author: O’CONNELL, C. J. HENNESSY, J.,

text:
    STATE OF CONNECTICUT v. SERGIO VELASCO
    (AC 16466)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Argued September 15, 1997
    officially released January 6, 1998

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark A. Stabile, supervisoiy assistant state’s attorney, for the appellant (state).

      Gregory A. Klimaszewski, with whom, on the brief, was Christina M. Andreozzi, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The state, with the trial court’s permission, appeals from the dismissal of the case, following the granting of the defendant’s motion to suppress evidence. The state claims that the evidence at issue was properly seized by the police and, therefore, the trial court improperly granted the defendant’s motion to suppress. We reverse the trial court’s decision and remand the case for further proceedings.

The trial court found the following relevant facts. “At approximately 1 p.m. on March 5,1996, Warren Winkler, a detective with the Willimantic police department with nineteen years experience on the force . . . received a telephone call from a confidential informant (informant), whose tips in the past had led to convictions, who advised Winkler that a Hispanic male with a thick mustache, thirty to thirty-five years old, five feet five inches tall and heavyset (defendant) was selling heroin in the soup kitchen located in the basement of St. Paul’s Church on a daily basis, usually in the morning. The informant stated that the informant had observed the sale of narcotics by the defendant in the soup kitchen, and that the informant had personally purchased narcotics from the defendant. Winkler told the informant during their March 5 telephone conversation to call again at such time as the informant actually observed further narcotic sales by the defendant.

“At approximately 10 a.m. on March 6,1996, the informant again called Winkler and said that the defendant, in his thirties, approximately five foot five with a thick mustache and wearing light colored pants and a light colored trench coat with green corduroy trim [and] the sleeves rolled up, had made several sales of heroin at the soup kitchen that morning that had been observed by the informant. Winkler drew the reasonable inference that the informant was knowledgeable in the mechanics of narcotic sales. Immediately after receiving the second telephone call from the informant, Winkler and three other Willimantic police officers went to the soup kitchen where they saw someone who matched the description of the defendant that had been given to Winkler by the informant. No one else in the soup kitchen at that time matched the description of the defendant that had been given to Winkler by the informant. When Winkler observed the defendant in the soup kitchen, the defendant was not doing anything illegal, and he did not try to escape when the officers entered the soup kitchen. Winkler arrested the defendant. Immediately after and incident to the arrest, the defendant was searched, and six packets of heroin were found in his left coat pocket. As testified to by Winkler, the arrest of the defendant was based solely on the information provided by the informant.”

The defendant filed a motion to suppress evidence seized from him as well as any statements made by him on the ground that they were the fruit of an arrest conducted without probable cause. The defendant argued that such an arrest violated the fourth amendment to the United States constitution and article first, §§ 7 and 8, of the Connecticut constitution.

The controlling issue in this case is whether the police lawfully arrested the defendant. General Statutes § 54-lf (b) authorizes a police officer to make a warrantless arrest of “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” The phrase “reasonable grounds to believe” is to be equated with probable cause. State v. Love, 169 Conn. 596, 599, 363 A.2d 1035 (1975). “Under both the federal and state constitutions, a warrantless search is per se unreasonable, subject to a few well defined exceptions. . . . One of these well defined exceptions is a search incident to a lawful arrest. It is an established rule that a properly conducted warrantless search incident to a lawful arrest is not illegal.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 27 Conn. App. 741, 745, 610 A.2d 666, cert. denied, 223 Conn. 906, 610 A.2d 179 (1992).

Moreover, “[a] formal arrest need not always chronologically precede the search in order for the search to be valid. Where there is probable cause to arrest, a search before an arrest is reasonable under the fourth amendment as long as the arrest and search and seizure are substantially contemporaneous, and are integral parts of the same incident.” State v. Kaplan, 20 Conn. App. 183, 188, 565 A.2d 11 (1989).

Our inquiry into whether probable cause to arrest the defendant existed, on the facts found by the trial court, begins with an examination of the Aguilar-Spinelli test. In these two cases, the United States Supreme Court created a two-pronged test to determine the constitutionality of both arrests and ultimate seizures that are made as a result of information that is furnished to police by an informant. The two prongs of the test are (1) whether the informant’s veracity or reliability is established and (2) whether there is a basis of knowledge for the information provided.

Over time, the United States Supreme Court found the Aguilar-Spinelli test unduly restrictive and established the more relaxed “totality of the circumstances” test for ascertaining probable cause. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In its adoption of the totality of the circumstances test, the United States Supreme Court recognized that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” (Internal quotation marks omitted.) Id., 235.

“The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are—quite properly . . . issued on the basis of nontechnical, common-sense judgments of [magistrates] applying a standard less demanding than those used in more formal legal proceedings.” (Citation omitted.) Id., 235-36.

Gates stands for the proposition that a strict application of the Aguilar-Spinelli test would greatly diminish police use of informants’ tips. Consequently, the totality of the circumstances test was created so that police would not be excessively hampered in making probable cause determinations when conducting searches and making arrests. Thus, it is clear that Gates was intended to make probable cause findings easier, rather than more difficult. The Gales court stated that “the direction taken by decisions following Spinelli poorly serves [t]he most basic function of any government: to provide for the security of the individual and of his property. . . . The strictures that inevitably accompany the two-pronged test cannot avoid seriously impeding the task of law enforcement .... If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses . . . generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs. Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise perfect crimes. While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.” (Citations omitted; internal quotation marks omitted.) Id., 237-38.

Analogous to a probable cause hearing pursuant to General Statutes § 54-46a (b), during which a defendant is not permitted to present evidence, the totality of the circumstances analysis is conducted by magistrates and police to determine whether probable cause exists when there is a deficiency in the Aguilar-Spinelli prongs, not to negate probable cause after the informant’s veracity and basis of knowledge have already been established.

Under the totality of the circumstances test, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Gates v. Illinois, supra, 426 U.S. 238-39.

While Gates involved information that was provided in an affidavit, our Supreme Court has recognized that it is not always reasonably practicable to obtain a warrant. Indeed, in State v. Kimbro, 197 Conn. 219, 230-31, 496 A.2d 498 (1985), our Supreme Court stated, “Where, in warrantless arrests or searches, the police involved, in effect, act as their own magistrate in the determination of the existence of probable cause, obviously fourth amendment protections still apply.” The probable cause analysis that is conducted to ensure a lawful search or seizure must be the same whether it is carried out by a magistrate or by the police. See also State v. Perry, 195 Conn. 505, 513-14, 488 A.2d 1256 (1985).

