last night he saw Nilsa Arizmendi and what he did before his arrest to try to find her. In those letters he provided additional descriptive details about the blue Ford Econoline van Nilsa had entered that evening, including the fact that its operator, Devin, regularly parked the van in the lot of the Super Stop and Shop on the Berlin Turnpike in Wethersfield.
Following up on Mr. Sanchez's information about the van, Officer Michael Zapatka of the Wethersfield Police Department was detailed to look for the van when he was on patrol in the area of the Super Stop and Shop. Within days of receiving this assignment, Officer Zapatka spotted the van in the place described by Mr. Sanchez and determined it to be a 1985 Ford Econoline van, color blue, bearing CT combination plate 2CS704, which was registered to one Dorothy L. Holcomb (DOB 03/20/67) of 307 Washington Street, New Britain, Connecticut.
About two weeks after Officer Zapatka first spotted the van in the parking lot of the Super Stop and Shop, where Mr. Sanchez had reported seeing it, Detective DeRoehn and Detective Godart of the Wethersfield Police Department went to the home of Ms. Holcomb, its registered owner, to make inquiries about it and about the male who regularly drove it. Upon identifying themselves as Wethersfield Police Detectives, one of them reportedly asked Ms. Holcomb if she owned a blue Ford Econoline van, to which she responded that she did but that she didn't use it much. Then she escorted the Detectives to the back of the property, where the van was parked. Detective DeRoehn then asked Ms. Holcomb to identify the male who had been operating the van, explaining that he wanted to speak to him. At this, however, Ms. Holcomb reportedly became belligerent when Detective DeRoehn refused to go into details about the case. Then she said that a friend of unknown name used her van before finally saying it was "Thomas," but that she did not know where he lived.
The Detectives, who had previously seen a stocky white male inside Ms. Holcomb's apartment, told her they believed that the male operator was presently inside her house, but she denied that he was. When she proved herself uncooperative, the Detectives left the house and went to New Britain Police Headquarters to learn the names of any males about whom there had been complaints at Ms. Holcomb's apartment. The records check produced two names — William Devon Howell, DOB 02/11/70, and Tom Hamilton, DOB 03/11/74. An NCIC check of Howell indicated that a warrant was out for his arrest on the charge of assault in the third degree upon against Dorothy L. Holcomb. A State Department of Correction file photo of Howell showed the face of the white male whom the Detectives recognized as the person they had seen through the window of Ms. Holcomb's home. From this sequence of events the Detectives concluded that Ms. Holcomb was running interference for the defendant, who had an active arrest warrant for assault and was also wanted for violation of probation.
On December 4, 2004, approximately three weeks after Ms. Holcomb had declined to cooperate with the Detectives' request for information about the white male who drove her van, with whom Nilsa Arizmendi was last seen alive in the early morning hours of July 25, 2003, the van and Mr. Howell were located in Manteo County, North Carolina, where Mr. Howell had been arrested on November 28, 2003 while driving the van Mr. Howell had posted bond and was scheduled to appear at the Manteo County Courthouse on January 30, 2004.
On January 30, 2004, when Mr. Howell appeared in court on his North Carolina charges, he was served with his active Connecticut arrest warrant for violation of probation and remanded to custody to await extradition to Connecticut. Three weeks later, on February 19, 2004, he was transported back to Connecticut by Detective DeRoehn, fellow Wethersfield Detective Craig Davis, and State of Connecticut Probation Officer Michael Gagne.
En route to Connecticut, Mr. Howell was advised in writing of his Miranda rights, then apart from expressing curiosity as to why the officers had come all the way down to North Carolina to pick him up on misdemeanor charges, he said he would only talk to them about the scenery. After a few hours, however, he once again expressed curiosity as to why he was being returned to Connecticut on a misdemeanor charge. To this inquiry, Detective DeRoehn responded by asking him if he really wanted to know why. When he responded in the affirmative, Detective DeRoehn removed a photo of Nilsa Arizmendi from a folder and showed it to him. At that, the defendant reportedly appeared shocked and immediately stated, "I don't want to speak to you without my attorney present. I want to exercise my right to remain silent."
In the meantime, back in Connecticut, Angel Sanchez had continued to cooperate with Connecticut authorities by offering detailed descriptions of the exterior and the interior of Mr. Howell's van, and of all the clothing and jewelry Nilsa Arizmendi had been wearing when she was last seen alive.
