Opinion
No. CR 10-0257583 T
December 7, 2010
MEMORANDUM OF DECISION
The defendant has moved to suppress a statement given by him to the Meriden Police Department on February 3, 2010 in which he confessed to committing a home invasion on the second floor of his apartment building. Oral argument was held on the motion to suppress, but neither the state nor the defendant produced any testimony or other evidence.
In his brief, the defendant sets forth his version of the facts and the state, at oral argument did not dispute those facts. The court will therefore decide the motion to suppress on the basis of the facts set forth in the defendant's brief.
Probable Cause and Indicia of Reliability for Informants
The standard for assessing probable cause for the issuance of a search warrant under the federal and Connecticut constitution is the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 231-32, 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); State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). "Under this test, in determining the existence of probable cause to search, the issuing judge must make a `practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the "veracity" and the "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Rodriguez, 223 Conn. 127, 134-35, 613 A.2d 211 (1992).
The court will uphold the validity of the warrant if "the affidavit at issue presented a substantial basis for the magistrate's conclusion that probable cause existed . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing the warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate . . . We are also reminded that [i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate's determination . . . Lastly, it is well established that, in reviewing a search warrant affidavit, [t]he reviewing court may consider only the information that was actually before the issuing judge at the time he or she signed the warrant." (Citations omitted; internal quotation marks omitted.) State v. Batts, 281 Conn. 682, 699-700, 916 A.2d 788, cert. denied, 522 U.S. 1048, 128 S.Ct. 667, 169 L.Ed.2d. 524 (2007).
Though Connecticut courts have not yet specifically addressed the factors for reliability of an informant who is named in the search warrant affidavit, other jurisdictions have done so. In states such as Massachusetts, Georgia and New York that have adopted the Illinois v. Gates "totality of the circumstances" test like Connecticut, few indices of reliability are required to satisfy a finding of probable cause. In Massachusetts, "[r]eliability is shown when an informant provides his identity to police and is willing to be named in the affidavit in support of the warrant." Commonwealth v. Beliard, 443 Mass. 79, 85, 819 N.E.2d 556 (2004). The Court of Appeals of Georgia found that "[w]hen a named informant makes a declaration against penal interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit the statement." (Emphasis in original.) Lott v. State, 303 Ga.App. 775, 783, 694 S.E.2d 698, cert. denied, ___ Ga. ___ (2010). Similarly, the Appellate Division of the Supreme Court of New York found that "the information provided in the affidavit of [an] informant, which include[s] information against his penal interest as well as particulars regarding the presence of drugs and weapons at defendant's residence, is sufficient to establish probable cause for [a] search warrant." People v. Osorio, 34 App.Div.3d 1271, 1272, 823 N.Y.S.2d 810 (2006), cert. denied, 8 N.Y.3d 883, 864 N.E.2d 626, 832 N.Y.S.2d 496 (2007).
While the Connecticut courts have not yet adopted a standard for named informants in search warrant affidavits, there is substantial case law that explains the factors necessary to support a finding of probable cause for confidential informants. "If a search warrant affidavit is based on information provided to the police by a confidential informant, the issuing judge `should examine the affidavit to determine whether it adequately describes both the factual basis of the informant's knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists.'" State v. Rodriguez, supra, 223 Conn. 135.
In and of itself, "an informant's record of providing information that has led to arrests and seizures of contraband is sufficient to establish the reliability of an informant." State v. Respass, 256 Conn. 164, 175-76, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S.Ct. 478, 151 L.Ed.2d 392 (2001). Additional factors include: (1) whether the informant was anonymous or known to the police and could expect adverse consequences if the information provided was erroneous; State v. Barton, supra, 219 Conn. 550-51; (2) whether the police met face-to-face with the informant so that they had an opportunity to gauge the informant's credibility and demeanor; State v. Batts, supra, 281 Conn. 704; State v. Richards, 113 Conn.App. 823, 837, 968 A.2d 920, cert. granted on other grounds, 292 Conn. 905, 973 A.2d 107 (2009); (3) whether the informant made declarations against penal interest; State v. Johnson, 286 Conn. 427, 438-39, 944 A.2d 297, cert. denied, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008); State v. Velasco, 248 Conn. 183, 193, 728 A.2d 493 (1999); and (4) whether the police independently corroborated the information provided; State v. Ruscoe, 212 Conn. 223, 230-31, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).
In cases where the confidential informant does not have a history of providing accurate information, the court is more likely to find that there was sufficient probable cause to issue a search warrant if at least two of the additional four factors were apparent at the time the search warrant was issued. See State v. Sulewski, 98 Conn.App. 762, 769-70, 912 A.2d 485 (2006) (affirming the trial court's conclusion that the confidential informant was reliable where he was not anonymous to the police and the police independently verified the information provided); State v. Richards, supra, 113 Conn.App. 838-39 (concluding that police properly relied on information by unnamed, unknown informant because they spoke with her face-to-face and could independently corroborate her version of events); State v. Johnson, supra, 286 Conn. 438-39 (finding that informant was reliable where he was not unknown to the police, met them face-to-face, admitted to engaging in illicit drug transactions with the defendant and the police partially corroborated the informant's information). Though in practice the courts find that more than one factor has been satisfied, the Connecticut court has cited United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), for the proposition that admissions against penal interest by an informant "carry their own indicia of credibility — sufficient at least to support a finding of probable cause." See, e.g., State v. Johnson, supra, 286 Conn. 439; State v. Barton, supra, 219 Conn. 551; State v. Daley, 189 Conn. 717, 724, 458 A.2d 1147 (1983). It is therefore the court's opinion that the arrest warrant affidavit was not lacking in probable cause. Even if the defendant is correct in his argument that the arrest warrant lack probable cause, the statement he seeks to suppress must be the fruit of the poisonous tree.
