author: Dupont, C. J. E. Y. O’Connell, J.,

text:
    State of Connecticut v. Sherman Cofield
    (7901)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 8, 1989
    decision released May 4, 1990

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction rendered after entry of a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, to charges of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), possession of marihuana in violation of General Statutes § 21a-279 (c), and interfering with an officer in violation of General Statutes § 53a-167a. The defendant received a sentence of three years and nine months with no probation. The issues on appeal are whether the trial court properly denied the defendant’s motion to suppress evidence obtained at the time of his arrest and whether the court properly granted permission to the state to retain a copy of the presentencing investigation report prepared for the defendant’s sentencing hearing.

On the evening of November 21, 1987, the defendant drove a companion to a parking lot in the Maple-wood Terrace housing project in Middletown. After dropping off his companion, he met two other men with whom he was acquainted. The two men entered the defendant’s parked car, which was a 1988 white Pontiac LeMans.

On the same evening, Frank Violissi, the officer in charge of the street crime unit of the Middletown police department, received a telephone call from a confidential informant about a black male selling drugs from a car in a parking lot at Maplewood Terrace. Violissi arranged to meet the informant and drove to the meeting in an unmarked car with two other members of the Middletown police department. The three officers met with the informant at a location a short distance from Maplewood Terrace and arranged for the informant to make a controlled buy of narcotics from the alleged drug seller. The informant left to make the buy and the officers remained in their vehicle at that location. From where they waited, the officers could not see the housing project.

About fifteen minutes later, the informant returned with what appeared to be cocaine. He told the officers that he had purchased the drugs from a black male named Sonny who was wearing a red hat and was seated in the driver’s seat of a 1987 blue Chevrolet Beretta. Two other men were also seated in the vehicle. The informant also told the officers that the car was parked in a specific spot in parking lot three of Maplewood Terrace and was facing the road.

Violissi then drove to Maplewood Terrace with the other officers and entered lot three, which was well lighted and almost full. He turned off the headlights of the vehicle so as not to be seen and drove toward a white car in which three men were seated. The police observed the vehicle from the rear for about thirty seconds at a distance of about ten to fifteen feet and saw no suspicious activity. The court found that the car was “parked in a place, an area described by [the] informant.” Violissi then backed up the police car about thirty-five feet to where it could not be seen by the occupants of the white car. He and one of the other officers, both dressed in plain clothes with badges on chains around their necks, decided to approach the white car on foot. Violissi testified that on the basis of his experience, his “gut feeling,” and his knowledge that this was a high crime area, he believed that he was in a potentially life threatening situation. Consequently, he drew his gun and carried it by his side while walking quickly to the driver’s side of the car. The other officer approached the passenger side of the car in the same manner but did not draw his gun.

When Violissi reached the rear driver’s side of the white vehicle, the driver looked in his outside rearview mirror and saw a man with a gun rapidly approaching his door. He turned around and looked at Violissi through the car window. Violissi testified and the court found that the defendant then exited the car, pushed Violissi, and began throwing things from his clothing. Violissi testified that he recognized the objects being thrown as money and contraband. He identified himself as a police officer and grabbed the defendant with his left hand while holding his gun in his right hand. A scuffle ensued in which Violissi stuck the barrel of his gun into the defendant’s mouth in order to subdue him. All three occupants were subsequently arrested and charged with various crimes. The blue Chevrolet Beretta, the person who sold cocaine to the informant and the two other occupants of the Beretta were never found.

I

In its ruling on the suppression motion, the trial court, Stengel, J., found that the informant was reliable, that the police officers had been able to corroborate the informant’s information, and that the officers had a reasonable and articulable suspicion of criminal activity on which to base their initial investigative approach to the defendant’s car. It further found that suspicion ripened into probable cause to arrest the defendant when the defendant pushed Violissi and threw drugs and money on the ground.

On appeal, the defendant challenges the court’s conclusion that the initial stop was justified by a reasonable and articulable suspicion of criminal activity. He argues that he was seized within the meaning of the fourth amendment to the United States constitution when he saw Violissi approaching his car with his gun drawn, that the police did not have the requisite level of suspicion for the stop and that the evidence obtained therefrom should have been suppressed.

The central issue of this appeal is whether the police had a reasonable and articulable suspicion of criminal activity to justify an investigative stop. The threshold issue is whether an investigative stop occurred at all, and, if so, when. The state argues that the defendant was not seized when he saw Violissi with the gun and, alternatively, that Violissi had a reasonable and articulable suspicion of criminal activity at that time. While it is true that not all contacts between police officers and members of the public amount to seizures implicating constitutional rights; Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); a seizure occurs when “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . .” Id. State v. Williamson, 10 Conn. App. 532, 540, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). Examples of actions by police that might indicate a sufficient show of authority include “the threatening presence of several officers, the display of a weapon by an officer, [or] some physical touching of the person of the citizen . . . .” (Emphasis added.) United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980).

The state in the present case argues that no seizure took place despite the presence of the drawn gun because Violissi had not used the gun to communicate his authority or to control the defendant. The test for determining whether a seizure has taken place, however, is not whether the officer intended to communicate his authority to the defendant by display of a gun, but whether, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id; State v. Martin, 2 Conn. App. 605, 611, 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). The state’s argument that a reasonable person in the defendant’s position would not have felt that his freedom had been restrained upon seeing a police officer with a drawn gun approaching his parked car in a parking lot at night is less than reasonable. Testimony indicated that there were no other people in the general area, that Violissi had already reached the defendant’s car when he was first observed, and that he was rapidly approaching the driver’s door. While the presence of a gun does not automatically convert an investigatory stop to an arrest; State v. Holloman, 20 Conn. App. 521, 526, 568 A.2d 1052 (1990); State v. Wylie, 10 Conn. App. 683, 687, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987); it is at least evidence of authority strong enough to lead a reasonable person to believe that he is not free to leave. See United States v. Mendenhall, supra. We find that the defendant was the target of an investigatory stop and, therefore, was seized within the meaning of the fourth amendment to the United States constitution when he first saw Violissi in his rearview mirror. See Terry v. Ohio, supra.

Seizures implicating the fourth amendment need not be supported by probable cause for an arrest. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1971); State v. Holloman, supra, 525. Rather, police may momentarily detain a person for investigatory purposes if they are “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21; State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985). In assessing the reasonableness of an investigatory stop, “the totality of the circumstances—the whole picture—must be taken into account. On the basis of that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. McMullen, 2 Conn. App. 537, 540, 480 A.2d 594 (1984).

Although the trial court in the present case did not identify the point in time at which the initial seizure occurred, it concluded that the police had a reasonable basis for an investigative detention. In its oral memorandum of decision, the trial court stated that Violissi “was familiar with the defendant and knew he had been involved with drug use. Therefore, it is found that the police had reasonable and articulable suspicion of criminal activity to investigate and initially detain the defendant.” It is clear from this statement that the court considered Violissi’s alleged familiarity with the defendant as an element of the reasonable suspicion justifying the seizure. The defendant argues that the court was mistaken in its conclusion because that conclusion was based in part on information gained by the police during the course of the detention.

At the suppression hearing, Violissi testified that he first recognized the driver of the white car as the defendant when the defendant turned around and looked at Violissi through the window. Since we have found that the seizure occurred earlier, when the defendant first saw Violissi in the rearview mirror, Violissi’s recognition of the defendant could not have formed the basis of a reasonable and articulable suspicion justifying the seizure. Information gained during the course of an investigative stop cannot be used to justify making the stop in the first place. See State v. Williamson, supra, 540. We must, therefore, determine whether the police had a sufficient basis for their initial detention independent of Violissi’s alleged familiarity with the defendant.

The trial court’s conclusion that the police had sufficient justification for the stop was also based on the reliability of the informant and on the fact that the police found three men in a car in the general area of the parking lot where the informant had reportedly purchased drugs. The defendant does not challenge the reliability of the informant, but argues that this very reliability undermined the reasonableness of the police officers’ suspicion. Violissi testified that the informant had provided reliable and accurate information to the police in the past and that the officers had expected to find the 1987 blue Chevrolet Beretta described by the informant. Instead, upon arriving .at parking lot three, the police found a 1988 white Pontiac LeMans. Violissi admitted to having had some doubt about whether they had found the car involved in the drug transaction because of the discrepancy in color, but testified that the informant had not told him the shade of blue and that “a real light blue car and white, in the nighttime, could be similar.” The court excused the discrepancy in make, model and year by finding that Violissi, a seventeen year veteran of the police force, did “not have a basic knowledge of what different automobiles are. He is not fully aware of the different makes of cars.” The other officers did not testify as to their ability to recognize cars by makes and models. A photograph of the defendant’s car offered as evidence at the hearing showed the words “Pontiac LeMans” on the rear of the vehicle.

