State v. Barton

The sole issue in this appeal is whether, contrary to our holding in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), article first, § 7, of the Connecticut constitution permits a court to determine the existence of probable cause on the basis of the “totality of the circumstances” when it reviews a search warrant application based on information provided to the police by a confidential informant. The state charged the defendant, Timothy Barton, with possession of over a kilogram of marihuana with intent to sell and with possession of marihuana, in violation of General Statutes §§ 21a-278 (b) and 21a-279 (b)1 respectively, after police, acting under the authority of a warrant, had *532searched his home and had seized more than fifty-pounds of marihuana there. The defendant moved to suppress the seized evidence, and the trial court granted the defendant’s motion on the ground that the affidavit accompanying the search warrant application failed to state the informant’s “basis of knowledge.” The charges were subsequently dismissed with prejudice. With the permission of the trial court, the state appealed to the Appellate Court, which affirmed. State v. Barton, 22 Conn. App. 62, 576 A.2d 561 (1990). We granted certification to reconsider the state constitutional issue presented,2 and we reverse.

The opinion of the Appellate Court reports the relevant facts. On August 7,1988, officers of the Winsted police department, acting on the authority of a search and seizure warrant obtained that day on the basis of information provided by a confidential informant, searched the defendant’s apartment in Winsted. Although the defendant was not at home when the police arrived to execute the warrant, they obtained a key from the owner of the apartment. In the course of their search, the police found some fifty-two pounds of marihuana wrapped in clear plastic bags and kept in larger garbage bags in a bedroom. When the defendant returned home after midnight, the police arrested him. Id., 64.

The defendant filed a motion to suppress the evidence seized pursuant to the warrant, contending that the search and seizure violated his rights under article first, § 7, of the Connecticut constitution and the fourth *533amendment to the United States constitution. Both the trial court and the Appellate Court applied the two-pronged analysis mandated by this court’s decision in State v. Kimbro, supra, which requires a magistrate, in determining whether probable cause exists for a search or seizure, to evaluate both the “basis of knowledge” and the “veracity” or “reliability” of an informant upon whose information the police have relied. See id., 233-37; 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). In the circumstances of this case, both the trial court and the Appellate Court concluded that the affidavit in support of the search warrant did not adequately set forth the unnamed informant’s basis of knowledge and therefore failed to establish probable cause. State v. Barton, supra, 70. Both courts accordingly agreed that the evidence seized in reliance upon the warrant had to be suppressed. Id.

In the present appeal, the state urges us to overrule our holding in State v. Kimbro, supra, and to adopt the “totality of the circumstances” standard for determining probable cause used in the federal courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). The state argues that our decision in Kimbro (1) did not accurately reflect either the preconstitutional law of Connecticut or the case law of this court construing article first, § 7, prior to the time when the fourth amendment to the federal constitution was made applicable to the states, and (2) needlessly constitutionalized a standard for the use of hearsay in warrant affidavits that is susceptible to rigid and inconsistent application by lower courts and that impairs legitimate law enforcement efforts. The state argues, alternatively, that the trial court and the Appel*534late Court were mistaken in concluding, under any standard of review, that the affidavit in this case failed to establish probable cause. We agree with the state that application of the standards mandated by Kimbro has resulted at times in unduly technical readings of warrant affidavits, and we reject such an inappropriate methodology.

In deciding this question, we consider first the analysis that led the United States Supreme Court to reject the Aguilar-Spinelli test. We next examine the constitutional basis underlying Kimbro to distinguish the goals we sought to achieve in retaining the AguilarSpinelli test in that decision from the nonconstitutional encrustations that accompanied it. Finally, we review the warrant affidavit at issue in this case to determine whether it satisfies the requirements of article first, § 7. We conclude that it does.

I

A

In Illinois v. Gates, supra, 235, the United States Supreme Court rejected the “complex superstructure of evidentiary and analytical rules” that had evolved from its earlier decisions in Aguilar v. Texas, supra, and Spinelli v. United States, supra. As commonly cited and applied, the “two-pronged” Aguilar-Spinelli test provides a method for evaluating the existence of probable cause consistent with the requirements of the fourth amendment3 when a search warrant affidavit *535is based upon information supplied to the police by a confidential informant. The issuing judge must be informed of (1) some of the underlying circumstances relied on by the informant in concluding that the facts are as he claims they are, and (2) some of the underlying circumstances from which the officer seeking the warrant concluded (a) that the informant, whose identity need not be disclosed, was credible, or (b) that the information was reliable. State v. Ruscoe, 212 Conn. 223, 228-29, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). When the information supplied by the informant fails to satisfy the Aguilar-Spinelli test, probable cause may still be found if the warrant application affidavit sets forth other circumstances—typically independent police corroboration of certain details provided by the informant—that bolster the deficiencies. State v. Ruscoe, supra, 229.