Statements and Prior illegal Police Conduct
Evidence found to be the fruit of prior police illegality must be suppressed. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "All evidence is not, however, a `fruit of the poisonous tree' simply because it would not have been discovered but for the illegal action of law enforcement officials." State v. Burroughs, supra, 99 Conn.App. 426. Evidence obtained by means sufficiently distinguishable to be purged of the primary taint or that has not been come at by exploitation of the illegality need not be suppressed. Id., 427. The evidence must be "in some sense the product of illegal government activity." Id.
"[E]vidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint." State v. Brunetti, 279 Conn. 39, 73, 901 A.2d 1 (2006), cert denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). Once the court has established that the threshold voluntariness requirement has been met; State v. Cates, 202 Conn. 615, 621, 522 A.2d 788 (1987); "[t]he factors to be considered in determining whether the statement of an accused is sufficiently attenuated from the original illegality to cleanse it of its taint are (1) whether Miranda warnings had been issued, (2) the temporal proximity of the illegal police action and the statement, (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct." (Internal quotation marks omitted.) State v. Brunetti, supra, CT Page 994 279 Conn. 73. Miranda warnings alone are insufficient to "establish that the initial illegality was sufficiently attenuated, but such warnings are an important factor . . . in determining whether the confession is obtained by exploitation or an illegal arrest." (Internal quotation marks omitted.) State v. Brunetti, supra, 279 Conn. 74. Using the same reasoning, the lawful discovery of evidence is a significant intervening factor that tends to purge the taint of an underlying illegality. Id., 75 (holding that "the incriminating statement was induced primarily by the lawful discovery of the damaging, untainted evidence and not by the initial, unlawful detention"). Moreover, police conduct that is neither "flagrantly in violation of the defendant's rights nor otherwise unduly intimidating or coercive" favors a finding of attenuation. Id. In cases where those factors have not been satisfied, "it is impossible to separate the illegal seizure from the evidence collected by the police at the scene of the illegal seizure." State v. Burroughs, supra, 99 Conn.App. 428.
Alternatively, when police do not exploit their illegal conduct to obtain evidence, that evidence need not be suppressed. See, e.g., State v. Colvin, 241 Conn. 650, 658, 697 A.2d 1122 (1997); State v. Daugaard, 32 Conn.App. 483, 630 A.2d 96 (1993), aff'd, 231 Conn. 195, 647 A.2d. 342 (1994); State v. Fahy, 149 Conn. 577, 587, 183 A.2d 256 (1962) (noting that the defendants could not argue that their confessions should be suppressed on the grounds that the illegal search and seizure induced their admissions or confessions), rev'd on other grounds, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
In State v. Colvin, supra, 241 Conn. 653, two police officers approached the defendant who they had been observing for twenty-five minutes. After completing their surveillance, during which time they did not see any act that could suggest criminal activity, the officers ordered the defendant, who knew one of them by name, to his automobile. Id. While standing on the sidewalk next to the defendant's automobile, one of the officers saw in plain view a bag that contained narcotics. Id., 653-54. The Connecticut Supreme Court, following the reasoning in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986), concluded that there was no evidence to support the conclusion that the "allegedly unlawful arrest [was] causally connected with the discovery of the evidence." Id., 658. The court noted that there was no evidence to suggest that encounter between the police and the defendant caused the officer to look into the defendant's car as well as the fact that there was evidence that the officers knew which automobile was the defendant's before they approached him. Id.
Similarly, the court in State v. Daugaard, supra, 32 Conn.App. 498, dealt with a case in which a defendant confessed to a crime unrelated to the one for which he had already been arrested. In that case, the defendant used his sister's vehicle to drive the victim to Wallingford and sexually assault her near a highway. Id., 485-86. While the Wallingford police were investigating the sexual assault, the defendant's sister contacted the West Haven police to complain that the defendant had taken her vehicle without permission. Id., 486-87. Based on her complaint, the West Haven police arrested the defendant without an arrest warrant and charged him with using his sister's vehicle without permission. Id. 487. While the defendant was incarcerated at the West Haven police station in connection with car theft, the Wallingford police learned his whereabouts and interviewed him regarding the sexual assault. Id. 496. The defendant made one statement before receiving his Miranda warning, then proceeded to question the police and make statements after he refused to waive his rights or consent to a search. Id. 497. On appeal, the defendant argued that the statements obtained by the Wallingford police were the result of the illegal arrest by the West Haven police and should have been suppressed. Id., 498. The Appellate Court disagreed, finding that even if the initial, warrantless arrest by the West Haven police was illegal, the statements were not obtained by the exploitation of the illegality, but rather that any taint on the statements subsequently made by the defendant was purged by intervening circumstances. Id., 499. What was most relevant for the court in Daugaard was that the statements were made to a different police department and had "no relation to the crime for which the allegedly illegal arrest was made but related to a wholly different and unrelated crime." Id., 500. The court noted that "[t]he defendant cannot successfully argue that were it not for the illegal entry into the house, the defendant would not have been in the custody of the police, and, therefore, would not have made any statements that inculpated him in another crime." Id., 499. The court continued and found that the statement made lacked temporal proximity, was voluntary and not the result of intense interrogation, and was made after Miranda warnings. Id., 501.
It is the opinion of the court that there is sufficient attenuation between the search which the defendant claims to be illegal and the statement sought to be suppressed so as to conclude that the latter is not the fruit of the poisonous tree.
The motion to suppress is denied.
The defendant also argues that the facts in the search warrant were stale when it was executed. The court finds that argument to be without merit.
CT Page 996