Initially, Connecticut declined to follow the more relaxed approach of Gates in cases that implicated article first, § 7, of the Connecticut constitution. State v. Kimbro, supra, 197 Conn. 236. Our Supreme Court later revisited the issue, however, and adopted the totality of the circumstances test. The court held that “[i]f the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists.” (Emphasis added.) State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991) (en banc).

If the Aguilar-Spinelli prongs are not satisfied, the sole purpose of the totality of the circumstances test is to provide a secondary vehicle to establish the informant’s credibility after it is found to be lacking under the second prong of the Aguilar-Spinelli analysis. This proposition is supported by the statement in Gates that “[the two prongs of the Aguilar-Spinelli test] are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” (Emphasis added.) Illinois v. Gates, supra, 462 U.S. 233.

In the present case, the trial court made the following additional factual findings: (1) “The information which had been provided by the informant to the police in previous matters, which had led to convictions, constituted a sufficient basis to establish the informant’s veracity; and [2] the informant’s reported personal observation of narcotics sales by the defendant constituted a sufficient basis for the informant’s knowledge that the defendant had engaged in illegal narcotic transactions.” The trial court concluded that those findings adequately described the factual basis for the informant’s information and that such information was reliable. Therefore, the trial court’s findings, in effect, established probable cause based on the Aguilar-Spinelli factors and further inquiry was unwarranted. The trial court’s attempt to negate its finding of probable cause by introducing a second level of review under the totality of the circumstances was clearly erroneous.

It is also apparent that the trial court’s holding in the present case relied on conclusions that went far beyond the limited scope of probable cause. “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992). Although satisfied that the Aguilar-Spinelli prongs were met, the trial court nevertheless granted the defendant’s motion to suppress because the court felt that “[attempts to corroborate the informant’s tip were likely to help establish the defendant’s guilt or innocence.” Because neither guilt nor innocence is an appropriate consideration when making a probable cause determination, the trial court went too far.

The trial court failed to recognize that the function of the totality of the circumstances review under Barton is to determine whether an informant’s statement is reliable when such reliability is lacking according to the Aguilar-Spinelli factors. Instead, the trial court used this “second tier review” as a method to corroborate information already found to be reliable. The trial court reasoned that if such information cannot be corroborated, probable cause cannot be found. It is axiomatic that if the trial court found it necessary to corroborate the informant’s reliability, then it could not have first satisfied the reliability prong of the AguilarSpinelli test. In fact, our Supreme Court has held that, “when an informant has a track record of providing reliable information, the ‘previous reliability of an informant, though not constitutionally required, is a basis for crediting his information.’ ” State v. Morrill, 205 Conn. 560, 567, 534 A.2d 1165 (1987); see State v. Ruscoe, 212 Conn. 223, 230-31, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). In this case, the police were dealing with a known informant whose tips had led to convictions. For these reasons, his information was reliable and, thus, corroboration was unnecessary.

We conclude that probable cause to arrest existed on the facts found by the trial court and, accordingly, that court should have found that the defendant’s arrest and the subsequent search and seizure were lawful.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion SPEAR, J., concurred.

HENNESSY, J.,

dissenting. The majority concludes that in determining the propriety of a warrantless arrest, the trial court should first apply the two prongs of the Aguilar-Spinelli test and, only if that test is not met, look to the “totality of the circumstances” test. Accordingly, the majority concludes that because the trial court found that the Aguilar-Spinelli test was met, the trial court improperly and unnecessarily applied the totality of the circumstances test. Because I believe the two tier test applied by the majority to be incorrect and, therefore, its conclusion that the trial court’s decision was clearly erroneous, I respectfully dissent.

I

The majority relies on State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), in holding that the trial court should apply a two tier test to determine probable cause to arrest. In Barton, the Connecticut Supreme Court explained and adopted the totality of the circumstances test set forth in the United States Supreme Court decision in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). “When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is rehable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists.” State v. Barton, supra, 544. The majority interprets this to mean that in Connecticut, the first step in determining probable cause for a warrantless arrest lies in the application of the Aguilar-Spinelli test. Only when the Aguilar-Spinelli test fails may the trial court then consider the surrounding circumstances. I disagree with that interpretation and believe that while they are highly relevant, the factors considered under Aguilar-Spinelli are not dispositive in and of themselves. I believe that Barton and subsequent jurisprudence establish that the Aguilar-Spinelli test is no longer conclusive and that the trial court should examine the totality of the circumstances in determining probable cause to arrest.

“Prior to Barton, the Connecticut Supreme Court held to the rigid Aguilar-Spinelli test that the sufficiency of an informant’s information depended on the state’s establishing (1) the informant’s ‘basis of knowledge’ about the information he furnished and (2) the underlying facts establishing his veracity. State v. Kimbro, [197 Conn. 219, 224-25, 496 A.2d 498 (1985)].” State v. Hunter, 27 Conn. App. 128, 133, 604 A.2d 832 (1992). “In State v. Barton, supra, 219 Conn. 544, our Supreme Court adopted the ‘totality of the circumstances’ standard for determining probable cause used by the federal courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, [supra, 462 U.S. 213].” State v. Marsala, 42 Conn. App. 1, 5, 679 A.2d 367, cert. denied, 239 Conn. 912, 682 A.2d 1010 (1996).

“Illinois v. Gates, [supra, 462 U.S. 213], dealt with an anonymous tip in the probable-cause context. The [United States Supreme] Court there abandoned the ‘two-pronged test’ of Aguilar v. Texas, [378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)], and Spinelli v. United States, [393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)], in favor of a ‘totality of the circumstances’ approach to determining whether an informant’s tip establishes probable cause.” Alabama v. White, 496 U.S. 325, 328, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). “Although Gates abandoned the two-pronged test in favor of a totality of the circumstances test, the Gates majority did not reject out of hand the underlying concerns that had originally been expressed in Aguilar. . . . Rather, the court agreed that an informant’s veracity or reliability and the basis of knowledge inquiries formulated in Aguilar remain highly relevant in the determination of probable cause and should be regarded as closely intertwined issues that may usefully illuminate the [common sense], practical question of the existence of probable cause to believe that contraband or evidence is located in a particular place. . . . The court did abandon, however, the rigid compartmentalization of the inquiries and denied that the court had ever intended them to be understood as entirely separate and independent requirements to be rigidly exacted in every case.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Rodriguez, 27 Conn. App. 307, 317-18, 606 A.2d 22 (1992). “Since [Barton], we have held, in accordance with Illinois v. Gates, [supra, 213] that article first, § 7, of the Connecticut constitution does not require rigid compliance with the Aguilar-Spinelli test. State v. Barton, [supra, 219 Conn. 529].” State v. Duntz, 223 Conn. 207, 215, 613 A.2d 224 (1992).

