State v. Flores

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STATE v. FLORES—DISSENT
ZARELLA, J., with whom ESPINOSA and ROBINSON,
Js., join, dissenting. Allowing government agents to
intrude into an individual’s home on the basis of the
information contained in the affidavit at issue in the
present case significantly lowers the bar in our probable
cause jurisprudence. To my knowledge, this court has
never upheld the issuance of a search warrant using
such insubstantial information to establish the reliabil-
ity of the information given by an informant.1 The search
warrant for the apartment where the defendant, Teudi
Flores, resided, was issued on an affidavit containing
information from an untested informant, given while
he was under arrest for other crimes, and which lacked
any independent corroboration by the police. That the
informant’s statement to the police may have implicated
him in a minor criminal offense has never been deemed
sufficient to establish probable cause to search in this
state. Perhaps in an appropriate case a statement
against penal interest standing alone may be enough to
justify issuing a search warrant, but the statement at
issue in the present case fell short of that required to
issue a search warrant. The informant’s statement did
not expose him to any meaningful danger of criminal
liability. It was highly unlikely that the informant would
have been prosecuted for the minor criminal offense
for which he implicated himself, and there was little
chance that the informant would have been prosecuted
for filing a false report if a search of the apartment
did not turn up any contraband because his statement
lacked meaningful detail that the police could later
prove false. In addition, the information the informant
provided lacked the specificity that might lead one to
believe that he actually observed what he claims to
have seen, and the police did exactly nothing to confirm
his knowledge. Because I believe that the information
in the affidavit fell short of that necessary to establish
probable cause rather than a mere suspicion of criminal
activity, I respectfully dissent.
I
The majority’s decision in the present case rests
entirely on the fact that the informant, who was appar-
ently previously unknown to the police, provided cer-
tain information while he was in custody at the police
station following his arrest for various motor vehicle
charges. The information he provided to the police
about the defendant’s possible drug activity also impli-
cated the informant in a rather minor criminal offense
related to that activity.2 When an affidavit in support
of a request for a search warrant is based on information
from an informant, the affidavit must contain enough
facts to support a conclusion that the informant is credi-
ble and his information is reliable. State v. Barton, 219
Conn. 529, 544–45, 594 A.2d 917 (1991). Although we
look at the totality of the circumstances presented in
the affidavit; id.; three factors are particularly relevant
to a court’s analysis of the facts in the affidavit: ‘‘(1)
corroboration of the information by police, (2) declara-
tions against penal interest by the informant-declarant,
and (3) the reputation and past criminal behavior of
the suspect.’’ State v. Ferguson, 185 Conn. 104, 113, 440
A.2d 841 (1981). The affidavit in the present case did
not contain any information relating to the first and
third factors, and, thus, the majority rests its conclusion
principally on the notion that the informant spoke to
the police face-to-face and provided information that
could subject him to criminal liability.
We have not previously been presented with a case
asking us to uphold the issuance of a search warrant on
the sole basis of an uncorroborated statement against
penal interest from an untested informant. In fact, we
have indicated that such information, without more,
would not be enough to establish an informant’s reliabil-
ity. See id., 115 (‘‘We have held that statements against
penal interest may be a substantial basis for crediting
an informant’s tip . . . . Again, while this factor, in
itself, may not be sufficient to credit an informant’s
information, it is another indicia of the reliability of the
information provided by the informant in this case and
contributes to a finding of probable cause.’’ [Citation
omitted.]).
In our prior cases involving a statement against one’s
penal interest, the affidavit at issue also provided other
information that independently corroborated the infor-
mant’s statements and truly exposed the informant to
criminal liability. For example, the majority cites our
decision in State v. Barton, supra, 219 Conn. 529. In
that case, however, the informant provided significant
additional details, which were more likely to expose
him to prosecution for filing a false report if his claims
were untrue, and the informant also provided a sample
of the marijuana he claimed to have purchased to cor-
roborate his assertions, which further subjected him to
potential criminal liability. Id., 549–50. The informant
in Barton went to police headquarters and personally
reported to a police officer that the defendant in that
case, Timothy Barton, was keeping a large quantity of
marijuana in trash bags in a closet at Barton’s apart-
ment. Id., 547. The informant gave the name of the
defendant, explained that the defendant drove a vehicle
registered in Texas, stated that the defendant had
recently been away for approximately one week, and
gave the date of the defendant’s return. Id. The infor-
mant explained that when Barton returned, Barton
unloaded several trash bags filled with marijuana from
his vehicle during the evening hours and placed them
in his apartment. Id. The informant also told the police
that shortly after the marijuana was unloaded, four or
five people went to Barton’s apartment, stayed a short
while, and then left with plastic garbage bags. Id. Signifi-
cantly, the informant also gave to the police a sample
of the marijuana that was in the bags, and the sample
field-tested positive for marijuana. Id. We upheld the
issuance of a search warrant for the defendant’s apart-
ment, relying heavily on the fact that the informant had
not only made a statement against interest, but had also
provided what he stated was a sample of the marijuana
being kept by the defendant. Id., 551–53. We concluded
that the informant’s provision of a sample provided
substantial corroboration of the information given by
the informant and subjected the informant to possible
criminal sanctions. Id., 551.