On March 31, 2004, approximately six weeks after the defendant was brought back to Connecticut from North Carolina, Deputy David Davidson of the Dare County Sheriff's Department telephoned Detective DeRoehn to report that he thought he had found the defendant's van. Upon speaking with one Thomas Allen Hamilton of Mann's Harbor, North Carolina, Deputy Davidson had learned that, at the defendant's request, as communicated to him by the defendant's girlfriend, Dorothy Holcomb, Mr. Hamilton had moved the van to 109 Spring Branch Lane, Windsor, North Carolina, the house of one Harry Thomas Dail, Jr. According to Deputy Davidson, Windsor, North Carolina was in Bertie County, a very rural part of the State located about two and one-half hours from Dare County.
On the strength of the foregoing facts, the issuing magistrate could readily have concluded, much as the Supreme Court did in Sivri, that there was a fair probability that the missing person, here Nilsa Arizmendi, had disappeared as a result of foul play at or after the time she was last seen alive entering the defendant's van. She had reportedly been seen entering the van by her boyfriend of twenty years, Angel Sanchez, who knew her well, could readily identify her, and had gone out of his way to cooperate with the investigation, always using his own name. His description of the circumstances surrounding her disappearance, moreover, was corroborated by his detailed descriptions of the van, of the person who operated it, of the place where that person used to park the van, all of which were later confirmed by investigating officers when they later spotted the van in the location in question and discovered that the defendant, man whose middle name matched that used by Mr. Sanchez, was its regular operator. Mr. Sanchez, moreover, had put himself in harm's way by cooperating with the investigation as he did, for although he named the defendant as the last person seen with Ms. Arizmendi, he admitted that he was the last person to have seen her and that the prelude to her departure with the defendant was a late-night argument between himself and her. Such declarations against penal interest, by a named individual who had pressed the investigation forward, gave the magistrate substantial reason to credit his account of Ms. Arizmendi's disappearance despite the mother's suspicions about his own involvement in the disappearance.
As for the further inference that Ms. Arizmendi's disappearance may have resulted from foul play, the basis for that conclusion, like the Court's identical conclusion in Sivri, was the complete and unexpected break in established routine which had occurred as soon as she entered into the place she was last seen alive—in this case, the defendant's van. However precarious a lifestyle Ms. Arizmendi was leading at the time of her disappearance, it was marked by a regularity of contact by and communications with members of her family in a single area of Hartford, near Broad Street and New Britain Avenue, where they saw her on a daily basis. Just as the missing person in Sivri failed to do certain things which for her were routine, like calling in to her employer at the end of her assignment at the defendant's house and picking up her boyfriend and infant son, Nilsa Arizmendi reportedly lost all contact, from the time of entering the defendant's van onward, with both Mr. Sanchez, her long-time boyfriend and roommate, and all members of her family. Such evidence surely afforded the magistrate a substantial basis for concluding that her disappearance was involuntary, and thus the result of a traumatic event that had prevented her from communicating with loved ones or returning to the area in which she previously spent almost most of her time. The lack of any report from a hospital or other health care provider that she had suffered a serious health emergency suggests that, in the dangerous world she was fated to live in, the true reason for her disappearance was a serious criminal assault. In short, the affidavit submitted to the magistrate in North Carolina, like the affidavit reviewed and found sufficient by our Supreme Court in Sivri, "set out sufficient facts to support probable cause that a crime had been committed." Id. at 145.
There being probable cause that Ms. Arizmendi's sudden disappearance upon entering the defendant's van was due to foul play, then here, as in Sivri, there was also probable cause that evidence of her whereabouts, or that she had been physically assaulted, could once be found in the defendant's van.
The final question presented under the Sivri analysis is whether, notwithstanding the foregoing conclusions, so much time had passed since Ms. Arizmendi's disappearance as to reduce the likelihood that evidence of her whereabouts, or that she had been physically assaulted, could still be found in the van ten months after she was last seen entering it just before her disappearance. In a rational world, it would seem unlikely that large items clearly associated with criminal activity, such as bloody knives or guns or clothing and jewelry stolen from a crime victim would be retained inside the van for so long a period. A criminal intending to make continuing use of the van, for criminal purposes or otherwise, would probably dispose of such items in order not to be of crime on the basis of them. Other items for which the challenged warrants were issued, however, are far less likely to be seen by a casual observer or understood to be of significance in linking the van's operator to criminal activity. Such items, of course, include most hair, fibers and physiological samples of blood or other body fluids that might have been deposited in the van when the missing person was inside it, but remained unnoticed, and thus not removed from the van thereafter, by even the most careful perpetrator of a violent crime. Like the house searched in Sivri, the van in this case is the last place on Earth where any known witness had ever seen Ms. Arizmendi alive, and thus was a natural place to expect that traces of her presence and evidence of how and why she disappeared would probably linger still. The probability that such trace evidence would remain in the van a full ten months after it was deposited there was not materially less substantial than it was within days of her disappearance.