The majority would require an analysis under the totality of the circumstances test only if probable cause is not found under the two prongs of Aguilar-Spinelli. The two tier test adopted by the majority lacks support in Connecticut jurisprudence, past or present. While I agree that the factors considered under Aguilar-Spinelli are considered in the totality of the circumstances test, they are not dispositive in and of themselves. “[W]e agree with the conclusion of the United States Supreme Court in Gates that the two prongs of the AguilarSpinelli test are highly relevant evidentiary questions that a magistrate issuing the warrant must consider in deciding whether probable cause for a search or seizure exists, but that they are not wholly independent and dispositive constitutional tests for which de novo review exists at a suppression hearing. See Illinois v. Gates, supra, [462 U.S. 230].” (Emphasis added.) State v. Barton, supra, 219 Conn. 540.

Moreover, the opinion posited by the majority has been explicitly rejected by the United States Supreme Court in Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984). “The Massachusetts court apparently viewed Gates as merely adding a new wrinkle to this two-pronged test: where an informant’s veracity and/or basis of knowledge are not sufficiently clear, substantial corroboration of the tip may save an otherwise invalid warrant. . . . We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the two-pronged test. We rejected it as hyper-technical and divorced from the factual and practical considerations of [everyday] life on which reasonable and prudent men, not legal technicians, act. . . . Our statement on that score was explicit. [W]e conclude that it is wiser to abandon the two-pronged test established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.” (Citations omitted; internal quotation marks omitted.) Id., 730-32; see also State v. Perry, 195 Conn. 505, 508-509, 488 A.2d 1256 (1985).

Accordingly, I believe that the totality of the circumstances is the proper test. The factors considered in Aguilar-Spinelli are highly relevant in viewing the totality of the circumstances, but they are not a first step or a condition precedent. I must find, therefore, that, despite the fact that the trial court superfluously found that the two prongs of the Aguilar-Spinelli test were met, it properly applied the totality of the circumstances test to determine whether probable cause to arrest existed.

II

Having first set out what I believe the totality of the circumstances test to be, I turn to the particular facts of this case. “On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).

In light of that standard, even if I were to agree with the analysis of the law as posited by the majority, I could not agree with the result reached. The majority substantiates its reversal of the trial court by stating that there was a substantial basis on which the trial court could have found probable cause. This, however, is not the proper standard of review. We do not engage in speculation as to what the trial court could have found, but review what the trial court did find. In doing so, we must decide whether the trial court’s finding of a lack of probable cause to support the defendant’s arrest was “legally and logically inconsistent with the evidence.” Id.

The trial court stated in its memorandum of decision that “[i]n this case the facts satisfying Aguilar-Spinelli could not be leaner. ... In the absence of such corroboration, it is held that probable cause did not exist for the defendant’s arrest.” In effect, the majority has found that the trial court’s consideration of “corroboration” was clearly erroneous. I disagree.

The following facts must be emphasized. On March 5,1996, the Willimantic police received a telephone call from an informant. This informant told them that he had just purchased drugs from someone in a soup kitchen and that the same man was there every day selling drugs. The officers told the informant to call them back if it happened again. The officers did not make any attempt to set up surveillance of the soup kitchen or the defendant. On March 6, 1996, the informant called again and said that drug sales had been conducted and he had seen them but had not participated in them. Acting on this second call, detectives immediately went to the reported location where they observed the defendant.

The police officers testified at the suppression hearing that when they arrived “the defendant was not doing anything illegal, and he did not try to escape when the officers entered the soup kitchen [and] arrested the defendant.” The search at issue in the defendant’s motion to suppress was conducted incident to the arrest. Therefore, in order to uphold the search of the defendant, there must have been probable cause to arrest the defendant independent from the search.

“Probable cause to arrest depends ‘upon whether, at the moment the arrest was made . . . the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ Beck v. Ohio, [379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)].” Adams v. Williams, 407 U.S. 143, 148, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983); State v. Wilson, 178 Conn. 427, 435-36, 423 A.2d 72 (1979); State v. Wilson, 153 Conn. 39, 42, 212 A.2d 75 (1965). “[W]e have expressed a strong preference for warrants and declared that ‘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)].” United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

“When an informant’s tip underlies an arrest, the trial court’s task is to review the totality of the circumstances to determine the existence of probable cause. Illinois v. Gates, [supra, 462 U.S. 238-39]; State v. Barton, [supra, 219 Conn. 529]. This inquiry involves an assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip ... . [In addition to the veracity, reliability and basis of knowledge of the informant,] [c]orroboration of an informant’s tip by independent police information has long been considered critical in determining probable cause. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). State v. Hunter, supra, [27 Conn. App. 134].” (Citations omitted; internal quotation marks omitted.) State v. Conley, 31 Conn. App. 548, 555, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993). In the context of fourth amendment jurisprudence, the phrase “totality of the circumstances” has been described by the Supreme Court as meaning “the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). Further, it has been described as having both “quantity and quality” as pivotal components. Alabama v. White, supra, 496 U.S. 330. Therefore, the totality of the circumstances analysis involves a review of all of the facts available to the trial court, not just those enunciated in Aguilar-Spinelli. To hold otherwise would require a finding of probable cause to arrest regardless of other facts before the trial court.

In this case, the known informant merely supplied the basis of his information and the location of the defendant. In and of itself, that information may form reasonable suspicion to support an investigative stop, but standing alone, absent independent police investigation, it may be deemed by a reviewing court to be insufficient. I can find no Connecticut case where an informant’s tip, without any police corroboration or verification of the information given, has been upheld. It is important to note that Gates dealt with an informant who supplied information that included more than the “easily obtained facts and conditions existing at the time of the tip, but [referred] to future actions of third parties ordinarily not easily predicted. ” Illinois v. Gates, supra, 462 U.S. 245. As the White court noted, the importance of the information in Gates was “the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs.” (Emphasis in original.) Alabama v. White, supra, 496 U.S. 332.

