State v. Velasco

HENNESSY, J.,

dissenting. The majority concludes that in determining the propriety of a warrantless arrest, the trial court should first apply the two prongs of the Aguilar-Spinelli test and, only if that test is not met, look to the “totality of the circumstances” test. Accordingly, the majority concludes that because the trial court found that the Aguilar-Spinelli test was met, the trial court improperly and unnecessarily applied the totality of the circumstances test. Because I believe the two tier test applied by the majority to be incorrect and, therefore, its conclusion that the trial court’s decision was clearly erroneous, I respectfully dissent.

I

The majority relies on State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), in holding that the trial court should apply a two tier test to determine probable cause to arrest. In Barton, the Connecticut Supreme Court explained and adopted the totality of the circumstances test set forth in the United States Supreme Court decision in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). “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 rehable. If the warrant affidavit fails to state in specific terms how the informant gained his *435knowledge 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.” State v. Barton, supra, 544.1 The majority interprets this to mean that in Connecticut, the first step in determining probable cause for a warrantless arrest lies in the application of the Aguilar-Spinelli test. Only when the Aguilar-Spinelli test fails may the trial court then consider the surrounding circumstances. I disagree with that interpretation and believe that while they are highly relevant, the factors considered under Aguilar-Spinelli are not dispositive in and of themselves. I believe that Barton and subsequent jurisprudence establish that the Aguilar-Spinelli test is no longer conclusive and that the trial court should examine the totality of the circumstances in determining probable cause to arrest.

“Prior to Barton, the Connecticut Supreme Court held to the rigid Aguilar-Spinelli test that the sufficiency of an informant’s information depended on the state’s establishing (1) the informant’s ‘basis of knowledge’ about the information he furnished and (2) the underlying facts establishing his veracity. State v. Kimbro, [197 Conn. 219, 224-25, 496 A.2d 498 (1985)].” State v. Hunter, 27 Conn. App. 128, 133, 604 A.2d 832 (1992). “In State v. Barton, supra, 219 Conn. 544, our Supreme Court adopted the ‘totality of the circumstances’ standard for determining probable cause used by the federal *436courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, [supra, 462 U.S. 213].” State v. Marsala, 42 Conn. App. 1, 5, 679 A.2d 367, cert. denied, 239 Conn. 912, 682 A.2d 1010 (1996).

“Illinois v. Gates, [supra, 462 U.S. 213], dealt with an anonymous tip in the probable-cause context. The [United States Supreme] Court there abandoned the ‘two-pronged test’ of Aguilar v. Texas, [378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)], and Spinelli v. United States, [393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)], in favor of a ‘totality of the circumstances’ approach to determining whether an informant’s tip establishes probable cause.” Alabama v. White, 496 U.S. 325, 328, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). “Although Gates abandoned the two-pronged test in favor of a totality of the circumstances test, the Gates majority did not reject out of hand the underlying concerns that had originally been expressed in Aguilar. . . . Rather, the court agreed that an informant’s veracity or reliability and the basis of knowledge inquiries formulated in Aguilar remain highly relevant in the determination of probable cause and should be regarded as closely intertwined issues that may usefully illuminate the [common sense], practical question of the existence of probable cause to believe that contraband or evidence is located in a particular place. . . . The court did abandon, however, the rigid compartmentalization of the inquiries and denied that the court had ever intended them to be understood as entirely separate and independent requirements to be rigidly exacted in every case.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Rodriguez, 27 Conn. App. 307, 317-18, 606 A.2d 22 (1992). “Since [Barton], we have held, in accordance with Illinois v. Gates, [supra, 213] that article first, § 7, of the Connecticut constitution does not require rigid *437compliance with the Aguilar-Spinelli test. State v. Barton, [supra, 219 Conn. 529].” State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992).

