State v. Velasco , 47 Conn. App. 424 ( 1998 )

Opinion

O’CONNELL, C. J.

The state, with the trial court’s permission,¹ appeals from the dismissal of the case, following the granting of the defendant’s motion to suppress evidence.² The state claims that the evidence at issue was properly seized by the police and, therefore, the trial court improperly granted the defendant’s motion to suppress. We reverse the trial court’s decision and remand the case for further proceedings.

The trial court found the following relevant facts. “At approximately 1 p.m. on March 5,1996, Warren Winkler, a detective with the Willimantic police department with nineteen years experience on the force . . . received a telephone call from a confidential informant (informant), whose tips in the past had led to convictions, who advised Winkler that a Hispanic male with a thick mustache, thirty to thirty-five years old, five feet five inches tall and heavyset (defendant) was selling heroin in the soup kitchen located in the basement of St. Paul’s Church on a daily basis, usually in the morning. The informant stated that the informant had observed the sale of narcotics by the defendant in the soup kitchen, and that the informant had personally purchased narcotics from the defendant. Winkler told the informant during their March 5 telephone conversation to call again at such time as the informant actually observed further narcotic sales by the defendant.

“At approximately 10 a.m. on March 6,1996, the informant again called Winkler and said that the defendant, in his thirties, approximately five foot five with a thick mustache and wearing light colored pants and a light colored trench coat with green corduroy trim [and] the sleeves rolled up, had made several sales of heroin at the soup kitchen that morning that had been observed by the informant. Winkler drew the reasonable inference that the informant was knowledgeable in the mechanics of narcotic sales. Immediately after receiving the second telephone call from the informant, Winkler and three other Willimantic police officers went to the soup kitchen where they saw someone who matched the description of the defendant that had been given to Winkler by the informant. No one else in the soup kitchen at that time matched the description of the defendant that had been given to Winkler by the informant. When Winkler observed the defendant in the soup kitchen, the defendant was not doing anything illegal, and he did not try to escape when the officers entered the soup kitchen. Winkler arrested the defendant. Immediately after and incident to the arrest, the defendant was searched, and six packets of heroin were found in his left coat pocket. As testified to by Winkler, the arrest of the defendant was based solely on the information provided by the informant.”

The defendant filed a motion to suppress evidence seized from him as well as any statements made by him on the ground that they were the fruit of an arrest conducted without probable cause. The defendant argued that such an arrest violated the fourth amendment to the United States constitution and article first, §§ 7 and 8, of the Connecticut constitution.

The controlling issue in this case is whether the police lawfully arrested the defendant. General Statutes § 54-lf (b) authorizes a police officer to make a warrantless arrest of “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” The phrase “reasonable grounds to believe” is to be equated with probable cause. State v. Love, 169 Conn. 596, 599, 363 A.2d 1035 (1975). “Under both the federal and state constitutions, a warrantless search is per se unreasonable, subject to a few well defined exceptions. . . . One of these well defined exceptions is a search incident to a lawful arrest. It is an established rule that a properly conducted warrantless search incident to a lawful arrest is not illegal.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 27 Conn. App. 741, 745, 610 A.2d 666, cert. denied, 223 Conn. 906, 610 A.2d 179 (1992).³

Moreover, “[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.” State v. Kaplan, 20 Conn. App. 183, 188, 565 A.2d 11 (1989).

Our inquiry into whether probable cause to arrest the defendant existed, on the facts found by the trial court, begins with an examination of the Aguilar-Spinelli test.⁴ In these two cases, the United States Supreme Court created a two-pronged test to determine the constitutionality of both arrests and ultimate seizures that are made as a result of information that is furnished to police by an informant. The two prongs of the test are (1) whether the informant’s veracity or reliability is established and (2) whether there is a basis of knowledge for the information provided.

Over time, the United States Supreme Court found the Aguilar-Spinelli test unduly restrictive and established the more relaxed “totality of the circumstances” test for ascertaining probable cause. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In its adoption of the totality of the circumstances test, the United States Supreme Court recognized that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” (Internal quotation marks omitted.) Id., 235.

“The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are—quite properly . . . issued on the basis of nontechnical, common-sense judgments of [magistrates] applying a standard less demanding than those used in more formal legal proceedings.” (Citation omitted.) Id., 235-36.

Gates stands for the proposition that a strict application of the Aguilar-Spinelli test would greatly diminish police use of informants’ tips. Consequently, the totality of the circumstances test was created so that police would not be excessively hampered in making probable cause determinations when conducting searches and making arrests. Thus, it is clear that Gates was intended to make probable cause findings easier, rather than more difficult.⁵ The Gales court stated that “the direction taken by decisions following Spinelli poorly serves [t]he most basic function of any government: to provide for the security of the individual and of his property. . . . The strictures that inevitably accompany the two-pronged test cannot avoid seriously impeding the task of law enforcement .... If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses . . . generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs. Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise perfect crimes. While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.” (Citations omitted; internal quotation marks omitted.) Id., 237-38.

Analogous to a probable cause hearing pursuant to General Statutes § 54-46a (b), during which a defendant is not permitted to present evidence, the totality of the circumstances analysis is conducted by magistrates and police to determine whether probable cause exists when there is a deficiency in the Aguilar-Spinelli prongs, not to negate probable cause after the informant’s veracity and basis of knowledge have already been established.

Under the totality of the circumstances test, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Gates v. Illinois, supra, 426 U.S. 238-39.