The majority improperly finds error with the trial court’s consideration of corroboration. The case law support’s a trial court’s consideration of corroboration when examining probable cause. See State v. Rodriguez, 223 Conn. 127, 136-37, 613 A.2d 211 (1992); State v. Santiago, 27 Conn. App. 741, 749-50, 610 A.2d 666, cert. denied, 223 Conn. 906, 610 A.2d 179 (1992). It is clear that “[t]he police, however, are not required to corroborate all of the information provided by a confidential informant. . . . Partial corroboration may suffice. State v. Cofield, [220 Conn. 38, 47-48, 595 A.2d 1349 (1991) (en banc)].” (Citations omitted; emphasis added.) State v. Leonard, 31 Conn. App. 178, 187, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994).

Accordingly, I find that on the basis of the facts of this case, the trial court’s determination that probable cause to arrest did not exist was not clearly erroneous. Therefore, I would affirm the trial court’s decision.

I respectfully dissent.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       The items sought to be suppressed were (1) contraband consisting of six plastic bags containing heroin, (2) $420, (3) a beeper, (4) a cellular phone, (5) oral or written statements made by the defendant and (6) pieces of identification seized from the defendant.

       The author of this opinion is aware that he dissented in State v. Santiago, supra, 27 Conn. App. 750-55. Despite the analysis articulated in that dissent, the author now accepts the majority opinion as the law of Connecticut and has written this opinion from that viewpoint.

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

       The dissent relies on Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984). We conclude that Upton is not inconsistent with this opinion because it remains compatible with the intent of Illinois v. Gates, supra, 462 U.S. 213. Following in the spirit of Gates, the Upton court simply sought to facilitate the finding of probable cause. The United States Supreme Court’s determination that probable cause existed on the facts of that case followed the Supreme Judicial Court of Massachusetts’ failure to make such a finding, despite the existence of other relevant indicia of reliability sufficient to substantiate the informant’s tip. Massachusetts v. Upton, supra, 734. In using the totality of the circumstances test, our decision remains consistent with both Gates and Upton, and we conclude that probable cause does exist on the facts found by the trial court.

       We understand that this jurisdiction has adopted the totality of the circumstances test. The phrase Aguilar-Spinelli is used frequently in this opinion because its components have been subsumed under the totality of the circumstances test, and are the initial factors to be considered therein.

       In Morrill, as here, the reliability prong of the Aguilar-Spinelli test was satisfied because the known informant had a history of providing information that led to convictions. State v. Morrill, supra, 205 Conn. 567.

       The trial court's conclusion that the informant’s tip was reliable was substantiated by its findings that Winkler was a nineteen year veteran of the police force and that he had previously investigated approximately 1000 narcotics cases. The trial court further found that Winkler had known the informant for five years and that the informant had previously purchased narcotics from the defendant. At the time of the informant’s telephone call to the police, the defendant possessed and was selling heroin in the soup kitchen. The police arrived at the soup kitchen within ten minutes of the informant’s telephone call and did not have time to set up surveillance.

       Although Barton involved a search and seizure pursuant to a warrant, as did Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Gates, “the same standards of probable cause apply to a warrantless search and seizure. See, e.g., United States v. Smith, 598 F.2d 936, 937 n.2 (5th Cir. 1979).” State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

       This is no1 to mean that noncriminal acts can never form the basis for probable cause when taken together: “We noted in Gates, [supra, 462 U.S. 243-44 n.13], that ‘innocent behavior will frequently provide the basis for a showing of probable cause,’ and that ‘[i]n making a determina,üon of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or 'guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

       “Reasonable suspicion is a less demanding standard than probable cause ... in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, supra, 496 U.S. 330; see footnote 2.

       “Furthermore, statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police. ... If the police have evidence (such as from prior independent police work), which corroborates some of the details included in the affidavit, then an inference of reliability will rise.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, 223 Conn. 127, 136-37, 613 A.2d 211 (1992).


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    FRANK FIASCHETTI v. NASH ENGINEERING COMPANY
    (AC 16500)
    Lavery, Spear and Daly, Js.
    Argued October 28, 1997
    officially released January 13, 1998

      Thomas E. Mangines, with whom, on the brief, was Brian A. Mangines, for the appellant (plaintiff).

      Andrew Houlding, with whom, on the brief, was John A. Sabanosh, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, Frank Fiaschetti, appeals from the summary judgment rendered in favor of the defendant, Nash Engineering Company. The plaintiff claims that the trial court improperly granted, on res judicata grounds, the defendant’s motion for summary judgment because (1) the defendant had no right to file a second motion for summary judgment after the court previously denied a similar motion and (2) the plaintiffs state law claim was never disposed of in the federal court action because that court declined to exercise pendent jurisdiction. We disagree with the plaintiff’s first claim, but agree with his second claim and reverse the judgment on that ground.

The following facts and procedural history are relevant to this appeal. The defendant employed the plaintiff from 1951 through 1988. In April, 1978, the plaintiff suffered a work-related injury to his back. He received workers’ compensation benefits and took a medical leave for several weeks before returning to work. Between 1978 and 1988, the plaintiff reinjured his back on several occasions and was unable to work for extended periods of time. The defendant eventually terminated the plaintiff’s employment in April, 1988.

The plaintiff filed a complaint against the defendant in the United States District Court for the District of Connecticut in February, 1989. The first count alleged a violation of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, and the second count alleged a breach of an implied employment contract. The defendant filed a motion for summary judgment in November, 1989, asking the District Court to dismiss “any and all causes of action.” The motion also specifically requested that that court “decline to exercise pendent jurisdiction with regard to [the] plaintiffs state law claim of breach of implied employment contract . . . ,” The plaintiff did not oppose the defendant’s motion. In February, 1990, the District Court granted the defendant’s motion for summary judgment, without a written opinion, “after careful review and absent objection.”

After the plaintiffs motion for relief from the judgment was denied, he commenced the present action in the Superior Court. The complaint alleged breach of implied contract in addition to five other counts. In March, 1995, the defendant filed a motion for summary judgment based on collateral estoppel. The motion asserted that the issues in the plaintiffs complaint had been litigated and decided in the federal court action. The court denied the motion, and the defendant filed a second motion for summary judgment based on the related doctrine of res judicata. The second motion was granted.

I

The plaintiff first claims that the trial court should not have entertained the defendant’s second motion for summary judgment because the court had denied a prior motion that was based on similar grounds. We disagree.