A description by an informant or an eyewitness need not be absolutely accurate in all respects in order to provide a basis for an investigatory stop. In cases where discrepancies exist, courts must consider “the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable. . . .” 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978) § 9.3 (d); see also Luckett v. State, 259 Ind. 174, 284 N.E.2d 738 (1972). In State v. Rodriguez, 11 Conn. App. 140, 525 A.2d 1384 (1987), this court found the investigative stop of the defendant justified, even though the defendant arrived at the scene of the stop in a different vehicle than that described by a reliable informant. In that case, however, the car was a minor detail, there was no question as to the defendant’s identity, and all other points of comparison matched.

In Luckett v. State, supra, an eyewitness described a car leaving the scene of a possible burglary as a green Chevrolet with a license plate prefix of 82J. The Indiana Supreme Court upheld a stop based on that description of a green car with the same prefix, even though the car stopped was an Oldsmobile rather than a Chevrolet. Id., 181. The court considered the deviation to be insubstantial in light of the similarities and the fact that the car was discovered traveling away from the scene of the crime in a location within the range of possible flight. Id. Similarly, in United States v. Wantland, 754 F.2d 268 (8th Cir. 1985), police stopped a 1971 gold Plymouth Duster with Illinois license number 104-849 based on an eyewitness description of a getaway car in a bank robbery as a 1971 gold Dodge Dart with Illinois license number 104-819. The court concluded that the similarity of the car and the license plate to the description justified the stop, noting that the detaining officer testified that it was common for eyewitnesses to be a few digits off on license numbers. Id., 270.

Our recent holding in State v. Holloman, supra, is inapposite to the present case. In Holloman, we found that the police were justified in stopping the defendant’s vehicle to investigate a recently committed robbery based on an unverified tip by a citizen. In that case, however, the defendant matched a description given by the victim, and the citizen had previously seen the defendant in a car that he thought matched that used in the robbery. Moreover, the police had an independent basis for the stop because the license plate on the stopped vehicle was registered to another vehicle. Id.

In sharp contrast is the present case. Here, the information was provided not by an eyewitness who happened to observe a crime, but by an experienced, reliable informant who, on this occasion, was working in concert with the police for the specific purpose of obtaining and providing accurate information about a specific criminal activity. The informant described the vehicle from which the drugs were sold with particularity and certainty and did so immediately after his controlled buy of drugs. The vehicle in which the defendant was seated when seized differed from that described on every point, that is, color, make, model and year. It is improbable that, having given such a detailed description, the informant would have been mistaken as to every detail. The only points of comparison that did match were unremarkable and could have fit a wide range of presumably innocent persons. Although there were three dark skinned men in the car, Violissi testified that that was not an unusual sight in the predominantly black and Hispanic Maplewood Terrace housing project. None of the men in the car was wearing a red hat or any hat at all and no suspicious activity was observed. Moreover, the police could not see the entrance to the project or the parking lot during the time the informant was away and they were aware that the car from which the drugs were sold could easily have left the project or could have been driven to another parking lot in the project or to another parking space in the same lot.

While police are not required to conduct an exhaustive investigation prior to conducting a Terry stop, here we find that the obvious discrepancies between the informant’s description and the situation found by the police rendered the officers’ suspicion speculative and unreasonable. We conclude that the information available to the police did not, without further corroboration, amount to a reasonable and articulable suspicion that the defendant was the person who had sold drugs to the informant.

Because we find the defendant’s federal constitutional claim to be dispositive on this issue, we do not address his argument that the seizure violated his rights under the constitution of Connecticut, article first, §§ 7 and 9.

II

During the sentencing hearing, the state requested and was granted permission to retain a copy of the defendant’s presentencing investigation report (PSI). The trial court, R. O’Connell, J., ruled that it was “in the best interest of the state and of society as a whole for the state’s attorneys to have [the PSI] available to them in their office in carrying out the duties imposed on them by both the constitution of the state of Connecticut and the statutes of the state of Connecticut.”

The defendant argues that the court’s ruling violates the letter and the spirit of Practice Book §§ 915 through 917. He contends that Practice Book § 916 implicitly requires a showing of good cause in order to gain the court’s permission to retain a copy of the PSI and that, in this case, the court improperly excused the state from making such a showing. The state argues that the court’s ruling was a proper exercise of discretion authorized by § 916.

“PSIs result from a presentence inquiry into the circumstances of the offenses, the attitude of the victim or his immediate family, the criminal record, social history and present condition of the defendant, and, if desirable, the mental and physical state of the defendant. General Statutes § 54-91a (formerly § 54-109); Practice Book § 911. 'Their sole purpose is to enable the court, within the limits fixed by statute, to impose an appropriate penalty fitting the offender as well as the crime.' State v. Gullette, 3 Conn. Cir. 153, 167, 209 A.2d 529 (1964).” Steadwell v. Warden, 186 Conn. 153, 158-159, 439 A.2d 1078 (1982). Because PSIs contain personal, and possibly embarassing information about the defendant, access to them is limited. State v. Fair, 197 Conn. 106, 113, 496 A.2d 461, cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1985).

Access to and use of PSIs are governed by Practice Book §§ 915 through 917. Section 915 provides in part that copies of the PSI “shall be provided to the prosecuting authority and to the defendant or his counsel in sufficient time for them to prepare adequately for the sentencing hearing . . . .” Section 917 provides in part that the PSI “shall not be a public record and shall not be accessible to the public. It shall be available initially to the parties designated in Sec. 915 for use in the sentencing hearing and in any subsequent proceedings wherein the same conviction may be involved . . . .” In addition, § 917 authorizes a court of proper jurisdiction to order that the PSI be made available to counsel for the parties for the purpose of any proceeding before the court where the PSI is relevant. It also makes the PSI available to “[cjounsel for the defendant and the prosecuting authority during negotiations relating to other offenses pending against the defendant or subsequently charged against him . . . .” (Emphasis added.)

Section 916 further reinforces the nonpublic, confidential nature of the PSI by providing that the “report and copies thereof made available under Sec. 915 shall be returned to the probation officer or delivered to the clerk immediately following the imposition of the sentence. No person shall, without the permission of the court, make or cause to be made any copy of any presentence investigation report except as authorized by Secs. 915 and 917.”

The last sentence of § 916, investing the trial court with discretion to permit copies of the PSI to be retained in situations not authorized by §§ 915 and 917, was added in 1981 when the rule was amended. It replaced prior language in the rule that allowed the prosecuting authority and the defense counsel to retain a copy of the PSI. The amendment made it clear that nonaccess, except as authorized in §§ 915 and 917, is the rule, and that any exceptions to this rule must be made by the trial court in an exercise of its discretion.

The exercise of discretion by a trial court necessarily involves the balancing of competing interests. “Discretion . . . imports something more than leeway in decision-making.” State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986); State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1980). Discretion should be exercised to conform with the spirit of the law and in a manner to promote and not to defeat the ends of substantial justice. State v. Corchado, supra; Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980).

At the sentencing hearing in the present case, the state argued that because the majority of people sentenced in Connecticut return to the court on other charges, the state should be able to retain a copy of the PSI to assist in future plea bargaining. It also argued that the PSI should be available because of the possibility of future parole violations or sentence reviews. The defendant objected to these arguments as speculative, noting that he had not received probation as part of his sentence. He also argued that the state’s arguments were too general and could be made in any criminal case, since it is possible that any given defendant will later be prosecuted for another crime.

On the basis of our review of the transcript of the sentencing hearing, we conclude that the court’s decision to allow the state to retain a copy of the PSI did not conform to the intent of §§ 915 through 917. If the drafters of the rules had intended to allow the state to retain perpetually copies of PSIs in their files, they would not have eliminated the language in § 916 that expressly authorized that practice. We hold that, in order to invoke the exception to nonaccess found in § 916, a requesting party must make a showing of need particular to the case before it.

The judgment is reversed and the case is remanded with direction to grant the motion to suppress and to order the prosecuting attorney to return all copies of the PSI.

In this opinion Lavery, J., concurred.

E. Y. O’Connell, J.,

dissenting in part and concurring in part. I cannot agree with the opinion of the majority reversing the trial court’s ruling on the motion to suppress evidence. My disagreement is based on my conclusion that Sergeant Frank Violissi had a reasonable, articulable suspicion to make the Terry stop. Terry v. Ohio, 392 U.S. 1, 88, S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

The trial court, after hearing the evidence, concluded that the police did have a reasonable and articulable suspicion of criminal activity and properly stopped the defendant for investigative purposes. This conclusion may be overturned by us only if we find, from the whole record, that it was clearly erroneous. State v. Ortiz, 17 Conn. App. 102, 104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988); State v. Williamson, 10 Conn. App. 532, 537, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). I submit that such is not the case here. The fact that there were discrepancies between what Violissi viewed at the scene and the otherwise corroborated report of the informant does not vitiate Violissi’s reasonable suspicion. That is why we call it suspicion, albeit a reasonable suspicion. It is inherent in the word suspicion that doubt, uncertainty and ambiguity exist in the questioned behavior. See Black’s Law Dictionary (5th Ed.). (“Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof.”) In the present case, Violissi was approaching the defendant’s car to confirm or negate these doubts, and the trial court, in finding that he had articulated valid reasons for his suspicion, was not clearly erroneous.