The majority would require an analysis under the totality of the circumstances test only if probable cause is not found under the two prongs of Aguilar-Spinelli. The two tier test adopted by the majority lacks support in Connecticut jurisprudence, past or present. While I agree that the factors considered under Aguilar-Spinelli are considered in the totality of the circumstances test, they are not dispositive in and of themselves. “[W]e agree with the conclusion of the United States Supreme Court in Gates that the two prongs of the AguilarSpinelli test are highly relevant evidentiary questions that a magistrate issuing the warrant must consider in deciding whether probable cause for a search or seizure exists, but that they are not wholly independent and dispositive constitutional tests for which de novo review exists at a suppression hearing. See Illinois v. Gates, supra, [462 U.S. 230].” (Emphasis added.) State v. Barton, supra, 219 Conn. 540.

Moreover, the opinion posited by the majority has been explicitly rejected by the United States Supreme Court in Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984). “The Massachusetts court apparently viewed Gates as merely adding a new wrinkle to this two-pronged test: where an informant’s veracity and/or basis of knowledge are not sufficiently clear, substantial corroboration of the tip may save an otherwise invalid warrant. . . . We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the two-pronged test. We rejected it as hyper-technical and divorced from the factual and practical considerations of [everyday] life on which reasonable and prudent men, not legal technicians, act. . . . Our statement on that score was explicit. [W]e conclude *438that it is wiser to abandon the two-pronged test established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.” (Citations omitted; internal quotation marks omitted.) Id., 730-32; see also State v. Perry, 195 Conn. 505, 508-509, 488 A.2d 1256 (1985).

Accordingly, I believe that the totality of the circumstances is the proper test. The factors considered in Aguilar-Spinelli are highly relevant in viewing the totality of the circumstances, but they are not a first step or a condition precedent. I must find, therefore, that, despite the fact that the trial court superfluously found that the two prongs of the Aguilar-Spinelli test were met, it properly applied the totality of the circumstances test to determine whether probable cause to arrest existed.

II

Having first set out what I believe the totality of the circumstances test to be, I turn to the particular facts of this case. “On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).

In light of that standard, even if I were to agree with the analysis of the law as posited by the majority, I could not agree with the result reached. The majority substantiates its reversal of the trial court by stating that there was a substantial basis on which the trial court could have found probable cause. This, however, is not the proper standard of review. We do not engage in speculation as to what the trial court could have *439found, but review what the trial court did find. In doing so, we must decide whether the trial court’s finding of a lack of probable cause to support the defendant’s arrest was “legally and logically inconsistent with the evidence.” Id.

The trial court stated in its memorandum of decision that “[i]n this case the facts satisfying Aguilar-Spinelli could not be leaner. ... In the absence of such corroboration, it is held that probable cause did not exist for the defendant’s arrest.” In effect, the majority has found that the trial court’s consideration of “corroboration” was clearly erroneous. I disagree.

The following facts must be emphasized. On March 5,1996, the Willimantic police received a telephone call from an informant. This informant told them that he had just purchased drugs from someone in a soup kitchen and that the same man was there every day selling drugs. The officers told the informant to call them back if it happened again. The officers did not make any attempt to set up surveillance of the soup kitchen or the defendant. On March 6, 1996, the informant called again and said that drug sales had been conducted and he had seen them but had not participated in them. Acting on this second call, detectives immediately went to the reported location where they observed the defendant.

The police officers testified at the suppression hearing that when they arrived “the defendant was not doing anything illegal, and he did not try to escape when the officers entered the soup kitchen [and] arrested the defendant.” The search at issue in the defendant’s motion to suppress was conducted incident to the arrest. Therefore, in order to uphold the search of the defendant, there must have been probable cause to arrest the defendant independent from the search.