The plaintiff asserts that the language of Practice Book § 379, which uses the singular article “a” before the words “summary judgment,” precludes a party from filing more than one motion for summary judgment. There is nothing in the rules of practice or in our case law, however, that specifically restricts a party to one summary judgment motion. Our Supreme Court “found nothing in our rules of practice that prohibited the refiling [of a motion for summary judgment] and looked to the federal rules for guidance. . . . [T]he federal courts have held that it is not an abuse of discretion or a violation of the doctrine of the ‘law of the case’ for a trial judge to reconsider a motion for summary judgment that has previously been denied, particularly where new evidence has been presented which was not before the court at the time of the original motion, or a clarification of the law has since occurred.” (Citations omitted.) Mac’s Car City, Inc. v. American National Bank, 205 Conn. 255, 260-61, 532 A.2d 1302 (1987).

We discern no reason why a second motion for summary judgment, on a different ground, should not be considered. The only restriction on a party seeking a summary judgment, according to § 379, is that “the party must obtain the court’s permission to file a motion for summary judgment after the case has been assigned to trial.” In this case, the defendant obtained the trial court’s permission to file the second motion for summary judgment.

The plaintiff also argues that the court should not have entertained the defendant’s second motion for summary judgment for reasons of judicial economy. We note that our Supreme Court has cautioned against “future unnecessary piecemeal litigation brought on by the repeated filing of successive motions for summary judgment.” Mac’s Car City, Inc. v. American National Bank, supra, 205 Conn. 262. It has also recognized, however, that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried. Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983); Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968). Accordingly, we conclude that the trial court properly considered the defendant’s second motion for summary judgment.

II

The plaintiff next claims that the trial court improperly granted the defendant’s motion for summary judgment on the grounds of res judicata since the plaintiffs state law claim was never litigated in the federal court action. We agree.

The standard of review for summary judgment is well established. “Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .’’(Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn. App. 220, 222, 688 A.2d 349 (1997). Therefore, to determine whether summary judgment was properly granted in the present case, we must first determine whether the federal court exercised pendent jurisdiction and rendered judgment on the merits of the plaintiffs state law claim when it granted the defendant’s motion for summary judgment.

For a federal court to have jurisdiction over an entire action, including any state law claims, the court must exercise pendent jurisdiction over the state law claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Pendent jurisdiction may be exercised whenever the federal and state law claims derive from a commonnucleus of operative facts and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. Id. The Gibbs court emphasized, however, that pendent jurisdiction is a doctrine of discretion, not of the plaintiffs right. Therefore, a federal court may decline to exercise pendent jurisdiction over a party’s state law claims. That is precisely what occurred in the present case.

In its motion for summary judgment in the federal court action, the defendant specifically asked the federal court to decline to exercise pendent jurisdiction over the plaintiffs state law claim. The defendant now argues,, however, that the federal court actually granted the defendant’s broader request for the court to “dismiss any and all actions,” including the plaintiffs state law claim, in the summary judgment proceeding. Since the plaintiff did not object to the defendant’s motion for summary judgment, we assume that the federal court granted each request of the moving party when it granted the motion. In doing so, the court necessarily declined to exercise pendent jurisdiction over the implied breach of contract claim.

The defendant asserts that the plaintiffs failure to file any pleadings in opposition to the defendant’s motion for summary judgment in the federal court, or to appeal from that judgment, should preclude the plaintiff from any attack on the federal summary judgment. It is significant that the defendant is responsible for any ambiguity in this matter. Any uncertainty as to whether summary judgment entered on the plaintiffs state law claim results from contradictory wording of the motion for summary judgment. Basic fairness dictates that confusion created by the defendant should not deprive the plaintiff of his day in court to pursue his state law claim. Moreover, the defendant’s motion can be fairly read in a noncontradictory way, that is, as a request that all claims except the state law claim be dismissed.

The defendant’s final contention is that the federal court exercised pendent jurisdiction over the plaintiffs state law claim and dismissed it on the merits because “where a federal court declines to exercise jurisdiction over pendent state claims it will specifically say so.” Our review of federal cases involving pendent state law claims reveals that federal courts also typically state when they are exercising pendent jurisdiction. See, e.g., McEvoy v. Spencer, 124 F.3d 92, 96 (2d Cir. 1997); Losquadro v. FGH Realty Credit Corp., 959 F. Sup. 152, 160 (E.D.N.Y. 1997); Hernandez v. Hartford, 959 F. Sup. 125, 134 (D. Conn. 1997); Tower Air, Inc. v. Federal Express Corp., 956 F. Sup. 270, 287 (E.D.N.Y. 1996); Aquinas v. Federal Express Corp., 940 F. Sup. 73, 79 (S.D.N.Y. 1996). Because federal courts are courts of limited jurisdiction; see Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976); Verlinden B.V. v. Central Bank of Nigeria, 647 F.2d 320, 321 (2d Cir. 1981), rev’d on other grounds, 461 U.S. 480, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983), it is unlikely that the court would have exercised pendent jurisdiction without saying so.

Binding precedent also makes it unlikely that the federal court exercised pendent jurisdiction. “The Second Circuit has held that absent exceptional circumstances, where federal claims are disposed of [prior to trial], courts should abstain from exercising pendent jurisdiction. Drexel Burnham Lambert, Inc. v. Saxony Heights Realty, 777 F. Sup. 228, 240 (S.D.N.Y. 1991) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 [2d Cir.], cert. denied, 476 U.S. 1159, 106 S. Ct. 2278, 90 L. Ed. 2d 721 [1986]).” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 50, 694 A.2d 1246 (1997).

Furthermore, “[i]n this district, the courts have been particularly reluctant to exercise pendent jurisdiction over state law claims in ADEA suits.” Koehler v. Chesebrough-Ponds, Inc., 705 F. Sup. 721, 722 (D. Conn. 1988). The Koehler court relied on the following cases in reaching this conclusion: Snyder v. J.M. Ney Co., United States District Court, Docket No. H85-653 (JAC) (D. Conn. March 25, 1987) (Conn. L. Trib. No. 20, p. 38) (dismissing pendent claims for intentional infliction of emotional distress and breach of employment contract); Herbst v. Chesebrough-Ponds, Inc., United States District Court, Docket No. H85-481 (TEC) (D. Conn. September 16, 1986) (dismissing pendent claims for breach of implied covenant of good faith and fair dealing, and intentional infliction of emotional distress); Ulan v. Hartford Fire Ins. Co., United States District Court, Docket No. H86-258 (JAC) (D. Conn. January 12, 1988) (dismissing pendent claims for breach of contract, fraud and misrepresentation); Powell v. Feroleto Steel Co., 659 F. Sup. 303, 304-305 (D. Conn. 1986) (dismissing plaintiffs public policy discharge claim); and Douglas v. American Cyanamid Co., 472 F. Sup. 298, 306 (D. Conn. 1979). We may fairly presume that the district judge was aware of the foregoing cases and probably would not have exercised pendent jurisdiction, sub silentio, after dismissing the federal ADEA claims. Accordingly, we conclude that the plaintiffs state law claim was never litigated in federal court and, therefore, summary judgment was improper.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendant’s motion for summary judgment states in relevant part: “[T]he defendant, Nash Engineering Company . . . moves this Court, pursuant to Fed. R. Civ. P. 56, for a grant of summary judgment dismissing the complaint and any and all causes of action asserted by the plaintiff, Frank M. Fiaschetti, (plaintiff), for the following reasons . . . (iv) This Court should decline to exercise pendent jurisdiction with regard to [the] plaintiffs state law claim of breach of implied employment contract . . . .”

