294 A.2d 517 (Conn. 1972), State v. Jackson
| Citation | 294 A.2d 517, 162 Conn. 440 |
| Opinion Judge | LOISELLE, J. |
| Party Name | STATE of Connecticut v. James JACKSON. |
| Attorney | Abbot B. Schwebel, Asst. State's Atty., with whom, on the brief, was Donald B. Caldwell, State's Atty., for appellant (state)., Martin B. Burke, Special Public Defender, with whom, on the brief, was Leo B. Flaherty, Jr., Rockville, for appellee (defendant). Abbot B. Schwebel, assistant state's a... |
| Judge Panel | THIM, Associate Justice (dissenting). In this opinion HOUSE, C.J., and COTTER and SHAPIRO, JJ., concurred. Before HOUSE, CJ, and COTTER, THIM, SHAPIRO and LOISELLE |
| Case Date | March 01, 1972 |
| Court | Connecticut Supreme Court |
Page 517
Page 518
[Copyrighted Material Omitted]
Page 519
[Copyrighted Material Omitted]
Page 520
On August 13, 1970, the state's attorney for Tolland County applied for a bench warrant for the arrest of the defendant. The application charged that the defendant committed the crime of breaking and entering with criminal intent, in violation of § 53-76 of the General Statutes, and the crime of larceny in an amount in excess of $250 but less [162 Conn. 442] than $2000, in violation of § 53-63 of the General Statutes. An official of the police department of the town of Vernon filed the sole affidavit supporting the application. Having considered the application and the affidavit, a Superior Court judge found that probable cause existed for the arrest of James Jackson, the defendant, and ordered the issuance of a bench warrant for his arrest. The defendant filed a motion to dismiss the information against him on the ground that the affidavit was insufficient to support a finding of probable cause. The court granted the motion and rendered judgment dismissing the information. The state, with permission from the trial court, appealed from the judgment, assigning as error the granting of the defendant's motion to dismiss the information.
The affidavit of the police officer disclosed the following facts: On June 12, 1970, Ruth Maloney, administrator of the Rockville Memorial Nursing Home, complained to the police that the office safe, containing money, checks and jewelry, had been stolen from the premises. As a result of his investigation, the affiant knew that some person or persons had broken into the nursing home and removed the safe. On June 30, 1970, the affiant, after warning Ronald F. Strano, Jr., of his constitutional rights, obtained a written statement from him that on June 11, 1970, at about 10:30 p.m., he broke into the nursing home by prying open a screen and window, removed the safe and loaded it into his vehicle. On July 2, 1970, the affiant arrested Strano and charged him with breaking and entering and larceny. One month later, on August 6, the affiant interviewed Strano in the presence of his counsel and obtained a second written statement from Strano. In that statement Strano named the defendant as [162 Conn. 443] an accomplice in breaking and entering into the nursing home on June 11, at about 11:55 p.m. Strano stated that he had talked with the defendant about committing a theft and that the defendant agreed to the taking of the safe from the nursing home. The statement also indicated that Strano, after gaining entry into the nursing home through a window, passed the safe through the window to the defendant and that Strano opened the safe, using a combination furnished by an employee of the home, a possible accomplice. The officer also asserted that, to the best of his knowledge, the credibility of Mrs. Maloney was good; he did not mention Strano's credibility.
The fourth amendment to the United States constitution provides that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.' See also Conn.Const. art. 1 § 7. 'Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states. Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726.' State v.
Page 521
L icari, 153 Conn. 127, 132, 214 A.2d 900, 902. The proscriptions of the fourth amendment apply to arrest warrants as well as to search warrants. Aguilar v. Texas, 378 U.S. 108, 112 n., 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 485-486, 78 S.Ct. 1245, 2 L.Ed.2d 1503; State v. Saidel, 159 Conn. 96, 98, 267 A.2d 449; State v. Licari, supra. In testing the validity of the warrant, the reviewing court can only consider information brought to the magistrate's attention. Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 28 L.Ed.2d 306; Aguilar v. Texas, [162 Conn. 444] supra, 378 U.S. 109 n., 84 S.Ct. 1509; Giordenello v. United States, supra, 357 U.S. 486, 78 S.Ct. 1245. Since the only information Before the issuing authority was the affidavit of the police officer, the decisive question is whether the facts recited in it were sufficient to support a finding of probable cause. Giordenello v. United States, supra; State v. Saidel, supra, 159 Conn. 99, 267 A.2d 449.
The principles by which we test the adequacy of an affidavit have been designed to insure that a disinterested judicial officer makes his own common-sense judgment that a suspect probably has, or probably has not, been involved in the commission of a crime. Spinelli v. United States, 393 U.S. 410, 415, 86 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, supra, 378 U.S. 110-111, 84 S.Ct. 1509; Giordenello v. United States, supra. As stated by Mr. Justice Jackson in Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436: 'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Because a magistrate is obviously relying solely on the belief of the officer seeking an arrest when he issues a warrant on the basis of an affidavit containing only conclusions, the fourth amendment requires that an affidavit in support of a warrant contain enough information to support a magistrate's own judgment. This explains the following statement from the landmark case of Aguilar v. Texas, supra, 378 U.S. 114-115, 84 S.Ct. 1514: '(T)he magistrate must be informed of some of the underlying circumstances . . .. Otherwise, 'the inferences from the facts [162 Conn. 445] which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead by a police officer.'
Once the magistrate is informed of the evidence which prompts a police officer to seek an arrest, he may rely on the ordinary dictates of 'common experience' and not be 'confined by niggardly limitations or by restrictions on the use of . . . (his) common sense.' Spinelli v. United States, supra, 393 U.S. 415, 419, 89 S.Ct. 591. As the term probable cause implies, the issue is one of probabilities. 'These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879; State v. Wilson, 153 Conn. 39, 212 A.2d 75. This standard must be understood to mean that a judicial officer has done all that he should when he has answered for himself the question: 'Was this suspect probably involved in criminal activity'? His answer 'should be paid great deference by reviewing courts'; Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697; Spinelli v. United States, supra, 393 U.S. 419, 89 S.Ct. 584, 591; and 'doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants.' United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.
In the case at bar, a police officer of the town of Vernon submitted an affidavit
Page 522
in support of a warrant, which relied in part on the statements of Ronald F. Strano, Jr., as the basis for the officer's belief that the defendant had committed a crime. A judicial officer may treat this information from Strano on the same plane as information from the [162 Conn. 446] police officer, so long as there is a 'substantial basis for crediting' it. Jones v. United States, supra, 362 U.S. 269, 80 S.Ct. 725. Aguilar v. Texas, supra, 378 U.S. 114, 84 S.Ct. 1509, has restated this requirement in two parts: The issuing officer must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.
The first Aguilar test is clearly met in the case at bar. If credited, the facts supplied by the informant more than entitle him to believe that the defendant participated in the crimes; the informant was not only an eyewitness to the crime but also a participant.
The second test is also met. While the affiant did not have sufficient information about the informant's character or propensity for truthfulness to credit him by method (a), the affiant did have sufficient information to credit him by method (b). The issuing officer was adequately informed of the circumstances from which the affiant concluded that Strano's information was accurate.
A catalog of some of the landmark cases on this point shows that affidavits held insufficient were devoid of detail and unable to support any independent judgment. Whiteley v. Warden, supra, 401 U.S. 560, 91 S.Ct. 1031; Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509; Giordenello v....
To continue reading
Request your trial