with whom
Katz, J.,joins, dissenting. The question before the court today, which to my knowledge has never before been raised, is one of great importance to our right to privacy—that is, the right of our citizens to be free from unwarranted governmental intrusions into their homes and personal lives. The issue is whether the trial court must make a de novo review of an issuing judge’s (hereinafter magistrate) determination that probable cause exists to issue a search warrant. I believe that both General Statutes § 54-33f1 *549and article first, § 7, of the state constitution2 require such a review.
Let me first put the issue in this case in its proper context. The police had overwhelming evidence that the defendant, Ruben Diaz, was a drug dealer. The problem with the warrant, as the trial court correctly found, is that the supporting affidavit does not contain any facts indicating it was probable that drugs were located at the defendant’s home, 36 Clinton Avenue in Old Saybrook, the target of the search. The affidavit clearly furnishes probable cause to believe that drugs were located at 34 Clinton Avenue, the home next door to that of the defendant. It is impossible to know whether the magistrate drew an inference that drugs were located at the defendant’s home because, as is the case with every warrant, there is no record of his findings and conclusions. For all we know, the magistrate may have mistakenly believed that some or all of the facts supporting probable cause to search 34 Clinton Avenue were applicable to 36 Clinton Avenue. We do know, however, what the trial court concluded after reviewing the warrant and affidavit at the hearing on the defendant’s motion to suppress. The trial court found that the affidavit failed to support probable cause *550to believe that narcotics would be found at the defendant’s home, 36 Clinton Avenue.3
We all recognize that drug trafficking is having a devastating effect on our society. But the crime rate may not be used as a barometer to determine the degree to which privacy rights should be enforced. When we diminish the rights of criminals, we do the same for law abiding citizens. Upholding the constitutional and statutory rights of all, rather than upholding them for some and compromising them for others, is the difference between a democracy and a police state. I believe that what Justice Brennan said about the fourth amendment in Illinois v. Gates, 462 U.S. 213, 290, 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), is equally pertinent to the issues before us today: “Rights secured by the Fourth Amendment are particularly difficult to protect because their advocates are usually criminals. . . . But the rules we fashion [are] for the innocent and guilty alike.” (Citation omitted; internal quotation marks omitted.)
The right of our citizens to be free from unreasonable searches is fundamental4 and is firmly embedded *551in article first, § 7, of our state constitution. Just last year, we underscored the importance of the right to privacy in one’s home when we rejected federal precedent and held, under our state constitution, that “evidence derived from an unlawful warrantless entry into the home [must] be excluded unless the taint of the illegal entry is attenuated by the passage of time or intervening circumstances.” State v. Geisler, 222 Conn. 672, 690, 610 A.2d 1225 (1992). We stressed that “[t]he sanctity of the home has a well established place in our jurisprudence. The English common law, upon which much of this country’s constitutional and common law is based, recognized that intrusion into the home constituted especially egregious conduct.” Id., 687.5 Further, “the right to be secure in one’s home, ‘unequivocally establishes the proposition that [a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511 [81 S. Ct. 679, 5 *552L. Ed. 2d 734 (1961)]. Payton v. New York, [445 U.S. 573, 589-90, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)]. The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).’ (Internal quotation marks omitted.) State v. Brosnan, 221 Conn. 788, 806-807, 608 A.2d 49 (1992).” State v. Geisler, supra, 689-90.
I
Before beginning my analysis of the statutory and constitutional provisions that I believe require de novo review by the trial court, I want to address what appears to be the majority’s chief concern—that is, that de novo review will somehow discourage the police from seeking warrants and encourage them to resort to warrantless searches instead. This argument was implicitly rejected when a unanimous, en banc court rejected the “good faith” exception to the exclusionary rule in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990). The “good faith” exception clearly encourages the police to obtain a warrant, since it effectively insulates anything but an obviously invalid warrant from later review. Cf. State v. Guzman, 122 Idaho 981, 997, 842 P.2d 660 (1992). The warrant preference, however, was not mentioned in Marsala. In fact, Marsala stressed that police conduct is not the only factor to consider in determining what is required by article first, § 7. The effect on magistrates must be considered as well. State v. Marsala, supra, 167-69.
