State v. Kimbro

Shea, J.,

dissenting. The majority opinion goes far out of its way in seizing upon this case as the occasion to reject the “totality-of-the-circumstances” test established by 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. *239Ed. 2d 1453 (1983), as the touchstone for ascertaining probable cause to justify a search or seizure under the fourth amendment of our federal constitution. In two recent cases, State v. Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985), and State v. Gasparro, 194 Conn. 96, 106, 480 A.2d 509 (1984), this court has given its endorsement to Gates, declaring that “ ‘[t]he determination of probable cause must be made from the “totality of the circumstances.” ’ ” State v. Gasparro, supra. As applied in Gates, this broader statement of the criterion for determining probable cause obviated the necessity for disclosure of the manner in which the informant had acquired the information he had conveyed to the police, the so-called “basis of knowledge” part of the Aguilar-Spinelli test. Under that test “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were . . . .” Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); see Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In the case before us, the testimony was clear that the informant had personally observed the defendant offering packages he represented to contain cocaine for sale on the streets.1 Thus the “basis of knowledge” *240prong of the Aguilar-Spinelli test, which might not have been satisfied in Gates, was easily surpassed here. The so-called “veracity prong” of Aguilar-Spinelli, whether the police have reasonable grounds for crediting the information concerning criminal activity furnished by the informant, remains essentially untouched by the Gates “totality-of-the-circumstances” formulation. It is therefore wholly unnecessary for our disposition of this case to decide what we may do if we should some day be confronted with a situation like Gates where the “basis of the informant’s knowledge” is left to be inferred entirely from the details contained in the information furnished, some of which may have been verified by other sources. There is nothing in the language or history of article first, § 7, of our state constitution, paralleling the fourth amendment of our federal constitution, that mandates any particular test for determining the ultimate constitutional requirement of the existence of probable cause prior to a search. No one questions the authority of this court to construe our state constitution to afford greater protection to individual rights than that afforded by our federal constitution; see Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); but it is wholly inappropriate to declare our position in a particular instance before we have a case presenting the issue. Accordingly, I would follow our customary practice of not crossing constitutional bridges until we come to *241them. Carofano v. Bridgeport, 196 Conn. 623, 647, 495 A.2d 1011 (1985).

I also disagree with the majority’s resolution of this appeal under the standard two-pronged Aguilar-Spinelli test. As previously noted, the basis for the informant’s report of criminal activity in progress, the first prong of the test, was his personal observation of the defendant’s activities at the location specified.2 Such a situation “presents few problems: since the report, although hearsay, purports to be first-hand observation, remaining doubt centers on the honesty of the informant . . . . ” Spinelli v. United States, supra, 425 (White, J., concurring). It is this remaining veracity prong that the trial court as well as the majority maintain is not satisfied by the evidence presented at the suppression hearing.

The majority opinion sets forth a plethora of arguments to support the conclusion of the trial court that the police could not reasonably have relied on the information supplied by the informant in arresting and searching the defendant. Among them are: (1) the deference due the trial court’s determination; (2) the lack of a warrant for the arrest or search; (3) an insufficient “track record” of the reliability of previous tips given by the informant, none of which had thus far resulted in a conviction; (4) the fact that, because the defendant may have worked near the location where he was reported to be selling cocaine, Officer Howard’s several observations of him loitering there for extended periods of time and for no apparent reason were not actually corroborative of the reliability of the informant; and (5) the absence of any knowledge by the police or indication in the informant’s report concerning prior drug related activities of the defendant. None of these can withstand analysis.

*242First. With respect to our function in reviewing trial court decisions on probable cause, it is clear that upon disputed factual issues we are ordinarily bound by the finding of the judge who heard the evidence. We ought not, however, to defer to the legal conclusions drawn from those facts if in our judgment they are clearly erroneous. Practice Book § 3060D. We have heretofore treated probable cause as a question of law to be reviewed in the light of the subordinate facts found by the trial court or presented to us as undisputed. See State v. Daley, 189 Conn. 717, 458 A.2d 1147 (1983); State v. Jackson, 162 Conn. 440, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed 2d 121 (1972). In the present case the trial court made no finding that the information given to the police by the informant was not as indicated by Howard’s testimony. The court concluded simply that the information received was insufficient as a matter of law to justify a reasonable belief that the defendant had engaged in criminal activity. No more deference is due that determination than any other trial court decision on a question of law.

Second. It is utterly ridiculous to suggest that when the police receive a report of criminal activity presently occurring in a public street they must await issuance of a warrant before taking action. By the time the application for the warrant can be prepared and a judge found available the felon would be long gone. Effective law enforcement under such a requirement would be impossible. The report received by Howard five or ten minutes before the arrest was that the defendant was then engaged in selling narcotics. If Howard had reasonable grounds to credit that report, delaying action until a warrant could be obtained would have been a dereliction of his duty to prevent crime.