Of final note in this regard, though it was not essential to the magistrate's finding of probable cause to search the van, are the apparent lengths the defendant went to to avoid having the van discovered and searched. In the immediate aftermath of Ms. Arizmendi's disappearance, the van was not returned immediately to the place where Angel Sanchez knew the defendant parked it in the parking lot of the Super Stop and Shop on the Berlin Turnpike in Wethersfield. It was not shown to investigative officers by its owner, the defendant's girlfriend, Ms. Holcomb, when the police came to her house inquiring about it, and she refused to identify the defendant as its male operator, while the defendant, who was probably within earshot, was just inside the house. Having told Ms. Holcomb of their interest in identifying and speaking to the male operator of the van, moreover, the police surely refocused the defendant's concern on the van, and thus, not surprisingly, the defendant and the van ended up in North Carolina less than two weeks later.
If the defendant, aware of the police's interest in identifying the male operator of his girlfriend's van, had any doubt as to the true reason for that interest, it was surely dispelled on February 19, 2004, when Detective DeRoehn told him why he was being returned all the way to Connecticut to face misdemeanor charges. That was when the Detective responded to his inquiry on that subject by producing a file photo of Ms. Arizmendi, to which he reacted in apparent shock and asserted his rights to counsel and to remain silent.
Even assuming, as this Court has ruled at trial, that the defendant's shocked reaction to the showing of the photo to him was the inadmissible product of custodial interrogation not preceded by a valid waiver of the defendant's rights under Miranda v. Arizona, 384 U.S. 436, CT Page 2302 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny, and thus that it cannot be used in this context to support the magistrate's finding of probable cause, the fact remains that the defendant thereby learned exactly why the police wanted to speak with him about his girlfriend's van. On that basis, the magistrate could properly have drawn the further, very reasonable inference that such knowledge is why the defendant promptly made arrangements, through Ms. Holcomb and Mr. Hamilton, to have the van moved to a very rural part of North Carolina where it would be harder to find. Such conduct, as described in Detective DeRoehn's affidavit of April 5, 2004, supported the inference that, at least in the defendant's view, there was still something in the van that might incriminate him in connection with the disappearance of Nilsa Arizmendi. Logically, any concerns about the staleness of the warrant due to the passage of time since Ms. Arizmendi's disappearance was lessened substantially by the defendant's own efforts to hide the van away, long after the disappearance, once he learned why the Wethersfield Police wished to talk to him.
For all of the foregoing reasons, the Court concludes that there was probable cause to seize the van under the North Carolina Warrant and to search it for the fruits, evidence and instrumentalities of the crime of assault against Ms. Arizmendi.
As for the later Connecticut Warrant to search the van after it had been transported to Connecticut from North Carolina, the only differences between the affidavit submitted in support of it and that submitted to the magistrate in North Carolina was the addition of certain details concerning the process by which the North Carolina Warrant was executed and the van later stored, then transported to Connecticut. There is no reason at all to believe that the Connecticut judge who issued that Warrant had any less valid reasons for doing so on May 4, 2004 than the North Carolina magistrate had when issuing the North Carolina Warrant to search for the same kinds of evidence two weeks before. The Court thus concludes that the challenged Connecticut Warrant, no less than its North Carolina counterpart, was supported by probable cause to conduct the search and seizures therein authorized for all clothing and jewelry identified by Mr. Sanchez as having been worn by Ms. Arizmendi at the time of her last sighting, as well as for all credit cards, identification, fingerprints, palm prints, footprints, shoe prints, in traces of blood, physiological fluids and secretions, hair, fibers, dirt, dust, and soil within the interior or exterior of the vehicle.
For all of the following reasons, the defendant's Motion to Suppress Tangible Evidence must be DENIED. It is so ordered this 29th day of January 2007.
Michael R. Sheldon, J.