The Gates court identified two principal flaws in the Aguilar-Spinelli test. First, because courts and commentators had generally regarded the two prongs of the test to be entirely independent of each other, courts had struggled to formulate rules regarding what types of information and what types of corroboration might satisfy each of the prongs. Illinois v. Gates, supra, 229 n.4; see also 1 W. LaFave, Search and Seizure (2d Ed. 1987) § 3.3 (a), pp. 612-27. Specifically, some courts had concluded that independent police investigation might corroborate the “reliability” of the information, but could never satisfy the “basis of knowledge” prong of the test, while ample “self-verifying details” might establish that the informant had personal knowledge of the alleged activity and thus could satisfy the “basis of knowledge” prong, but could never compensate for a deficiency in the “veracity” or “reliability” prong. *536See, e.g., Stanley v. State, 19 Md. App. 507, 313 A.2d 847 (1974); see also Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). The “elaborate set of legal rules” that had resulted from this emphasis on the independent character of the two prongs had led courts, in many cases, to dissect warrant applications in an excessively technical manner, “with undue attention being focused on isolated issues that [could not] sensibly be divorced from the other facts presented to the magistrate.” Illinois v. Gates, supra, 229, 234-35. Such a result was inconsistent with the nature of a probable cause determination, which, as the Gates court noted, involves a “ ‘practical, nontechnical conception.’ ” Id., 231, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879, reh. denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949).

The second principal flaw in the application of the Aguilar-Spinelli test, according to the Gates court, was that the test had caused reviewing courts, both at suppression hearings and at appellate levels, to test the sufficiency of warrant affidavits by de novo review. Illinois v. Gates, supra, 236. Such de novo review, in the view of the Gates majority, was inconsistent with the constitution’s “strong preference for searches conducted pursuant to a warrant.” A reviewing court should rather determine whether the magistrate issuing the warrant had a “substantial basis” for concluding that a search would uncover evidence of criminal activity. Id.

In rejecting the. complex structure of rules that had evolved from Aguilar and Spinelli, however, the Gates court did not reject out of hand the underlying concerns that had originally been expressed in Aguilar. In that case, the United States Supreme Court invalidated a search warrant supported by an affidavit that stated only that the “[ajffiants have received reliable information *537from a credible person,” without stating any of the underlying circumstances that would support a finding of probable cause. Aguilar v. Texas, supra, 109. The Aguilar court ruled that such a conclusory affidavit failed to state a factual basis on which a neutral and detached magistrate could determine the existence of probable cause. Id., 113-14. In Gates, the court reaffirmed that the “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 commonsense, practical question” of the existence of probable cause to believe that contraband or evidence is located in a particular place. Illinois v. Gates, supra, 230. The Gates court abandoned only a “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.” Id.

In the place of the “compartmentalized” AguilarSpinelli test, the Gates court directed lower courts to apply a “totality of the circumstances” analysis more consistent with traditional assessments of probable cause. While still employing the analytical frame of reference established in Aguilar, a “totality of the circumstances” analysis permits a judge issuing a warrant greater freedom to assess “the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” Id., 234. Under the analysis approved in Gates, “[t]he task of the issuing magistrate is simply to make a practical, commonsense 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.” *538Id., 238. The task of a subsequent court reviewing the magistrate’s decision to issue a warrant is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed. Id., 238-39.

The court’s decision in Gates emphasized the necessity of a case-by-case analysis of probable cause based on all of the facts presented to the judge issuing the warrant, not merely on those capable of categorization as indicating the “veracity” or “basis of knowledge” of a particular informant. Underlying the court’s emphasis on the factbound nature of the probable cause determination were two premises: first, that probable cause is a practical, commonsense determination, requiring “ ‘only the probability, and not a prima facie showing, of criminal activity’ id., 235, quoting Spinelli v. United States, supra, 419; and second, that one of the principal safeguards of the fourth amendment’s warrant requirement is the interposition of a neutral and detached magistrate who is charged with exercising discretion to arrive at an informed and independent decision as to whether probable cause exists. Illinois v. Gates, supra, 239-40. Because none of these underlying propositions are in apparent conflict with our prior decisions construing Connecticut’s probable cause requirement, we turn now to a reconsideration of our decision in State v. Kimbro, supra.