       Practice Book § 379 provides in pertinent part that “any party may move for a summary judgment at any time . . . .” (Emphasis added.)

       “Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. . . . [C]laim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.” (Citations omitted; internal quotation marks omitted.) Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 871-72, 675 A.2d 441 (1996).

         This doctrine of pendent jurisdiction is now codified in 28 U.S.C. § 1367 (1990) and is referred to as supplemental jurisdiction.


author: O’CONNELL, C. J.

text:
    THOMAS J. KIREI v. NANCY HADLEY, COMMISSIONER OF MOTOR VEHICLES
    (AC 16468)
    O’Connell, C. J., and Schaller and Spear, Js.
    Submitted on briefs November 13, 1997
    officially released January 13, 1998

      Christine L. Curtiss filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the trial court’s judgment sustaining the defendant commissioner’s suspension of the plaintiffs motor vehicle operator’s license for refusal to submit to a chemical alcohol test following his arrest for operating a motor vehicle while under the influence of alcohol or drugs. General Statutes (Rev. to 1995) § 14-227b. The plaintiff claims that the trial court improperly concluded that there was substantial evidence in the record to support the administrative hearing officer’s findings (1) that the plaintiff was operating the motor vehicle in question and (2) that there was probable cause to arrest the plaintiff. The plaintiff also claims that his arrest was unlawful. We affirm the judgment of the trial court.

The following facts are necessary for a disposition of this appeal. On January 11, 1996, at approximately 10:09 p.m., Officer Charles Zwick of the Seymour police department was dispatched to investigate a report of a single vehicle accident. Upon arriving at the scene of the accident, Zwick observed a vehicle, later determined to belong to the plaintiff, stuck in a snowbank. Upon closer inspection, Zwick determined that the vehicle’s transmission control was in the drive position and the inside compartment of the vehicle was warm.

Zwick began to search the area for the operator of the vehicle and located the plaintiff approximately two-tenths of a mile from the vehicle. The plaintiff was walking toward his home, which was less than one mile from the scene of the accident. Zwick observed that the plaintiff swayed as he walked and lost his balance in the road. Zwick confirmed that the vehicle belonged to the plaintiff, searched the plaintiff, placed him in the patrol car and returned to the accident scene. Officer Patrick Giglio had also arrived at the scene.

Giglio’s investigation report indicates that the plaintiff said that he had driven his vehicle from Stop & Shop in Waterbury, where he was employed, back to Seymour. Giglio’s report further states that the plaintiff appeared to be intoxicated, smelled strongly of alcohol and failed the field sobriety tests administered to him. After being placed under arrest, the plaintiff refused to take a breath test. The plaintiff was subsequently notified by the commissioner that his operator’s license would be suspended for six months because he refused to be tested.

Pursuant to § 14-227b, the plaintiff requested and was granted an administrative hearing to contest the suspension. Section 14-227b (f) provides in pertinent part: “The hearing shall be limited to a determination of the folio w-ing issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drugs or both ... (2) was such person placed under arrest; (3) did such person refuse to submit to such [chemical alcohol] test or analysis . . . and (4) was such person operating the motor vehicle.” The hearing officer found that all four criteria had been met, resulting in suspension of the plaintiffs operator’s license for six months.

The plaintiff appealed to the trial court pursuant to General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. Following the trial court’s dismissal of his case, the plaintiff appealed to this court. The plaintiff concedes that he refused to submit to the chemical alcohol test but argues that there was not substantial evidence in the record to support the other three requirements of § 14-227b (f).

Review of the commissioner’s action is highly restricted. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). Neither the trial court nor this court may retry the case or substitute its judgment for that of the commissioner. Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986). “In order to sustain an administrative decision, all that is required is that the determination be reasonably supported by the evidence in the record. . . . [T]he plaintiff bears the burden of proving that the commissioner’s decision to suspend the motor vehicle operating privilege was clearly erroneous in view of the rehable, probative and substantial evidence on the whole record. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Costello v. Kozlowski, 47 Conn. App. 111, 114-15, 702 A.2d 1197 (1997).

I

The plaintiff first argues that there was not substantial evidence in the record to support the finding that the appellant was operating the motor vehicle in question. “Substantial evidence exists if the administrative record affords a substantial basis in fact from which the fact in issue can be reasonably inferred.” Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). Proof of operation is a factual determination. O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn. App. 505.

In O’Rourke, this court distinguished between a criminal proceeding seeking a conviction for violation of § 14-227a and an administrative proceeding involving revocation of a driver’s license pursuant to § 14-227b. “In a criminal case, the state must prove each element of the crime charged beyond a reasonable doubt. . . . In an administrative action, however, the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair. . . . Thus, a hearing officer’s decision to revoke a [driver’s] license is not subject to the far higher burden of proof that is required for a criminal conviction of driving under the influence.” (Citation omitted; internal quotation marks omitted.) Id., 508.

In the present case, the record showed that the arresting officer found the plaintiffs vehicle off the road in a snowbank. The vehicle was in drive and still warm from recent operation. An officer found the plaintiff in the immediate proximity, having difficulty walking and with an odor of liquor about him. Finally, the plaintiff admitted that he had driven his vehicle from Waterbury to Seymour.

The record contains substantial evidence supporting the hearing officer’s finding that the plaintiff had operated the motor vehicle in question. Thus, the trial court was correct in holding that the hearing officer’s finding was not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

II

The plaintiff next claims that there was not substantial evidence in the record to support the finding that the police officer had probable cause to arrest him for operating a motor vehicle while under the influence of liquor or drugs. “It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion.” Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 16-17, 327 A.2d 569 (1973).