I submit that Violissi was not wandering aimlessly through this parking lot, randomly stopping vehicles at his whim and arbitrarily searching them. Nor was he acting on a mere hunch or on some vague inexplicable intuition. He was able to articulate the reasons why he was there and why he suspected that this particular vehicle was occupied by a drug dealer.

“The fact finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984). Accordingly, it was for the trial court to determine how much weight to give to Violissi’s testimony. State v. Hamilton, 17 Conn. App. 385, 389, 552 A.2d 834 (1989), aff'd, 214 Conn. 692, 573 A.2d 1197 (1990). It was not for this court to cast doubt upon his credibility based on his experience as a police officer, the lighting conditions in the parking lot, his knowledge of makes and models of cars or his opinion concerning various shades of car colors. Id. Nor was it for this court to speculate that the “real” car might have been driven away from the designated parking place.

This court cannot sift and weigh evidence. Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985); State v. Staples, 175 Conn. 398, 407, 399 A.2d 1269 (1978). We do not examine the record to determine whether the evidence could have led the trier of fact to a different decision. Cook v. Nye, 9 Conn. App. 221, 225, 518 A.2d 77 (1986). A finding may not be rejected merely because the appellate judges personally disagree with the trial court’s conclusion or would have found differently if they had sat as the factfinder. Lupien v. Lupien, supra, 446. When there might be an honest difference of opinion as to the conclusion to be drawn from the evidence, the finding of the trial court is conclusive. State v. Staples, supra. In my opinion, the majority invaded the province of the trial court. It weighed the evidence, determined which portion was credible, which portion it doubted and then substituted its findings for those of the judge who heard the evidence. This is not allowed. State v. Hamilton, supra; see also State v. Copeland, 205 Conn. 201, 208 n.3, 530 A. 2d 603 (1987) (appellate courts do not find facts).

I respectfully dissent from the opinion of the majority on the issue of whether there was a reasonable and articulable suspicion for the stop. Otherwise, I concur in the decision of the majority.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, 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 issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”

       The evidence sought to be suppressed included less than one quarter of an ounce of marihuana, a driver’s license, a small plastic bag coated with cocaine residue and $91.

       In the alternative, the defendant claims that he was arrested when he saw Violissi in his rearview mirror and that there was no probable cause for the arrest. Because we find that the police officers did not have a reasonable basis for the initial stop, we do not reach this claim.

       An examination of the whole record discloses the following evidence that supports the trial court’s decision.
      Just before 9 p.m., Sergeant Frank Violissi of the Middletown police department received a telephone call from a reliable, confidential informant who had previously furnished information concerning drug sales that had led to arrests and convictions. This informant reported that a black male drug dealer was at that moment selling cocaine from a car in the vicinity of Maplewood Terrace. Violissi immediately arranged to meet the informant at a point less than a minute’s drive from Maplewood Terrace. The informant was searched to make sure that he had no drugs on his person and then was given money to make a “controlled buy.” The informant proceeded to the Maplewood Terrace parking lot and returned shortly thereafter with what, by Ms training and experience, Violissi believed to be cocaine. The informant told Violissi that he had purchased the cocaine from a black male. The informant described the person, whom he said was in a blue Chevrolet Beretta, and also gave the location where the Beretta was parked.
      Relying on the informant’s tip and the supporting drug buy, Violissi proceeded to the parking lot for further investigation. No more than twenty minutes elapsed from the time of the controlled buy to Violissi’s entering the parking lot. Violissi was not conversant with the many makes and models of automobiles and did not know what a Chevrolet Beretta looked like. He did know, however, from information furnished by the informant, that he was looking for a new car.
      Upon entering the parking lot, Violissi observed a new white car parked in the exact location and facing in the exact way that the informant had reported. In addition, it was occupied by three dark skinned males, just as the informant had said. Unfortunately, the informant had not indicated whether the car was dark blue or very light blue in color. Nevertheless, Violissi knew that at night, and under certain lighting conditions, a light blue car could appear white. Furthermore, the vehicle was not clearly marked as to its make and model. Sergeant Violissi was not certain that this was the correct vehicle, but he nevertheless felt that he had sufficient information to merit further investigation. He therefore decided to approach the vehicle to investigate the matter further.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Thomas P. Dugas v. Lumbermens Mutual Casualty Company
    (7924)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 5, 1989
    decision released June 12, 1990

      Michael Brodinsky, for the appellant (defendant).

      Juri E. Taalman, with whom, on the brief, was Nicholas G. Sarantopoulos, for the appellee (plaintiff).
   Lavery, J.

The sole issue in this appeal is whether an insurance carrier providing uninsured motorist coverage may deduct from those proceeds payable to its insured the full amount of any unreimbursed reparations payments without contributing to its insured’s expenses, namely, attorney’s fees, in procuring the uninsured motorist recovery. The trial court rendered judgment requiring the defendant insurance carrier to contribute to those expenses in an amount proportionately equal to the plaintiff’s contribution. We affirm.

The case was tried upon the following stipulated facts. The plaintiff was injured in a two car accident on April 17,1982. At that time, the automobile driven by the plaintiff was covered by a policy with the defendant that provided reparations coverage of $25,000 and uninsured motorist coverage of $40,000. The defendant paid to the plaintiff or on his behalf reparations totalling $13,316.63. The stipulated amount of the plaintiffs damages under the uninsured motorist coverage was $20,000, and the parties agreed that the defendant would be reimbursed for its reparations benefits payments out of this $20,000.

The parties disagree, however, over whether the defendant is entitled to reimbursement of the full amount of its reparations payments. The defendant claims that, pursuant to the Connecticut insurance regulations, it is entitled to full reimbursement. The plaintiff, on the other hand, contends that the defendant’s reimbursement is limited to two thirds of the amount of the reparations payments. The trial court found for the plaintiff, and the defendant appealed.

To decide this appeal, we must consider the relationship among several statutes and regulations pertaining to no-fault insurance. These are General Statutes §§ 38-325 (b), 38-175c, and Regulations of Connecticut State Agencies § 38-175a-6.

The parties agree that General Statutes § 38-325 (b) governs the reimbursement to the insurer of reparations benefits out of damage recoveries from tortfeasors or their liability carriers. The trial court apparently held, however, as the plaintiff urges us to hold, that § 38-325 (b) also governs the reimbursement to the insurer of reparations benefits out of uninsured motorist damage awards. It is true, as the plaintiff contends, that the reparations benefits being reimbursed to the insurer are the same in the case of a recovery from either a tortfeasor or an uninsured motorist carrier. That the reparations payments being reimbursed are the same in either case, however, does not necessarily mean that the statute applies with equal force in either instance.

The relevant portion of § 38-325 (b) provides: “Whenever a person who receives basic reparations benefits for an injury recovers damages . . . from the owner, registrant, operator or occupant of [an insured] private passenger motor vehicle ... or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant . . . .” It is evident, therefore, that three factors must be satisfied before the provisions of this section become applicable. First, the claimant must receive reparations benefits. Second, the claimant must recover damages either through judgment or settlement. In the case before us, these two factors are satisfied. Lastly, the damages must be received from an individual or organization specified in the statute. On this factor the plaintiff’s argument fails. Uninsured motorist carriers are not specified in the statute, as they are not considered to be the tortfeasor or any other statutorily specified person; neither is the claimant’s uninsured motorist carrier considered to be in privity with the tortfeasor or with any of the persons specified in the statute. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620, cert. denied, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1975); 8C J. Appleman, Insurance Law and Practice § 5071, p. 83. Thus, § 38-325 (b) is not directly applicable to the situation before us.

The defendant, on the other hand, argues that the applicable authority is § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies, which provides that any uninsured motorist damages the insured may recover may be reduced by the amount of any unreimbursed reparations payments. In contrast to General Statutes § 38-325 (b), the regulation makes no provision for reducing the carrier’s reduction as a contribution toward the claimant’s attorney’s fees to reflect the claimant’s cost of procuring the benefit for the carrier. We agree with the defendant that this regulation controls the case.

It does not necessarily follow, however, that the trial court’s judgment allowing a setoff for attorney’s fees is erroneous and must be reversed. It is not clear whether the trial court considered the relationship of the regulation and the statute or the apparent conflict between them. Its memorandum of derision simply states that the court considered § 38-325 (b) and various cases. Even if the trial court failed to give adequate consideration to these issues, however, we may uphold a correct decision rendered below when the decision is rendered upon incorrect grounds, provided proper grounds may be found in the record to sustain it. Stamford v. Administrator, 15 Conn. App. 738, 743, 546 A.2d 335, cert. denied, 209 Conn. 814, 550 A.2d 1082 (1988). We uphold the trial court’s judgment because we hold, for the reasons set out below, that the regulation cannot be read to be valid without reference to the attorney’s fee provision of § 38-325 (b).