Other similar cases also relied on circumstances in
addition to an informant’s statement against penal inter-
est to justify a search. In State v. Johnson, 286 Conn.
427, 430, 944 A.2d 297, cert. denied, 555 U.S. 883, 129
S. Ct. 236, 172 L. Ed. 2d 144 (2008), an individual arrested
by the police for various narcotics offenses informed
the police of the name of a person from whom he
previously had purchased narcotics. The police verified
the information given by the informant by having the
informant set up a controlled purchase of narcotics and
then witnessing the controlled purchase between the
informant and a person matching the description of
the person who the informant claimed was a narcotics
dealer. Id., 431–32. Similarly, in State v. Batts, 281 Conn.
682, 704–705, 916 A.2d 788, cert. denied, 552 U.S. 1048,
128 S. Ct. 667, 169 L. Ed. 2d 524 (2007), the police
verified information provided by an informant in a face-
to-face meeting with the police, by observing a con-
trolled purchase of narcotics between the informant
and the defendant. In State v. Ferguson, supra, 185
Conn. 113–16, we upheld the issuance of a search war-
rant when the affidavit explained that the police who
interviewed the informant were aware of facts that sup-
ported the informant’s claims, were aware also that the
person named by the informant as a drug dealer had
previously been arrested for similar drug crimes, and
the informant had made a statement against his
penal interest.
The United States Supreme Court also has never sanc-
tioned the issuance of a warrant based solely on an
informant’s in-person statement against penal interest.
In United States v. Harris, 403 U.S. 573, 583–85, 91 S.
Ct. 2075, 29 L. Ed. 2d 723 (1971), a four justice plurality
would have concluded that an incriminating statement
alone was enough to find probable cause, but they could
not get a fifth vote to make that conclusion a majority.
In that case, the affidavit at issue also included, in
addition to the informant’s incriminating statements,
facts that were previously known to police and that
independently corroborated the informant’s assertions.
Id., 579–80.
There are good reasons why a court should be hesi-
tant to rely on an uncorroborated statement against
penal interest when issuing a warrant. Standing alone,
these statements carry few indicia of reliability. The
common justification for relying on statements against
interest as a basis for issuing a warrant is the notion
that someone is unlikely to implicate himself in criminal
activity unless the information is true. See, e.g., id.,
583. This assumption is dubious, however, because a
rational person typically would not reveal information
that could harm him unless he expected to benefit in
some way. See M. Bowman, ‘‘Truth or Consequences:
Self-Incriminating Statements and Informant Veracity,’’
40 N.M. L. Rev. 225, 236–41 (2010). Courts considering
whether to issue a warrant should be confident that
the informant is not merely repeating street rumors or
fabricating a story in the hope of obtaining a deal from
the authorities. Moreover, the assumption that a state-
ment against interest is likely to be reliable holds true
only if the informant actually believes that he is likely
to be prosecuted both for the crime he admits to and
for filing a false report if his information turns out to
be untrue. Moreover, the danger that an informant is
relying on rumor or speculation rather than personal
knowledge is heightened when the crime he implicates
himself in is minor and stands little chance of actually
being prosecuted; see 2 W. LaFave, Search and Seizure
(5th Ed. 2012) § 3.3 (c), p. 177 (‘‘[t]he fundamental ques-
tion is whether the informant would have perceived his
remarks as highly incriminating’’); and when there is
little chance that an informant would be prosecuted if
his information turns out to be false. Id., p. 184 (state-
ment against penal interest ‘‘would not be persuasive
absent a showing that the informant was aware that
[an offense for making a false report] existed and that
there was a real risk of prosecution should his informa-
tion prove false’’).