“Probable cause to arrest depends ‘upon whether, at the moment the arrest was made . . . the facts and *440circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ Beck v. Ohio, [379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)].” Adams v. Williams, 407 U.S. 143, 148, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983); State v. Wilson, 178 Conn. 427, 435-36, 423 A.2d 72 (1979); State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75 (1965). “[W]e have expressed a strong preference for warrants and declared that ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’ United States v. Ventresca, [380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965)].” United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

“When an informant’s tip underlies an arrest, the trial court’s task is to review the totality of the circumstances to determine the existence of probable cause. Illinois v. Gates, [supra, 462 U.S. 238-39]; State v. Barton, [supra, 219 Conn. 529]. This inquiry involves an assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip ... . [In addition to the veracity, reliability and basis of knowledge of the informant,] [c]orroboration of an informant’s tip by independent police information has long been considered critical in determining probable cause. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). State v. Hunter, supra, [27 Conn. App. 134].” (Citations omitted; internal quotation marks omitted.) State v. Conley, 31 Conn. App. 548, 555, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993). In the context of fourth amendment jurisprudence, the phrase “totality of the circumstances” has been described by *441the Supreme Court as meaning “the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). Further, it has been described as having both “quantity and quality” as pivotal components. Alabama v. White, supra, 496 U.S. 330. Therefore, the totality of the circumstances analysis involves a review of all of the facts available to the trial court, not just those enunciated in Aguilar-Spinelli. To hold otherwise would require a finding of probable cause to arrest regardless of other facts before the trial court.

In this case, the known informant merely supplied the basis of his information and the location of the defendant.2 In and of itself, that information may form reasonable suspicion3 to support an investigative stop, but standing alone, absent independent police investigation, it may be deemed by a reviewing court to be insufficient. I can find no Connecticut case where an informant’s tip, without any police corroboration or verification of the information given, has been upheld. It is important to note that Gates dealt with an informant who supplied information that included more than the “easily obtained facts and conditions existing at the time of the tip, but [referred] to future actions of third parties ordinarily not easily predicted. ” Illinois v. Gates, supra, 462 U.S. 245. As the White court noted, the importance of the information in Gates was “the caller’s ability to predict respondent’s future behavior, because it *442demonstrated inside information—a special familiarity with respondent’s affairs.” (Emphasis in original.) Alabama v. White, supra, 496 U.S. 332.

The majority improperly finds error with the trial court’s consideration of corroboration. The case law support’s a trial court’s consideration of corroboration when examining probable cause.4 See State v. Rodriguez, 223 Conn. 127, 136-37, 613 A.2d 211 (1992); State v. Santiago, 27 Conn. App. 741, 749-50, 610 A.2d 666, cert. denied, 223 Conn. 906, 610 A.2d 179 (1992). It is clear that “[t]he police, however, are not required to corroborate all of the information provided by a confidential informant. . . . Partial corroboration may suffice. State v. Cofield, [220 Conn. 38, 47-48, 595 A.2d 1349 (1991) (en banc)].” (Citations omitted; emphasis added.) State v. Leonard, 31 Conn. App. 178, 187, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994).

Accordingly, I find that on the basis of the facts of this case, the trial court’s determination that probable cause to arrest did not exist was not clearly erroneous. Therefore, I would affirm the trial court’s decision.

I respectfully dissent.

Although Barton involved a search and seizure pursuant to a warrant, as did Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Gates, “the same standards of probable cause apply to a warrantless search and seizure. See, e.g., United States v. Smith, 598 F.2d 936, 937 n.2 (5th Cir. 1979).” State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

This is no1 to mean that noncriminal acts can never form the basis for probable cause when taken together: “We noted in Gates, [supra, 462 U.S. 243-44 n.13], that ‘innocent behavior will frequently provide the basis for a showing of probable cause,’ and that ‘[i]n making a determina,üon of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or 'guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

“Reasonable suspicion is a less demanding standard than probable cause ... in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, supra, 496 U.S. 330; see footnote 2.

“Furthermore, statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police. ... If the police have evidence (such as from prior independent police work), which corroborates some of the details included in the affidavit, then an inference of reliability will rise.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, 223 Conn. 127, 136-37, 613 A.2d 211 (1992).