But more to the point, the majority’s argument that the so-called “warrant preference” justifies deferential review of a magistrate’s probable cause determination does not make sense. Whenever a defendant seeks to suppress evidence obtained from a search, the *553state is always in a better position if the officers conducting the search had a warrant. Warrantless searches are per se unreasonable. State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). If the defendant moves to suppress evidence obtained from a warrantless search, the burden is on the state to prove the existence of an exception to the warrant requirement. State v. Copeland, 205 Conn. 201, 209-10, 530 A.2d 603 (1987); State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). In contrast, if the defendant moves to suppress evidence obtained pursuant to a search warrant, the defendant bears the burden of proving that the search was illegal. State v. Williams, 169 Conn. 322, 330, 363 A.2d 72 (1975); State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965). In view of the much heavier burden borne by warrantless searches, it is unreasonable to believe that the police will be discouraged from obtaining warrants if the standard of review on appeal is made less deferential.
Furthermore, there are other practical reasons that compel de novo review. The magistrate, by necessity, makes an ex parte determination of probable cause. He or she does not have the benefit of an adversarial hearing during which the issues are forged in hot controversy. Rather, the application for the warrant is usually presented by the police to the magistrate, sometimes at the latter’s home in the dead of the night. The magistrate usually does not have time to study and reflect upon the warrant. More likely than not, the need for the warrant involves an emergency. Nor are the police obligated to advise the magistrate if their application has been denied by another magistrate. And, unlike an arrest warrant,6 a search warrant is generally neither *554initiated nor reviewed by the state’s attorney, who is professionally obligated to “[rjefrain from prosecuting a charge that [he or she] knows is not supported by probable cause.” Rules of Professional Conduct 3.8 (a). Instead, search warrants are generally prepared and submitted by police officers who may have some training, but not law degrees.
Moreover, as a practical matter, there is no need to give deference to the magistrate. The reviewing court has before it the same evidence that is before the magistrate—an affidavit. Credibility and demeanor are not at issue; the magistrate does not, by virtue of being the first to review the warrant, have any of the advantages that usually compel reviewing courts to give deference to the lower court. There is, however, an important difference that favors de novo review: at a suppression hearing, the trial court has the advantage over the magistrate of being able to make a decision without the pressure of the circumstances and with the help of advocates.
Finally, the issuing magistrate does not make factual findings in order to facilitate judicial review. If a de novo review were made by the trial court, we would have a record to review on appeal and would not have to hypothesize about what inferences the magistrate may have drawn. This record would protect the constitutional right to be free from unreasonable searches and seizures.7
This cost/benefit analysis leads to the inescapable conclusion that there are overwhelming disadvantages to deferential review under the “substantial basis” test *555of Illinois v. Gates, supra. Indeed, deferential review necessarily erodes the exclusionary rule, which is the only tool we have for effectively enforcing the right to be free from unreasonable searches and seizures. De novo review would require the decision as to whether probable cause existed to conduct a search to be made in an adversarial setting with time for careful consideration and reflection by the judge.8
II
The defendant first argues that General Statutes § 54-33f statutorily mandates de novo review. We have long held, and the cases are numerous, “that if a statute is clear and unambiguous, there is no room for construction.” Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987); see also State v. Milardo, 224 Conn. 397, 419, 618 A.2d 1347 (1993); State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992). Section 54-33f is clear and unambiguous. Subsection (a) provides, in relevant part, that a “person aggrieved by search and seizure may move the court ... for the return of the property and to suppress for use as evidence anything so obtained on the ground that ... (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued .... In no case may the judge who signed the warrant preside at the hearing on the motion.” This statute has never been reviewed by this court or the Appellate Court on the precise issue presented: whether a trial court considering a motion to suppress should give deference to the magistrate or must instead review the supporting affidavit de novo. As I read the statute, the trial judge who reviews the warrant on a motion to suppress must *556himself or herself determine whether there is probable cause, and that determination must be made by him or her without deference to the magistrate’s conclusions. Even if this intent were not perfectly clear from the language of subdivision (4) alone, the remainder of the statute makes it crystal clear by directing that the review must be performed by a judge other than the one who issued the warrant.