Our review of General Statutes § 38-325 (b) and the Regulations of Connecticut State Agencies § 38-175a-6 indicates that, although the statute seems facially inapplicable to this case, the public policy implicated by the statute cannot be wholly dismissed from our consideration of the regulation. The two are closely related; both the statute and the regulation govern the direct reimbursement to the insurer of reparations benefits paid to the insured, albeit from differing sources of recovery. Yet the two conflict on the insured’s ability to recoup part of the cost of collecting the funds reimbursed to the insurer.

“Although it is axiomatic that, where the statutory language is dear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force ‘[wjhere . .'. the language of a statute is . . . absolutely clear’ on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978). Where such absolute clarity is lacking and such an ambiguity is disclosed, the court must look to the language of the statute, its history, purpose, objective and underlying policy. Id.” Shelby Mututal Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 437-38, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986). We therefore examine the statute and the regulation to see if the apparent conflict between them can be resolved without resort to judicial construction.

We turn first to the statute, § 38-325 (b). Originally enacted as Public Acts 1972, No. 273, § 7, it gave insurers the right to require insureds who receive reparations benefits and recover tort damages to reimburse the insurer for the reparations benefits paid. The act did not require insurers to make any contribution toward the expenses that the insured bore in procuring the damage award. The act served a principal goal of the no-fault laws, namely, to limit the insured to a single net recovery, thereby reducing the cost of insuring the motoring public and easing the upward pressure on insurance premium rates. See Hartford Accident & Indemnity Co. v. Holder, 37 Conn. Sup. 723, 731-32, 436 A.2d 308 (1981), citing Gentile v. Altermatt, 169 Conn. 267, 290-92, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976).

In 1980, the legislature, growing increasingly aware that § 38-325 (b) placed an unfair burden on insureds and granted insurers a windfall; see generally 23 S. Proc., Pt. 4,1980 Sess., pp. 1266-1273 (remarks of Sens. James J. Murphy and Louise S. Barry); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1980 Sess., pp. 341-345 and 417-420 (remarks of Sen. Salvatore De Piano); amended the statute to require insurers to make a pro rata contribution toward the expenses borne by the insured in procuring the recovery. Henceforth, it was to be “part of our system,” in Senator Murphy’s words, “that if an insured or a member of the public is to make payments and bring upon him or herself to incur costs in order to effect a recovery ... an insurance company which benefits from effecting this recovery, should participate in the expenses of the same percentage that it effects a recovery for itself.” 23 S. Proc., Pt. 4, supra, 1270. Section 38-325 (b), as amended, thus incorporates two basic principles of fairness and public policy: first, that insureds be limited to a single recovery; and, second, that the cost of recouping the insurer’s reparations benefits payments should not be borne solely by the insured.

Both of these principles again found expression the following year in Public Acts 1981, No. 81-386, § 1, a new statute granting health insurers a lien on the proceeds of any workers’ compensation award won by a claimant who had received benefits from the health insurer to cover the same injury. General Statutes § 38-174n (b). The lien is for the amount of benefits paid, “less attorneys’ fees approved by the district commissioner and reasonable costs related to the proceeding.” Id. Similiarly, General Statutes § 31-293 (a) provides that when an injured worker and her employer jointly bring an action against a third party tortfeasor and recover damages, the employer’s claim for paid benefits takes precedence, “after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery.”

These other examples illustrate that the public policies embodied in General Statutes § 38-325 (b) are strong and broad based, running beneath not only that statute, but beneath provisions of the workers’ compensation statutes as well. These policies, therefore, warrant serious consideration in our review of the uninsured motorist regulation, § 38-175a-6, to which we next turn our attention.

The uninsured motorist insurance statute, § 38-175c, in fact made no provision for any reduction of the limits or the damages paid under the policy. General Statutes § 38-175a, however, authorized the insurance commissioner to adopt regulations “relating] to . . . exclusions, conditions and other terms applicable to . . . uninsured motorists coverages.” Section 38-175c was enacted in 1967, five years prior to the enactment of the no-fault statutes. The original uninsured motorist insurance regulations, effective in 1968, therefore, made no mention of reparations on their reimbursement. The no-fault statutes were passed in 1972, and included provisions for, inter alia, mandatory reparations coverage; General Statutes § 38-327; and made reparations payments reimbursable out of any damage award won by the insured. General Statutes § 38-325 (b). They also incorporated and made mandatory the uninsured motorist coverage provided for in § 38-175c. General Statutes §§ 38-326 and 38-327. In 1975, the uninsured motorist insurance regulation was amended to make reparations payments reimbursable from uninsured motorist damage awards as well. The regulation, thus, was at this point a clear reflection of the policy incorporated in § 38-325 (b), its provisions borrowed by analogy from that statute.

As we have seen, § 38-325 (b) was amended in 1980 to provide the pro rata attorney’s fee setoff against reparations reimbursements to insurers. This amendment was not reflected, however, in the second revision of the regulations, effective June 1,1986, despite the relationship by close analogy between the statutory provision and the regulation. This analogy is reinforced, moreover, by the fact that the determination of whether the insured is entitled to uninsured motorist damages is made through arbitration, an adversarial proceeding that usually requires the insured to retain the assistance of counsel.

Our reading of the statute and the regulation leads us to conclude that, given the close, albeit indirect, relation between the two and the strong public policy emanating from the statute, the regulation cannot be read without reference to the statutory provisions. The conflict between the regulation and the statute is genuine and unavoidable on the question of whether to allow the claimant a setoff for the expenses incurred in reimbursing reparations benefits to the insurer. The regulation is, therefore, deprived of absolute clarity and necessitates our further analysis. Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 437-38.

No Connecticut court has previously addressed this issue, and we proceed, mindful of the following precepts. When construing administrative regulations, we follow the same canons of construction that govern our reading of statutes. See Citerella v. United Illuminating Co., 158 Conn. 600, 608-609, 266 A.2d 382 (1969). When construing statutes, this court “often defers to the judgment of administrative agencies that are in charge of enforcing such statutes.... Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 173-74, 479 A.2d 1191 (1984).....” (Citation omitted.) Nichols v. Warren, 209 Conn. 191, 202-203, 550 A.2d 309 (1988). “However, ‘ “the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” ’ ” Nichols v. Warren, supra, 203.

“ ‘The power of an administrative agency to prescribe rules and regulations under a statute is not-the power to make law, but only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute.’ Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979).” Breen v. Department of Liquor Control, 2 Conn. App. 628, 635, 481 A.2d 755, cert. granted, 194 Conn. 808, 483 A.2d 1098 (1984) (remanded on motion by Supreme Court without opinion), vacated as moot on remand, 5 Conn. App. 432, 499 A.2d 432 (1985). “[N]o administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power. Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 695, 458 A.2d 387 (1983) . . . .” Breen v. Department of Liquor Control, supra, 634. Because of the interlocking nature of our automobile insurance laws, they cannot be read or considered individually in a vacuum without reference to other relevant provisions, but must be considered within the context of the whole body of automobile insurance law in this state.

General Statutes § 38-325 (b) established the will of the legislature with regard to the reimbursement of reparations benefits payments to insurers. Nothing in § 38-175a authorized the commissioner to adopt regulations at variance with other provisions of the automobile insurance statutes. Because § 38-175a-6 (d) (3) of the regulations does not provide for an attorney’s fee setoff similar to that found in General Statutes § 38-325 (b), the regulation effectively fails in this respect to “ ‘carry into effect the will of the legislature as expressed by the statute’ Breen v. Department of Liquor Control, supra, 635; and thus must be viewed as exceeding the commissioner’s statutory authority. To avoid the conclusion that the regulation is void, we will read it to incorporate by reference the attorney’s fees provision of General Statutes § 38-325 (b).

It is our conclusion, therefore, that, as a matter of law, the provision of General Statutes § 38-325 (b) making allowance for a contribution by the insurer toward the insured’s costs of gaining a damage recovery from which the insurer reimburses itself for reparations benefits paid must control, and be incorporated by reference into § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies. Otherwise, that portion of the regulation would be void as an exercise of regulatory authority beyond the commissioner’s statutory mandate. Citrano v. Berkshire Mutual Ins. Co., 171 Conn. 248, 255, 368 A.2d 54 (1976).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 38-319 (k) defines basic reparations benefits as “benefits reimbursing persons suffering economic loss through injury arising out of the ownership, maintenance or use of a private passenger motor vehicle For the purposes of our analysis there is no difference between “basic” reparations and “added” reparations benefits; see footnote 7, infra; and we therefore refer in the opinion simply to reparations benefits without distinguishing between “basic” and “added” reparations.

