Summary
noting common factors for determining reliability of "as yet untested" informant
Summary of this case from State v. GriffinOpinion
No. 19207.
10-20-2015
STATE of Connecticut v. Teudi FLORES.
James B. Streeto, assistant public defender, for the appellant (defendant). Leonard C. Boyle, deputy chief state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Toni M. Smith–Rosario and Roger Dobris, senior assistant state's attorneys, for the appellee (state).
James B. Streeto, assistant public defender, for the appellant (defendant).
Leonard C. Boyle, deputy chief state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Toni M. Smith–Rosario and Roger Dobris, senior assistant state's attorneys, for the appellee (state).
Opinion
McDONALD, J.
The defendant, Teudi Flores, was convicted on conditional pleas of nolo contendere of possession of a controlled substance with intent to sell in violation of General Statutes § 21a–277(b), home invasion in violation of General Statutes § 53a–100aa(a), robbery in the second degree in violation of General Statutes (Rev. to 2009) § 53a–135(a), four counts of burglary in the third degree in violation of General Statutes § 53a–103(a), and stealing a firearm in violation of General Statutes (Rev. to 2009) § 53a–212(a). The defendant entered these pleas following the trial court's denial of his motion to suppress evidence of statements he made to the police following his arrest in which he confessed to these and other crimes. The defendant appeals, upon our grant of certification, from the judgment of the Appellate Court affirming the trial court's judgments of conviction, arguing that his statements should have been suppressed as the product of an illegal search, in violation of the fourth and fourteenth amendments to the United States constitution, because the warrant authorizing the search of his apartment was unsupported by probable cause. Specifically, the defendant argues that the affidavit in support of the search warrant application, which was based solely on hearsay statements made by a named informant, failed to establish probable cause because it did not provide facts from which the issuing judge could determine that the informant's tip was reliable. We disagree and, accordingly, affirm the judgment of the Appellate Court.
On the basis of his confessions, the defendant was charged with thirty-five criminal offenses under seven different docket numbers. After entering pleas of nolo contendere to the offenses previously listed, the state entered a nolle prosequi as to the remaining charges.
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.”
Although the defendant also raises a claim under article first, § 7, of the Connecticut constitution, he failed to separately brief that claim, and, accordingly, we deem it abandoned. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n. 9, 72 A.3d 367 (2013).
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.
The record reveals the following undisputed facts. On January 29, 2010, Detectives John Cerejo and Angelo Stavrides of the Meriden Police Department applied for a search and seizure warrant for the third floor apartment located at 215 Camp Street in Meriden (apartment). After reciting the detectives' training and experience as law enforcement officials, the affidavit in support of their application averred in relevant part: “On January 27, 2010, Rafley Santiago was arrested by Meriden [p]olice for crimes related to being in possession of a stolen dirt bike, and various other motor vehicle charges. Santiago requested to speak with someone regarding information he had, that would be of interest to [p]olice.... Stavrides notified Santiago of his Miranda rights, which he waived.... Stavrides conducted an interview of Santiago. The interview was audio recorded, in a patrol interview area, at [p]olice [h]eadquarters.... Santiago stated among other things that he regularly purchases marijuana, approximately every [three] days, from [the] 215 Camp Street, third floor apartment. He stated [that] he has been making such purchases, for the last month or two. Santiago 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. Santiago stated [that] ‘John’ has long hair, and many people frequent the apartment.... Each of the estimated [twenty] purchases Santiago made from [the] apartment, all came from within that apartment, within the last two months. Santiago stated [that] the last time he purchased marijuana [from the apartment] was [four] days prior to the date of the statement he made to ... Stavrides. Santiago's last purchase was made on Saturday, January 23, 2010.” (Footnote added.)
The trial court adopted the facts set forth in the defendant's memorandum of law in support of his motion to suppress, finding that the state did not dispute those facts. We therefore rely on the facts set forth in the defendant's trial court memorandum of law, as well as the search warrant affidavit, which the state introduced as an exhibit in the hearing on the defendant's motion to suppress.
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The affidavit also described the officers' knowledge regarding the conduct of individuals who are involved in the sale and use of controlled substances, including that, through their experience, they know that such persons routinely store illegal contraband in the location from which they base their sales.