The majority dismisses § 54-33f by saying that it is merely procedural. The opinion predicates this on two cases, State v. Brown, 14 Conn. App. 605, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988),9 and State v. Marsala, supra. Marsala placed this label on § 54-33f in the context of considering whether, in Connecticut, the exclusionary rule was limited by a “good faith” exception. Marsala held that § 54-33f is “procedural rather than substantive and, therefore, do[es] not define the extent of the exclusionary rule under Connecticut law.” Id., 157.10
The problem with the majority’s dismissal of § 54-33f by labeling it “procedural” is that the issue we have before us today is a procedural issue—that is, how the trial court should go about determining whether evidence seized pursuant to a warrant should be sup*557pressed.11 Procedural law is that “which prescribes [the] method of enforcing rights or obtaining redress for their invasion”; it is the “machinery for carrying on procedural aspects of [a] civil or criminal action. ... As a general rule, laws . . . which merely prescribe the manner in which [substantive] rights and responsibilities may be exercised and enforced in court are ‘procedural laws.’ ” (Citations omitted.) Black’s Law Dictionary (6th Ed. 1990). In Clisham v. Board of Police Commissioners, 223 Conn. 354, 370, 613 A.2d 254 (1992), we specifically recognized that the question of what standard of review should be used is a procedural issue.12
The state argues that we should determine the legislature’s intent and construe § 54-33f accordingly. As indicated above, such statutory construction is not appropriate when the language of the statute is plain and unambiguous. And, even if it were appropriate, I would come to the same conclusion. As we recognized in State v. Marsala, supra, 157, § 54-33f was enacted in response to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), which made the fourth amendment’s exclusionary rule applicable to the states through the fourteenth amendment. The statute prescribes the manner in which the defendant’s right to suppression of unreasonably obtained evidence is to *558be implemented in Connecticut. It clearly and simply directs the trial court to determine whether there was probable cause to search; it does not direct the trial court to review the magistrate’s determination of this issue. There is nothing in the legislative history to refute the plain meaning of the statute.
Secondly, the state argues that construing § 54-33f to contain a de novo review requirement would place the statute in constitutional jeopardy on the ground it violates the doctrine of separation of powers. The state relies on the three-to-two decision in State v. Clemente, 166 Conn. 501, 516, 353 A.2d 723 (1974), that a statute dealing with discovery in criminal cases was unconstitutional. Clemente, however, was finally put to rest by our decision in Bartholomew v. Schweizer, 217 Conn. 671, 587 A.2d 1014 (1991). In Bartholomew, we upheld the constitutionality of a statute that permitted counsel in personal injury cases to suggest to the jury an appropriate monetary amount during closing argument. Id., 683. We made it clear that “legislative and judicial powers frequently overlap . . . [and] the doctrine of the separation of powers cannot be applied rigidly.” Id., 676. In other words, it is clear that judicial procedural matters implicate a shared power, and as long as the legislature does not interfere with the performance of our judicial functions, statutorily created court procedures will pass constitutional muster.
I agree with the defendant that § 54-33f clearly and unambiguously requires de novo review by the trial court, and that it was within the legislature’s power to so require.
Ill
Since I believe that the legislature in enacting § 54-33f clearly mandated de novo review by the trial court, I would not normally reach the state constitu*559tional issue. Nevertheless, because the majority reaches this issue and, I believe, decides it incorrectly, I shall discuss it as well. After an analysis of our state history, common law precedents and economic/sociological considerations; see State v. Geisler, supra, 685; I conclude that article first, § 7, of the Connecticut constitution requires de novo review by the trial court.
