State v. Zarick

Berdon, J.,

concurring. I write separately because I would order the parties to rebrief the issue of whether there was probable cause to search the defendant’s home. Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 479, 628 A.2d 946 (1993). As the majority points out, the defendant did not adequately brief the issue, but merely raised it in one sentence. In Genovese, we, on our own, raised the applicability of a statute and ordered rebriefing by the parties to discuss that statute. “Certainly, if we may use this newly established procedure to achieve justice on behalf of civil litigants, where only money is involved, we must do likewise when an individual’s liberty is at stake.” Id., 496-97. (Berdon, J., dissenting.).

Alternatively, I would not reach the merits of the probable cause issue. “Claimed errors not adequately briefed and not fully developed will not be considered by this court.” State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991). Accordingly, I would treat the issue as having been abandoned by the defendant and leave it to be raised in a different forum.

Furthermore, I am troubled by the analysis of the probable cause issue. The court seems to rely on the “totality of the circumstances” test to support its con*230elusion that there were sufficient facts for the magistrate to find probable cause to search the house. When this court adopted the “totality of the circumstances” test in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), it did so in the context of reviewing a search warrant application based on information provided to the police by a confidential informant. The warrant affidavit in Barton contained insufficient information to satisfy the Aguilar-Spinelli test, which requires a magistrate “to evaluate both the ‘basis of knowledge’ and the ‘veracity’ or ‘reliability’ of an informant upon whose information the police have relied. See [State v. Kimbro, 197 Conn. 219, 233-37, 496 A.2d 498 (1985)]; see also 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).” State v. Barton, supra, 533.

In Barton, Chief Justice Peters wrote the following: “When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists.” Id., 544.

Barton did not hold, as the majority suggests, that “[i]n determining whether probable cause exists to conduct a search, a ‘totality of the circumstances’ test is used.” Rather, in Barton, this court held that any deficiency in the informant’s reliability or basis of knowl*231edge could be satisfied by considering the “totality of the circumstances.” Whether the information furnished by the informant together with other firsthand information supplied by the affiants reaches the level of probable cause does not involve a totality of the circumstances analysis. Likewise, if there is no informant, as in the present case, a totality of the circumstances analysis is inappropriate. The court’s use of the totality of the circumstances test to determine whether the information contained in the warrant constitutes probable cause further dilutes the protections of article first, § 7, of the Connecticut constitution. State v. Diaz, 226 Conn. 514, 560 n.13, 628 A.2d 567 (1993) (Berdon, J., dissenting).

I concur in the result.

Katz, J., concurring. I concur in the result.