       The plaintiff sued the negligent tortfeasor and settled with his carrier for $20,000, the tortfeasor’s policy limit for liability. The plaintiff received the $20,000, paid his attorney and kept the rest, even though his own no-fault carrier was entitled to reimbursement of its reparations payments out of the plaintiff’s tort recovery. General Statutes § 38-325 (b). Thus, the reimbursement issue survived into the uninsured motorist proceedings, with the parties agreeing that the carrier was entitled to reimbursement but disagreeing over the amount. Further, the parties agreed that pursuant to § 38-175a-6 (d) (1) of the Regulations of Connecticut State Agencies, the uninsured motorist coverage limits should be reduced by the amount that the insured recovered from the tortfeasor, namely, $20,000, which left $20,000 of uninsured motorist coverage available. It is this balance that is at issue.

       The parties first presented this issue to an arbitrator, pursuant to a mandatory arbitration clause in the policy. The decision of the arbitrator was appealed, first to the Superior Court and then to this court. See Dugas v. Lumbermens Mutual Casualty Co., 14 Conn. App. 153, 540 A.2d 89 (1988), for further factual background of these proceedings. This court remanded the case to the trial court for a de novo review of the arbitrator’s interpretation and application of the law.

       General Statutes § 38-325 (b) provides: “Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. Such amount shall be computed by multiplying the total amount of such reasonable attorney’s fees and costs, by a fraction, the numerator of which shall be the amount of basic reparations benefits received by the claimant and the denominator shall be the amount of damages recovered by the claimant, less court costs. In no event shall such amount exceed one-third the amount of the basic reparations benefits to be reimbursed to the insurer. The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.”

       General Statutes § 38-175e provides in pertinent part: “(a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorist coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. . . . Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceedings.”

       Section 38-175a-6 of the Regulations of Connecticut State Agencies provides in pertinent part: “(b) arbitration. The insurance may provide but not require that the issues of liability as between the insured and the uninsured motorist, and the amount of damages, be arbitrated. The insurer may provide against being bound by any judgment against the uninsured motorist. . . .
      “(d) limits op liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workers’ compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.”

       In Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986), this court held that, for the purposes of General Statutes § 38-325 (b), the statutory reference to “basic reparations” means all reparations benefits, both basic and added.

       The court in Hartford Accident & Indemnity Co. v. Holder, 37 Conn. Sup. 723, 732, 436 A.2d 308 (1981), also noted that the implicit requirement of General Statutes § 38-325 (b) that the claimant bear the full brunt of the attorney’s fees provided a disincentive to sue in cases involving minor damages.

       General Statutes § 38-327 (a) (1) requires motorists to maintain “security in accordance with this chapter for payment of basic reparations benefits and the liabilities covered under residual liability insurance . . . .” Section 38-326 (b) provides that “[r]esidual liability insurance shall afford coverage which satisfies the requirements of sections 38-175a to 38-175h, inclusive.” The uninsured motorist insurance statute is § 38-175c.

       In such an arbitration, the insured is litigating against his own carrier. This distinguishes the uninsured motorist proceeding from a traditional civil action against a tortfeasor, but does not disturb the analysis or the analogy, because, first, in either instance the insured is expending funds to gain a recovery from which the carrier will benefit, and, second, the carrier is expending funds in the uninsured motorist arbitration not to create the recovery, but to avoid it. “Since it is the denial by the insurer of the right of the insured to recover the damages he seeks which compels the proceedings against it . . . by arbitration . . . it does not seem unreasonable for attorney’s fees to be included on part of the costs” credited to the insured. 8D J. Appleman, Insurance Law and Practice § 5141, p. 280. Kaplan v. Phoenix of Hartford Ins. Co., 215 So. 2d 893 (Pla. App. 1968), cert. denied, 220 So. 2d 365 (1969).


author: Norcott, J.

text:
    State of Connecticut v. David Johnson State of Connecticut v. Diane McIntosh
    (7401)
    (7405)
    Spallone, O’Connell and Norcott, Js.
    Argued March 7
    decision released June 12, 1990

      Denise Dishongh and Louis S. Avitahile, special public defenders, with whom was Joshua Kricker, special public defender, for the appellants (defendants).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Marcia Smith, senior assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendants appeal from their convictions, after a jury trial, of possession of heroin in violation of General Statutes § 21a-279 (a) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). They claim that the trial court should have granted their motion to suppress.

On April 2, 1987, Waterbury police received information from a known confidential informant that “cocaine and heroin were being sold from the defendants’ apartment.” The police then set up a controlled buy. They searched the informant, gave him $30 and observed him enter the defendants’ apartment building. Approximately one minute later, the police observed, through an exterior window, the informant inside the defendants’ apartment. Several minutes later, the informant emerged from the building and turned over to the officers a packet containing a white powder that field-tested positive for cocaine. The informant told police that the defendant Johnson instructed him to wait a few minutes while he made up the packet.

On April 7, 1987, the police sought and obtained a search and seizure warrant based upon this information. They executed the warrant in the early morning hours of April 8, 1987. As a result of the search, they found packets of drugs and drug paraphernalia.

The defendants moved to suppress the evidence found during the course of this search. The trial court suppressed certain items seized as being beyond the scope of the warrant, but it found that the warrant satisfied the requirements of the Aguilar-Spinelli test and that the information relied upon was not stale because it indicated ongoing criminal activity.

The defendants claim that the evidence should have been suppressed because the search warrant was fatally defective. They argue that the affidavit failed to satisfy the two-pronged Aguilar-Spinelli test and that the warrant was issued based upon stale information.

Article first, § 7, of the Connecticut constitution “affords more substantive protections to citizens than does the fourth amendment to the federal constitution in the determination of probable cause.” State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985). In reviewing a challenge to a warrant affidavit based upon information from an unnamed informant, we must apply the two-pronged Aguilar-Spinelli test, rather than the less strict “totality of the-circumstances” test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

“The Aguilar-Spinelli test for reviewing a finding of probable cause consists of two prongs: ‘ “The issuing [judge] 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.” ’ State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).” State v. Ruscoe, 212 Conn. 223, 228-29, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

If the tip fails to pass the Aguilar-Spinelli test, we must then determine whether the affidavit contains a recital of independent corroboration by the affiants. People v. David, 119 Mich. App. 289, 293-94, 326 N.W.2d 485 (1982); see also State v. Ruscoe, supra, 229; State v. Delmonaco, supra, 340-41. “Even though ‘the suspicions engendered by the informant’s report’ may be insufficient to justify issuance of a warrant independently, where the affiants’ own observations are very incriminating, the informant’s report may bridge the gap and ‘ripen into a judgment’ of probable cause.” (Citations omitted.) State v. Delmonaco, supra, 341.

In this case, the informant’s tip was that “cocaine and heroin were being sold from the defendants’ apartment.” This tip alone fails to satisfy either prong of the Aguilar-Spinelli test. This statement was a mere conclusion, and the affiants have provided no “underlying circumstances” relied on by the informant. See State v. Ruscoe, supra, 228. They have failed, therefore, to provide the informant’s “basis of knowledge” for this information. “[C]onclusory statements without a recital of the underlying factual circumstances will not suffice [to establish probable cause.]” State v. Willey, 363 A.2d 739, 741 (Me. 1976); see also State v. Gomez, 101 Idaho 802, 806-807, 623 P.2d 110 (1980), cert. denied, 454 U.S. 963, 102 S. Ct. 503, 70 L. Ed. 2d 378 (1981).

This tip is similar to the one given in State v. Willey, supra. In Willey, the informant told police that the defendant “ ‘always’ has plenty of marijuana.” In that case, the court held that “the affidavit of [the officer] failed to reveal how [the informant] was in a position to be able to say, as purported truth, that Willey ‘always’ has plenty of marijuana and ‘was expecting a large shipment’ in a day or two. . . . [The informant’s] statements were . . . statements of ultimate conclusions . . . .” Id., 743. The court then concluded that it was necessary, at a minimum, that the affidavit contain both the basis for the conclusions and whether they were based upon the direct perceptions of the informant. Id.

Further, the affiants in this case failed to provide any of the underlying circumstances from which they concluded that this tip was reliable or that this informant was credible, hence, failing the second prong of the test. State v. Delmonaco, supra; Commonwealth v. Fleurant, 2 Mass. App. 250, 254, 311 N.E.2d 86 (1974) (to meet the second prong, “[e]vidence that the informant was an eyewitness is a constitutionally sufficient demonstration of the source of his information”); People v. David, supra, 294. Because this statement fails under both prongs of the Aguilar-Spinelli test, in and of itself, it would be insufficient to establish probable cause. See State v. Gomez, supra, 806.

Because the independent tip here is inadequate under Aguilar, “the other allegations which corroborate the information contained in the hearsay report should . . . be considered.” Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); see also State v. Ruscoe, supra, 229; State v. Delmonaco, supra, 340-41; State v. Ralston, 7 Conn. App. 660, 672, 510 A.2d 1346 (1986). “ ‘When a tip not meeting the Aguilar test has generated police investigation and this has developed sufficient corroboration . . . the tip, even though not qualifying under Aguilar, may be used to give such additional color as is needed to elevate the information acquired by police observation above the floor required for probable cause.’ ” (Citation omitted.) State v. Gomez, supra, 807; see also United States v. Caniesa, 470 F.2d 1224, 1231 (2d Cir. 1972); State v. Delmonaco, supra.