Our state has a long history of supporting the right to be free from unwarranted governmental intrusions. In the 1787 case of Frisbie v. Butler, Kirby (Conn.) 213, 215 (1787), the court recognized that “it is the duty of a justice of the peace granting a search warrant (in doing which he acts judicially) to limit the search to such particular place or places, as he, from the circumstances, shall judge there is reason to suspect .... And the warrant in the present case, being general, to search all places, and arrest all persons, the complainant should suspect, is clearly illegal . . . .’’In Grumon v. Raymond, 1 Conn. 39 (1814), this court held that a justice of the peace lacks jurisdiction to issue an overly general warrant, and may be held liable in trespass to a person who is arrested pursuant to such a warrant. Chief Justice Reeve wrote: “The justice never had any jurisdiction of the subject matter. This purports to be a search-warrant for stolen goods; and the law requires, that before any justice can have power to issue a warrant in such case, certain requisites be complied with. . . . There must be an oath by the applicant that he has had his goods stolen, and strongly suspects that they are concealed in such a place; and the warrant cannot give a direction to search any other place than the particular place pointed out.” Id., 45. These cases demonstrate this state’s strong commitment to privacy rights and careful scrutiny of warrants even before article first, § 7, was adopted in the constitution of 1818.
*560The majority relies on the suggestion made in State v. Barton, 219 Conn. 529, 538-39 n.4, 594 A.2d 917 (1991), that probable cause was not required for the issuance of a search warrant until after the adoption of the state constitution in 1818.13 The majority and the Barton case are, however, simply wrong.14 As discussed later, the probable cause requirement for a warrant was embedded in our common law prior to 1818. Therefore, contrary to the claims made in State v. Barton, supra, and by the majority, probable cause had attained the status of a constitutional requirement even before the 1818 constitution was adopted.
First, our early case law clearly implies that probable cause was necessary. A person who swore out a *561warrant could be held liable in trespass if the search produced no yield. See 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 97. A justice of the peace who improperly issued a warrant could also be held liable in trespass. I will discuss this later in more detail.
Second, the common law prior to 1818 clearly required a demonstration that probable cause existed before a search warrant could be issued.15 Chief Justice Zephaniah Swift,16 in his treatise on the law of Connecticut, wrote as follows: “But to justify the issuing of [the search warrant], the party complaining must make oath before the justices of the peace granting them, that a theft has been committed, that he suspects, and has probable cause to suspect, that the goods are concealed in such a place, and must shew the reason of his suspicions; the warrant should be directed to a constable or some known public officer: the search should be made in the day time, demand of entrance should be made before the doors are broken open, and it is proper that the party complaining should be present, to identify the goods he has lost. The places or houses to be searched must be mentioned in the warrant, and the name of the party suspected, with a com*562mand that the goods found, together with the party-in whose custody they are taken, be brought before some justice of the peace, to the end that upon further examination of the fact, the goods and the prisoner may be disposed of as the law directs.” 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 391 (Digest).17
Third, contrary to the suggestion made by the majority in this case and by the court in State v. Barton, supra, the probable cause requirement reached constitutional magnitude in Connecticut prior to 1818. Although our first formal constitution was not adopted until 1818, we of course were not without a constitution prior to that date. Professor Christopher Collier, the state’s historian, explains that “[wjhen eighteenth-century Anglo-American political theorists and prac*563titioners spoke of ‘the constitution of government,’ they used the phrase in its English sense to refer to a whole collection of concepts that included common law, certain significant statutes, various royal proclamations, and even unwritten traditions. Thus was the phrase used in Connecticut. Here it included the Charter of 1662, certain locally derived common law principles and practices, some locally applicable English common law, various significant statutes, and most importantly, the Fundamental Orders of 1639.” (Emphasis added.) C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 89-90 (1982).18 Since the probable cause requirement was part *564of our common law, it was also part of the informal constitution that governed Connecticut prior to 1818.19
After incorrectly suggesting that probable cause was not really required until 1818, the majority leaps illogically to the conclusion that de novo review of the magistrate’s determination is not required by our search and seizure clause.20 Some background is necessary to demonstrate the folly of this conclusion.
