The defendant appeals challenging the denial of his motion to suppress evidence pursuant to General Statutes § 54-94a.1 The defendant was convicted of possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant was sentenced to a five year term of imprisonment, to run consecutive to any sentence then being served. The sole issue in this appeal is whether the trial court properly denied the motion to suppress narcotics. The defendant claims that (1) the trial court improperly found probable cause to arrest him allegedly on the sole basis of an uncorroborated statement from a confidential informant, and (2) the warrantless search was not justified in the absence of probable cause. Because we disagree with the defendant’s first claim, we need not reach the second.
After receiving the information from the informant, the officers returned to their car and radioed police headquarters. Within minutes of receiving the information from the informant, they entered the bar and located the defendant. They approached him and asked him to come outside with them. They then took the defendant by the arms and escorted him outside. Once outside, the officers searched the defendant. In one of
In State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991), our Supreme Court adopted the “totality of the circumstances” analysis of the probable cause requirement as set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).7 The court set
In McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), the United States Supreme Court examined whether information gained from a confidential informant was sufficient to establish probable cause so as to validate an arrest and subsequent warrantless search. In McCray, the informant had supplied the arresting officers with information about narcotics activities on at least fifteen prior occasions, with the information leading to numerous arrests and convictions. Id., 303. The arresting officer was familiar with the petitioner. Id., 302. After receiving information from the informant that the petitioner would be in a certain location, the arresting officers located the petitioner there. Id. The court stated that “[ujpon the basis of those circumstances, along with the officers’ personal observations of the petitioner, the court was fully justified in holding that at the time the officers made the arrest ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a
Here, the informant told the officers that he actually saw the defendant selling narcotics inside the bar. Furthermore, there was other corroboration of the informant’s tip. The bar where the defendant was seen selling drugs was known to the police as a place where drugs were frequently sold, and the defendant was known to the police as a narcotics dealer who had been arrested and convicted in the past for drug offenses. There was sufficient evidence before the officers to constitute probable cause, despite their lack of additional investigation.9 The following facts establish the basis
The defendant stresses that the informant did not give the officers any of the “predicate facts” that formed the basis for his information, and therefore the officers lacked sufficient knowledge of the factual basis of his information. The defendant suggests that had the informant described the drugs, the identity of the purchasers, or where the defendant was seated in the bar, there would have been a sufficient basis to find probable cause. While such evidence may have made the state’s case for probable cause stronger, the absence of that evidence does not necessarily preclude a finding of probable cause under the “totality of the
The judgment is affirmed.
In this opinion Dupont, C. J., concurred.
1.
General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”
2.
At the hearing, the state produced a detailed list kept by Griswold of persons arrested as a result of information provided by this informant on previous occasions. The list also included the date of each arrest and the offense on which each arrest was based. All of the arrests listed were for drug related offenses, and more than half were for the sale of illegal narcotics.
3.
We note that “[a] formal arrest need not always chronologically precede the search in order for the search to be valid. Where there is probable cause to arrest, a search before an arrest is reasonable under the fourth amendment as long as the arrest and search and seizure are substantially contemporaneous, and are integral parts of the same incident. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); State v. Federici, 179 Conn. 46, 54-55, 425 A.2d 916 (1979).” State v. Kaplan, 20 Conn. App. 183, 188, 565 A.2d 11 (1989).
4.
The text of Griswold’s affidavit of probable cause is as follows: “[0]n 5-23-90, at approximately 10:00 p.m. this Detective was contacted by a credible and reliable informant who stated the following. That Pedro Santiago was now inside the Shark Club, Main Street, Willimantic, CT, in possession of both heroin and cocaine, which he was selling inside the bar. That Pedro Santiago is known by this Detective, having arrested him numerous times in the past. That the informant further stated that he/she knew that the accused was in possession of heroin and cocaine because he/she had just been inside the said bar and had observed him selling the said drugs to persons inside the bar. That this Detective and Officer Kozikowski immediately drove to the Shark Club Bar. That this Detective had knowledge that numerous drug dealers in our area are selling their illegal drugs (heroin/cocaine) in the Shark Club and that Pedro Santiago, a convicted drug dealer is now on Parole in the State of Connecticut. That this Detective and Officer Kozikowski entered the said bar and located the accused at the bar. That this Detective searched the accused and found him in possession of 5 glassine packets of what field tested positive for heroin. The accused was arrested and taken to H.Q. That the accused stated that this Detective put the heroin in his pocket. (The 5 packets of heroin [were] found in the left inside pocket of the accused.) That at H.Q. this Detective checked the accused further and found 3 small plastic packets of what field tested positive for cocaine. The 3 packets of cocaine were found in the rear area inside the accused’s underwear. The accused again stated that the police put them there. The accused was arrested for possession of narcotics heroin/cocaine, 21a-279a. This report is the truth to the best of my knowledge and ability . . . .”
5.
General Statutes § 54-If provides in pertinent part: “arrest without warrant. . . . (b) Members of . . . any local police department . . . shall arrest, without previous complaint or warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.”
6.
Because of the procedural posture of this case, our review cannot be based on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny.
7.
Although State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), had not yet been decided as of the trial court’s decision on the defendant’s motion to suppress, the state asserts in its brief that the trial court’s finding can be supported by the “totality of the circumstances” analysis of probable cause as adopted in State v. Barton, supra. In his reply brief, the defendant disputes this assertion. The present case must be decided under State v. Barton, supra, because it has been held that its principles have retroac
8.
We stress that the present case involves a confidential informant known to the police, not an unknown informant supplying an anonymous tip.
9.
The dissenting opinion cites State v. Delmonaco, 194 Conn. 331, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984), which was decided under the Aguilar-Spinelli framework as set forth in State v. Kimbro, 197 Conn. 219,496 A.2d 498 (1985). In State v. Delmonaco, supra, 340, our Supreme Court noted that if a judge authorized a search based on an affidavit that did not sufficiently state the informant’s “basis of knowledge,’ ’ the judge’s role as finder of probable cause would be usurped. It is clear that the judge is responsible for determining whether probable cause exists. In the present case, the affidavit was not wholly lacking facts that establish the informant’s basis of knowledge, and the concern of the court in State v. Delmonaco, supra, is not implicated.
10.
“[EJarlier narcotics related convictions of the defendant can properly be considered when determining the reliability of an informant’s tip. [TJhe prior arrest record, pertaining as it did to the reputation of the defendant, clearly was a practical consideration of everyday life upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip. . . .” (Citations omitted; internal quotation marks omitted.) State v. Tulli, 14 Conn. App. 356, 361, 541 A.2d 515, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988).