Here, the affiants arranged with the informant to conduct a controlled buy, which they surveilled. The defendants claim that this controlled buy could not support a finding of probable cause because it was “imperfect” in that, although the informant was searched before the buy, he was not searched after the buy. The trial court found that while the buy was imperfect, the minor imperfections did not render the warrant invalid.

While it is true that a “perfect controlled buy” occurs only when the informant is searched both before and after entry, failure to conduct the search after entry need not be fatal to the finding of probable cause. See, e.g., Hignut v. State, 17 Md. App. 399, 303 A.2d 173 (1973) (similar buy held to establish “bare bones” minimum for probable cause); People v. Ferguson, 94 Mich. App. 137, 288 N.W.2d 587 (1979) (similar controlled buy made by a reliable informant held to establish probable cause). In this case, although the officers did not search the informant a second time or conduct complete surveillance of his every move from the time he left their sight until the time he returned, they did surveil most of his movement. The officers saw him enter the building, they observed him through an exterior window in the defendants’ apartment, and they saw him leave the apartment and return directly to them with a packet of white powder. The officers also observed that he did not stop to talk to anyone on the way to or from the apartment building.

Further, while the controlled buy may not have established probable cause, the buy, coupled with the defective tip, may have been enough to “bridge the gap” to allow the magistrate to find probable cause. State v. Delmonaco, supra. The magistrate need not completely ignore this faulty tip when determining whether there is probable cause for the warrant to issue. Id., 341; State v. Salz, 8 Conn. App. 125, 134, 512 A.2d 921, cert. denied, 201 Conn. 807, 515 A.2d 380 (1986); see also State v. Gomez, supra, 806-807.

It is true, as the state concedes, that this affidavit presents a marginal case for probable cause. Compare Hignut v. State, supra (where informants’ reliability was proven and still a controlled buy of this nature was considered “bare bones minimum”), with People v. David, supra, 294 (where a controlled buy similar to the one involved in this case was held not to establish probable cause). We must afford deference, however, to the magistrate’s determination and “ ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’ United States v. Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).” State v. Morrill, 205 Conn. 560, 565, 534 A.2d 1165 (1987); State v. Jackson, 162 Conn. 440, 445, 294 A.2d 517 (1972).

While probable cause may have existed on April 2, the day that the affiants obtained their information, the question still remains whether that probable cause existed five days later, when the affiants sought a warrant. “[T]he proof [of probable cause] must be of facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time.” (Emphasis added.) Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 77 L. Ed. 260 (1932); see also State v. Abbott, 5 Conn. App. 441, 444, 499 A.2d 437 (1985); Ashley v. State, 251 Ind. 359, 368, 241 N.E.2d. 264 (1968); State v. Willey, supra, 741. “The passage of time is a valid consideration in deciding whether probable cause exists.” People v. David, supra, 295. “Stale probable cause, so called, is probable cause that would have justified a warrant at some earlier moment that has already passed by the time the warrant is sought.” State v. Valenzuela, 130 N.H. 175, 192, 536 A.2d 1252 (1987). “Unfortunately, there exists no magical number of days within which information is fresh and after which the information becomes stale. The question must be resolved in light of the circumstances of each case.” State v. Gomez, supra, 808; see also Sgro v. United States, supra; People v. David, supra, 295; State v. Ingram, 251 Or. 324, 445 P.2d 503 (1968).

Where the affidavit recites criminal activities “of a protracted or continuous nature, a time delay in the sequence of events is of less significance.” State v. Gomez, supra; see also United States v. Johnson, 461 F.2d 285 (10th Cir. 1972); People v. David, supra, 295-96. Where, however, an affidavit recites merely an isolated violation, the passage of time between the occurrence and the issuance of the warrant is significant and the probable cause may “[dwindle] rather quickly with the passage of time.” United States v. Johnson, supra; see also United States v. Martino, 664 F.2d 860 (2d Cir. 1981); State v. Garcia, 7 Conn. App. 354, 360-61, 508 A.2d 824 (1986).

In this case, the affidavit was based solely on one isolated instance of criminal activity, that is, the controlled buy on April 2. The informant’s statement that the defendant Johnson told him “to wait while he made up the packet,” even if that statement could be credited, does not raise the logical inference that the drugs would still be in the apartment five days later.

Even if we were to assume this informant’s reliability, the affidavit did not provide any information that would create an inference of “continuous or protracted” illegal activities. Cf. United States v. Martino, supra (where the affidavit was found to contain description of ongoing drug activity where it contained a recitation of a number of occasions of drug trafficking between early March and May 6, 1980, and the warrant issued on May 28); State v. Burgos, 7 Conn. App. 265, 267, 508 A.2d 795 (1986) (where affidavit contained details of several controlled buys conducted over two month period and affidavit was sought on date of last buy); State v. Cavegn, 356 N.W.2d 671 (Minn. 1984) (where affidavit contained statements that the informant provided information that he had purchased drugs from the defendant within the past month, and the informant made a controlled buy within the past week); State v. Gomez, supra (where affidavit contained statement that police had observed defendant making heroin deliveries on two separate occasions in addition to a recent tip by informant that defendant had drugs in residence at the time of the tip); State v. Ogden, 391 So. 2d 434, 436 (La. 1980) (affidavit contained statement of reliable informant that he had purchased drugs on several occasions, the last of which was three days before the warrant was issued). The affidavit in this case, as in the case of People v. David, supra, contained only a single, isolated sale, which alone could not support a warrant issued five days later. In David, the Michigan Court of Appeals, in holding invalid a search warrant issued three days after a controlled buy similar to the one in this case, stated, “[w]e do not hold that a three day delay renders an affidavit stale; however, in the case at bar the affidavit alleged only a single sale, not continuing drug sales. The affidavit did not even state that [the] defendant possessed marijuana after he made the sale to the informant.” Id., 296; see also People v. Siemieniec, 368 Mich. 405, 118 N.W.2d 430 (1962) (where affiant saw defendant illegally sell alcohol on one occasion, that sale alone could not establish probable cause to issue a warrant four days later); Ashley v. State, supra (where affidavit describing only-one controlled buy held not to establish probable cause for issuance of warrant eight days later).

The search warrant in this case was for drugs, which can be easily concealed, removed or destroyed. Id.; Commonwealth v. Fleurant, supra, 254; State v. Ingram, supra, 507. Probable cause to believe that certain drugs are in a building on April 2 is not necessarily probable cause to believe that they will be in the same place five days later. See Ashley v. State, supra, 269. Because this warrant affidavit contained no facts indicating that the drug activity was continuous, we must conclude that the probable cause was stale at the time the warrant was issued.

We note, as did the Oregon Supreme Court in State v. Ingram, supra, 329, that we are not abandoning the policy expressed in United States v. Ventresca, supra; see State v. Morrill, supra; “which is to encourage searches pursuant to warrants and, therefore, to resolve marginal cases in favor of holding the warrant valid.” We conclude in this case, however, that, as in Ingram, “the affidavit has fallen below the acceptable standard.” State v. Ingram, supra; see also Ashley v. State, supra.

The state next argues that even if this warrant was based upon stale information, the police relied upon it in “good faith” and, therefore, the evidence should remain admissible under the good faith exception to the exclusionary rule. We disagree.

We conclude that under the federal law adopted by this court in State v. Brown, 14 Conn. App. 605, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988), the good faith exception would not apply. Under that rule, the exception does not apply “(1) where the issuing magistrate was misled within the standards of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (2) where the magistrate wholly abandoned his judicial role, as in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), (3) where the warrant was so lacking in indicia of probable cause that the police officers could not have a reasonable belief in its validity; see Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring), and (4) where the warrant was so facially deficient in its lack of particularity, regarding the place to be searched or the things to be seized, that the executing officer could not reasonably presume it to be valid. United States v. Leon, [468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)].” State v. Brown, supra, 635. On appeal, such a determination is “ ‘subject to de novo review as a mixed question of fact and law.’ ” State v. Marsala, 19 Conn. App. 478, 480-81, 563 A.2d 730, cert. granted, 213 Conn. 805, 567 A.2d 836 (1989), quoting United States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984), cert. denied, 470 U.S. 1006, 105 S. Ct. 1362, 84 L. Ed. 2d. 382 (1985).

This affidavit falls within the third class of cases. We have concluded that even if the warrant had been sought on the day of the controlled buy, the affidavit still would have contained only the “bare bones minimum” necessary to establish probable cause under the Aguilar-Spinelli test. Because the police obtained the warrant five days after the one isolated instance of criminal activity contained in the affidavit, we cannot conclude that, without more, they could have “harbored an objectively reasonable belief in the existence of probable cause” at the time the warrant was issued. State v. Marsala, supra, 482; State v. Morrissey, 18 Conn. App. 658, 665, 560 A.2d 471, cert. granted, 212 Conn. 821, 565 A.2d 541 (1989).