Prior to 1961, when the United States Supreme Court made the fourth amendment exclusionary rule applicable to the states through the fourteenth amendment in Mapp v. Ohio, supra, there simply was no exclusionary rule in Connecticut. Scholars have attributed the seed of the exclusionary rule to the early case of Frisbie v. Butler, supra, 215 (“the warrant in the present case ... is clearly illegal; yet, how far this vitiates the proceedings upon the arraignment, may be a question, which is not necessary now to determine,” since the defendant’s conviction was invalid on other grounds). Subsequent case law makes clear, however, that no such rule was applied. See, e.g., State v. Griswold, 67 Conn. 290, 306, 34 A. 1046 (1896).21 There *565simply was no remedy on the criminal side of the court; the illegally seized evidence was admitted and the defendants were relegated to civil remedies.
Nevertheless, the civil remedy for the issuance of a warrant for which there was not probable cause is illuminating. It is clear that the parties involved in obtaining, issuing and executing the illegal warrant were liable in an action for damages based on trespass. “If a warrant be granted, which is against law, such as no magistrate or justice of the peace should issue, the magistrate granting it, the officer executing it, and the party obtaining it, are liable in an action of trespass.” 1 Z. Swift, Digest, supra, p. 495; see also Grumon v. Raymond, supra; Frisbie v. Butler, supra. Neither Justice Swift’s writings nor these common law trespass cases give any indication that deference was given to the determination of the issuing magistrate, who was usually a defendant in the case, that the warrant was valid. In fact, Grumon v. Raymond, supra, indicates that the opposite was true. Under the common law, a justice of the peace had no jurisdiction to issue an invalid warrant. Id., 47. In Grumon, this court held that, in reviewing the validity of a warrant, “[n]o intendments are made in favor of the jurisdiction of the inferior Courts, or of officers proceeding summarily under a special Statutory authority, but every mate*566rial fact, necessary to confer jurisdiction on such Court or Officer, must be distinctly averred and proved. . . . [T]he party who invokes the exercise of the jurisdiction of an inferior tribunal, must, in justifying, aver the actual existence of the material facts upon which the jurisdiction depends.” (Internal quotation marks omitted.) Id., 47 n.1.22 This passage indicates that the reviewing court was not permitted to defer to the issuing magistrate’s belief—whether reasonable or not— that he could validly issue a warrant. Therefore, de novo review was required.23
Furthermore, the reasoning in State v. Marsala, supra, leads me to conclude that de novo review by the trial court is required. In Marsala, this court recognized that “the good faith exception would encourage some police officers to expend less effort in establishing the necessary probable cause to search and more effort in locating a judge who might be less exacting than some others when ruling on whether an affidavit has established the requisite level of probable cause. [In addition, it would tell] magistrates that they need not take much care in reviewing warrant applications, since their mistakes will from now on have virtually no consequence . . . .” (Internal quotation marks omitted.) State v. Marsala, supra, 169.24 Although the adoption *567of a “good faith” exception would cause more serious injury to rights protected by our constitution than adoption of a deferential standard of review, deferential review necessarily waters down the protection afforded by our state constitution. The police will continue to seek out those magistrates who are not as exacting as others in making probable cause determinations, because the trial court will have to hypothesize inferences that support the warrant even though these inferences may never have entered the mind of the magistrate.25
Like their common law antecedents, the modern cases such as State v. Marsala, supra, and State v. Dukes, supra, demonstrate a strong judicial commitment to privacy rights and to the idea that law enforcement personnel must be given strong incentives to ensure that the searches they conduct are lawful. The exclusionary rule has replaced the common law action of trespass as the primary deterrent to unlawful searches. Though the mechanism has thus changed, the core idea remains that unconstitutional searches must be deterred. This is further underscored by a case we *568decided just last year, State v. Geisler, supra. In Geisler, the defendant moved to suppress evidence seized in connection with a warrantless entry of his home. Id., 675. We held that while we should give deference to factual findings made by a trial court following an adversarial hearing on a motion to suppress, the reviewing court should review de novo the conclusions reached by the trial court based on those facts. Id., 693. Furthermore, since the applicability of the exceptions that permit warrantless searches is reviewed de novo, adopting such a review for search warrants will not make searches conducted pursuant to a warrant less attractive to the police than warrantless searches. On the contrary, as discussed above, because our law contains burdens and presumptions that clearly favor searches conducted pursuant to a warrant over warrantless searches, the “warrant preference” will still be a strong factor even if de novo review is required.