While Gates involved information that was provided in an affidavit, our Supreme Court has recognized that it is not always reasonably practicable to obtain a warrant. Indeed, in State v. Kimbro, 197 Conn. 219, 230-31, 496 A.2d 498 (1985), our Supreme Court stated, “Where, in warrantless arrests or searches, the police involved, in effect, act as their own magistrate in the determination of the existence of probable cause, obviously fourth amendment protections still apply.” The probable cause analysis that is conducted to ensure a lawful search or seizure must be the same whether it is carried out by a magistrate or by the police. See also State v. Perry, 195 Conn. 505, 513-14, 488 A.2d 1256 (1985).

Initially, Connecticut declined to follow the more relaxed approach of Gates in cases that implicated article first, § 7, of the Connecticut constitution. State v. Kimbro, supra, 197 Conn. 236. Our Supreme Court later revisited the issue, however, and adopted the totality of the circumstances test.⁶ The court held that “[i]f 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.” (Emphasis added.) State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991) (en banc).

If the Aguilar-Spinelli prongs are not satisfied, the sole purpose of the totality of the circumstances test is to provide a secondary vehicle to establish the informant’s credibility after it is found to be lacking under the second prong of the Aguilar-Spinelli analysis. This proposition is supported by the statement in Gates that “[the two prongs of the Aguilar-Spinelli test] are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” (Emphasis added.) Illinois v. Gates, supra, 462 U.S. 233.

In the present case, the trial court made the following additional factual findings: (1) “The information which had been provided by the informant to the police in previous matters, which had led to convictions, constituted a sufficient basis to establish the informant’s veracity; and [2] the informant’s reported personal observation of narcotics sales by the defendant constituted a sufficient basis for the informant’s knowledge that the defendant had engaged in illegal narcotic transactions.” The trial court concluded that those findings adequately described the factual basis for the informant’s information and that such information was reliable. Therefore, the trial court’s findings, in effect, established probable cause based on the Aguilar-Spinelli factors and further inquiry was unwarranted. The trial court’s attempt to negate its finding of probable cause by introducing a second level of review under the totality of the circumstances was clearly erroneous.

It is also apparent that the trial court’s holding in the present case relied on conclusions that went far beyond the limited scope of probable cause. “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992). Although satisfied that the Aguilar-Spinelli prongs were met, the trial court nevertheless granted the defendant’s motion to suppress because the court felt that “[attempts to corroborate the informant’s tip were likely to help establish the defendant’s guilt or innocence.” Because neither guilt nor innocence is an appropriate consideration when making a probable cause determination, the trial court went too far.

The trial court failed to recognize that the function of the totality of the circumstances review under Barton is to determine whether an informant’s statement is reliable when such reliability is lacking according to the Aguilar-Spinelli factors. Instead, the trial court used this “second tier review” as a method to corroborate information already found to be reliable. The trial court reasoned that if such information cannot be corroborated, probable cause cannot be found. It is axiomatic that if the trial court found it necessary to corroborate the informant’s reliability, then it could not have first satisfied the reliability prong of the AguilarSpinelli test. In fact, our Supreme Court has held that, “when an informant has a track record of providing reliable information, the ‘previous reliability of an informant, though not constitutionally required, is a basis for crediting his information.’ ” State v. Morrill, 205 Conn. 560, 567, 534 A.2d 1165 (1987);⁷ see State v. Ruscoe, 212 Conn. 223, 230-31, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). In this case, the police were dealing with a known informant whose tips had led to convictions. For these reasons, his information was reliable and, thus, corroboration was unnecessary.⁸

We conclude that probable cause to arrest existed on the facts found by the trial court and, accordingly, that court should have found that the defendant’s arrest and the subsequent search and seizure were lawful.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion SPEAR, J., concurred.

1 General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

2 The items sought to be suppressed were (1) contraband consisting of six plastic bags containing heroin, (2) $420, (3) a beeper, (4) a cellular phone, (5) oral or written statements made by the defendant and (6) pieces of identification seized from the defendant.

3 The author of this opinion is aware that he dissented in State v. Santiago, supra, 27 Conn. App. 750-55. Despite the analysis articulated in that dissent, the author now accepts the majority opinion as the law of Connecticut and has written this opinion from that viewpoint.

4 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).

5 The dissent relies on Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984). We conclude that Upton is not inconsistent with this opinion because it remains compatible with the intent of Illinois v. Gates, supra, 462 U.S. 213. Following in the spirit of Gates, the Upton court simply sought to facilitate the finding of probable cause. The United States Supreme Court’s determination that probable cause existed on the facts of that case followed the Supreme Judicial Court of Massachusetts’ failure to make such a finding, despite the existence of other relevant indicia of reliability sufficient to substantiate the informant’s tip. Massachusetts v. Upton, supra, 734. In using the totality of the circumstances test, our decision remains consistent with both Gates and Upton, and we conclude that probable cause does exist on the facts found by the trial court.

6 We understand that this jurisdiction has adopted the totality of the circumstances test. The phrase Aguilar-Spinelli is used frequently in this opinion because its components have been subsumed under the totality of the circumstances test, and are the initial factors to be considered therein.

7 In Morrill, as here, the reliability prong of the Aguilar-Spinelli test was satisfied because the known informant had a history of providing information that led to convictions. State v. Morrill, supra, 205 Conn. 567.

8 The trial court's conclusion that the informant’s tip was reliable was substantiated by its findings that Winkler was a nineteen year veteran of the police force and that he had previously investigated approximately 1000 narcotics cases. The trial court further found that Winkler had known the informant for five years and that the informant had previously purchased narcotics from the defendant. At the time of the informant’s telephone call to the police, the defendant possessed and was selling heroin in the soup kitchen. The police arrived at the soup kitchen within ten minutes of the informant’s telephone call and did not have time to set up surveillance.