A search warrant was issued on January 29, 2010, on the basis of the facts contained in the affidavit, and the warrant was executed on February 3, 2010. The search uncovered, inter alia, approximately one half of one pound of marijuana, packaging materials, two scales, and proof of residence of the defendant. The defendant was arrested and taken to police headquarters where he indicated that he wished to speak to the police about recent illegal activity in which he had been involved. After waiving his Miranda rights, the defendant confessed to multiple other crimes.
The defendant filed a motion to suppress the evidence of his confessions on the ground that they were the product of an illegal search because the warrant was issued without probable cause and was based on stale facts. He argued that his confessions were “a direct result of the illegal search ... of [his] apartment,” and therefore must be suppressed as fruit of the poisonous tree. The defendant further argued that, because his statements were made in close temporal proximity to his arrest and no intervening circumstances otherwise induced him to confess, his statements were not sufficiently attenuated from the original illegality so as to render them admissible. See State v. Hammond, 257 Conn. 610, 626–27, 778 A.2d 108 (2001) (evidence obtained by illegal means may nonetheless be admissible if connection between evidence and illegal means is sufficiently attenuated). The trial court denied his motion to suppress, concluding that the warrant application was not based on stale facts and was supported by probable cause. The court further concluded, alternatively, that there was sufficient attenuation between the original search and the defendant's voluntary statements so as to render his confessions admissible even if the search warrant was not supported by probable cause. The defendant thereafter entered conditional pleas of nolo contendere to the charges previously set forth.
The Appellate Court affirmed the trial court's judgments, concluding that the warrant was supported by probable cause because the affidavit contained information supplied by a named informant, Santiago, who met with the police in person, so as to allow the police to assess his credibility and demeanor, and because Santiago made statements against his penal interest by telling police that he regularly purchased marijuana from the apartment. State v. Flores, 144 Conn.App. 308, 317, 72 A.3d 1202 (2013). The court concluded that these factors provided a “substantial factual basis” for the issuing judge's determination that probable cause existed to search the apartment for items related to the sale and possession of a controlled substance. Id. The court also rejected the defendant's contention that the warrant affidavit was based on stale facts because the warrant was executed only eleven days after Santiago's last purchase of marijuana, and, because Santiago indicated that he regularly purchased marijuana from the apartment over a protracted period, the minimal passage of time was not significant. Id., at 317–19, 72 A.3d 1202.
We granted the defendant's petition for certification to determine whether the Appellate Court properly affirmed the trial court's denial of the defendant's motion to suppress. State v. Flores, 310 Conn. 917, 76 A.3d 632 (2013). Contrary to the defendant's claims, which are the same as the claims he made in his motion to suppress, we agree with the state that the warrant was supported by probable cause and was not based on stale facts. We therefore need not reach the defendant's argument regarding the attenuation doctrine.
Certain well established legal principles guide our analysis of this issue. The fourth amendment to the United States constitution prohibits unreasonable searches and seizures and requires a showing of probable cause prior to the issuance of a search warrant. “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 or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.... Although [p]roof of probable cause requires less than proof by a preponderance of the evidence ... [f]indings of probable cause do not lend themselves to any uniform formula because probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.... Consequently, [i]n determining the existence of probable cause to search, the issuing [judge] assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citations omitted; internal quotation marks omitted.) State v. Shields, 308 Conn. 678, 689–90, 69 A.3d 293 (2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 1040, 188 L.Ed.2d 123 (2014). This determination is made “pursuant to a ‘totality of circumstances' test.” State v. Velasco, 248 Conn. 183, 189–90, 728 A.2d 493 (1999); see also Illinois v. Gates, 462 U.S. 213, 230–31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
This court has recognized that “because of our constitutional preference for a judicial determination of probable cause, and mindful of the fact that [r]easonable minds may disagree as to whether a particular [set of facts] establishes probable cause ... we evaluate the information contained in the affidavit in the light most favorable to upholding the issuing judge's probable cause finding.... We therefore review the issuance of a warrant with deference to the reasonable inferences that the issuing judge could have and did draw ... and we will uphold the validity of [the] warrant ... [if] the affidavit at issue presented a substantial factual basis for the [issuing judge's] conclusion that probable cause existed.” (Citations omitted; internal quotation marks omitted.) State v. Shields, supra, 308 Conn. at 691, 69 A.3d 293; see also State v. Velez, 215 Conn. 667, 673, 577 A.2d 1043 (1990) (“[a] reviewing court should pay great deference to the trial court's determination regarding the existence of probable cause”). Notably, this court “will not invalidate a warrant ... merely because we might, in the first instance, have reasonably declined to draw the inferences that were necessary....” State v. Barton, 219 Conn. 529, 552, 594 A.2d 917 (1991). Finally, “[i]n determining whether [a] warrant was based [on] probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.” State v. Shields, supra, at 691, 69 A.3d 293.