Finally, for all the reasons I stated in the first part of this dissent, I believe a weighing of the costs and benefits of de novo review strongly supports adoption of it. As discussed above, the defendant would still have the burden of proving that the search was illegal. Requiring de novo review would simply give firm recognition to the importance of this state’s constitutional right of privacy. Like its federal counterpart, article first, § 7, “marks the right of privacy as one of the unique values of our civilization.” McDonald v. United States, 335 U.S. 451, 453, 69 S. Ct. 191, 93 L. Ed. 153 (1948).
I would reverse the judgment of the Appellate Court and reinstate the trial court’s judgment of dismissal. Accordingly, I respectfully dissent.
General Statutes § 54-33f provides: “motion for return of unlawfully SEIZED PROPERTY AND SUPPRESSION AS EVIDENCE, (a) A person aggrieved by search and seizure may move the court which has jurisdiction of his case or, if such jurisdiction has not yet been invoked, then the court which issued the warrant, or the court in which his case is pending, for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause *549for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. In no case may the judge who signed the warrant preside at the hearing on the motion.
“(b) The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
“(c) The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.”
Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
The trial court stated: “[W]hat you have to conclude [from the affidavit] is that the drugs were kept at 34 [Clinton Avenue] and the purchases took place at 36 [Clinton Avenue] and the drugs were then brought over from 34 [Clinton Avenue] . . . you can’t reasonably believe from this warrant that the drugs were kept at 36 [Clinton Avenue].”
Justice Jackson underscored the importance of the right to be free from governmental intrusion when he wrote that these rights “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. . . . But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.” Brinegar v. United States, 338 U.S. 160, 180-81, 69 S. Ct. 1302, 93 L. Ed. 1879 (Jackson, J., dissenting), reh. denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949).
“ ‘Prom earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man’s house is his castle. As early as the 13th Yearbook of Edward IV (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man’s house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle: “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!” ’ Miller v. United States, 357 U.S. 301, 306-307, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958). In discussing burglary, defined as ‘nocturnal house-breaking,’ Blackstone wrote, ‘[a]nd the law of England has so particular and tender a regard to the immunity of a man’s house, that it styles it his castle, and will never suffer it to be violated with impunity . . . .’4 Blackstone’s Commentaries (1822) p. 222.” State v. Geisler, 222 Conn. 672, 687-88, 610 A.2d 1225 (1992).
See Practice Book § 593.
The majority suggests that my analysis would require there to be de novo review at the appellate court level as well. To the contrary, because the trial court’s de novo review would be performed in an adversarial setting and would furnish a record, an appellate court could properly give deference to the trial court.
Indeed, even the majority concedes that “de novo review performed in the adversarial setting of a hearing on a motion to suppress may have some incremental value in deciding whether the affidavit establishes probable cause . . . .”
State v. Brown, 14 Conn. App. 605, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988), embraced the “good faith” exception to the exclusionary rule. Of course, Brown was effectively overruled two years later by State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990), in which this court rejected this exception as being incompatible with our state constitution.
The majority opinion cites State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990), for the proposition that General Statutes § 54-33f “was enacted merely to set forth the appropriate procedural mechanism by which to bring a motion to suppress.” This is misleading because the Marsala court never considered the procedural scope of the statute. Marsala held that § 54-33f was procedural and therefore did not create new substantive rights for criminal defendants. Unlike in Marsala, the issue before the court today is procedural—the procedural right to de novo review.
The majority apparently concedes that this issue is procedural. In the last paragraph of footnote 11 of its opinion, the majority characterizes the issue before us as whether de novo review is one of the “procedural consequences” that flows from the substantive probable cause requirement.