B

We note, at the outset, that our decision in Kimbro did not rely upon historical analysis to determine the standard by which probable cause should be measured.4 *539We relied, rather, upon our determination that the Aguilar-Spinelli test, “with its two prongs of ‘veracity' or ‘reliability' and ‘basis of knowledge,’ offers a practical and independent test under our constitution that predictably guides the conduct of all concerned, including magistrates and law enforcement officials, in the determination of probable cause.” State v. Kimbro, supra, 236-37. We regarded the Gates “totality of the circumstances” analysis as an “amorphous standard” that inadequately safeguarded the rights of indi*540viduals to be free from unjustified intrusions. State v. Kimbro, supra, 230-31, 237. Upon careful review of that determination, we agree with the conclusion of the United States Supreme Court in Gates that the two prongs of the Aguilar-Spinelli 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, 230.

In reaching our present conclusion we return to first principles. Article first, § 7, of our constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” This provision, like the fourth amendment to the federal constitution that it closely resembles,5 safeguards the privacy, the personal security, and the property of the individual against unjustified intrusions by agents of the government.6

One of the principal means by which the warrant requirement protects the privacy and property of the individual is by the interposition of a neutral and detached magistrate7 who must judge independently *541the sufficiency of an affidavit supporting an application for a search warrant.8 Whether applying the fourth amendment or article first, § 7, of our own constitution,9 we have frequently recognized that a magistrate issuing a warrant cannot form an independent opinion as to the existence of probable cause unless the affidavit supporting the warrant application sets forth some of the facts upon which the police have relied in concluding that a search is justified. “ ‘Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.’ ” State v. Rose, 168 Conn. 623, 627, 362 A.2d 813 (1975), quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

*542When a police officer seeking a search warrant relies on hearsay information supplied by confidential informants rather than on personal knowledge and observations, certain additional facts are necessary to ensure that the magistrate’s decision to issue the warrant is informed and independent. The Aguilar test originated when the United States Supreme Court identified two additional factors that magistrates must consider in evaluating the existence of probable cause in such cases: (1) the reliability of the way in which the informant reached his conclusions about the alleged illegal activity; and (2) the circumstances from which the police concluded that the informant was credible or that the information itself was reliable. Aguilar v. Texas, supra, 114.

Although Aguilar spawned progeny that became noted for their technicality, the court’s analysis in Aguilar itself was pragmatic and commonsensieal. Its unstated premise was that confidential informants10 are themselves often “criminals, drug addicts, or even pathological liars” whose motives for providing information to the police may range from offers of immunity or sentence reduction, promises of money payments, or “such perverse motives as revenge or the hope of eliminating criminal competition.” M. Rebell, “The Undisclosed Informant and the Fourth *543Amendment: A Search for Meaningful Standards,” 81 Yale L.J. 703, 712-13 (1972); see also 1 W. LaFave, Search and Seizure (2d Ed. 1987) § 3.3, p. 611. Because such an informant’s reliance on rumors circulating on the street is not unlikely and the veracity of such an informant is questionable, a magistrate reviewing a search warrant application based on such an informant’s word can best assess the probable reliability of the information if she or he is informed of some of the predicate facts that indicate how the informant gained his information and why the police officer believes that the information is reliable in order to decide, independently, whether the police officer’s inferences from the informant’s statements are reasonable.

In Kimbro, we expressed concern that the “fluid” “totality of the circumstances” analysis approved in the fourth amendment context of Illinois v. Gates, supra, would inadequately inform magistrates and law enforcement officials of their obligation to scrutinize the information gathered from confidential police informants with appropriate caution. State v. Kimbro, supra, 233-38. In construing article first, § 7, of our constitution to require continued application of the AguilarSpinelli test, we sought to make clear certain benchmarks to guide the discretion of our judges in reviewing ex parte applications for search and seizure warrants based on confidential informants’ tips.

Nonetheless, over time, the case law applying the Aguilar-Spinelli test has come to be encrusted with an overlay of analytical rigidity that is inconsistent with the underlying proposition that it is the constitutional function of the magistrate issuing the warrant to exercise discretion in the determination of probable cause. That discretion must be controlled by constitutional principles and guided by the evidentiary standards developed in our prior cases, but it should not be so shackled by rigid analytical standards that it deprives *544the magistrate of the ability to draw reasonable inferences from the facts presented. To the extent that Kimbro stands for the proposition that the exercise of discretion by a magistrate is reviewable only according to fixed analytical standards, it is overruled.

Our adoption of a “totality of the circumstances” analysis does not mean, however, that a magistrate considering a search warrant application should automatically defer to the conclusion of the police that probable cause exists. Such deference would be an abdication of the magistrate’s constitutional responsibility to exercise an independent and detached judgment to protect the rights of privacy and personal security of the people of Connecticut.

