20 Conn. App. 168 | Conn. App. Ct. | 1989
The defendant appeals from the judgment convicting him of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b).
At the suppression hearing, the trial court made the following findings of fact. On October 28, 1987, at approximately 8 p.m., the Tri-Town Task Force
The police then asked Cowell to call his supplier, who Cowell claimed was the defendant. At their request, Cowell made the phone call to the defendant’s home from a “clear line” at the police department.
Cowell finalized the meeting and told the police that the meeting with the defendant would take place at 11:30 p.m. at the 7-Eleven in South Windsor. Cowell said that the defendant was having mechanical prob
The police set up surveillance at the 7-Eleven store in unmarked police cars. Cowell remained in one of the unmarked cars. Around 11:30 p.m., a blue Camaro pulled into the 7-Eleven parking lot, and the passenger, a man whom Cowell tentatively identified as the defendant, exited the car and entered the store. One officer entered the store to determine whether that man fit the general description that Cowell had provided. Satisfied that the man in the store did fit that description, the officer returned to his surveillance point, called in a request for the registration of the car, and found that it was registered to one “Felix Velez.”
The defendant reentered the car after purchasing some food items and began to exit the parking lot. At that point, the unmarked police car blocked the defendant’s car, and the officers arrested the defendant and subsequently searched him. Their search yielded two packets of cocaine, one containing twenty-nine grams and the other containing two or three grams. The trial court found that the arrest had occurred at the point when the police blocked the car, and that probable cause to arrest was further substantiated by the defendant’s arrival.
The defendant argues that the information provided by the informant failed to meet the requisite two-pronged test first enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and adopted by this state in
Although the two-pronged Aguilar-S'pinelli test was first applied in a case involving a warrant, the same standards for probable cause apply to warrantless situations as well. State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). Under this test, the sufficiency of the information in an affidavit that relies on an informant depends upon the existence of (1) the informant’s basis of knowledge about the information provided, and (2) the underlying facts establishing his credibility or reliability. State v. Kimbro, supra, 224-25. This test focuses on three types of informant tips: (1) those from an informant known for the reliability of his predictions of certain types of criminal activities in a particular area; (2) those from an honest citizen who voluntarily reports criminal activity; and (3) “those from an informant who, although his motives may be open to question, supplies an explicit and detailed description of alleged wrongdoing, along with an indication that the event was observed firsthand, thus entitling the tip to greater weight than might other
The defendant was subjected to a warrantless arrest and search incident thereto. “ 'There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few “jealously and carefully drawn” exceptional circumstances.’ United States v. Watson, [423 U.S. 411, 427, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976)] (Powell, J., concurring).” State v. Kimbro, supra, 238. It is axiomatic that the constitutional validity of the search is dependent upon the constitutional validity of the arrest, which can be valid only if the police possessed probable cause at the time of that arrest. Id., 223. An officer is authorized to arrest any person who he has “reasonable grounds to believe has committed or is committing a felony.” General Statutes § 54-If (b); State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). Reasonable grounds has been interpreted to mean probable cause. Id. “Although the precise determinations differ when probable cause to search and seize is at issue as opposed to probable cause to arrest, ‘ “it is generally assumed by the Supreme Court and the lower courts that the same quantum of evidence is required [for either].” ’ ” State v. DeChamplain, 179 Conn. 522, 529 n.7, 427 A.2d 1338 (1980). Probable cause for a warrantless arrest exists only when “[t]here must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed”; State v. Penland, supra, 155; and that the person arrested committed the felony. State v. DeChamplain, supra, 529.
In this case, the informant, Cowell, who was already in police custody and whose condominium was being searched, told the police where they could find his cocaine. He then claimed that his supplier was Velez and that he had purchased his cocaine from Velez. The state asserts that this statement satisfies both prongs of the Aguilar-Spinelli test, arguing that the informant’s basis of knowledge is his own participation in the crime with the defendant, and that the statement given was against the informant’s penal interests, hence rendering it reliable. The state argues further that this original statement was a valid basis upon which to credit the informant’s subsequent information that he made his phone call to DePortivo’s social club, spoke to the defendant, and set up a deal with him. We disagree.