When an affidavit is based on hearsay information from an informant, rather than on the personal observations of the affiant, “the veracity or reliability and basis of knowledge of [the informant] are highly relevant” in the issuing judge's analysis of the totality of the circumstances. (Internal quotation marks omitted.) State v. Mordowanec, 259 Conn. 94, 110, 788 A.2d 48, cert. denied, 536 U.S. 910, 122 S.Ct. 2369, 153 L.Ed.2d 189 (2002). In cases where an informant is as yet untested, “this court has employed several methods by which to judge the information's reliability or the informant's credibility. Three of the most common factors used to evaluate the reliability of an informant's tip are (1) corroboration of the information by police, (2) declarations 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); see also State v. Toth, 29 Conn.App. 843, 852–53, 618 A.2d 536 (first time informant not necessarily less reliable than previously tested informant where affidavit contains facts providing substantial basis for issuing judge to infer that informant's tip is reliable), cert. denied, 225 Conn. 908, 621 A.2d 291 (1993).
In the present case, there is no dispute that Santiago was a first time informant and that the officers did not undertake any independent corroboration of his statement, nor did they have any information regarding the defendant's past criminal behavior that might bolster the reliability of Santiago's statement. Indeed, for these reasons, we recognize that these facts present a particularly close case as to whether the issuing judge reasonably could have concluded that the information relayed by Santiago was reliable, and that his statement therefore supported a finding of probable cause. In light of the deference we give to an issuing judge's finding of probable cause, however, because Santiago was a named informant who gave a statement against his penal interest, we agree with the state that the judge could have reasonably credited his statement.
In his brief to this court, the defendant contends that the affidavit in this case did not include facts from which the issuing judge could determine that Santiago was relating firsthand information, i.e., facts relating to Santiago's basis of knowledge. We note, however, that in his memorandum of law in support of his motion to suppress before the trial court, he conceded that the affidavit did describe the factual basis of Santiago's knowledge. In any event, Santiago's basis of knowledge was firmly established by his statement that he personally observed the presence of marijuana in the apartment on each occasion that he was there to make a purchase. Accordingly, we limit our analysis in this case to the question of whether his statement was sufficiently reliable to support a finding of probable cause.
First, that Santiago was named in the affidavit and gave his statement in person at police headquarters can be significant in the determination of whether the information he provided was reliable. In such circumstances, “the police can observe the informant's demeanor to determine his ... credibility, and the informant runs the greater risk that he may be held accountable if his information proves false.” (Internal quotation marks omitted.) State v. Batts, 281 Conn. 682, 704, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S.Ct. 667, 169 L.Ed.2d 524 (2007); see also State v. Johnson, 286 Conn. 427, 438, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008); State v. Hammond, supra, 257 Conn. at 622, 778 A.2d 108. Indeed, as this court has repeatedly recognized, “[t]he fact that an informant's identity is known ... is significant because the informant could expect adverse consequences if the information that he provided was erroneous. Those consequences might range from a loss of confidence or indulgence by the police to prosecution for ... falsely reporting an incident under General Statutes § 53a–180[c], had the information supplied proved to be a fabrication.” (Internal quotation marks omitted.) State v. Johnson, supra, at 438, 944 A.2d 297; see also State v. Barton, supra, 219 Conn. at 550–51, 594 A.2d 917; State v. Daley, 189 Conn. 717, 725, 458 A.2d 1147 (1983). We disagree with the defendant's contention that naming Santiago in the affidavit provided no indicia of reliability because his statement relayed historical information. Because Santiago indicated that marijuana was being sold out of the apartment on a continuous basis, had the officers not uncovered any evidence of contraband, he could have expected adverse consequences for relaying false information.