The judgments are reversed and the case is remanded with direction to grant the defendants’ motion to suppress.

In this opinion the other judges concurred. •

       Specifically, the police found fifty glassine packets containing a white powder, a straw and small vial, a straw and a plastic tag with residue on it and a pipe made out of an Advil bottle. All the items were found in the kitchen and bedroom area of the defendants’ apartment.

        Aguilar v. Texas, 370 U.S. 108, 84 S. Ct 1059, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 854, 21 L. Ed. 2d 637 (1969).

       The defendants each appealed separately and then filed a motion to consolidate, which was granted.

       The defendants raise five other claims of error as well. They claim that the evidence was insufficient to prove that the substance seized was heroin. They also claim that the trial court erred (1) in allowing them to be convicted based upon the results of a test that is less reliable than that required for workplace drug testing, (2) in permitting the state to rely on the testimony of an expert who had not performed the tests in question, (3) in denying the defendants’ motion for judgment of acquittal on “uncharged theories of liability” and their posttrial request that the jurors be polled, and (4) in denying the defendants' postverdict motion for the appointment by the court of an independent expert. Because we find error on the motion to suppress, we need not address these claims.

        In State v. Gomez, 101 Idaho 802, 806, 628 P.2d 110 (1980), the court, addressing a similar tip, stated that “if the affidavit in question were based solely on the anonymous informant’s tip, we would be compelled to hold the search warrant invalid. The tip, by itself, does not meet the Aguilar test, since it lacks the primary factual data required for the magistrate to evaluate the conclusional validity of the informant’s statements.”

       In its brief, the state presents additional facts that are not included in the warrant affidavit in an attempt to bolster its argument that the probable cause determination was correct. We will not consider these additional facts. It is axiomatic that a “reviewing court may consider only the information that was actually before the issuing magistrate at the time he or she signed the warrant.” State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984); State v. Couture, 194 Conn. 530, 536, 1482 A.2d 300, cert. denied, 469 U.S. 1192, 1055 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Morrissey, 18 Conn. App. 658, 663, 560 A.2d 471, cert. granted, 212 Conn. 821, 565 A.2d 541 (1989); State v. Salz, 8 Conn. App. 125, 129, 512 A.2d 921, cert. denied, 201 Conn. 807, 515 A.2d 380 (1986); Ashley v. State, 251 Ind. 359, 368, 241 N.E.2d 264 (1968).

       Even though the informant’s defective and conclusory statement was not completely ignored in evaluating the facial sufficiency of the affidavit, it cannot be substantially credited in and of itself, nor can it stand alone to support an inference of continuing activity. In addition to fading under Aguilar-Spinelli because of its bare, conclusory nature, the statement is also undated, and it was given on the same date as, and as prompted the arrangement of, the controlled buy. If undated information is factually related to dated information in the affidavit, an inference that the events contained in the statement are in close proximity to the date provided is permissible. 2 W. LaFave, Search and Seizure § 3.7 (a), p. 87.

       This statement, too, fails to pass muster under the Aguilar-Spinelli test. While the basis of knowledge prong may be satisfied by the informant’s direct contact with the defendants, the affiants still have failed to present any basis for determining whether this informant was reliable.

       In People v. Siemieniec, 368 Mich. 405, 118 N.W.2d 430 (1962), the court held invalid a warrant issued four days after the affiant himself witnessed an illegal alcohol sale. The court held, “[i]f [the defendant] unlawfully sold or furnished for sale alcoholic beverages on September 13,1958, she could have been prosecuted for doing so, but such sale alone afforded no ground for a finding of reasonable cause to believe that in September 17, four days after, she was continuing to do so, thereby justifying issuance of the search warrant.”

       In Ashley, the state attempted to introduce evidence of several additional controlled buys that occurred between the buy detailed in the affidavit and the issuance eight days later. The court refused to consider these additional facts because they were not set forth in the warrant, and it held the warrant invalid. Ashley v. State, 251 Ind. 359, 368, 241 N.E.2d 264 (1968).

       The question of whether a good faith exception to the exclusionary rule exists under Connecticut law presently remains unresolved. This court has clearly recognized a good faith exception in Connecticut. State v. Brown, 14 Conn. App. 605, 635, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); see also State v. Morrissey, 18 Conn. App. 658, 664, 560 A.2d 471, cert. granted, 212 Conn. 821, 565 A.2d 541 (1989); State v. Marsala, 15 Conn. App. 519, 526, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988). Our Supreme Court, however, has certified that question for review. See State v. Morrissey, 212 Conn. 821, 565 A.2d 541 (Supreme Court certified for review the question, “Did the Appellate Court err in remanding this case for a factual determination concerning the reasonableness of the police officer’s search in reliance upon their decision in State v. Brown, 14 Conn. App. 605, holding that there is a good faith exception to the exclusionary rule under article first, § 7, of the Connecticut Constitution”); State v. Marsala, 19 Conn. App. 478, 563 A.2d 730, cert. granted, 213 Conn. 805, 567 A.2d 836 (1989) (Supreme Court certified for review the question, “Does a good faith exception to the exclusionary rule exist under Connecticut law”). We cannot speculate as to the decision our Supreme Court will reach on this question. In addressing this issue, therefore, the only analysis that we have available is the federal analysis that this court employed in State v. Brown, supra.


author: Borden, J.

text:
    In re Robert M.

    (8219)
    Borden, Daly and Norcott, Js.
    Argued February 9
    decision released May 4, 1990

      Valerie J. Quinn, deputy assistant public defender, with whom, on the brief, was Paul D. Eschuk, assistant public defender, for the appellant (respondent).

      John H. Kearney, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest and upon order of the Appellate Court.

   Borden, J.

The juvenile respondent appeals from the adjudication of delinquency, after he was found responsible for committing arson in the third degree in violation of General Statutes § 53a-113. He claims that the trial court should have granted his motion to suppress all statements made by him to the police. We reverse the trial court’s judgment.

The trial court could reasonably have found the following facts. On the evening of January 19,1989, Officer Edward Golden of the New Milford police department arrived at the Lords Trailer Park in response to a call that a trailer was on fire. The fire started at approximately 7:15 p.m. Golden assisted the fire department until more help arrived. He thereafter engaged in crowd control, at which time he noticed the respondent holding a fire extinguisher and wearing various items of firemen’s apparel. Because of the respondent’s appearance, Golden asked him whether he was with the fire department. The respondent stated that he was not. He did state, however, that he knew many of the fire department personnel, and that he was enrolled in a program to join the department. The respondent also told Golden that he had been the first at the scene and that he had called in the fire. On the basis of this discussion, Golden considered the respondent to be a witness, and probably a suspect. The respondent, having told Golden that he was fifteen years old, was asked to give a statement at the New Milford police department with a parent accompanying him.

Later that evening, at approximately 8:45 p.m., the respondent and his father, M, arrived at the police station. Golden and Sergeant James Engle, in the presence of M, took a statement from the respondent. At 9:20 p.m., the statement was reduced to writing. The respondent, in the presence of M, was orally advised of his rights at this time. Because of various inconsistencies in the respondent’s statement, the officers did not believe it to be true and, as a result, they never asked the respondent to sign it. At 10:20 p.m., a notice of rights form was signed by both the respondent and M, after Engle read them the rights on the form and asked whether they understood them.

While being questioned about the inconsistencies in his first statement, the respondent stated he would feel “more comfortable” talking to David Lathrop, the fire marshal for the town of New Milford, whom he knew. At approximately 10:45 p.m., Lathrop replaced Golden in the room, leaving the respondent in the presence of M, Engle and Lathrop. Because of M’s presence, the respondent was reticent about making any statements regarding his involvement in setting the fire. He would start to make a statement, but would then withdraw. Although at this point in the interrogation the respondent did not explicitly state that he started the fire, he did make some statements implying guilt, including that his firemen friends would look down on him if they found out that he was responsible for the fire.

