State v. Johnson

• Decision Date: 16 July 1991
• Docket Number: No. 14095,14095
• Citation: 219 Conn. 557,594 A.2d 933
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David JOHNSON. STATE of Connecticut v. Diane McINTOSH.

Page 933

594 A.2d 933

219 Conn. 557

STATE of Connecticut v. David JOHNSON.

STATE of Connecticut v. Diane McINTOSH.

No. 14095.

Supreme Court of Connecticut.

Argued May 1, 1991.

Decided July 16, 1991.

Timothy J. Sugrue, Assistant State's Atty., with whom were Steven M. Sellers, Asst. State's Atty., and, on the brief, John J. Kelly, Chief State's Atty., John M. Connelly, State's Atty., Marcia Smith, Senior Asst. State's Atty., and Susan C. Marks, Asst. State's Atty., for appellant-appellee (state).

Louis S. Avitabile, Special Public Defender, with whom were Denise Dishongh and Joshua R. Kricker, for appellees-appellants (defendants).

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

PETERS, Chief Justice.

The principal issue in this appeal is whether a search warrant issued on the basis of an affidavit alleging a single drug sale in the defendants' apartment was stale when it was obtained five days after the alleged sale and executed the day after it was obtained. The defendants, David Johnson and Diane McIntosh, were each convicted, after a jury trial, of the crimes 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). ¹ Each appealed to the Appellate Court, where the appeals were consolidated. The Appellate Court set aside the convictions and remanded the cases to the trial court with direction to grant the defendants' motions to suppress the evidence seized on the ground 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 the defendants' cross petition for certification to consider whether the warrant, if not stale, was adequate to establish probable cause. ² We reverse.

The warrant application affidavit, dated April 7, 1987, set forth the following relevant facts. On April 2, 1987, Waterbury police received information from a known confidential informant that cocaine and heroin were being sold from a particular apartment. On the basis of this information, the police arranged a controlled buy on the same date. They searched the informant, gave him thirty dollars, and observed him enter the defendants' apartment building. The informant was inside the building for approximately five minutes, during which period the police officers observed him standing at a window in the defendants' apartment. When the informant came out of the building, he gave the officers a paper packet containing a white powder that subsequently tested positive for cocaine. The informant told the officers that he had bought the packet from David Johnson, who had instructed him to "wait a few minutes while he made up the packet."

Based on this affidavit, the police, on April 7, 1987, sought and obtained a warrant to search the defendants' apartment, and they executed the warrant early in the morning of April 8, 1987. During the search the police found packets of drugs and drug paraphernalia. The defendants moved to suppress the evidence seized as a result of the search. Although the trial court suppressed certain seized items because they were beyond the scope of the warrant, it found that the warrant established probable cause under the Aguilar-Spinelli test mandated by this court in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), and that the information relied upon to establish probable cause was not stale because it indicated ongoing criminal activity. State v. Johnson, supra, 22 Conn.App. at 41-42, 576 A.2d 171; 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).

After a jury trial in which the defendants were convicted of the crimes of possession of heroin and of possession of drug paraphernalia, the defendants appealed, raising seven claims of error. The Appellate Court, addressing only two of the claims, determined that the affidavit established probable cause on April 2, but held that the information was stale by April 7, when the officers sought the warrant. State v. Johnson, supra, 22 Conn.App. at 47-48, 576 A.2d 171. It therefore reversed the judgments of conviction and remanded the case to the trial court with direction to grant the defendants' motions to suppress. Id., at 52, 576 A.2d 171.

In the present appeal, the state argues that the warrant was not stale because the facts alleged in it established the probability of ongoing criminal activity. The defendants argue, on their cross appeal, that the trial court should not have found probable cause based on the informant's inadequate tip. We conclude that the facts stated in the warrant affidavit were sufficient to establish probable cause, and that the information that established probable cause on April 2 was not yet stale when the warrant was issued on April 7. We therefore reverse.

I

In State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), we held that the determination of probable cause under article first, § 7, of our state constitution ³ is to be made pursuant to the "totality of the circumstances" analysis announced by the United States Supreme Court, as the standard for determinations of probable cause under the fourth amendment to the federal constitution, ⁴ 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). Under that analysis, the task of a magistrate in determining the existence of probable cause to search is to make a practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the "veracity" and the "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Barton, supra, 219 Conn. at 552, 594 A.2d 917. When an affidavit indicates that the police have relied on information from a confidential informant, "the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant's knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented." Id., at 544, 594 A.2d 917.

The state concedes that the affidavit in this case does not expressly state either the basis of the informant's knowledge regarding the original tip or the basis on which the police concluded that the informant's information was trustworthy. It relies, rather, on the subsequent investigation and controlled buy to establish probable cause to search the defendants' apartment. The state acknowledges that the controlled buy was not perfect. The police observed the informant entering and leaving the building, and observed him briefly at a window in the defendants' apartment, but they did not observe him while he was inside the apartment building before he entered or after he left the defendants' apartment. They searched him only after he left the multiple unit building, not immediately after he left the defendants' apartment. The defendants contend, in their cross appeal, that because the informant could have purchased the substance from someone other than the defendants during the time that he was in the building but out of view of the officers, the controlled buy was too unreliable to establish probable cause for the search. We disagree.

Imperfections in a controlled buy are not necessarily fatal to the determination of probable cause. See, e.g., Hignut v. State, 17 Md.App. 399, 303 A.2d 173 (1973) (similar buy found to establish at least a minimal basis for probable cause); People v. Ferguson, 94 Mich.App. 137, 288 N.W.2d 587 (1979) (affidavit describing buy in similar terms found to establish probable cause). Although in this case the police surveillance of the buy was incomplete, the affidavit reported that the informant had told the police that he had bought the packet from David Johnson in apartment 28. The police could reasonably have credited this hearsay information because the informant was not anonymous, but known, and therefore risked both loss of credibility with the police and possible prosecution for falsely reporting an incident under General Statutes § 53a-180 had his information proved to be fabricated. See State v. Barton, supra, 219 Conn. at 550-51, 594 A.2d 917. The police took further investigative steps as well. They tested the substance in the packet and determined that it was cocaine. They also ascertained from the Waterbury housing authority that the apartment specified by the informant was rented to Diane McIntosh. The police officers seeking the warrant attested in the affidavit to their personal knowledge that Johnson and McIntosh had lived together for several years. In light of this corroborative information, the magistrate considering the affidavit was entitled to use the original inadequate tip by the informant to augment the incriminating information gathered by the police investigation. Even though the suspicions engendered by the initial tip would not have independently justified the issuance of a warrant, the magistrate was not required to disregard the tip altogether, but could consider whether the tip and the investigation together "bridged the...