State v. Kimbro

• Decision Date: 20 August 1985
• Citation: 197 Conn. 219,496 A.2d 498
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Germano KIMBRO.

Page 498

496 A.2d 498

197 Conn. 219

STATE of Connecticut v. Germano KIMBRO.

Supreme Court of Connecticut.

Argued May 9, 1985.

Decided Aug. 20, 1985.

David S. Shepack, Deputy Asst. State's Atty., with whom, on the brief, was Carl Schuman, Asst. State's Atty., for appellant (state).

Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellee (defendant).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Germano Kimbro, was arrested without a warrant on November 8, 1982, for the crime of possessing a narcotic substance, i.e., cocaine, in violation of General Statutes § 19-481(a). He filed a motion to suppress ¹ and a motion to dismiss, ² claiming in each that his rights were violated under both the United States and the Connecticut constitutions. In his motion to suppress, he sought the suppression of items seized from his person as having been taken without a warrant or without probable cause or pursuant to an unlawful arrest. After an evidentiary hearing, the trial court granted both motions. ³ The state, with the permission of the trial court, has appealed. On appeal, the state claims that the trial court erred: (1) in granting the defendant's motion to suppress on its determination that the police lacked probable cause to arrest when they arrested the defendant, and (2) in granting the motion to dismiss.

At the outset, we turn to the state's threshold claim that the issue of "probable cause" in this appeal is to be determined solely by the "totality of the circumstances" analysis set out 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), rather than by the stricter two-prong analysis of the Aguilar-Spinelli ⁴ cases which predated Gates. ⁵ In this case we do not agree.

The defendant specifically premised his trial court motions upon the Connecticut as well as the United States constitutions. The trial court, without stating the precise bases of its decision in granting suppression and dismissal, granted the defendant's motions. We are therefore entitled to infer that the trial court acted in favor of all the defendant's claims as they were asserted in his motions, especially when the trial court's decision, which was explicated in terms of the Aguilar-Spinelli analysis, had been based on the settled substantive law of this state before the Gates decision. See, e.g., State v. Grayton, 163 Conn. 104, 106, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495 (1972). On appeal, the state seeks to overturn the trial court's decision and, in doing so, argues in its brief that "Gates in no way [has] altered an individual's ultimate right not to be searched or seized in the absence of probable cause. United States Constitution, Fourth Amendment; Connecticut Constitution, article I § 7." (Emphasis added.) In his brief, the defendant asserts the Connecticut constitution's preference for searches pursuant to a warrant and also argues that his motions below were predicated on both the United States and Connecticut constitutions. We conclude that the probable cause issue is properly before us under both the United States and Connecticut constitutions. See State v. Couture, 194 Conn. 530, 566-73, 482 A.2d 300 (1984) (Healey, J., dissenting), cert. denied, --- U.S. ----, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985).

We note that in none of our three earlier decisions in which we referred to Gates did any of the defendants claim that the respective circumstances failed to constitute probable cause under the Connecticut constitution. See State v. Perry, 195 Conn. 505, 488 A.2d 1256 (1985); State v. Couture, supra; State v. Gasparro, 194 Conn. 96, 480 A.2d 509 (1984). It is our view in this warrantless arrest and search case that the trial court's decision was correct under either the Gates "totality-of-the-circumstances" analysis or the Aguilar-Spinelli test.

Gates, of course, involved an application for a warrant, and it is crucial to underscore the fact that the Gates court reiterated that "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." (Emphasis in original.) Illinois v. Gates, supra, 462 U.S. at 236, 103 S.Ct. at 2331. Rather, a reviewing court should pay "great deference" to the magistrate's determination of probable cause. Id., citing Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). In the same fashion, we do not attempt such de novo review where there has been a trial court determination that probable cause does not exist. In deciding whether probable cause does or does not exist, "[t]he trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony. 'We cannot retry the facts or pass upon the credibility of the witnesses.' " (Citation omitted.) State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). This axiom is significant because the trier of fact, which in such a suppression hearing is the trial court, first determines the facts; then the trial court ultimately determines whether those facts it found constitute probable cause. ⁶ The former is obviously a fact-bound determination, while the latter is at the very least a mixed question of fact and law. See Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).

It is clear that the constitutional validity of the search in this case is predicated upon the constitutional validity of the arrest, which was constitutionally valid only if at the time the police had probable cause to arrest the defendant. See Beck v. Ohio, supra, at 91, 85 S.Ct. at 225; Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879, reh. denied, 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 (1949). "The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating ... often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Brinegar v. United States, supra, at 176, 69 S.Ct. at 1311.

Certain observations concerning Illinois v. Gates, supra, should properly be made here. The Gates decision dismantled and abandoned the stricter "two-pronged test" of Aguilar and Spinelli in that it held that the sufficiency of an affidavit that relies on a confidential informant depends on "the totality-of-the-circumstances" test. While the Gates court reiterated the preference for search warrants, it seems fairly probable that the Gates test may be applied in fourth amendment cases to warrantless searches and seizures. See 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1985 Sup.) § 3.1, p. 172. Despite the abandonment of the two-pronged test of Aguilar-Spinelli in fourth amendment cases, the Gates court said that it "intended neither a rigid compartmentalization of the inquiries into an informant's 'veracity,' 'reliability,' and 'basis of knowledge,' nor that these inquiries be elaborate exegeses of an informant's tip"; it did emphasize that "[r]ather, we required only that some facts bearing on two particular issues be provided to the magistrate." (Emphasis in original.) Id., 462 U.S. at 231 n. 6, 103 S.Ct. at 2328 n. 6. Thus, the "veracity" and "basis of knowledge" issues are still viable though in the context of the less strict "totality-of-the-circumstances" analysis for the existence of probable cause. The Gates court agreed with the Illinois Supreme Court "that an informant's 'veracity,' 'reliability,' and 'basis of knowledge' are all highly relevant in determining the value of his report" but it did not agree "that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case...." (Emphasis added.) Id., at 230, 103 S.Ct. at 2327. Rather, as the Gates court set out, "they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place." Id. Under Gates, "the duty of the reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." (Citation omitted.) Id., at 238-39, 103 S.Ct. at 2332; see Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984). However, in rejecting the stricter test, the Gates court attempted to characterize its new approach as an "analysis that traditionally has informed probable-cause determinations." Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332. In rejecting the "independent status" of the two-pronged Aguilar-Spinelli test, the informant's "veracity" or "reliability" and his "basis of knowledge," the Gates court said that they were "better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." ⁷ Id., at 233, 103 S.Ct. at 2329. According to the Gates court, the totality of the circumstances analysis was "far more consistent with our prior treatment of probable cause than is any rigid demand that specific 'tests' be satisfied by every informant's tip." Id., at 230-31, 103 S.Ct. at 2328. The probable cause standard is a "practical, nontechnical conception," it deals with "probabilities," and " '[t]hese are not technical; they are the factual and practical considerations of everyday life on which...