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.” (Internal quotation marks omitted.) State v. Stevens, 26 Conn. App. 805, 810, 603 A.2d 1203 (1992), aff'd, 224 Conn. 730, 620 A.2d 789 (1993). In determining whether there was probable cause to arrest for operating a motor vehicle while under the influence of liquor, the court may consider, just as in an arrest for any other criminal offense, circumstantial as well as direct evidence. Clark v. Muzio, 40 Conn. Sup. 512, 515, 516 A.2d 160 (1986), aff'd, 14 Conn. App. 212, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988).

“To establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict.” State v. Paoletto, 181 Conn. 172, 181, 434 A.2d 954 (1980). Accordingly, there can be a situation where there is sufficient evidence to establish probable cause to arrest even though on the eventual trial of the case there would not be sufficient evidence to support a conviction. This is such a case.

At the motor vehicle hearing, the plaintiff testified that when the police officer came upon him, he was under the influence of intoxicating liquor only as a result of consuming alcohol at his home after he had operated his motor vehicle. The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the commissioner if there is evidence that reasonably supports his decision. DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975). Thus, it was within the hearing officer’s province to determine whether he believed the plaintiffs testimony regarding when the plaintiff consumed liquor in relation to the time of operating his motor vehicle.

The record shows that the testimony of the police officers, the police reports that were admitted into evidence and the totality of the circumstances existing at the time of the plaintiffs arrest support the hearing officer’s finding that there was probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of liquor.

Ill

The plaintiffs final claim is that even if the officer had probable cause to arrest him for operating a motor vehicle while under the influence of liquor, the arrest was unlawful under General Statutes § 54-lf and therefore could not be considered to satisfy the requirements of § 14-227b. The trial court’s memorandum of decision did not address the plaintiffs claim that his arrest was unlawful.

A motion for articulation pursuant to Practice Book § 4051 is the proper procedural device for seeking the trial court’s ruling on an overlooked matter. Wolk v. Wolk, 191 Conn. 328, 335 n.1, 464 A.2d 780 (1983). If a motion for articulation is denied or if the resulting articulation proves inadequate, review should be sought from this court pursuant to Practice Book § 4054.

The plaintiff filed a motion asking that the trial court articulate its findings and conclusions, including whether the court had found that the plaintiffs arrest was lawful. We agree with the plaintiff that the trial court’s factual findings and conclusions of law are necessary for appellate review. The trial court denied the plaintiffs motion for articulation, but the plaintiff failed to seek review by this court. Because of this failure, we are deprived of the necessary findings and conclusions of law to review this claim.

The duty to provide us with a record adequate to afford review rests with the plaintiff. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Under the circumstances of this case, the plaintiff has failed to furnish us with a record adequate to review his claim that the arrest was unlawful. See Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 553-56, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (1994) (appeal withdrawn October 17, 1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 14-227b, as amended by Public Acts 1995, No. 95-279, § 1, provides in relevantpart: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or mine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both . . . and thereafter . . . refuses to submit to the designated test, the test shall not be given ....
      “(c) If the person arrested refuses to submit to such test or analysis . . . the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report ... to the department of motor vehicles within three business days. . . .
      “(d) Upon receipt of such report, the commissioner of motor vehicles may suspend any license ... of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. . . .”

       The plaintiff was ultimately acquitted of operating while under the influence of intoxicating liquor in violation of § 14-227a.

       At the hearing, the plaintiff claimed that when his car became stuck in the snowbank, he walked home to obtain help from his wife, but found that she was not there. According to his testimony, the plaintiff consumed alcohol at his home, began walking back to his vehicle to dig it out, realized he had forgotten a shovel and turned back in the direction of his home. The plaintiff testified that it was at that point that Zwick stopped him.

       The plaintiff cites no Connecticut appellate decisions for this proposition of law. We express no opinion as to its accuracy.

       Practice Book § 66-5, formerly § 4051, provides in relevant part: “A motion . . . seeking an articulation or further articulation of the decision of the trial court shall be called ... a motion for articulation. . . . Any motion filed pursuant to this section shall state with particularity the relief sought.”

       Practice Book § 4054 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .”

       Practice Book § 4061 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review . . . .”


author: HEALEY, J.

text:
    U.S.T. BANK/CONNECTICUT v. JAMES M. DAVENPORT ET AL.
    (AC 16978)
    Spear, Dupont and Healey, Js.
    Argued September 25, 1997
    officially released January 20, 1998

      James M. Davenport, pro se, the appellant (defendant), with whom, on the brief, was James A. Curran.

      Kara J. Lane, for the appellee (plaintiff).
   Opinion

HEALEY, J.

The named defendant, James M. Davenport, appeals from the decision of the trial court denying his motion to set aside a deficiency judgment rendered in a foreclosure action in favor of the substitute plaintiff, Seymour, Inc.

The threshold issue is whether Seymour, Inc., had standing to move for a deficiency judgment after it had been replaced as the plaintiff and was no longer a party to the action. This is a question of fact regarding the corporation’s standing that was not addressed by the trial court. We therefore remand this case to the trial court for a determination of whether the naming of the former plaintiff, rather than naming its corporate successor in interest, was a circumstantial defect.

The following facts are relevant to the disposition of this appeal. U.S.T. Bank/Connecticut (U.S.T. Bank) commenced a foreclosure action in May, 1994, alleging that the defendant failed to make payments on a note that was secured by a mortgage on his property in Bethel. The trial court, on August 31, 1994, granted U.S.T. Bank’s motion for default against the defendant for failure to disclose a defense.

On March 6,1995, the trial court granted U.S.T. Bank’s motion to substitute Seymour, Inc. (Seymour), as the plaintiff. The motion recited that U.S.T. Bank had assigned the note and mortgage to Seymour on January 31, 1995.

Thereafter, Seymour assigned the note and mortgage to JSA Financial Corporation (JSA) on August 28, 1995, and, on September 5, 1995, the trial court granted Seymour’s motion to substitute JSA as the plaintiff. The defendant did not object to the substitutions.

On September 5, 1995, the trial court ordered a foreclosure by sale and set a sale date of October 28, 1995. On November 28, 1995, the trial court approved the committee report of sale, the sale of the subject premises to JSA and the transfer of the deed to JSA.

