State v. Duntz

Berdon, J.,

concurring. Because I cannot embrace the majority opinion in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), which adopted the “totality of the circumstances” test for the determination of probable cause under the state constitution and overruled, in part, State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), in part I of the decision in this appeal, I concur only in the result.

I agree with Justice Glass’ dissent in Barton and I believe that reference to parts of it would be helpful at this time. “ Tn whatever form, I fail to see how the elusive Gates1 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, [462 U.S. 213, 274-75, 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)] (Brennan, J., dissenting). After today’s toppling of the analytical framework of the AguilarSpinelli test,2 the principles of which the majority deems procedural encrustations that unduly inhibit a *242magistrate’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 warrant 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 Aguilar-Spinelli. 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.” State v. Barton, supra, 555-56 (Glass, J., dissenting in part).

Accordingly, in part I, I concur only in the result.

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).

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).