More importantly, however, Santiago made a statement against his penal interest when he admitted to purchasing marijuana, not once, but on as many as twenty occasions in the two months preceding the issuance of the search warrant, with the most recent purchase occurring only four days before he gave his statement to police. This court has recognized that “[p]eople do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search.” (Emphasis added; internal quotation marks omitted.) State v. Barton, supra, 219 Conn. at 551, 594 A.2d 917, quoting United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality opinion); see also State v. Jackson, 162 Conn. 440, 450, 294 A.2d 517 (that informant's “statement is against his penal interest is ... [a] substantial basis for crediting it”), cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972). Notably, in Barton, this court concluded that an informant's statement against his penal interest provided sufficient indicia of reliability, even absent independent police corroboration, where the informant provided the police with a sample of marijuana that the informant claimed was being stored in the defendant's home. State v. Barton, supra, at 550–51, 594 A.2d 917. Although, unlike the informant in Barton, Santiago did not provide the police with physical evidence of his possession of marijuana, his statement was nevertheless against his penal interest and, therefore, carried with it its own indicia of reliability. Cf. Graddy v. State, 277 Ga. 765, 766, 596 S.E.2d 109 (2004) (“[i]n determining whether information qualifies as being contrary to a person's penal interest, ‘a highly legalistic or technical interpretation of the informant's statement is not called for, as the fundamental question is whether the informant would have perceived his remarks as highly incriminating’ ”), quoting 2 W. LaFave, Search and Seizure (3d Ed.1996) § 3.3(c), p. 134. It is particularly relevant that Santiago admitted to criminal activity wholly unrelated to the charges pending against him, subjecting himself to possible prosecution for crimes in addition to those for which he was already in custody. See, e.g., United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir.2001) (informant's statement reliable where he “admitted to criminal activities beyond those of which the police already knew him to be guilty”); see also United States v. Olson, 408 F.3d 366, 371 (7th Cir.2005) (informant's admission exposed him as more culpable than originally suspected); Atkinson v. State, 869 P.2d 486, 491 (Alaska App.1994) (informant “went far beyond an admission of the misconduct for which he had already been apprehended”).
Although the legislature decriminalized possession of small amounts of marijuana in 2011; Public Acts 2011, No. 11–71, §§ 1, 11; see generally State v. Menditto, 315 Conn. 861, 110 A.3d 410 (2015); Santiago's statements in 2010 preceded this change, and, therefore, at the time, he could have been subject to incarceration had the state chosen to prosecute him on the basis of his admission.
The defendant's reliance on this court's statement in dicta in Skakel v. State, 295 Conn. 447, 479 n. 22, 991 A.2d 414 (2010), that this court has found “adequate verification of the reliability” of an informant's statement against penal interest “where at least some significant details of his account of the crime itself have been corroborated independently” does not support his contention that independent police corroboration is an indispensable requirement for a finding of probable cause. (Emphasis omitted; internal quotation marks omitted.) Furthermore, the authority on which the court in Skakel relied for this premise was State v. Velez, supra, 215 Conn. at 674, 577 A.2d 1043, which predated this court's decision in Barton, upholding a finding of probable cause based on an informant's tip that included a statement against penal interest and lacked independent police corroboration.
Although it may be that Santiago's motivation for giving his statement was to curry favor with the police in the hopes that they would recommend that the charges pending against him be disposed of with leniency, we note that the affidavit does not reveal that any such promise was indeed offered, such that it could render his statement to be in his best interest, notwithstanding the fact that he admitted to additional criminal activity. Indeed, the affidavit indicates that Santiago initiated his conversation with the officers, rather than offered the statements only in response to promises of leniency in exchange for information. Moreover, this court recognized in Barton “that one who knows the police are already in a position to charge him with a serious crime will not lightly undertake to divert the police down blind alleys.” (Internal quotation marks omitted.) State v. Barton, supra, 219 Conn. at 551, 594 A.2d 917, citing 1 W. LaFave, Search and Seizure (2d Ed.1987) § 3.3(c), p. 649. The issuing judge could have reasonably concluded that Santiago would not have lightly chosen to mislead the police and thereby exacerbate his already compromised position. See State v. Johnson, supra, 286 Conn. at 438, 944 A.2d 297 (known informant “could expect adverse consequences if the information he provided was erroneous,” including “loss of confidence or indulgence by the police” [internal quotation marks omitted] ); United States v. Olson, supra, 408 F.3d at 371 (motive to curry favor does not render informant per se unreliable because “even informants attempting to strike a bargain with the police [have] a strong incentive to provide accurate and specific information rather than false information about [a defendant's] illegal activity” [internal quotation marks omitted] ). Although the defendant contends that Santiago could have merely been repeating “street rumor” in the hopes that the information would turn out to be accurate and he would therefore be granted leniency, we think it unlikely that, if that were the case, Santiago would have felt it necessary to implicate himself in multiple crimes.
