State v. Harris

• Decision Date: 23 June 1970
• Citation: 159 Conn. 521,271 A.2d 74
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Fred L. HARRIS, Jr.

Page 74

271 A.2d 74

159 Conn. 521

STATE of Connecticut v. Fred L. HARRIS, Jr.

Supreme Court of Connecticut.

June 23, 1970.

Certiorari Dismissed Jan. 21, 1971. See 91 S.Ct. 578.

Catherine G. Roraback, New Haven, for appellant (defendant).

David B. Salzman, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

ALCORN, Chief Justice.

The defendant was convicted by a jury of possessing, or having under his control, heroin in violation of § 37(a) of 1967 Public Act No. 555, which, as amended, is now General Statutes § 19-481(a), and he has appealed from the judgment rendered on the verdict.

From the evidence before them, the jury could have found the following facts: Shortly after 10 o'clock in the evening of October 25, 1967, two detectives of the New Haven police department met an informer in a parking lot near the New Haven railroad station. Following a conversation with the informer, they went to the home of a judge of the Circuit Court shortly after midnight, where they obtained a warrant to search the premises at 129 Carlisle Street in New Haven. They then went with other officers to that address, arriving about 1:40 a.m. on October 26. They were admitted by a man who stated that the defendant was not at home. Upon being told that the officers had a search warrant for the premises, the man ran abruptly toward another part of the house. The officers followed into a bedroom where the defendant and his wife were asleep. The defendant was awakened and was advised that the officers had a search warrant, which they gave to the defendant to read. The defendant read the warrant, arose and got partially dressed. The officers searched the bedroom and found four glassine bags containing heroin secreted in the hollow base of a basketball trophy which had stood on a bureau in the bedroom. The defendant was arrested, advised of his constitutional rights, and taken to police headquarters. On the defendant's right arm were several marks such as are made by the hypodermic injection of drugs, one mark appearing to have been from an injection made within an hour or two. The basketball trophy in which the heroin was found was one which had been awarded to the defendant as manager of a high school basketball team.

Before trial, the defendant moved for a return of the seized property and its suppression as evidence. The court denied the motion, and the defendant assigns this as error on the ground that the search warrant was illegal because the judge who issued it did not make an independent inquiry as to the probable cause for the issuance of the warrant. The court has made a finding of the subordinate facts and the conclusions which it reached as a result of the hearing on the motion from which it appears that two detectives of the New Haven police department made an affidavit before the Circuit Court judge in which they alleged the following: They are members of the New Haven police department assigned as detectives in the gambling and narcotics division and have participated in numerous investigations and arrests concerning the illegal use and sale of narcotic drugs. They met a confidential informer known to both of them who had in the past given reliable information which had resulted in arrests and convictions in narcotics cases. This informer had personal knowledge that the defendant was using narcotics at his place of abode on the first floor of 129 Carlisle Steet, New Haven. The informer had stated that he had been on the premises on numerous occasions and had seen the defendant with heroin in his possession. As a result of reliable information from a reliable informer, an investigation and surveillance of the defendant and his place of abode were conducted. Both the city directory and the telephone directory listed the defendant as residing at 129 Carlisle Street. The detectives had seen the defendant in the company of specifically named persons who had been arrested for dispensing and using heroin. At the meeting with the informer on October 25, 1967, he had stated that he was at the defendant's home and had seen him in possession of heroin which he was secreting in the area of a dresser in his bedroom. The Circuit Court judge read the affidavit, initialed its various paragraphs and thereupon issued the search warrant.

The defendant claims, essentially, that his rights under article first, § 7, of the constitution of Connecticut and the fourth amendment to the constitution of the United States were violated because the judge who issued the warrant did not crossexamine the officers concerning the facts which they had submitted to him under oath. The defendant concedes that the affidavit necessary to support the issuance of a warrant may be based not only on the affiant's personal knowledge but upon information furnished by others.

'( T)he essential purposes of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy * * * is realized * * * by requiring that an impartial magistrate determine from an affidavit showing probable cause whether information possessed by law-enforcement officers justifies the issuance of a search warrant.' Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514. Here the affidavit which was submitted clearly furnished probable cause provided the judge accepted as credible the sworn statement of the officers who submitted the information. We are aware of no constitutional provision which required the judge to assume that the officers who swore to the affidavit were committing perjury. See McCray v. Illinois, 386 U.S. 300, 313, 87 S.Ct. 1056, 18 L.Ed.2d 62. It is quite apparent that the judge considered the information which the affiants had submitted to him to be reliable. That being so, the defendant's claim that the search warrant was invalid is without merit. Aguilar v. Texas,378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723. 'The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told.' State v. Burnett, 42 N.J. 377, 388, 201 A.2d 39, 45. In the present case, there was substantial basis for the judge to conclude that heroin was probably present in the premises described, and that is sufficient. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697. Indeed, the defendant makes no claim that any allegation of the affidavit was false or inaccurate. Some substantial basis should be advanced for any attack on a judge's exercise of his discretion in issuing a search warrant. None was advanced here.

The defendant sought in various ways to compel the state to disclose the identity of the confidential informer who had been referred to in the affidavit supporting the search warrant. The identity was sought by a question to one of the detectives in the hearing on the motion which we have just discussed, by a written motion before trial for an order directing the state's attorney to furnish the defendant with the name and address of the confidential informer, by questions asked on cross-examination of witnesses for the state, and by oral motion at the conclusion of the state's case. The court denied the motions and sustained objections to the questions asked of witnesses. No point is made of the variety of ways in which the information was sought, but error is assigned in the court's action in refusing to require the state to disclose in each instance.

The defendant relies primarily on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. It should be borne in mind, however, that in that case the court was dealing with federal rules rather than constitutional rights and that even then the United States Supreme Court 'was unwilling to impose any absolute rule requiring disclosure of an informer's identity.' McCray v. Illinois, supra, 386 U.S. 311, 87 S.Ct. 1062. In Roviaro, the government was required to disclose the identity of an informer who had participated materially in the commission of the crime with which the accused stood charged. The court concluded (353 U.S. p. 64, 77 S.Ct. 623) that, since the informer was the sole participant with the accused in the transaction charged and was the only witness in a position to amplify or contradict the testimony of government witnesses, and since a government witness had testified that the informer denied knowing the defendant or even having seen him before, the trial court committed error in permitting the government to withhold the identity of the informer.

The general rule, subject to certain specifications and limitations, is that the prosecution is privileged to withhold from an accused the disclosure of the identity of an informer. Note, 'Accused's rights to, and prosecution's privilege against, disclosure of identity of informer,' 76 A.L.R.2d 262, 271 § 3. Based upon the public policy in furthering and protecting the public interest in effective law enforcement, the Model Code of Evidence adopted by the American Law Institute states the proposition in this way: 'Rule 230. IDENTITY OF INFORMER. A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise...