State v. Jackson

294 A.2d 517, 162 Conn. 440, 1972 Conn. LEXIS 890

• Court: Supreme Court of Connecticut
• Decided: March 1, 1972
• Status: Published

Opinions

Loiselle, J.

On August 13,1970, the state’s attorney for Tolland County applied for a bench warrant for the arrest of the defendant. The application charged that the defendant committed the crime of breaking and entering with criminal intent, in violation of § 53-76 of the General Statutes, and the crime of larceny in an amount in excess of $250 but less than $2000, in violation of § 53-63 of the General Statutes. An official of the police department of the town of Vernon filed the sole affidavit supporting the application. Having considered the application and the affidavit, a Superior Court judge found that probable cause existed for the arrest of James Jackson, the defendant, and ordered the issuance of a bench warrant for his arrest. The defendant filed a motion to dismiss the information against him on the ground that the affidavit was insufficient to support a finding of probable cause. The court granted the motion and rendered judgment dismissing the information. The state, with permission from the trial court, appealed from the judgment, assigning as error the granting of the defendant’s motion to dismiss the information.

The affidavit of the police officer disclosed the following facts: On June 12, 1970, Ruth Maloney, administrator of the Rockville Memorial Nursing Home, complained to the police that the office safe, containing money, checks and jewelry, had been stolen from the premises. As a result of his investigation, the affiant knew that some person or persons had broken into the nursing home and removed the safe. On June 30, 1970, the affiant, after warning Ronald F. Strano, Jr., of his constitutional rights, obtained a written statement from him that on June 11, 1970, at about 10:30 p.m., he broke into the nursing home by prying open a screen and window, removed the safe and loaded it into his vehicle. On July 2, 1970, the affiant arrested Strano and charged him with breaking and entering and larceny. One month later, on August 6, the affiant interviewed Strano in the presence of his counsel and obtained a second written statement from Strano. In that statement Strano named the defendant as an accomplice in breaking and entering into the nursing home on June 11, at about 11:55 p.m. Strano stated that he had talked with the defendant about committing a theft and that the defendant agreed to the taking of the safe from the nursing home. The statement also indicated that Strano, after gaining entry into the nursing home through a window, passed the safe through the window to the defendant and that Strano opened the safe, using a combination furnished by an employee of the home, a possible accomplice. The officer also asserted that, to the best of his knowledge, the credibility of Mrs. Maloney was good; he did not mention Strano’s credibility.

The fourth amendment to the United States constitution provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation.” See also Conn. Const, art. 1 § 7. “Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states. Ker v. California, 374 U.S. 23, 33, 83 S. Ct. 1623, 10 L. Ed. 2d 726.” State v. Licari, 153 Conn. 127, 132, 214 A.2d 900. The proscriptions of the fourth amendment apply to arrest warrants as well as to search warrants. Aguilar v. Texas, 378 U.S. 108, 112 n., 84 S. Ct. 1509, 12 L. Ed. 2d 723; Giordenello v. United States, 357 U.S. 480, 485-86, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; State v. Saidel, 159 Conn. 96, 98, 267 A.2d 449; State v. Licari, supra. In testing the validity of the warrant, the reviewing court can only consider information brought to the magistrate’s attention. Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 28 L. Ed. 2d 306; Aguilar v. Texas, 109 n.; Giordenello v. United States, supra, 486. Since the only information before the issuing authority was the affidavit of the police officer, the decisive question is whether the facts recited in it were sufficient to support a finding of probable cause. Giordenello v. United States, supra; State v. Saidel, supra, 99.

The principles by which we test the adequacy of an affidavit have been designed to insure that a disinterested judicial officer makes his own commonsense judgment that a suspect probably has, or probably has not, been involved in the commission of a crime. Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas, supra, 110-11; Giordenello v. United States, supra. As stated by Mr. Justice Jackson in Johnson v. United States, 333 U.S. 10, 13, 68 S. Ct. 367, 92 L. Ed. 436: “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Because a magistrate is obviously relying solely on the belief of the officer seeking an arrest when he issues a warrant on the basis of an affidavit containing only conclusions, the fourth amendment requires that an affidavit in support of a warrant contain enough information to support a magistrate’s own judgment. This explains the following statement from the landmark case of Aguilar v. Texas, supra, 114-15: “[T]he magistrate must be informed of some of the underlying circumstances . . . . Otherwise, ‘the inferences from the facts which lead to the complaint’ will he drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead by a police officer.”

Once the magistrate is informed of the evidence which prompts a police officer to seek an arrest, he may rely on the ordinary dictates of “common experience” and not be “confined by niggardly limitations or by restrictions on the use of . . . [his] common sense.” Spinelli v. United States, supra, 415, 419. As the term probable cause implies, the issue is one of probabilities. “These are not technical, they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879; State v. Wilson, 153 Conn. 39, 212 A.2d 75. This standard must be understood to mean that a judicial officer has done all that he should when he has answered for himself the question: “Was this suspect probably involved in criminal activity?” His answer “should be paid great deference by reviewing courts”; Jones v. United States, 362 U.S. 257, 270, 80 S. Ct. 725, 4 L. Ed. 2d 697; Spinelli v. United States, supra, 419; and “doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684.

In the case at bar, a police officer of the town of Vernon submitted an affidavit in support of a warrant, which relied in part on the statements of Ronald F. Strano, Jr., as the basis for the officer’s belief that the defendant had committed a crime. A judicial officer may treat this information from Strano on the same plane as information from the police officer, so long as there is a “substantial basis for crediting” it. Jones v. United States, supra, 269. Aguilar v. Texas, supra, 114, has restated this requirement in two parts: The issuing officer must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.

The first Aguilar test is clearly met in the case at bar. If credited, the facts supplied by the informant more than entitle him to believe that the defendant participated in the crimes; the informant was not only an eyewitness to the crime but also a participant.

The second test is also met. While the affiant did not have sufficient information about the informant’s character or propensity for truthfulness to credit him by method (a), the affiant did have sufficient information to credit him by method (b). The issuing officer was adequately informed of the circumstances from which the affiant concluded that Strano’s information was accurate.

A catalog of some of the landmark cases on this point shows that affidavits held insufficient were devoid of detail and unable to support any independent judgment. Whiteley v. Warden, supra, 560; Aguilar v. Texas, supra, 108; Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159. In the major cases which involved more than these mere recitals, the United States Supreme Court upheld several because of evidence corroborating some of the details included in the affidavit. Rugendorff v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887; Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327. In the present case, the affidavit went far beyond a recital of conclusions. From it, a judicial officer could conclude that there was substantial corroboration for Strano’s statement. The theory of corroboration is that a statement which has been shown true in some respects is reasonably likely to be true in the remaining respects. Whether such a theory is sound has been answered in the affirmative, dramatically, by Draper v. United States, supra, and recently, by Whiteley v. Warden, supra. Thus, if there has been sufficient corroboration, a statement may support a warrant regardless of its source. See United States v. Irby, 304 F.2d 280 (4th Cir.), cert. denied, 371 U.S. 830, 83 S. Ct. 39, 9 L. Ed. 2d 67; United States v. Woodson, 303 F.2d 49 (6th Cir.), cert. denied sub nom. Gant v. United States, 373 U.S. 941, 83 S. Ct. 1548, 10 L. Ed. 2d 696; Katz v. Peyton, 334 F.2d 77 (4th Cir.), cert. denied, 379 U.S. 915, 85 S. Ct. 261, 13 L. Ed. 2d 185, rehearing denied, 379 U.S. 984, 85 S. Ct. 643, 13 L. Ed. 2d 577.

In the case at bar, there are several factors which, at least in combination, reasonably support an inference of corroboration. The affiant’s own knowledge implicitly but obviously confirmed some of the particulars of Strano’s statements, e.g., the actual occurrence of the incident, its location and the method of operation. In Draper v. United States, supra, the affiant verified all of the informant’s information except that of the crime itself. There, the court held this to be a substantial basis on which to find probable cause. The affiant in the present case obviously had information from additional sources. Mrs. Ruth Maloney confirmed some of the particulars of Strano’s first statement. Such corroborating information is recognized as supporting a magistrate’s inference of reliability. Jones v. United States, supra. Where information from different sources dovetails, corroboration exists. United States v. Crews, 326 F.2d 755 (4th Cir.), cert. denied, 377 U.S. 955, 84 S. Ct. 1634, 12 L. Ed. 2d 499. The affidavit implies on its face that the affiant had previously received from Strano “correct information,” i.e., the June 30,1970, statement. At least, the affidavit necessarily implies that the details of the theft described by Strano in the first statement were consistent with police investigation and with details of the theft provided by the victim. But for such consistency, there is no logic to, or explanation for, the course taken by the police investigation, as evidenced by its request for the warrant. That a prior record of reliability is a factor supporting current truthfulness is enunciated in Jones v. United States, supra.

A more substantial basis for crediting Strano’s statement is that Strano revealed the information to the affiant in the presence of, and on the advice of, his own counsel. A magistrate is doubtless familiar with the professional integrity to which an attorney subscribes in his attorney’s oath and the professional discipline to which he is subject, as measured by the canons of professional ethics. Practice Book, Canons of Professional Ethics, Nos. 16, 32, Practice Book, pp. 7, 12. The magistrate knew from the affidavit that Strano acted on the advice of counsel. That an attorney had sworn to do no falsehood nor consent to any being done and to give information thereof if he had knowledge of it, and not wittingly to promote any falsehood or give aid or consent to it gives some assurance that the accusation made on his advice is trustworthy. That the canons by which he is guided require him to restrain his client from improprieties and to give no advice involving disloyalty to the law or disrespect for the judicial office, coupled with the likelihood that he is familiar with his client’s true situation, contribute to the probability that a statement to which he lends his counsel is truthful.

“A dual trust is imposed on attorneys at law. They must act with fidelity both to the courts and to their clients. They are bound by canons of ethics which are enforced by the courts. ... It demands on the part of the attorney undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of his client.” State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 234, 140 A.2d 863. Further, attorneys in Connecticut have interwoven dual functions as members of the bar and as commissioners of the Superior Court, and “are charged with using these powers and acting by the authority of the state in the interests of justice.” In re Application of Griffiths, 162 Conn. 249, 256, 249 A.2d 281. It is a well-established and honored presumption that an attorney has discharged his full duty. Slade v. Harris, 105 Conn. 436, 440, 135 A. 570. It is especially likely that an attorney will have exercised great care in allowing such a statement in the climate of today, where attorneys are attuned to using every lawful defense for the benefit of their client before they will allow such client to admit his guilt. It is obvious that under these circumstances the presence of counsel constitutes an underlying circumstance which should have substantial weight in crediting the statement.

That Strano’s second statement is against his penal interest is another substantial basis for crediting it. As stated in United States v. Harris, 403 U.S. 573, 584, 91 S. Ct. 2075, 29 L. Ed. 2d 723, magistrates should not be prevented, in warrant proceedings, “from crediting, in all circumstances, statements of a declarant containing admissions of criminal conduct.” It is stated in the Harris case (p. 583): “Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. . . . Admissions of crime . . . carry their own indicia of credibility.” Had there been only one statement, the fact that it was against penal interest would be apparent. There was here, however, a prior, similar statement. Thus, it may be argued that the admission of the second statement loses its effect as an indicia of credibility. In this connection, it is erroneous to conclude that Strano’s second statement had other than an adverse impact. Reiterating the admission in the presence of counsel effectively precluded Strano from asserting that the first statement was infirm in any legal respect, that he did not understand the nature of his action or that he was coerced. No subsequent denial would be at all persuasive in the face of a repeated admission with counsel present. More obviously, Strano admitted, in his second statement, to facts which render him subject to a charge of conspiracy. In no sense may it be said that his first statement was at all incriminating with respect to a conspiracy charge. Thus, there is no doubt that the second statement was against his penal interest.

An additional factor in considering the reliability of Strano’s second statement is its consistency with his first. The first statement fixes the crime at a time differing by an hour and some minutes from that recited in the second, and mentions nothing about an accomplice while the second statement does. “Inconsistency” applies to propositions which cannot both be true. That term is inappropriate to characterize propositions of differing degrees of completeness. Because it is obviously true that Strano could have committed the crime with an accomplice and still have committed the crime, the statements are not inconsistent. The second is simply more complete than the first. With respect to the alleged difference in the time of the crime indicated in Strano’s two statements, a differential of less than one hour and a half, on an issue that is totally neutral and collateral, is hardly significant, especially when the time given in both statements is an estimate.

The facts of this case are distinguishable in an important respect from the facts in most of the cases which established the rules for crediting information. See United States v. Harris, supra; Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503. Here, there is no unidentified informer, but a named, available participant in the crime of which the defendant is accused. Although we do not rely solely on the fact that the informant in this ease was a participant, we note that this fact has been given great weight in other jurisdictions. United States v. Viggiano, 433 F.2d 716, 717 (2d Cir.), cert. denied, 401 U.S. 938, 91 S. Ct. 934, 28 L. Ed. 2d 219; Louie v. United States, 426 F.2d 1398, 1400 (9th Cir.); Wooton v. United States, 380 F.2d (5th Cir.), cert. denied, 389 U.S. 942, 88 S. Ct. 302, 19 L. Ed. 2d 294; United States ex rel. Gates v. Pate, 355 F.2d 879, 881-82 (7th Cir.); Thomas v. United States, 281 F.2d 132 (8th Cir.), cert. denied, 364 U.S. 904, 81 S. Ct. 239, 5 L. Ed. 2d 196; Commonwealth v. Lepore, 349 Mass. 121, 207 N.E.2d 26. That the informant was a participant has been held sufficient by itself to support a warrant in some cases. Bernard v. United States, 360 F.2d 300, 304 (5th Cir.), cert. denied, 385 U.S. 867, 87 S. Ct. 130, 17 L. Ed. 2d 94; United States v. Tocco, 449 F.2d 288 (8th Cir.), cert. denied, 405 U.S. 974, 92 S. Ct. 1191, 31 L. Ed. 2d 247.

United States v. Harris, supra, specifically notes that a warrant is properly issued when there is a substantial basis for crediting the information which supports it. The range of facts and circumstances, or combination thereof, which may reasonably substantiate that information is not limited by any exclusive inventory. That each case must be tested on its own facts; Wong Sun v. United States, 371 U.S. 471, 479, 83 S. Ct. 407, 9 L. Ed. 2d 441; is apparent from the variety of circumstances which have been cited as underpinning a magistrate’s implicit judgment that the information with which he is supplied is sufficiently reliable to justify the issuance of a warrant. E.g., Spinelli v. United States, supra; Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697; Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327. Where the object of a rule is to insure an independent judgment by a magistrate and there is substantial evidence that he exercised such judgment, there can be no doubt of his compliance with the rule.

An affiant need not recite the precise factors on which he judged his informant credible and reliable. Aguilar v. Texas, supra, requires only that the magistrate be informed of some of these underlying circumstances. If they are apparent to the commonsense reader of the affidavit — whether by necessary implication or recital — it is enough.

There is error, the judgment is set aside and the case is remanded with direction to overrule the motion to dismiss the information.

In this opinion House, C. J., Cotter and Shapiro, Js., concurred.