State v. Barton

• Decision Date: 16 July 1991
• Docket Number: No. 14094,14094
• Citation: 219 Conn. 529,594 A.2d 917
• Court: Connecticut Supreme Court
• Parties: , 60 USLW 2129 STATE of Connecticut v. Timothy BARTON.

Page 917

594 A.2d 917

219 Conn. 529, 60 USLW 2129

STATE of Connecticut v. Timothy BARTON.

No. 14094.

Supreme Court of Connecticut.

Argued May 1, 1991.

Decided July 16, 1991.

Susan C. Marks, Asst. State's Atty., with whom was Steven M. Sellers, Asst. State's Atty., and, on the brief, John J. Kelly, Chief State's Atty., Frank S. Maco, State's Atty., and Timothy J. Sugrue and John Dropick, Asst. State's Attys., for appellant (state).

Walter H. Scanlon, Plainville, for appellee (defendant).

Jacob D. Zeldes, Paul F. Thomas and Shelley R. Sadin, Bridgeport, filed a brief for the Connecticut Criminal Defense Lawyers Ass'n as amicus curiae.

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, BORDEN and SANTANIELLO, JJ.

PETERS, Chief Justice.

The sole issue in this appeal is whether, contrary to our holding in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), article first, § 7, of the Connecticut constitution permits a court to determine the existence of probable cause on the basis of the "totality of the circumstances" when it reviews a search warrant application based on information provided to the police by a confidential informant. The state charged the defendant, Timothy Barton, with possession of over a kilogram of marihuana with intent to sell and with possession of marihuana, in violation of General Statutes §§ 21a-278(b) and 21a-279(b) ¹ respectively, after police, acting under the authority of a warrant, had searched his home and had seized more than fifty pounds of marihuana there. The defendant moved to suppress the seized evidence, and the trial court granted the defendant's motion on the ground that the affidavit accompanying the search warrant application failed to state the informant's "basis of knowledge." The charges were subsequently dismissed with prejudice. With the permission of the trial court, the state appealed to the Appellate Court, which affirmed. State v. Barton, 22 Conn.App. 62, 576 A.2d 561 (1990). We granted certification to reconsider the state constitutional issue presented, ² and we reverse.

The opinion of the Appellate Court reports the relevant facts. On August 7, 1988, officers of the Winsted police department, acting on the authority of a search and seizure warrant obtained that day on the basis of information provided by a confidential informant, searched the defendant's apartment in Winsted. Although the defendant was not at home when the police arrived to execute the warrant, they obtained a key from the owner of the apartment. In the course of their search, the police found some fifty-two pounds of marihuana wrapped in clear plastic bags and kept in larger garbage bags in a bedroom. When the defendant returned home after midnight, the police arrested him. Id., at 64, 576 A.2d 561.

The defendant filed a motion to suppress the evidence seized pursuant to the warrant, contending that the search and seizure violated his rights under article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution. Both the trial court and the Appellate Court applied the two-pronged analysis mandated by this court's decision in State v. Kimbro, supra, which requires a magistrate, in determining whether probable cause exists for a search or seizure, to evaluate both the "basis of knowledge" and the "veracity" or "reliability" of an informant upon whose information the police have relied. See id., at 233-37, 496 A.2d 498; see also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In the circumstances of this case, both the trial court and the Appellate Court concluded that the affidavit in support of the search warrant did not adequately set forth the unnamed informant's basis of knowledge and therefore failed to establish probable cause. State v. Barton, supra, 22 Conn.App. at 70, 576 A.2d 561. Both courts accordingly agreed that the evidence seized in reliance upon the warrant had to be suppressed. Id.

In the present appeal, the state urges us to overrule our holding in State v. Kimbro, supra, and to adopt the "totality of the circumstances" standard for determining probable cause used in the federal courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). The state argues that our decision in Kimbro (1) did not accurately reflect either the preconstitutional law of Connecticut or the case law of this court construing article first, § 7, prior to the time when the fourth amendment to the federal constitution was made applicable to the states, and (2) needlessly constitutionalized a standard for the use of hearsay in warrant affidavits that is susceptible to rigid and inconsistent application by lower courts and that impairs legitimate law enforcement efforts. The state argues, alternatively, that the trial court and the Appellate Court were mistaken in concluding, under any standard of review, that the affidavit in this case failed to establish probable cause. We agree with the state that application of the standards mandated by Kimbro has resulted at times in unduly technical readings of warrant affidavits, and we reject such an inappropriate methodology.