In reviewing a trial court’s conclusion that the plaintiff had not met his burden of proving that a member of the administrative board that dismissed him had prejudged the case, we stated: “In addressing the sufficiency of the evidence adduced by the plaintiff, we confront both a procedural and a substantive question. Proeedurally, what is the appropriate standard of review of the determination of the trial court concluding that the evidence was insufficient? Substantively, what should our conclusion be?” Clisham v. Board of Police Commissioners, 223 Conn. 354, 370, 613 A.2d 254 (1992).
State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), held that the “totality of the circumstances” test of 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), was consistent with our state constitution. In my dissent in State v. Rodriguez, 223 Conn. 127, 148, 613 A.2d 211 (1992), I discussed “how the adoption in State v. Barton, [supra], of the ‘totality of the circumstances’ standard of Illinois v. Gates, [supra], has undermined the safeguards of the search and seizure clause in our state constitution. . . . Indeed, the right to be secure from unreasonable searches and seizures disappears when the majority superimposes on Barton its ‘reasonable inference’ rule, which amounts to the supplying of vital information by inference to support probable cause in an affidavit where, in fact, the underlying facts upon which the claimed inferences rest are mere shadows in the dark. The combination of these two standards—the totality of the circumstances and the unwarranted inference—spells disaster for the constitutional protection against warrants issued without probable cause.” (Citations omitted.) I continue to believe that Barton was wrongly decided, and that the principles of State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), which were overruled in part by Barton, were more consistent with our state constitution.
State v. Barton, 219 Conn. 529, 538-39 n.4, 594 A.2d 917 (1991), cites a footnote in an article by Professor Christopher Collier as authority for this proposition. See C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 93 n.19 (1982). The footnote indicates only that none of the statutory codes that preceded the 1818 constitution contained express provisions concerning unreasonable searches. The footnote is silent as to the common law.
I take it from footnote 11 of its opinion that the majority concedes that, prior to 1818, the common law required probable cause for the issuance of a search warrant.
As I discussed in my dissent in State v. Joyner, 225 Conn. 450, 490, 625 A.2d 791 (1993), Justice Swift’s writings are particularly important when considering state constitutional issues: “[Justice Swift] was instrumental in encouraging the public and the legislature to convene the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader is significant. J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) pp. 40-41. . . . [S]ince Justice Swift was the chief judge and the state’s leading judicial scholar at the time of the convention, his views on the law take on great significance in determining what the framers had in mind when adopting the language of the constitution.”
Although Justice Swift was writing after the adoption of the Connecticut constitution in 1818, he derived the probable cause requirement from the common law rather than the constitution. This is demonstrated by his citation to “1 Chit. C. L. 64,” which is 1 J. Chitty, A Practical Treatise on the Criminal Law (1816) p. 64. On page 64 of the treatise, Chitty commences a discussion of search warrants under the common law. This discussion includes the following passage: “The search warrant is not to be granted without oath (a) made before the justice, of a felony committed, and that the party complaining has probable cause to suspect they are in such a place, and shewing his reasons for such suspicion, (b) The warrant should direct the search to be made in the day-time, (c) though it is said, that where there is more than probable suspicion, the process may be executed in the night, (d) It ought to be directed to a constable, or other public officer, and not to a private person, though it is fit that the party complaining should be present, and assisting, because he will be able to identify the property he has lost, (e) It should also command, that the goods found, together with the party in whose custody they are taken, be brought before some justice of the peace, to the end that, upon further examination of the fact, the goods and the prisoner may be disposed of as the law directs.” The language from Justice Swift’s Digest of the Laws of the State of Connecticut (1823) p. 391, quoted in the text above tracks this passage almost identically. This clearly establishes that the probable cause requirement was part of Connecticut common law even before the adoption of the constitution in 1818.
