State v. Anonymous (1974-3)

• Citation: 6 Conn.Cir.Ct. 738,325 A.2d 471
• Decision Date: 01 January 1974
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division

Page 471

325 A.2d 471

6 Conn.Cir.Ct. 738

STATE of Connecticut v ANONYMOUS (1974-3) ^*.

Circuit Court of Connecticut, Appellate Division.

GOLDBERG, Judge.

The defendant has appealed from a judgment based on a finding of guilty by a jury of pool selling in violation of § 53-295 of the General Statutes.

The facts relevant to our determination of this appeal are as follows: Two state troopers, with search warrants authorizing the search of the defendant, his automobile and certain premises, stopped the defendant while he was operating his automobile and searched him and his automobile. They found and seized certain keys on the defendant and then proceeded with him to the premises, where they seized materials allegedly used in the commission of crimes of pool selling.

Prior to trial, the defendant filed a motion that the court suppress the evidence seized on the ground that the search warrants were issued without probable cause. This motion was denied, and during the jury trial the court denied a similar motion, treating the court's ruling on the preliminary motion to suppress evidence as decisive on the question of probable cause.

The defendant has assigned error in the denial of the motions. These claims of error raise the issue which is decisive of this appeal, namely, whether the affidavits in support of the search warrants issued against the premises and the person of the defendant were legally sufficient. In determining that sufficiency, we are concerned only with the statements of fact contained in the affidavits. ¹ Both affidavits, each consisting of sixteen paragraphs, are identical.

The fourth amendment to the United States constitution provides that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.' 'In testing the validity of the warrant, the reviewing court can only consider information brought to the magistrate's attention. . . . 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.' State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, 521; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The sufficiency of the affidavits must be measured in the light of the guiding principles of Aguilar v. Texas, supra, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 21 L.Ed.2d 637. Aguilar has established a two pronged test requiring that the affidavit in question contain (1) some underlying facts and circumstances from which the informant could conclude that what he alleged was so; and (2) some underlying facts and circumstances from which the affiant could conclude that the informant was credible or his information reliable.

With respect to the first prong of the Aguilar test, there can be no question that the information secured from the informant constituted the fundamental basis for the issuance of the search warrants. Aguilar requires that the magistrate be provided with a sufficient statement of the underlying circumstances from which he could evaluate the validity of the informant's conclusion that what the informant alleged was so. In the instant affidavits, no factual underlying circumstances with any probative value concerning gambling activities was offered to support the conclusion that such criminal conduct was being carried on at the premises in question. The informant's information in the affidavits that 'horse bets, policy bets and sports bets are being taken' is a mere affirmation of suspicion and belief. It is a conclusionary charge without any statement of adequate supporting facts. The bare accusation of the informant's report cannot be used to give a suspicious color to the other facts in the affidavits, which are not inherently suspicious, in order to establish probable cause.

In addition to there being no underlying facts concerning the conclusionary charge, the affidavits state that '(t)he informant was told of this activity.' Thus, it is obvious that the informant had no personal knowledge that gambling bets were being taken. The informant possessed only hearsay information which he passed on to the affiants. This is hearsay evidence upon hearsay evidence. Although double hearsay may be permissible in affidavits under certain circumstances, it is completely unacceptable under the circumstances of this case. The informant conceededly came by whatever information he had indirectly. No explanation was made to the magistrate as to why the informant considered his source reliable. It is conceivable that such a chain of hearsay information might not even have originated with the first anonymous informant. 'In the absence of a statement...