While the previous reliability of an informant can be a basis for crediting his information; State v. Ferguson, 185 Conn. 104, 116, 440 A.2d 841 (1981); this informant had never provided information to the police
After confirming the location of the cocaine, the police requested that the informant call the defendant to set up a cocaine sale. The informant first called the defendant’s home. The police confirmed only that he dialed the defendant’s phone number. They did nothing to attempt to hear any more than the informant’s side of the conversation. The informant next called DePortivo’s social club at about 10 p.m. and asked for the defendant; he then told the police that the defendant was supposed to return his call at 10:30 p.m. At about 11 p.m., since the defendant had failed to return the call, the police asked the informant to try again. The informant called DePortivo’s and spoke with some
The informant told the police only that he was to meet the defendant at the 7-Eleven store at approximately 11:30 p.m., and that the defendant might arrive in someone else’s car. The informant neither described the car nor gave any details as to what the defendant would do upon arrival. When the defendant did arrive at the 7-Eleven at about 11:30 p.m., as a passenger in another vehicle, the informant could not make a positive identification. As he saw the defendant exit the car and enter the store, he was able to say only that this man might be the defendant. One police officer followed him into the store, verified only that he fit the general description given by the informant, called in the car registration, and discovered it was registered to one Felix Velez. The officers watched as the defendant bought some food items, got back in the car and began to exit the lot. At this point, the police blocked the defendant’s car with their own and arrested the defendant, removing him from the car.
The trial court held and the state concedes that the arrest occurred at the point at which the police surrounded the defendant’s car. Probable cause had to exist at that point in order for this arrest to be constitutionally valid. Although the court found that probable cause did exist at 11 p.m., probable cause did not exist before the defendant’s arrival at the 7-Eleven, and, therefore, the events that took place at the store must be considered.
In a litany of leading Connecticut cases our appellate courts have analyzed the question of probable cause
In State v. Martin, supra, the court was presented with much more information than the officers had in this case. In Martin, the police not only verified the informant’s information about the color and make of the defendant’s car, the out-of-state license plates, the estimated time and place of arrival at a location known for its drug activity, and the defendant’s general description, but they also witnessed furtive activity by the defendant. “What followed the defendant’s arrival at the cafe at the generally predicted time and in a vehicle which fit the general description given in the tip was that the defendant left the vehicle with one person, returned with another who had an eight year old drug conviction, and moved the vehicle from an illuminated area to an unilluminated area.” (Emphasis added.) Id., 615-16.
In that case, this court held that the amount of detail of the tip and the police officer’s corroboration were
In State v. Love, supra, our Supreme Court held that when the officers detained the cab in which the defendant was a passenger they had a reasonable and articulable suspicion justifying only a Terry stop. In Love, a known and reliable informant said that the defendant would arrive by train in Bridgeport from New York with narcotics, and he might be with a female. The officer knew the defendant from prior narcotics investigations, he saw the defendant come from under the railroad tunnel in Bridgeport with a female at the generally predicted time, and he saw the two get into a cab. State v. Love, supra, 598. The officer approached the car for investigatory purposes and observed the defendant pass a bag to the female, who in turn, threw it out of the cab. It was not until the officer saw the defendant furtively pass the bag to the female, and the female discard it, that there was probable cause to arrest. Id., 589-99.
This court held in State v. Rodriguez, supra, that where the informant had given a detailed tip, the detail of which was corroborated, the stop of the defendant was justifiable only as an investigatory Terry stop because the police had only a “reasonable and articul
The officers then approached the defendant to conduct a Terry stop but did not attempt to apprehend the defendant. Upon approaching the group, the officer saw one of its members drop a silver heat sealed bag that he knew to be the type used to carry drugs. It was not until the officers saw someone in the group drop one of the silver heat sealed bags that reasonable suspicion heightened into probable cause. Id., 142-43.