Subsequently, Engle suggested that M leave the room. Engle asked the respondent if he would prefer to talk without M’s being present, and he asked M if he would be amenable to leaving the room for a short period of time. The respondent and M acceded to Engle’s request. At some time between 11 and 11:30 p.m., M and Engle left the room. Shortly thereafter, Engle returned alone to join the respondent and Lathrop. Without M present, the respondent, at the prompting of Lathrop, orally confessed to starting the fire. At approximately midnight, immediately after this oral confession, M was called back into the room. In the presence of M, the respondent repeated his statement. Shortly thereafter, also in the presence of M, the statement was reduced to writing on a form that had an advisement of rights printed on it. In addition to the written statement, Engle drew a diagram of the trailer that had been set afire, and the respondent indicated thereon where he had started the fire. Engle did not reread the respondent’s rights at this time, but told both the respondent and M that they were the same rights of which they previously had been advised. At 12:15 a.m., both M and the respondent read and signed this second written statement, attesting that it was an accurate representation of the immediately preceding oral statement. •

The respondent moved to suppress all of his statements, both oral and written. The state did not offer into evidence the respondent’s oral statement made in M’s presence; it offered only the respondent’s written statement. The court denied the motion as to the written statement and admitted it into evidence. The court noted that the respondent’s oral statement made outside the presence of M would have been inadmissible had the state sought to enter it into evidence. The court found that because M was present at the time the written statement was given, the interrogation did not violate the parental presence requirement of General Statutes § 46b-137 (a), and it rejected the respondent’s argument that the second statement was a product of the preceding, tainted statement.

On appeal, the respondent frames his claim regarding the court’s failure to suppress his statement in two parts. First, he argues that the parental presence requirement of General Statutes § 46b-137 (a) renders inadmissible his oral confession, made outside of the presence of M, irrespective of the circumstances giving rise to M’s absence. In his first argument, the respondent also contends that a parent’s absence during any part of the interrogation process renders all statements made as part of that interrogation inadmissible. Second, the respondent argues that because the oral statement made outside of M’s presence was inadmissible, the subsequent written statement was an inadmissible product of the illegally obtained confession, and that M’s presence during the latter statement was insufficient to purge that taint.

The respondent’s oral statement given outside of M’s presence was clearly inadmissible for use in any later delinquency proceeding initiated against him. The language of General Statutes § 46b-137 (a) is clear and unambiguous with respect to the admissibility of juvenile confessions. Under that statute, for a confession to be admissible in a delinquency proceeding, it must be made in the presence of a parent or guardian, after the parent or guardian and the child have been advised of the child’s rights. See In re Ralph M., 211 Conn. 289, 314, 559 A.2d 179 (1989).

It is true that the parental presence statute does not address whether parental presence is required during the entire interrogation process. The respondent argues that General Statutes § 46b-137 (a) should be strictly construed to mean that any parental absence, even during part of the interrogation process, impermissibly taints the entire proceeding. Any statement, therefore, given by the juvenile would be inadmissible even if made in the presence of the parent. He supports this interpretation of § 46b-137 (a) based on the judicial gloss of the Colorado and Oklahoma parental presence statutes. Colo. Rev. Stat. § 19-2-102 (1987); Okla. Stat. tit. 10, § 1109A (1989); see B. Feld, Criminalizing Juvenile Justice: Rules of Procedure for the Juvenile Court, 69 Minn. L. Rev. 141, 180 n.132 (1985). In these two states, confessions made in the absence of a parent are per se inadmissible, and the circumstances surrounding that parent’s absence are of no import. See People v. Maes, 194 Colo. 235, 237, 571 P.2d 305 (1977) (presence of a social services caseworker who had no special interest in defendant insufficient to satisfy parental presence requirement); People in Interest of L. B., 33 Colo. App. 1, 4, 513 P.2d 1069 (1973) (incarcerated parent’s presence does not satisfy statutory presence requirement because his ability to guide and advise is restrained by his own circumstances); State v. M.A.L., 765 P.2d 787, 790 (Okla. Crim. App. 1988) (confession made in assistant principal’s office, outside presence of parent, is inadmissible).

While we agree that the language of Connecticut’s statute mandates a strict construction with respect to confessions obtained outside of a parent’s presence, these cases are distinguishable. In this case, it is the written statement that is at issue, not the prior oral confession made in M’s absence. Further, although those states have drawn a bright line rule with respect to the admissibility of statements made outside of a parent’s presence, a rule we find applicable to § 46b-137 (a), neither state has extended that rule to statements made during the course of the interrogation in the presence of a parent. See People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981) (a totality of circumstances approach should be used in evaluating whether a statement made in the presence of a defendant’s parents was voluntary in situations where the first confession was obtained outside of parent’s presence); see also A.M.H. v. State, 766 P.2d 351 (Okla. Crim. App. 1988) (minor’s confession in presence of a parent immediately after he was alone with an investigatory agent for a five minute “visit” was not a violation of Oklahoma’s parental presence statute absent a showing that the minor was questioned during this period).

Both parties have devoted substantial portions of their briefs to the issue of the proper construction of General Statutes § 46b-137 (a). The parties have asked us to consider whether the statute should be strictly construed or construed under the totality of circumstances in determining the extent to which noncompliance with § 46b-137 (a) impinges on the admissibility of other statements made during the interrogation process that facially satisfy the parental presence requirement. This issue, however, need not be addressed in order to resolve this case. After reviewing the record, we conclude that it can be decided on a narrower issue, namely, whether the respondent’s subsequent written statement was a product of the prior illegal questioning and, therefore, inadmissible under the “fruit of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1968); Washington v. State, 182 Conn. 419, 421 n.1, 438 A.2d 1144 (1980).

Under this analysis, we consider the respondent’s oral confession to be inadmissible under General Statutes § 46b-137 (a) because it was made outside of the presence of a parent. There can be no doubt on this record that the respondent’s oral confession was obtained in violation of General Statutes § 46b-137 (a) because it was made in his parent’s absence. Further, although this issue has not been addressed in Connecticut jurisprudence, we hold that, as a preliminary matter, the “fruit of the poisonous tree” doctrine applies to statements obtained from a juvenile in violation of General Statutes § 46b-137 (a). See People v. Saiz, 620 P.2d 15, 19-20 (Colo. 1980) (because the parental presence statute was enacted to safeguard the privilege against self-incrimination, the same privilege protected by Miranda, the “fruit of the poisonous” tree doctrine applies to violations of that statute as well).

The attenuation exception to the exclusionary rule is well settled. “ ‘Not every confession that follows an invalid admission of criminal involvement is a tainted product of the earlier statement.’ ” State v. Schroff, 206 Conn. 182, 197, 536 A.2d 952 (1988). “ ‘[I]n assessing the causal connection between an involuntary statement and a subsequent confession, courts have considered the temporal proximity of the illegality and the confession, the presence of intervening circumstances, and the flagrancy of the official misconduct.’ See Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Ostroski, 201 Conn. 534, 547, 518 A.2d 915 (1986).” State v. Schroff, supra, 197-98, quoting State v. Shifflett, 199 Conn. 718, 741, 508 A.2d 748 (1986).

In this case, the respondent’s inculpatory oral and written statements made in M’s presence followed by a matter of minutes the statutorily inadmissible oral statement made in M’s absence. The interview during which the written statement was obtained was in substance no more than a continuation of the prior questioning, pausing only to ensure M’s presence for what the police expected to be a repetition of the prior incriminating statement. See People v. Saiz, supra, 20.

The state seeks to demonstrate attenuation based on the facts that M knew his son was alone and did not object when they were separated, that after M reentered the room he and the respondent were again advised of the respondent’s rights, and that M was present both when the respondent repeated his statement and when the statement was reduced to writing, acknowledged and signed. These factors are insufficient to establish attenuation between the two confessions. The statement in this case was clearly the product of the earlier confession that was solicited by the police in violation of § 46b-137 (a). The purported intervening factors advanced by the state were inconsequential in dissipating the taint of the illegal questioning.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       There is a discrepancy in the testimony of Golden and Engle in regard to the timing of the advisement of rights. Golden testified that the respondent was read his rights before providing his first statement, whereas Engle testified that the respondent was advised of his rights after giving Ms first statement.

       We refer to both the written statement and the diagram that was received into evidence as the written statement.

       General Statutes § 46b-137 (a) provides: “Any admission, confession or statement, written or oral, by a child shall be inadmissible in any proceeding for delinquency against the child making such admission, confession or statement unless made by such child in the presence of his parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements and (3) that any statements he makes may be introduced into evidence against him.”

       The state cites Washington v. State, 171 Conn. 683, 690, 372 A.2d 106 (1976), for the proposition that the absence of M was a mere technical lapse in the statutory requirements. We disagree. In Washington, our Supreme Court held that noncompliance with Practice Book § 1108 (3), which requires a juvenile to be informed of his rights when admitted to a juvenile detention facility, was to be treated as one element in determining whether, under the totality of the circumstances, the accused waived his rights voluntarily and the statements were a product of his free will. In Washington, no incriminating statements were made while the juvenile was in the detention center. Id. In this case, unlike Washington, a facially valid confession was obtained by the police following a confession that was inadmissible under General Statutes § 46b-137 (a). The confession entered into evidence in the present case immediately followed on the heels of a confession obtained during an active interrogation by the police that lasted at least thirty minutes during which time the juvenile was without the assistance of a parent. A detailed analysis of these circumstances is not required to conclude that there was more here than a mere technical lapse of the statutory requirements. Compare A.M.H. v. State, 766 P.2d 351 (Okla. Crim. App. 1988) (a five minute absence of parent during which there was no questioning did not taint subsequent confession).

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).