State v. Barton

Glass, J.,

concurring in part, dissenting in part. I concur in the result reached by the majority in this case because, unlike the majority, I conclude that the disputed warrant meets the established requirements of the time honored Aguilar-Spinelli test.1 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). Because I disagree with the majority’s decision to scrap the Aguilar-Spinelli test by overruling State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), in arriving at that result, I write separately in dissent.

In Kimbro, this court held that adherence to the Aguilar-Spinelli test is “constitutionally mandated under article first, § 7, of the Connecticut constitution,” a provision found to afford “more substantive protection” to the citizenry of this state “than does the fourth amendment to the federal constitution in the determination of probable cause.” State v. Kimbro, supra, 233, *554238.2 The majority has now seen fit to overrule Kimbro, thereby discarding the Aguilar-Spinelli test in favor of the Gates approach to warrant sufficiency,3 the approach rejected in Kimbro as far too fluid and lacking in precise, predictable guidelines to ensure that Connecticut citizens are “secure in their persons, houses, papers and possessions from unreasonable searches and seizures . ” Conn. Const., art. I, § 7; see State v. Kimbro, supra, 235-36.

Dressed today in Connecticut constitutional finery, the Gates approach relegates the principles pertinent to the “veracity” and “basis of knowledge” prongs of the Aguilar-Spinelli test to the status of “relevant considerations” among the amorphous “totality of the circumstances.” The purported relevance of these “considerations,” however, is belied by the majority’s suggestion that “despite” “deficiencies” under both prongs of the Aguilar-Spinelli test, a warrant may yet derive sufficient sustenance from the “totality of the circumstances” to satisfy the mandates of our constitution. The majority thus appears to have strayed even further beyond the strictures of Aguilar-Spinelli than the Gates majority, which proposed that “a deficiency in one [of the prongs of the Aguilar-Spinelli test] may *555be compensated for ... by a strong showing as to the other, or by some other indicia of reliability.”4 Illinois v. Gates, supra, 233. Under the majority’s evident reading of Gates, a warrant deficient under both prongs of the Aguilar-Spinelli test, nevertheless, complies with Connecticut constitutional requirements where the “totality of the circumstances” permit.

In whatever form, I fail to see how the elusive Gates approach “will continue to guarantee the people of Connecticut ‘the full panoply of rights’ that they have come to expect as their due.” The rights guaranteed to our citizens under article first, § 7, of the Connecticut constitution “ ‘belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.’ ” Illinois v. Gates, supra, 274-75, (Brennan, J., dissenting). After today’s toppling of the analytical framework of the Aguilar-Spinelli test, the principles of which the majority deems procedural encrustations that unduly inhibit a magistrate’s “discretion in the determination of probable cause,” just what remains to control that discretion, or for that matter, to guide the conduct of the warrant seeking police? Such actors, unfettered by meaningful standards by which to discharge their respective functions in the war*556rant process, are now granted the unbridled play to accord weight to their subjective preferences in determining the “circumstances” whose “totality” permissibly adds up to probable cause. See Y. Kamisar, “Gates, ‘Probable Cause,’ ‘Good Faith,’ and Beyond,” 69 Iowa L. Rev. 551, 571 (1984).

“ [Consisting largely of an exhortation to use common sense,” the Gates approach thus “enhances the risk that probable cause determinations will be grounded more upon the predilections of the decision-maker and less upon established principles of law . . . . ” W. LaFave, “Fourth Amendment Vagaries (Of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and Balancing Askew),” 74 J. Crim. L. & Criminology 1171, 1190 (1983). That risk is not perceptibly diminished by the “reasonably” established by “other objective indicia of reliability” standard that the majority would apply where a warrant proves deficient under both prongs of the remains of AguilarSpinelli. Absent ascertainable guidelines, what “other” “indicia” objectively display the requisite magnitude of reliability to “reasonably” establish probable cause depends on the eye of the beholder, whether a police officer, a magistrate or a reviewing court.5

For the above reasons, I consider the Gates approach to warrant sufficiency a poor substitute for the principled guidelines of the Aguilar-Spinelli test found in Kimbro to be rooted in the Connecticut constitution. The Aguilar-Spinelli test, in my opinion, allows ample room for the application of common sense and the evaluation of the unique facts presented by particular cases. I do not, therefore, share the majority’s desire to strip probable cause determinations of the “fixed, analyti*557cal standards” oí Aguilar-Spinelli that have served to protect the free men and women of Connecticut from unreasonable government intrusion in a way that the standardless Gates approach, I submit, will never do. As this court recognized in Kimbro, we, as the court of last resort in this sovereign state, are not bound to contract the contours of our state constitution to mirror the United States Supreme Court’s increasingly restrictive perception of the scope of the individual liberties guaranteed by the federal constitution. State v. Kimbro, supra, 234 n.16. We refused to do so in Kimbro.6 In my view, the Connecticut constitution is not a document so fragile that a swift stroke of the federal pen suffices, as is allowed today, to erode the substantive protections found not six years ago to be afforded thereunder to the citizens of this state.

Accordingly, I concur in the result reached by the majority, but respectfully dissent in the majority’s overruling of Kimbro in the course of reaching that result.

Considering the marihuana sample and the information contained in the affidavit, as well as the reasonable inferences, as set forth in part II of the majority opinion, that can be drawn therefrom, I conclude that the warrant exhibits adequate information independently to demonstrate the informant’s “veracity” and “basis of knowledge” as required by the AguilarSpinelli test for determining probable cause.

See also Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985) (rejecting the “ ‘unacceptably shapeless and permissive’ ” Gates approach and retaining the Aguilar-Spinelli test on state constitutional grounds); State v. Jackson, 102 Wash. 432, 435, 688 P.2d 136 (1984) (retaining Aguilar-Spinelli under the Washington constitution in lieu of the “nebulous” Gates approach).

It is worth noting that experts in the search and seizure field have decried as untenable the string of propositions forming the foundation of the majority opinion in Gates. 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); see Y. Kamisar, “Gates, ‘Probable Cause,’ ‘Good Faith,’ and Beyond,” 69 Iowa L. Rev. 551 (1984); W. LaFave, “Fourth Amendment Vagaries (Of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and Balancing Askew),” 74 J. Crim. L. & Criminology 1171, 1186-97 (1983); see also State v. Jackson, 102 Wash. 432, 688 P.2d 136 (1984).

In his concurring opinion in Gates, Justice White forcefully notes that the Gates majority’s proposal that a “strong showing” under one of the Aguilar-Spinelli prongs may compensate for deficiency under the other cannot be taken literally. See Illinois v. Gates, 462 U.S. 213, 272-73, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (White, J., concurring). “Were [Gates] so interpreted, it would lead to the bizarre result, repeatedly rejected by the [United States Supreme] Court in the past in cases reaffirmed by the Gates majority, that the unsupported assertion or belief of an honest person satisfies the probable cause requirement.” 1 W. LaFave & J. Israel, Criminal Procedure (1984) § 3.3, p. 194.

As one commentator pointedly suggests, the Gates approach “ ‘discourage^] active review even by the most conscientious appellate judges.’ ” Y. Kamisar, “Gates, ‘Probable Cause,’ ‘Good Faith,’ and Beyond,” 69 Iowa L. Rev. 551, 571 (1984).

Furthermore, I do not consider the fact that Kimbro “did not rely upon historical analysis to determine the standard by which probable cause should be measured” sufficient to justify an endorsement of the standardless Gates approach. History has not previously hobbled this court’s ability to apply common constitutional principles in a manner contrary to the application espoused by a majority of the United States Supreme Court. See State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990).