Third. The prior experience of Howard with this informant demonstrates an ample basis for his reli*243anee upon the truth of the report received. Three previous arrests had been made on the basis of information furnished by the same informant, “[o]ne narcotics arrest and . . . two wanted felons.” Howard had participated in the narcotics arrest and when the suspect was approached he discarded some items containing heroin. Because Howard had been acquainted with the informant only for several months, he was aware of no convictions that had resulted from this informant’s tips, because the cases were still pending in court. Convictions are not essential for an informant to have an acceptable reputation for reliability. 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.3, p. 510. “Courts have consistently held that an informant’s track record is sufficiently established by a showing (i) that on one or more previous occasions the informant indicated that a certain object, usually narcotics . . . are concealed at a certain place, and (ii) that this information was verified as true by a search which uncovered the specified items at the place indicated.” Id., p. 511. The circumstances of the prior narcotics arrest, resulting from this informant’s tip, in which Howard had participated make this principle applicable to establish adequately the reliability of the informant even without the successful experience of the police with the information concerning the two wanted felons.

Fourth. The fact that Howard had seen the defendant loitering for extended periods of time at Dixwell Avenue and Lake Place even during cold and inclement weather did tend to confirm in his view the accuracy of the information received from the informant. Although the defendant may have worked in the vicinity, the location of his employment was not known to Howard at the time of the arrest and has no bearing upon the reasonableness of his judgment at that time. The weight given by the trial court as well as the *244majority to this innocent though unsupported3 explanation of the defendant’s frequent presence at the location where he was arrested is misplaced for the same reason that the fruits of a search, such as the cocaine found upon the defendant, cannot be used to justify the search.

Fifth. It is highly novel to suggest, as the majority opinion does, that Howard’s acquaintance with the defendant, whom he had once arrested, as a convicted felon recently released from prison was wholly insignificant in the probable cause determination because he was unaware of any prior involvement of the defendant with drugs. Courts frequently rely upon felony convictions as evidence of character just as lay persons do without consideration of the nature of the particular felony involved. See General Statutes § 52-145 (b); State v. Nardini, 187 Conn. 513, 523-25, 447 A.2d 396 (1982).

The case before us provides a stronger basis for relying upon the information supplied by the informant than that approved by the United States Supreme *245Court in Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), where a paid informant, who had given other information of narcotics violations found to be reliable during the preceding period of about six months, notified the arresting officer that the defendant would be returning to Denver from Chicago by train on one of two successive days with three ounces of heroin in his possession. He also gave a detailed description of the defendant and the clothing he would be wearing. When the defendant alighted from the train garbed as predicted he was arrested. The court upheld the finding of probable cause despite the absence of: (1) any disclosure of the basis for the informant’s knowledge of the defendant’s activities other than inferences that could be drawn from the details of his description and the accuracy of his prediction; (2) any “track record” of prior convictions based on previous tips of the informant; and (3) any confirmation by police observation of anything but noncriminal conduct of the defendant. “The detail provided by the informant in Draper v. United States, [supra,] provides a suitable benchmark.” Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

In the present case, the informant had obtained the information he gave the police by personal observation and was willing to risk his reputation for reliability as well as his source of income by reporting a crime in progress. He must have realized his report would be subjected to immediate verification by police action, as it was. Under these circumstances I cannot affirm the conclusion of the majority as well as the trial court that it was unreasonable for Howard to rely upon the truth of the information he had received and to arrest the defendant.

Accordingly, I dissent.

Officer Howard, who had received the tip from the informant, testified in this respect as follows:

“I don’t recall the exact verbiage but the conversation was that Mr. Kimbro was in possession of it, that he was offering it for sale on the street and that the informant had seen the package that was offered, that was purported to be cocaine.”

On cross-examination, after responding that the informer had not told him he had seen an actual sale, the testimony of Howard continued:

“Q. He did not tell you he had seen an actual sale. Did he tell you he had seen narcotics on the defendant?

“A. No, merely packages of what the defendant was purporting to be cocaine.

“Q. What the defendant was purporting to be cocaine?

“A. Yes.

“Q. How did the informant know that the defendant was in fact purporting to have cocaine? *240“A. The informant had overheard the defendant purport that the package of substance was cocaine.”

Upon inquiry by the court as to how the informant knew the defendant was offering cocaine for sale, Howard testified further:

“Mr. Howard: Overheard-well, you can call it a transaction. A transaction is something that takes place between people.

“The Court: He said he had overheard what?

“Mr. Howard: And observed the packages being displayed and the offer of the purported cocaine for sale.

“Q. How did he know it was cocaine?

“A. The only way he knew was by Mr. Kimbro purporting it to be that.”

See footnote 1, supra.

The only testimony at the suppression hearing concerning the defendant’s place of employment occurred during the cross-examination of Officer Howard as follows:

“Q. Officer, you stated that you had observed him for two weeks and that you knew where he lived, you had his home address. Did you know where he worked?

“A. No, ma’am.

“Q. Were you aware that he worked across the street, at the Triangle Garage, from the corner where he was found?

“A. I didn’t have any knowledge of that nor do I now.

“Q. Now you do.”

The last remark by the defendant’s attorney, designated as a question in the transcript, does not qualify as testimony. See generally State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 462 U.S. 1001, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Nevertheless, the trial court in rendering its decision declared: “The fact that the officer testified that he had seen [the defendant] loitering at that comer about half a dozen times in the past did not impress me either, particularly in view of the indication that he worked in that area.”