Other writers have also noted that the common law provided an unwritten constitution for our state prior to 1818. Superior Court Judge Jesse Root wrote in the introduction to his 1789-93 reports of Connecticut cases that “[e]ommon law is the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections: It is universal and extends to all men, and to all combinations of men, in every possible situation; and embraces all cases and questions that can possibly arise; it is in itself perfect, clear and certain; it is immutable, and cannot be changed or altered, without altering the nature and relation of things; it is superior to all other laws and regulations, by it they are corrected and controlled; all positive laws are to be construed by it, and wherein they are opposed to it, they are void.” 1 Root (Conn.), Introduction, p. ix. Judge Root also noted that the common law “is the Magna Charta of all our natural and religious rights and liberties, and the only solid basis of our civil constitution and privileges—in short, it supports, pervades and enlightens all the ways of man, to the noblest ends by the happiest means, when and wherever its precepts and instructions are observed and followed—the usages and customs of men and the decisions of the courts of justice serve to declare and illustrate the principles of this law . . . .” Id., pp. x-xi.
Chief Justice Ellen Peters has made similar observations, noting that “[i]n Connecticut constitutional law, it is well established that several rights now denominated as constitutional had well-recognized common law antecedents.” E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259, 261 (1989). Chief Justice Peters has recommended that “we should cast a wider net to discover the variety of ways in which substantive rights were protected in state courts in the early years.” Id.
The majority takes me to task for providing a “lengthy recitation of the common law history,” claiming that this history is irrelevant. As Professor Collier’s article makes clear, however, the common law history is highly relevant when construing state constitutional provisions because the common law itself had attained constitutional status prior to 1818.
This leap is predicated, in part, on the majority’s incorrect conclusion that the probable cause requirement was first introduced in the 1818 constitution only as a result of our charter having been patterned after the Mississippi constitution of 1817.
It was not until 1988, in State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), that this court held that the exclusionary rule was applicable to evidence seized in violation of the state constitution. The holding was based largely on modern sociological considerations. Justice Healey wrote: “Constitutional provisions must be interpreted within the context of the times. ... As one court said: ‘We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original mean*565ing.’ (Emphasis in original.) .... It is this court’s duty to assure that our constitution does not become ‘a magnificent structure ... to look at, but totally unfit for use.’ . . . Moreover, a constitution is, in Chief Justice John Marshall’s words, ‘intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.’ (Emphasis in original.) .... One court put it this way: ‘In short, the [Washington] constitution was not intended to be a static document incapable of coping with changing times. It was meant to be, and is, a living document with current effectiveness.’ . . . We agree. The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” (Citations omitted.) Id., 114-15.
The majority claims that this rule from Grumon v. Raymond, 1 Conn. 39 (1814), was limited to situations where a general warrant was issued. This, however, does not make sense because a general warrant was invalid on its face.
Even if there was no affirmative evidence that de novo review was required, in the absence of evidence to the contrary, it would have to be presumed that a plaintiff seeking damages for the execution of an illegal warrant merely had to prove that the warrant was defective, not that the magistrate acted unreasonably. See Z. Swift, Digest of the Law of Evidence (1810) p. 152.
I am also concerned with the majority’s suggestion that if one picks up the gauntlet on an issue such as de novo review that tips the scales in favor of privacy, this necessarily means that one is accusing our trial judges of rubber stamping the actions of the police when they issue search war*567rants. No one is suggesting that. Our trial judges are the fountainhead of our democracy. They rank among the best in the country. What I am suggesting is that we all make mistakes, just like Justice David Shea pointed out for the unanimous, en banc court in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990). Indeed, even this court makes mistakes. If our trial judges were always correct (correct as seen through the lens of a majority of this court), there would be no need for appellate review. More importantly, the determination of probable cause under the de novo review procedures would result in the creation of a record which, if necessary, we could review in making our determination.
Footnote 17 of the majority opinion suggests that even if a magistrate’s issuance of a warrant is based on a confusion of the facts in an affidavit or other mistake, this is constitutionally irrelevant so long as a reasonable inference could have saved the warrant. I disagree. If the magistrate never draws a necessary inference, but nevertheless issues a warrant based on a mistake of fact, then there can be no probable cause even if drawing the necessary inference would have been reasonable.