In light of these concerns, we should take this oppor-
tunity to make clear that although a statement against
interest might justify issuing a warrant in appropriate
cases, courts cannot consider these statements in a
‘‘highly legalistic’’; id., p. 177; or ‘‘blunderbuss fashion.’’
Id., p. 162. Instead, a court must carefully scrutinize all
of the circumstances revealed by the affidavit to ensure
the information given by the informant is a true state-
ment against interest and bears sufficient indicia of
reliability. Factors for the court to consider include the
informant’s reasonable expectations about the likeli-
hood of serious criminal liability, both as a result of
the admission and in the event the information is found
to be false, and the informant’s possible incentives for
making the admissions to the police. Courts should
also consider whether the statement contains sufficient
detail to indicate its probable truth, as did the statement
in State v. Barton, supra, 219 Conn. 549–50, and can
also consider observations by the police concerning the
informant’s attitude, candor, and demeanor while giving
the statement. Only when the information provided by
the informant represents a true statement against inter-
est, sufficiently detailed to be worthy of credit, should
a court issue a warrant on that basis alone. Although
not exhaustive, these factors highlight the type of infor-
mation that the police should include in their affidavits,
and that courts should demand when issuing warrants,
to give meaningful effect to the fourth amendment’s
promise of protection against unreasonable searches.
II
Applying these considerations to the present case, I
am persuaded that the facts contained in the affidavit
fell short of justifying issuing a search warrant for a
number of reasons.
First, the crime the informant implicated himself in
was not a serious offense and there was almost no
chance of the informant being prosecuted based on
his statements. To be considered a statement against
interest, the information in the affidavit must show that
a reasonable person would perceive his statements to
be highly incriminating. See 2 W. LaFave, supra, § 3.3
(c), p. 177. The offense that the informant admitted
to—possession of a personal use quantity of marijuana
on a number of occasions—is hardly a serious offense
and the informant likely did not expect that his state-
ments would lead to him being charged with additional
crimes. The affidavit does not state whether the police
told the informant that he was likely to be charged with
possession of marijuana based on his information, nor
does it state whether the police actually charged him
with that offense after taking his statement. Unlike the
informant in State v. Barton, supra, 219 Conn. 551,
the informant in the present case did not provide any
marijuana to the police at the time he gave his state-
ment. And, although the police may prosecute other,
more serious crimes based on a person’s confession
alone, the state has not provided examples showing
that it tends to charge offenders with low-level drug
possession offenses based solely on the offender’s own
word and without any physical evidence. Even if the
state were likely to prosecute this charge, the informant
faced almost no likelihood of receiving any criminal
penalty. This state has long ceased incarceration for
minor marijuana possession offenses, preferring
instead to use pretrial diversionary programs. Indeed,
possession of a small amount of marijuana is no longer
a criminal offense. See footnote 2 of this dissenting
opinion.
Second, there was no serious risk of negative conse-
quences to the informant if his information turned out
to be false. Although it is an offense to file a false report
with the police; General Statutes § 53a-180c; it would
be difficult for the state to sustain such a charge in the
present case. The facts relayed by the informant were
so vague and void of meaningful detail that a reasonable
person in the informant’s position could not expect to
be prosecuted if a search of the defendant’s apartment
did not substantiate the informant’s report. Had the
police not found any marijuana at the apartment, its
absence could easily have been attributed to the pas-
sage of the unspecified time since he allegedly pur-
chased and saw narcotics there. For the state to convict
the informant for filing a false report, it would have to
prove beyond a reasonable doubt that there was no
marijuana in the apartment at the times the informant
claimed to have purchased it there, something that
would be quite difficult, if not impossible, to prove.
Third, the information given by the informant lacked
meaningful detail. Detail from an informant can be an
important factor in finding probable cause. Absent spe-
cific information tending to show that the informant
has personal knowledge of the information he relays,
it is difficult to ensure that the informant is speaking
from personal experience rather than repeating street
rumors. As Professor LaFave has explained: ‘‘[I]f the
police apprehended a person for possession of drugs
and he were then to admit to purchases from various
named sources in the recent past, there would be cause
for skepticism. Such a generalized and unfocused set
of allegations might well be nothing more than a series
of falsehoods involving the names of several persons
he has heard it rumored use or sell narcotics, for he
could well anticipate that if the police act upon the
information they will likely discover narcotics at some
of the identified premises.’’ (Footnote omitted.) 2 W.
