author:
Arthur H. Healey, J. Shea, J.,
      Callahan, J.,

text:
    State of Connecticut v. Germano Kimbro
    (12139)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued May 9
    decision released August 20, 1985

      DavidS. Shepack, deputy assistant state’s attorney, with whom, on the brief, was Carl Schuman, assistant state’s attorney, for the appellant (state).

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellee (defendant).
   Arthur H. Healey, J.

The defendant, Germano Kimbro, was arrested without a warrant on November 8, 1982, for the crime of possessing a narcotic substance, i.e., cocaine, in violation of General Statutes § 19-481 (a). He filed a motion to suppress and a motion to dismiss, claiming in each that his rights were violated under both the United States and the Connecticut constitutions. In his motion to suppress, he sought the suppression of items seized from his person as having been taken without a warrant or without probable cause or pursuant to an unlawful arrest. After an evidentiary hearing, the trial court granted both motions. The state, with the permission of the trial court, has appealed. On appeal, the state claims that the trial court erred (1) in granting the defendant’s motion to suppress on its determination that the police lacked probable cause to arrest when they arrested the defendant, and (2) in granting the motion to dismiss.

At the outset, we turn to the state’s threshold claim that the issue of “probable cause” in this appeal is to be determined solely by the “totality-of-the-circumstances” analysis set out in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), rather than by the stricter two-prong analysis of the Aguilar-Spinelli cases which predated Gates. In this case we do not agree.

The defendant specifically premised his trial court motions upon the Connecticut as well as the United States constitutions. The trial court, without stating the precise bases of its decision in granting suppression and dismissal, granted the defendant’s motions. We are therefore entitled to infer that the trial court acted in favor of all the defendant’s claims as they were asserted in his motions, especially when the trial court’s decision, which was explicated in terms of the Aguilar-Spinelli analysis, had been based on the settled substantive law of this state before the Gates decision. See, e.g., State v. Grayton, 163 Conn. 104, 106, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972). On appeal, the state seeks to overturn the trial court’s decision and, in doing so, argues in its brief that “Gates in no way [has] altered an individual’s ultimate right not to be searched or seized in the absence of probable cause. United States Constitution, Fourth Amendment; Connecticut Constitution, article I § 7.” (Emphasis added.) In his brief, the defendant asserts the Connecticut constitution’s preference for searches pursuant to a warrant and also argues that his motions below were predicated on both the United States and Connecticut constitutions. We conclude that the probable cause issue is properly before us under both the United States and Connecticut constitutions. See State v. Couture, 194 Conn. 530, 566-73, 482 A.2d 300 (1984) (Healey, J., dissenting), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

We note that in none of our three earlier decisions in which we referred to Gates did any of the defendants claim that the respective circumstances failed to constitute probable cause under the Connecticut constitution. See State v. Perry, 195 Conn. 505, 488 A.2d 1256 (1985); State v. Couture, supra; State v. Gasparro, 194 Conn. 96, 480 A.2d 509 (1984). It is our view in this warrantless arrest and search case that the trial court’s decision was correct under either the Gates “totality-of-the-circumstances” analysis or the Aguilar-Spinelli test.

Gates, of course, involved an application for a warrant, and it is crucial to underscore the fact that the Gates court reiterated that “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, supra, 236. Rather, a reviewing court should pay “great deference” to the magistrate’s determination of probable cause. Id., citing Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In the same fashion, we do not attempt such de novo review where there has been a trial court determination that probable cause does not exist. In deciding whether probable cause does or does not exist, “[t]he trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony. ‘We cannot retry the facts or pass upon the credibility of the witnesses.’ ” State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). This axiom is significant because the trier of fact, which in such a suppression hearing is the trial court, first determines the facts; then the trial court ultimately determines whether those facts it found constitute probable cause. The former is obviously a fact-bound determination, while the latter is at the very least a mixed question of fact and law. See Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964).

It is clear that the constitutional validity of the search in this case is predicated upon the constitutional validity of the arrest, which was constitutionally valid only if at the time the police had probable cause to arrest the defendant. See Beck v. Ohio, supra, 91; Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879, reh. denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949). “The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, supra, 176.