Finally, in United States v. Yanes, supra, the Connecticut District Court held that FBI agents did not have probable cause to arrest the defendant until the defendant actually performed acts consistent with the anticipated drug deal. In Yanes, an FBI informant provided information that the codefendant, Gorski, was interested in selling cocaine. The informant predicted that Gorski would come to Connecticut on April 16, 1987, to discuss drug transactions. An FBI agent arranged for the person who was to meet Gorski to wear a transmitter and for FBI agents to monitor the meeting. The agents heard Gorski discuss a proposed drug deal in detail. They heard that the defendant Yanes was to be the source of the drugs that Gorski was to pick up and deliver to a buyer in Connecticut. Id., 929. Gorski was familiar with selling large quanti
The prospective buyer spoke with Gorski and Yanes to confirm the sale. On April 26, he arranged to consummate the sale the following day between 5 and 6 p.m. with a courier whom he described and who was to arrive by bus. The agents observed Gorski meet a man who fit the description of the courier at the terminal, take a black travel bag from him and walk with him to meet the prospective buyer at his car. At that point, the agents surrounded the group and arrested the defendants. Id.
In applying federal law, the court held that even though the proposed drug deal was detailed and the police monitored the conversations, “the plan was only a plan and this information alone would not have provided probable cause for the arrests, seizure and search.” Id. The court further held that probable cause existed because “the agents’ information was closely corroborated by Gorski’s conduct on April 27, 1987. Specifically . . . Gorski met Cabrera, a man who fit Gorski’s prior description of his drug courier; Cabrera carried a bag and Gorski brought Cabrera with the bag to meet the prospective purchaser . . . .” (Emphasis added.) Id., 929-30. The court stated explicitly that because the conduct of the parties “corroborated the transaction . . . [aft that point [when all the parties met], there was a reasonable basis to believe that Gorski was about to deliver a kilogram of cocaine to consummate the previously arranged sale.” (Emphasis added; citations omitted.) Id., 930.
Our courts have repeatedly held that “ ‘[p]robable cause means more than mere suspicion. . . .’” State v.
Here, the police had only a tip given by an untested informant acting upon the request of police officers while in their custody and providing only general information about an alleged drug deal that the police never actually heard was supposed to occur. There was insufficient information available to the police from which they could determine that this informant or his information was reliable.
We are presented with nothing analogous to the silver heat sealed bag as in Rodriguez or the furtive bag dropping as in Love. Had the police officers merely stopped the defendant for investigative purposes as in Rodriguez and Love, rather than arresting him, such an act may have been justified. As a result of a stop, “events or circumstances may arouse further suspicion in an officer’s mind [leading to probable cause] or dispel questions that arose.” State v. Rodriguez, supra, 146; State v. Love, supra, 601. Here, however, there are few circumstances corroborating the informant’s information, except the fact that the defendant arrived at this particular place when the police were there. State v. Kimbro, supra, 228. By placing the defendant under arrest, the police officers acted prematurely, arresting him before their suspicions developed into probable cause.
There is error, the trial court’s denial of the motion to suppress is reversed and the case is remanded with direction to grant that motion.
In this opinion the other judges concurred.
General Statutes § 21a-278 (b) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years.”
General Statutes § 54-94a provides in pertinent part: “When a defendant . . . enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law.”
The fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution protect the right of the people to be free from unreasonable searches and seizures.
The Tri-Town Task Force consists of the Manchester, Vernon and South Windsor police departments specializing in narcotics and other drug related activities.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A clear line is a telephone line that has a phone number different from the general police department phone number and is answered with a simple “Hello.”
Both sides agree that, at the moment the police blocked the defendant’s car, took his keys and prevented his departure, the defendant was under arrest.
Although it may have been sufficient to create a reasonable suspicion justifying a Terry stop, the state did not attempt to justify the warrant-less seizure on the basis that it was an investigatory stop to be measured by reasonable and articulable suspicion, nor was their conduct supportive of such an assertion. Upon blocking the defendant’s car, they removed him from it and searched him. Cf. State v. Martin, 2 Conn. App. 605, 612-612A, 482 A.2d 70 (1984).
The court in State v. Martin, 2 Conn. App. 605, 482 A.2d 70 (1984), addresses a federal constitutional claim, and therefore proceeds under the federal standard of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). This case is still relevant because if the case fails under the federal standard it must necessarily fail under our stricter Kimhro standard. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985).
The informant’s first statement concerning the location of his cocaine was a statement against penal interest. That, however, is an insufficient basis upon which to credit the subsequent information that the informant relayed concerning his telephone conversation with someone he alleged to be the defendant.
The trial court determined that at this point the police had probable cause to arrest the defendant. This ruling was erroneous. In State v. DeChamplain, 179 Conn. 522, 532, 427 A.2d 1338 (1980), our Supreme Court