In deciding this question, we consider first the analysis that led the United States Supreme Court to reject the Aguilar- Spinelli test. We next examine the constitutional basis underlying Kimbro to distinguish the goals we sought to achieve in retaining the Aguilar- Spinelli test in that decision from the nonconstitutional encrustations that accompanied it. Finally, we review the warrant affidavit at issue in this case to determine whether it satisfies the requirements of article first, § 7. We conclude that it does.

I

A

In Illinois v. Gates, supra, 462 U.S. at 235, 103 S.Ct. at 2330, the United States Supreme Court rejected the "complex superstructure of evidentiary and analytical rules" that had evolved from its earlier decisions in Aguilar v. Texas, supra, and Spinelli v. United States, supra. As commonly cited and applied, the "two-pronged" Aguilar- Spinelli test provides a method for evaluating the existence of probable cause consistent with the requirements of the fourth amendment ³ when a search warrant affidavit is based upon information supplied to the police by a confidential informant. The issuing judge must be informed of (1) some of the underlying circumstances relied on by the informant in concluding that the facts are as he claims they are, and (2) some of the underlying circumstances from which the officer seeking the warrant concluded (a) that the informant, whose identity need not be disclosed, was credible, or (b) that the information was reliable. State v. Ruscoe, 212 Conn. 223, 228-29, 563 A.2d 267 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990); State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). When the information supplied by the informant fails to satisfy the Aguilar- Spinelli test, probable cause may still be found if the warrant application affidavit sets forth other circumstances-typically independent police corroboration of certain details provided by the informant--that bolster the deficiencies. State v. Ruscoe, supra, 212 Conn. at 229, 563 A.2d 267.

The Gates court identified two principal flaws in the Aguilar- Spinelli test. First, because courts and commentators had generally regarded the two prongs of the test to be entirely independent of each other, courts had struggled to formulate rules regarding what types of information and what types of corroboration might satisfy each of the prongs. Illinois v. Gates, supra, 462 U.S. at 229 n. 4, 103 S.Ct. at 2327 n. 4; see also 1 W. LaFave, Search and Seizure (2d Ed.1987) § 3.3(a), pp. 612-27. Specifically, some courts had concluded that independent police investigation might corroborate the "reliability" of the information, but could never satisfy the "basis of knowledge" prong of the test, while ample "self-verifying details" might establish that the informant had personal knowledge of the alleged activity and thus could satisfy the "basis of knowledge" prong, but could never compensate for a deficiency in the "veracity" or "reliability" prong. See, e.g., Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974); see also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The "elaborate set of legal rules" that had resulted from this emphasis on the independent character of the two prongs had led courts, in many cases, to dissect warrant applications in an excessively technical manner, "with undue attention being focused on isolated issues that [could not] sensibly be divorced from the other facts presented to the magistrate." Illinois v. Gates, supra, 462 U.S. at 229, 234-35, 103 S.Ct. at 2327, 2330. Such a result was inconsistent with the nature of a probable cause determination, which, as the Gates court noted, involves a " 'practical, non-technical conception.' " Id., at 231, 103 S.Ct. at 2328, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, reh. denied, 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 (1949).

The second principal flaw in the application of the Aguilar- Spinelli test, according to the Gates court, was that the test had caused reviewing courts, both at suppression hearings and at appellate levels, to test the sufficiency of warrant affidavits by de novo review. Illinois v. Gates, supra, 462 U.S. at 236, 103 S.Ct. at 2331. Such de novo review, in the view of the Gates majority, was inconsistent with the constitution's "strong preference for searches conducted pursuant to a warrant." A reviewing court should rather determine whether the magistrate issuing the warrant had a ...