State v. Johnson

Citation576 A.2d 171,22 Conn.App. 40
Decision Date12 June 1990
Docket Number7405,Nos. 7401,s. 7401
PartiesSTATE of Connecticut v. David JOHNSON. STATE of Connecticut v. Diane McINTOSH.
CourtConnecticut Court of Appeals

Denise Dishongh and Louis S. Avitabile, Sp. Public Defenders, with whom was Joshua Kricker, Sp. Public Defender, for appellants (defendants).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Marcia Smith, Sr. Asst. State's Atty., for appellee (state).

Before SPALLONE, EDWARD Y. O'CONNELL and NORCOTT, JJ.

NORCOTT, Judge.

The defendants appeal from their convictions, after a jury trial, of possession of heroin in violation of General Statutes § 21a-279(a) and possession of drug paraphernalia in violation of General Statutes § 21a-267(a). They claim that the trial court should have granted their motion to suppress.

On April 2, 1987, Waterbury police received information from a known confidential informant that "cocaine and heroin were being sold from the defendants' apartment." The police then set up a controlled buy. They searched the informant, gave him $30 and observed him enter the defendants' apartment building. Approximately one minute later, the police observed, through an exterior window, the informant inside the defendants' apartment. Several minutes later, the informant emerged from the building and turned over to the officers a packet containing a white powder that field-tested positive for cocaine. The informant told police that the defendant Johnson instructed him to wait a few minutes while he made up the packet.

On April 7, 1987, the police sought and obtained a search and seizure warrant based upon this information. They executed the warrant in the early morning hours of April 8, 1987. As a result of the search, they found packets of drugs and drug paraphernalia. 1

The defendants moved to suppress the evidence found during the course of this search. The trial court suppressed certain items seized as being beyond the scope of the warrant, but it found that the warrant satisfied the requirements of the Aguilar-Spinelli test and that the information relied upon was not stale because it indicated ongoing criminal activity.

The defendants claim that the evidence should have been suppressed because the search warrant was fatally defective. 2 They argue that the affidavit failed to satisfy the two-pronged Aguilar-Spinelli test and that the warrant was issued based upon stale information. 3

Article first, § 7, of the Connecticut constitution "affords more substantive protections to citizens than does the fourth amendment to the federal constitution in the determination of probable cause." State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985). In reviewing a challenge to a warrant affidavit based upon information from an unnamed informant, we must apply the two-pronged Aguilar-Spinelli test, 4 rather than the less strict "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

"The Aguilar-Spinelli test for reviewing a finding of probable cause consists of two prongs: ' "The issuing [judge] 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." ' 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)." 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).

If the tip fails to pass the Aguilar-Spinelli test, we must then determine whether the affidavit contains a recital of independent corroboration by the affiants. People v. David, 119 Mich.App. 289, 293-94, 326 N.W.2d 485 (1982); see also State v. Ruscoe, supra, 212 Conn. at 229, 563 A.2d 267; State v. Delmonaco, supra, 194 Conn. at 340-41, 481 A.2d 40. "Even though 'the suspicions engendered by the informant's report' may be insufficient to justify issuance of a warrant independently, where the affiants' own observations are very incriminating, the informant's report may bridge the gap and 'ripen into a judgment' of probable cause." (Citations omitted.) Id., at 341, 481 A.2d 40.

In this case, the informant's tip was that "cocaine and heroin were being sold from the defendants' apartment." This tip alone fails to satisfy either prong of the Aguilar-Spinelli test. This statement was a mere conclusion, and the affiants have provided no "underlying circumstances" relied on by the informant. See State v. Ruscoe, supra, 212 Conn. at 228, 563 A.2d 267. They have failed, therefore, to provide the informant's "basis of knowledge" for this information. "[C]onclusory statements without a recital of the underlying factual circumstances will not suffice [to establish probable cause.]" State v Willey, 363 A.2d 739, 741 (Me.1976); see also State v. Gomez, 101 Idaho 802, 806-807, 623 P.2d 110 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981).

This tip is similar to the one given in State v. Willey, supra. In Willey, the informant told police that the defendant " 'always' has plenty of marijuana." In that case, the court held that "the affidavit of [the officer] failed to reveal how [the informant] was in a position to be able to say, as purported truth, that Willey 'always' has plenty of marijuana and 'was expecting a large shipment' in a day or two.... [The informant's] statements were ... statements of ultimate conclusions...." Id., at 743, 623 P.2d 110. The court then concluded that it was necessary, at a minimum, that the affidavit contain both the basis for the conclusions and whether they were based upon the direct perceptions of the informant. Id.