LaFave, supra, § 3.3 (c), pp. 171–73. Moreover, addi-
tional detail from an informant increases the likelihood
that an informant could be prosecuted if his information
turns out to be false. The informant in the present case
provided an address of the defendant’s apartment and
a vague description of his dealer, but provided no addi-
tional information of a kind that tended to show that
the informant actually had visited the apartment and
purchased marijuana there. He gave no description of
its exterior appearance, no indication that he ever
entered the apartment, and no indication about whether
he knew where the marijuana was being stored in the
apartment. The police interviewing the informant could
have asked follow-up questions to elicit this information
and lessen the likelihood that the informant was merely
repeating rumors; if they did, the answers do not appear
in the affidavit.
Finally, the affiant neither opined that the informant
was credible nor gave any facts as to why he determined
the informant appeared to be credible. Although the
police officer’s opinion about an informant’s credibility
is but one relevant item that a judge can consider; see
State v. Batts, supra, 281 Conn. 704; the police submit-
ting the affidavit in the present case gave no such opin-
ion. Instead, the police were silent about their
assessment, if any, of the informant’s credibility. More-
over, an officer’s opinion, without a supporting factual
basis, carries little weight. Ultimately, it is the judge
who must make the independent determination of
whether the informant is credible and his story reliable.
State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517, cert.
denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121
(1972) (‘‘the fourth amendment requires that an affidavit
in support of a warrant contain enough information to
support a magistrate’s own judgment’’). This requires
the affiant to provide facts that would allow the judge
to draw his own conclusions about the informant’s cred-
ibility and reliability. Id., 444–45 (if judge is not informed
of underlying circumstances leading to officer’s conclu-
sion, ‘‘the inferences from the facts which lead to the
complaint will be drawn not by a neutral and detached
magistrate, as the [United States] [c]onstitution
requires, but instead by a police officer’’ [internal quota-
tion marks omitted]). No such facts were given in the
present case.
III
I recognize that we accord deference to the issuing
judge, but based on the information in the affidavit, I
disagree that the informant gave a true statement
against interest, one that provides a substantial basis for
crediting it. Given the paucity of relevant information
contained in the affidavit and the lack of any corrobora-
tion of the statements given by the informant, I disagree
that the information sufficiently goes beyond the realm
of suspicions and rumors to establish probabilities. The
police could have done a number of things to lend
credibility to the informant’s statements. They could
have asked additional questions to elicit more detail
about this statement, the kind of detail that might indi-
cate that the informant actually had personal knowl-
edge of what he relayed to police and was not merely
repeating rumors. The police could have verified his
information and descriptions by conducting surveil-
lance of the apartment. See, e.g., State v. Batts, supra,
281 Conn. 705 (noting that ‘‘[t]he police confirmed the
details of the defendant’s address and the make of car
he drove’’). They could have watched the apartment,
even for a brief time, to verify that it received the fre-
quent visitors as claimed by the informant. See id. The
police also could have set up a controlled buy, a fre-
quent police tactic used to verify an informant’s claims.
See, e.g., State v. Johnson, supra, 286 Conn. 431–32;
State v. Batts, supra, 702. The police did none of this.
For the reasons given, I would conclude that the
issuance of the search warrant was not justifiable under
our law. Furthermore, for substantially the reasons
given by the defendant in his brief, I believe the unrea-
sonable search of the apartment tainted his subsequent
confession. Consequently, I would reverse the judgment
of the Appellate Court and remand the case to that
court with direction to reverse the judgments of the
trial court and to remand the case to the trial court with
direction to grant the defendant’s motion to suppress.
1
The substantive paragraphs of the affidavit provide, in their entirety,
as follows: ‘‘[The informant] stated among other things that he regularly
purchases marijuana, approximately every [three] days, from 215 Camp
Street, third floor apartment. He stated [that] he has been making such
purchases, for the last month or two. [The informant] stated he purchases
[one] or [two] bags of marijuana each time, from a male subject he only
knew as ‘John.’ He stated he pays ‘John’ $10 for each bag of marijuana.
[The informant] stated [that] ‘John’ has long hair, and many people frequent
the apartment. . . .
‘‘Each of the estimated [twenty] purchases [the informant] made from
215 Camp Street, third floor apartment, all came from within that apartment,
within the last two months. [The informant] stated [that] the last time he
purchased marijuana [from the apartment] was [four] days prior to the date
of the statement he made to [the affiant]. [The informant’s] last purchase
was made on Saturday, January 23, 2010.’’
2
The informant’s statement implicated him in conduct that is no longer
a criminal offense, but is classified as an infraction under General Statutes
§§ 21a-267 (d) and 21a-279a.