Certain observations concerning Illinois v. Gates, supra, should properly be made here. The Gates decision dismantled and abandoned the stricter “two-pronged test” of Aguilar and Spinelli in that it held that the sufficiency of an affidavit that relies on a confidential informant depends on “the totality-of-the-circumstances” test. While the Gates court reiterated the preference for search warrants, it seems fairly probable that the Gates test may be applied in fourth amendment cases to warrantless searches and seizures. See 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1985 Sup.) § 3.1, p. 172. Despite the abandonment of the two-pronged test of AguilarSpinelli in fourth amendment cases, the Gates court said that it “intended neither a rigid compartmentalization of the inquiries into an informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge,’ nor that these inquiries be elaborate exegeses of an informant’s tip”; it did emphasize that “[rjather, we required only that some facts bearing on two particular issues be provided to the magistrate.” (Emphasis in original.) Id., 231 n.6. Thus, the “veracity” and “basis of knowledge” issues are still viable though in the context of the less strict “totality-of-the-circumstances” analysis for the existence of probable cause. The Gates court agreed with the Illinois Supreme Court “that an informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report” (emphasis added) but it did not agree “that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case . . . .’’Id., 230. Rather, as the Gates court set out, “they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id. Under Gates, “the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.” (Citation omitted.) Id., 238-39; see Massachusetts v. Upton, 466 U.S. 727, 733, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984). However, in rejecting the stricter test, the Gates court attempted to characterize its new approach as an “analysis that traditionally has informed probable-cause determinations.” Illinois v. Gates, supra, 238. In rejecting the “independent status” of the two-pronged Aguilar-Spinelli test, the informant’s “veracity” or “reliability” and his “basis of knowledge,” the Gates court said that they were “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.” Id., 233. According to the Gates court, the totality of the circumstances analysis was “far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.” Id., 230-31. The probable cause standard is a “practical, nontechnical conception,” it deals with “probabilities,” and “ ‘[t]hese are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Id., 231, quoting Brinegar v. United States, supra, 175-76. Furthermore, “ ‘the [probable cause] process does not deal with hard certainties, but with probabilities’ ” and “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Id., 231-32. The court stressed that “[o]ur decisions applying the totality-of-the-circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Id., 241. The Gates court referred with approval to Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), where “[w]e [said] that even in making a warrantless arrest an officer ‘may rely upon information received through an informant, rather than upon his direct observations,' so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.’ ” Gates v. Illinois, supra, 242, quoting Jones v. United States, supra, 269.

While the Gates court laid down the totality of circumstances analysis, it did express both the preference for warrants and the deference to be given by appellate courts to determinations of probable cause. De novo appellate probable cause determination was specifically eschewed, and these admonitions were repeated in Massachusetts v. Upton, supra. With this background, we consider whether the trial court correctly determined that the state had not demonstrated the existence of probable cause in this warrantless arrest case.

It would appear that on November 8, 1982, Officer Joseph Howard had been a New Haven police officer for nearly nine years. At that time, he had been working for about a year and one-half with a city street crime unit whose primary function was narcotics enforcement. He had known the defendant Kimbro for more than five years, had arrested him in the past, and knew him to be a convicted felon recently released from prison. Over “approximately” two weeks before November 8, 1982, Howard had observed the defendant on Dixwell Avenue near Lake Place in New Haven “at least half a dozen times,” and felt that it was unusual during periods of “inclement weather, cold weather” that he saw the defendant “loitering for extended periods of time” at that location. Howard said that “Dixwell [Avenue] and Lake Place is an area that we patrol . . . quite frequently . . . [and] we would drive through the area in search of wanted persons or illegal activity and during such travels I did note his presence there on those aforementioned occasions.” He said that he knew “one of the [defendant’s] home addresses,” which was about two to three miles away, and he also said that he was not aware that the defendant worked at a garage across the street from the corner on which the November 8,1982 arrest took place.

Howard testified that as the result of a telephone call from “a known reliable informant,” approximately five to ten minutes before the defendant’s actual arrest, he and two other officers proceeded to Dixwell Avenue and Lake Place. He believed that the informant, who had been a paid police informant, was reliable because information given in the past by him “had resulted in the apprehension of wanted felons . . . and one narcotics arrest,” although he was not aware of any convictions resulting from any of those instances. Howard had known this informant for several months.

With reference to what Howard testified the informant told him, the trial court in its oral decision said that “what impressed me also was the fact that Officer Howard couldn’t really tell exactly what the informant had told him and there were no details involved.” The court felt that it was important as to “what weight should [be given] to Officer Howard’s testimony as to the credibility or reliability of the informant. I have to find that the informant was credible or reliable.”

Such matters are for the trier of fact and not for appellate review. In cases involving constitutional safeguards, as this did, in passing upon the trial court’s determination on the issue of probable cause, it is best we remember that we do not sit “ ‘as in nisi prius,’ ” and, therefore, deference is due the trial court’s decision of that issue. State v. Ricci, 472 A.2d 291, 298 (R.I. 1984); State v. Roberts, 434 A.2d 257, 264 (R.I. 1981); see Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).