We presume that officers provide all of the relevant facts in the affidavit to enable the issuing judge to undertake an independent evaluation of an informant's credibility, lest the state risk the possibility of a subsequent need for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See State v. Grant, 286 Conn. 499, 520, 944 A.2d 947 (defendant is entitled to Franks hearing to determine accuracy of facts included in affidavit where material fact was omitted with intent to make, or in reckless disregard of whether it made, affidavit misleading to issuing judge and omitted fact was material to determination of probable cause), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008).
We recognize that some courts have adopted a bright line rule concluding that an informant's statement against penal interest, whether the informant is named or unnamed, is, without more, insufficient to support the conclusion that the informant is reliable. See, e.g., United States v. Higgins, 557 F.3d 381, 390 (6th Cir.), cert. denied, 558 U.S. 1084, 130 S.Ct. 817, 175 L.Ed.2d 573 (2009); United States v. Martin, 615 F.2d 318, 325–26 (5th Cir.1980). We are more persuaded, however, by the approach of those cases, including our own, that have considered the content of such statements and the context in which they are made to determine whether the informant's statement against penal interest carries with it sufficient indicia of reliability so as to merit a finding of probable cause. See, e.g., State v. Barton, supra, 219 Conn. at 550–52, 594 A.2d 917; see also State v. Shipman, 987 N.E.2d 1122, 1127–28 (Ind.App.2013) (although not all statements admitting to criminal conduct are sufficient to establish informant's reliability, where informant under arrest for burglary admitted to theft and possession of marijuana, reliability established because he admitted to criminal conduct “under circumstances in which the crimes otherwise would likely have gone undetected”); Merrick v. State, 283 Md. 1, 12–15, 389 A.2d 328 (1978) (citing cases from multiple jurisdictions wherein courts relied solely on informant's statement against penal interest in finding informant reliable). Indeed, the adoption of a bright line rule that would preclude an issuing judge from reaching a particular conclusion regarding an informant's reliability or the existence of probable cause would be inconsistent with the totality of the circumstances test, which requires that a judge assess the “particular factual [context]” of the case before it in order to “make a practical, nontechnical decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Internal quotation marks omitted.) State v. Shields, supra, 308 Conn. at 690, 69 A.3d 293.
But see Maxwell v. State, 259 Ark. 86, 92, 531 S.W.2d 468 (1976) (“[w]e unhesitatingly find that the mere fact that [the informant's] statement was self-incriminating was an adequate basis for according reliability and credibility”); Merrick v. State, 283 Md. 1, 16, 389 A.2d 328 (1978) (“the probable credibility of the informant here was sufficiently shown on the sole basis of his statements against his penal interest”).
We also note that in Higgins, the court concluded that a statement made by one who was already under arrest for possession of cocaine and who then named his supplier did not alone support a finding of probable cause. United States v. Higgins, supra, 557 F.3d at 390. Although the court broadly stated that “the fact that the informant was known to the affiant and issuing magistrate and admitted a crime does not alone provide probable cause”; id.; courts in other jurisdictions have simply concluded that a statement such as the one at issue in Higgins was not a true statement against penal interest, and therefore not indicative of the informant's reliability. See, e.g., State v. Spillers, 847 N.E.2d 949, 956–57 (Ind.2006) (where informant was caught with cocaine in his possession, revealing supplier did not subject him to additional criminal liability, and therefore was not true statement against interest). We need not decide whether we would agree with the result in Higgins were we faced with a similar factual scenario, but, as we explain, we agree with those courts that examine the substance and context of the statement itself to determine whether it supplies sufficient indicia of reliability.