Despite the trial court’s September 5, 1995 ruling substituting JSA as the plaintiff in place of Seymour, on January 22, 1996, a motion for supplemental judgment and for deficiency judgment was filed by Seymour, indicating Seymour by name as the plaintiff and holder of interest in the mortgage and note. On March 18, 1996, after a hearing in which the pro se defendant participated, the trial court granted the “plaintiffs motion for supplemental judgment and for deficiency judgment,” and ordered that a deficiency judgment enter against the defendant. On May 13,1996, the defendant filed an appeal from the deficiency judgment, which was dismissed by this court as untimely.

On July 3, 1996, the defendant filed a motion to open the deficiency judgment on the grounds (1) that “the plaintiff’ has not met the standards of commercial reasonableness and (2) that the deficiency judgment had been calculated incorrectly. The trial court denied the motion on August 26, 1996.

On December 24, 1996, the defendant filed a motion to set aside the deficiency judgment. The defendant claimed that Seymour had no standing to move for the deficiency judgment and, therefore, the judgment was void for lack of jurisdiction. JSA objected to this motion. Following a hearing, the trial court denied the defendant’s motion on February 10, 1997.

The defendant appeals from the denial of his motion to set aside the deficiency judgment and claims that the trial court improperly (1) granted a motion for deficiency filed by a plaintiff that no longer had any standing before the court, (2) denied his motion to set aside by imposing the four month rule of Practice Book § 326, and (3) granted the deficiency judgment absent a demonstration of commercial reasonableness.

At the outset, this court is confronted with a challenge to the jurisdiction of the trial court to hear the plaintiffs motion. “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 330, 695 A.2d 1072 (1997). “Standing goes to the court’s subject matter jurisdiction.” Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987); Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 201, 477 A.2d 129 (1984); Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). We, therefore, must address this issue of standing before we can proceed to the other claims before us.

In its brief, as well as in oral argument before this court, the plaintiff on appeal refers to the naming of Seymour as a “typographical error on the pleading which mistakenly referred to Seymour as the plaintiff.” The plaintiff suggests that this is a circumstantial defect within the purview of § 52-123, which in no way prejudiced the defendant. Therefore, the plaintiff maintains that, given the nature of the circumstantial defect, JSA had standing to move for and to obtain the deficiency judgment. We conclude that the trial court should have decided whether the naming of the former party (Seymour) was a circumstantial defect.

“ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’ Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983).” Tomlinson v. Board of Education, 226 Conn. 704, 717-18, 629 A.2d 333 (1993). Our Supreme Court has said that “[standing focuses on whether the party initiating the action is the proper party to request adjudication of the issues.” Stamford Hospital v. Vega, 236 Conn. 646, 657, 674 A.2d 821 (1996). The objectives of standing are “held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.” (Internal quotation marks omitted.) Weidenbacher v. Duclos, 234 Conn. 51, 62, 661 A.2d 988 (1995). “Such a ‘personal stake in the outcome of the controversy’; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975) . . . provides the requisite assurance of ‘concrete adverseness’ and diligent advocacy.” (Citation omitted.) Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981).

Here, the issue of standing is raised because the motion for deficiency was brought by “the plaintiff, Seymour, Inc.,” which was, on the record before us, neither the plaintiff nor even a party to the action at the time the motion was filed. The question then becomes whether the naming of Seymour as the plaintiff on the motion was a circumstantial defect. If there was a circumstantial defect, the trial court could have so found and properly proceeded to rule on the motion for the deficiency judgment.

The problem that presently faces this court, however, is that the trial court never made any finding as to whether the naming of Seymour was a “circumstantial defect.” Such a finding would have to have been based on facts that are not part of the record before us. While cases involving circumstantial defects have turned on incorrect defendants, incorrect dates, incorrect statutes, incorrect acronyms, incorrect dollar amounts and the like, we are unaware of any case in which an appellate court in this jurisdiction has had to decide the question of the consequences of a deficiency judgment that was sought and granted at the instance of a plaintiff in whose stead, and by court order, another plaintiff was later substituted and who became the plaintiff of record. The factual circumstances concerning the claimed defect, be they sufficient to support a finding of typographical error or word processor mistake, remain to be decided by the trial court.

The case is remanded for further proceedings to determine whether a “circumstantial defect” as claimed did in fact exist; in the event that the trial court finds that there was a circumstantial defect, and no timely appeal is taken from that determination, the judgment is affirmed; in the event that the trial court finds that there was no circumstantial defect, the judgment is reversed and the trial court is directed to render judgment denying the motion for a deficiency judgment.

In this opinion the other judges concurred.

       Subsequent encumbrancers were also named as defendants. We refer in this opinion to James M. Davenport as the defendant.

       U.S.T. Bank, Seymour and JSA were all represented before the trial court by the same law firm. Different counsel, however, represents the plaintiff mortgagee on this appeal.

       The motion stated in pertinent part: “The plaintiff, Seymour, Inc. (Plaintiff), respectfully requests that the Court enter a supplemental judgment in this matter (i) ratifying and confirming the sale of the subject property to Plaintiff, (ii) finding that the Plaintiff has a lien prior in right to the lien of all other defendants, and (iii) finding the amount of the debt and owing to Plaintiff. Plaintiff further moves that the Court make a finding and enter a deficiency judgment in favor of Plaintiff against the defendant, James M. Davenport (Defendant), based upon the bid price obtained for the subject property at the foreclosure sale.” The motion was signed, “PLAINTIFF, SEYMOUR, INC.”

       No transcript of that hearing has been made available to this court. It appears, however, that the pro se defendant was present and participated in that hearing.

       In denying this motion, the trial court stated in the file that “on 2/10/ 97 the court entered [the] following on [plaintiff] JSA Financial Corp.’s [objection] to motion to set aside judgment: Sustained. See [Practice Book] § 26.”
      Practice Book § 326 provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months of the entry of judgment. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

       At oral argument before this court, JSA’s attorney said, “The plaintiff of record was JSA Financial. The same attorney who represented Seymour represented JSA Financial at that time. . . . The same attorney who represented UST Bank represented JSA Financial. They moved for a deficiency judgment and, although the motion did make reference to Seymour, Inc., at the hearing at the deficiency judgment there was a vice president of JSA Financial who testified .... It was clear that JSA Financial was the plaintiff of interest and was the plaintiff who was moving for the deficiency judgment. The court entered the deficiency judgment for the plaintiff, not on the basis of Seymour, Inc. ... I think it’s a word processor mistake.”
      As noted, there is no transcript before us of the proceeding in the trial court at which the challenged deficiency judgment was entered.