State v. Santiago

223 Conn. 906 | Conn. | 1992

Dissenting Opinion

Berdon, J.,

dissenting. Because I believe that this court should not have overruled State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), by adopting the totality of the circumstances standard of 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), for determining the existence of probable cause under the state constitution, I would revisit State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). See my concurring opinion in State v. Duntz, 223 Conn. 207, 613 A.2d 224 (1992). Furthermore, I agree with Judge O’Connell of the Appellate Court when he stated in his dissent that even under Barton, the law requires corroboration of information given by an informant who is a drug user and paid by the police. “Although an informant’s tip may be used in combination with information gathered by independent police corroboration to establish probable cause, the tip alone is not sufficient to justify intrusion on a person’s constitutional rights. The evil of eliminating the corroboration requirement is that the probable cause determination is thereby delegated to the confidential informant who is insulated from cross-examination. The protection that is afforded by a neutral and detached magistrate’s eventual involvement in the process of determining probable cause is abolished.” (Emphasis in original.) State v. Santiago, 27 Conn. App. 741, 753, 610 A.2d 666 (1992) (O’Connell, J., dissenting). I would grant certification.

Pamela J. Favreau, deputy assistant public defender, in support of the petition. Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition. Decided July 28, 1992

Accordingly, I dissent.

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Lead Opinion

The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 741, is denied.