In essence, our adoption of a “totality of the circumstances” analysis of the probable cause requirement of article first, § 7, of our constitution means simply this: 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. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer *545to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories. See United States v. Ventresca, supra, 109.

In adopting the Gates “totality of the circumstances” analysis, as we have here construed it, as the standard of analysis applicable to article first, § 7, of our constitution, we do not intend to dilute the constitutional safeguards of the warrant requirement. This court has both the constitutional duty to construe article first, § 7, in a way that adequately protects the rights of individuals in Connecticut and also the supervisory responsibility, as the overseer of the judiciary in Connecticut, to ensure that the standards adopted here require law enforcement officers to provide magistrates with adequate information on which to base their decisions in an ex parte context. If a warrant affidavit does not provide a substantial basis for the finding of probable cause, then evidence or contraband seized in the execution of that warrant will be suppressed, even when the officer executing the warrant has relied in good faith on its authority. State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990). In rejecting a good faith exception to cure errors in warrants, we expressly focused on the importance attached in this state to providing reliable and probative information to Superior Court judges, who are the only persons authorized to issue warrants in this state. Id., 169-70.

Our adoption here of federal constitutional precedents that usefully illuminate the open textured provisions of our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution. State v. Lamme, *546216 Conn. 172, 184, 579 A.2d 484 (1990). As we have observed in the past, federal constitutional and statutory law “establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Emphasis added.) Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984). In particular circumstances, therefore, and with regard to particular provisions of our own constitution, we have concluded that our constitution provides more substantive protection of individual rights than does its federal counterpart. State v. Marsala, supra, 160. Respect for settled interpretations of the organic law of our own state, moreover, requires that we examine changes in the interpretation of federal constitutional provisions to determine whether they are consistent with the history and policy concerns of analogous Connecticut constitutional provisions before adopting such changes as a matter of state constitutional law. In this case we conclude, upon careful reconsideration, that the “totality of the circumstances” analysis adopted in Gates will continue to guarantee the people of Connecticut “the full panoply of rights” that they have come to expect as their due. Id.; Horton v. Meskill, 172 Conn. 615, 642, 376 A.2d 359 (1977). We accordingly depart from the more rigid analytical structure imposed in Kimbro in order to restore the proper constitutional authority of magistrates to weigh the sufficiency of the information presented to them in warrant affidavits and to balance the legitimate needs of law enforcement officers against the highly prized rights of privacy and personal security afforded by our constitution.

II

We now consider the affidavit presented in this case in light of the proper constitutional standards. The Winsted police presented the warrant application for ex parte judicial approval on August 7,1988. The affi*547davit attached to the application stated that the police had received the relevant information from an informant earlier on the same day. The affidavit consisted of five paragraphs,11 four of which have little significance for the determination of probable cause in this case. The first two paragraphs recite the training and experience of the affiants, two Winsted police officers. The fourth paragraph identifies the owners of the property that was the subject of the search, and the fifth paragraph requests that the court issue the warrant on the basis of the information provided. As both the trial court and the Appellate Court concluded, the third paragraph is the only basis upon which probable cause could have been established. State v. Barton, supra, 65-66.

That paragraph provides: “ ‘That the affiants state on Sunday, August 7, 1988 Sgt. Gerald O. Peters received information from a confidential informant at police headquarters pertaining to Tim Barton who resides at 232 Perch Rock Trail, Winsted, Connecticut, first floor that Barton has in his apartment a large quantity of marijuana in plastic garbage bags, which are kept in a closet. That the informant also provided Sergeant Peters of [sic] a sample of the marijuana that is in the bags. A field test of the marijuana substance that was provided to Sgt. Peters was field tested and the test results was [sic] positive for cannibas [sic] substance. The informant further stated that Tim Barton operates a Texas registered vehicle and after being away for approximately one week Barton returned home on Saturday, August 6,1988 and unloaded several large plastic bags in the evening hours. The informant further stated that shortly after that four to five people arrived at the Barton apartment and stayed a short while and then left with plastic garbage bags.’ ” Id., 66.

*548Probable cause, broadly defined, comprises such facts “as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe” that criminal activity has occurred. Stone v. Stevens, 12 Conn. 218, 230, 30 A. 611 (1837); see also State v. Middleton, 170 Conn. 601, 604, 368 A.2d 66 (1976). Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched. State v. Shifflet, 199 Conn. 718, 745-46,-508 A.2d 748 (1986); State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). Unless the defendant makes a substantial preliminary showing that the affiant knowingly and intentionally or recklessly included a false statement in the warrant affidavit; see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); a reviewing court can consider only the information that was actually in the warrant affidavit presented to a judge issuing a warrant at the time that he or she signed the warrant. State v. Shifflet, supra, 746; see Aguilar v.