Although the affidavit in the present case undoubtedly would have been stronger had the officers corroborated any of the details from Santiago's statement, this court nevertheless should not substitute its judgment for that of the issuing judge where “[r]easonable minds may disagree” as to the weight to be given to an informant's statement. (Internal quotation marks omitted.) Id., at 691, 69 A.3d 293. Here, where a named informant provided information against his penal interest, indicating his participation in criminal activity on multiple occasions in the recent past and which activity was wholly unrelated to the crime for which he was in custody, the judge reasonably could have credited that information as reliable and therefore supportive of a finding of probable cause.
Finally, we agree with the Appellate Court's conclusion that the warrant in this case—which indicated that Santiago recently purchased marijuana from the apartment and did so on a continuing basis over an extended period of time—was not based on stale facts, and we adopt the Appellate Court's reasoning on this issue in full. State v. Flores, supra, 144 Conn.App. at 317–19, 72 A.3d 1202. Thus, we conclude that the warrant was supported by probable cause and, accordingly, that the Appellate Court properly affirmed the trial court's denial of the defendant's motion to suppress.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C.J., and PALMER and VERTEFEUILLE, Js., concurred.
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 reliability 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 apparently previously unknown to the police, provided certain 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 implicated 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 credible 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) declarations 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 reliability. See id., at 115, 440 A.2d 841 (“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 informant's statements and truly exposed the informant to criminal liability. For example, the majority cites our decision in State v. Barton, supra, 219 Conn. at 529, 594 A.2d 917. 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 corroborate his assertions, which further subjected him to potential criminal liability. Id., at 549–50, 594 A.2d 917. 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 apartment. Id., at 547, 594 A.2d 917. 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 informant 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. Significantly, 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 apartment, 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., at 551–53, 594 A.2d 917. 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., at 551, 594 A.2d 917.
Other similar cases also relied on circumstances in addition to an informant's statement against penal interest 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., at 431–32, 944 A.2d 297. Similarly, in State v. Batts, 281 Conn. 682, 704–705, 916 A.2d 788, cert. denied, 552 U.S. 1047, 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 controlled purchase of narcotics between the informant and the defendant. In State v. Ferguson, supra, 185 Conn. at 113–16, 440 A.2d 841, we upheld the issuance of a search warrant when the affidavit explained that the police who interviewed the informant were aware of facts that supported 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 sanctioned 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., at 579–80, 91 S.Ct. 2075.
There are good reasons why a court should be hesitant 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., at 583, 91 S.Ct. 2075. 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 statement 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 question 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., at p. 184 (statement 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 information prove false”).
In light of these concerns, we should take this opportunity 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., at p. 177; or “blunderbuss fashion.” Id., at 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 statement against interest and bears sufficient indicia of reliability. Factors for the court to consider include the informant's reasonable expectations about the likelihood 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. at 549–50, 594 A.2d 917, 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 interest, 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 information 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 statements 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. at 551, 594 A.2d 917, the informant in the present case did not provide any marijuana to the police at the time he gave his statement. 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 consequences 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 passage of the unspecified time since he allegedly purchased 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 specific 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), at pp. 171–73. Moreover, additional 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 additional 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. at 704, 916 A.2d 788; the police submitting the affidavit in the present case gave no such opinion. Instead, the police were silent about their assessment, if any, of the informant's credibility. Moreover, 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 credibility and reliability. Id., at 444–45, 294 A.2d 517 (if judge is not informed of underlying circumstances leading to officer's conclusion, “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 quotation 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 corroboration 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 indicate that the informant actually had personal knowledge of what he relayed to police and was not merely repeating rumors. The police could have verified his information and descriptions by conducting surveillance of the apartment. See, e.g., State v. Batts, supra, 281 Conn. at 705, 916 A.2d 788 (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 frequent visitors as claimed by the informant. See id. The police also could have set up a controlled buy, a frequent police tactic used to verify an informant's claims. See, e.g., State v. Johnson, supra, 286 Conn. at 431–32, 944 A.2d 297; State v. Batts, supra, at 702, 916 A.2d 788. 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 unreasonable 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.