Further, the affiants in this case failed to provide any of the underlying circumstances from which they concluded that this tip was reliable or that this informant was credible, hence, failing the second prong of the test. State v. Delmonaco, supra; Commonwealth v. Fleurant, 2 Mass.App. 250, 254, 311 N.E.2d 86 (1974) (to meet the second prong, "[e]vidence that the informant was an eyewitness is a constitutionally sufficient demonstration of the source of his information"); People v. David, supra, 119 Mich.App. at 294, 326 N.W.2d 485. Because this statement fails under both prongs of the Aguilar-Spinelli test, in and of itself, it would be insufficient to establish probable cause. See State v. Gomez, supra, 101 Idaho at 806, 623 P.2d 110. 5

Because the independent tip here is inadequate under Aguilar, "the other allegations which corroborate the information contained in the hearsay report should ... be considered." Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); see also State v. Ruscoe, supra, 212 Conn. at 229, 563 A.2d 267; State v. Delmonaco, supra, 194 Conn. at 340-41, 481 A.2d 40; State v. Ralston, 7 Conn.App. 660, 672, 510 A.2d 1346 (1986). " 'When a tip not meeting the Aguilar test has generated police investigation and this has developed sufficient corroboration ... the tip, even though not qualifying under Aguilar, may be used to give such additional color as is needed to elevate the information acquired by police observation above the floor required for probable cause.' " (Citation omitted.) State v. Gomez, supra, 101 Idaho at 807, 623 P.2d 110; see also United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir.1972); State v. Delmonaco, supra.

Here, the affiants arranged with the informant to conduct a controlled buy, which they surveilled. The defendants claim that this controlled buy could not support a finding of probable cause because it was "imperfect" in that, although the informant was searched before the buy, he was not searched after the buy. The trial court found that while the buy was imperfect, the minor imperfections did not render the warrant invalid.

While it is true that a "perfect controlled buy" occurs only when the informant is searched both before and after entry, failure to conduct the search after entry need not be fatal to the finding of probable cause. See, e.g., Hignut v. State, 17 Md.App. 399, 303 A.2d 173 (1973) (similar buy held to establish "bare bones" minimum for probable cause); People v. Ferguson, 94 Mich.App. 137, 288 N.W.2d 587 (1979) (similar controlled buy made by a reliable informant held to establish probable cause). In this case, although the officers did not search the informant a second time or conduct complete surveillance of his every move from the time he left their sight until the time he returned, they did surveil most of his movement. The officers saw him enter the building, they observed him through an exterior window in the defendants' apartment, and they saw him leave the apartment and return directly to them with a packet of white powder. The officers also observed that he did not stop to talk to anyone on the way to or from the apartment building.

Further, while the controlled buy may not have established probable cause, the buy, coupled with the defective tip, may have been enough to "bridge the gap" to allow the magistrate to find probable cause. State v. Delmonaco, supra. The magistrate need not completely ignore this faulty tip when determining whether there is probable cause for the warrant to issue. Id., 194 Conn. at 341, 481 A.2d 40; State v. Salz, 8 Conn.App. 125, 134, 512 A.2d 921, cert. denied, 201 Conn. 807, 515 A.2d 380 (1986); see also State v. Gomez, supra, 101 Idaho at 806-807, 623 P.2d 110.

It is true, as the state concedes, that this affidavit presents a marginal case for probable cause. 6 Compare Hignut v. State, supra (where informants' reliability was proven and still a controlled buy of this nature...

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4 cases
  • State v. Barton
    • United States
    • Connecticut Court of Appeals
    • June 19, 1990
    ...that we have available to us is the federal analysis, which this court employed in State v. Brown, supra." State v. Johnson, 22 Conn.App. 40, 51 n. 11, 576 A.2d 171 (1990). Applying Brown and its progeny, we conclude that the good faith exception would not apply to the present The federal r......
  • State v. Johnson
    • United States
    • Connecticut Supreme Court
    • July 16, 1991
    ...that the information on which the search warrant application was based was stale when the warrant was issued. State v. Johnson, 22 Conn.App. 40, 52, 576 A.2d 171 (1990). We granted the state's petition for certification to consider the question of the warrant's timeliness, and we granted th......
  • State v. Johnson, s. 7401
    • United States
    • Connecticut Court of Appeals
    • February 4, 1992
    ...for a court-appointed expert. We affirm the judgment of the trial court. The relevant facts are fully set forth in State v. Johnson, 22 Conn.App. 40, 576 A.2d 171 (1990), rev'd, 219 Conn. 557, 594 A.2d 933 (1991), and need be only briefly repeated here. The Waterbury police, acting on infor......
  • State v. Johnson
    • United States
    • Connecticut Supreme Court
    • September 18, 1990
    ...Sp. Public Defender, in opposition. The state of Connecticut's petition for certification for appeal from the Appellate Court, 22 Conn.App. 40, 576 A.2d 171, is granted, limited to the following "1. Should this court's holding in State v. Kimbro, 197 Conn. 219, 496 A.2d 498, be reconsidered......
1 books & journal articles
  • Developments in Connecticut Criminal Law: 1989-1990
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 65, 1990
    • Invalid date
    ...U.S. 213 (1983). 28. Kimbro, 1917 Conn. at 236. 29. 22 Conn. App. 62, 576 A.2d 561, cert. granted, 216 Conn. 810,580 A.2d 61 (1990). 30. 22 Conn. App. 40,576 A.2d 161, cert. granted, 216 Conn. 8M, 5W A.2d 62 (1990). 31. 22 Conn. App. at 246. 32. Id. at 43, 50. 33. Barton, 22 Conn. App. at 6......

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