The trial court also stated that “there are no circumstances in this case corroborating the informant, except the fact that he [the defendant] was at this particular comer when the police arrived there.” This last circumstance the trial court did not consider “paramount,” because Howard had seen the defendant there a half dozen times recently; moreover, the defendant worked in that area. Noting the lack of evidence of any prior arrests or convictions involving narcotics of Kimbro, the court attached “no indication of anything” to the circumstance that the defendant merely “backed away” when Howard approached him. It concluded that there were “insufficient circumstances for the determination that the informant was credible or that his information was reliable.” The “reliability” necessary for the existence of probable cause to arrest applies as much to the information provided as to the informant who provides it. Cioci v. Santos, 99 R.I. 308, 313, 207 A.2d 300 (1965).

The transcript also discloses that Howard testified on direct that the informant told him that the defendant was on Dixwell Avenue near Lake Place and “was in possession of and offering for sale what the defendant purported to be cocaine.” While he did not recall the “exact verbiage [of the informant,] the conversation was that Mr. Kimbro was in possession of it, that he was offering it for sale on the street and that the informant had seen the package that was offered, that was purported to be cocaine.”

On cross-examination Howard admitted that the informant did not tell him that he (the informant) “had seen narcotics on the defendant” but “merely packages of what the defendant was purporting to be cocaine.” He also said at first that the informant did not tell him he had seen an actual sale. Asked how the informant “knew” that the defendant “was in fact purporting to have cocaine,” Howard replied that the informant overheard “the defendant purport that the package of substance was cocaine.” He was asked again if the informant told him whether he had seen an actual sale. After a colloquy the court said that “one of the problems with this hearing is that . . . if the officer would just say what he said instead of trying to paraphrase what he said.” (Emphasis added.) The court thereupon instructed the officer to do so. Howard then said the informant did not know it was cocaine except that he “overheard” and “observed the packages being displayed and the offer of the purported cocaine for sale.” He thereafter repeated that the informant had not told him that he had seen a drug sale. During this portion of the cross-examination the court itself asked the officer questions and indicated that the testimony was “confusing.” Howard was also asked, based on his “observation” of the defendant over the period of two weeks in the same area, whether he had ever observed the defendant in a drug transaction. He said that “I could have and never even known it” because “small objects” are involved in such a transaction. Upon arriving at the location where the defendant was standing, Howard, who had not observed any drug activity, first placed the defendant under arrest and then searched him pursuant to the arrest. That search disclosed several packages, a sample of which was later found to include cocaine.

We have already noted that this case, unlike Gates, involves a warrantless arrest and search. While we endorse the Gates majority’s preference for warrants, we must recognize that, while the state makes no such claim in this case, it is not always reasonably practicable to get a warrant. The state instead suggests that this is a conventional type of case with probable cause evident under Gates, thus justifying the warrantless arrest and the resulting search and seizure. 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. See 1 LaFave & Israel, Criminal Procedure (1984) § 3.3, p. 185. That amendment “ ‘protects all, those suspected or known to be offenders as well as the innocent . . . .’ ” (Citation omitted.) Ker v. California, 374 U.S. 23, 33, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). It is well to remember that, unlike some other constitutional rights, there is no realistic way that an innocent person can invoke advance protection from unconstitutional searches and seizures, but rather the choice is either to submit to whatever the governmental authority undertakes or to resist at a possibly greater risk. See Brinegar v. United States, 338 U.S. 160, 182, 69 S. Ct. 1302, 93 L. Ed. 1879, reh. denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949) (Jackson, J., dissenting).

In this case, the informant himself was the source of the information upon which the police acted. The “veracity” or “reliability” of this informant was of great concern to the trial court. The paid informant’s track record has been set out; there were prior arrests of “wanted felons,” but the one and only prior narcotics arrest was a “dropsy” case. No convictions had resulted from any information he had conveyed. He gave no information of any prior conduct of the defendant involving narcotics, nor did the police, singly or collectively, know of or suspect any prior conduct of the defendant with narcotics. This is true although he had been the subject of police observation for at least two weeks at that area where he was arrested.

There is little doubt that the veracity of an informant is enhanced where he makes a statement under oath or where his information is corroborated by police observation, especially where the informant’s information is in some detail. This police corroboration, of course, is, as in the cases where there is a warrant, that which results from prior independent police investigation. See United States v. Canestri, 518 F.2d 269, 272 (2d Cir. 1975); see also State v. Jackson, 162 Conn. 440, 448, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972) (“[w]here information from different sources dovetails, corroboration exists”). In determining the reliability of information provided by an informant, we have relied upon the reputation or past criminal behavior of the suspect as a practical consideration. See State v. Ferguson, 185 Conn. 104, 115, 440 A.2d 841 (1981). There is no evidence in this record that this informant knew anything of the defendant’s reputation or past criminal behavior. Howard, of course, knew of the defendant’s release from prison, but an officer’s knowledge of the reputation of a suspect is not alone enough to constitute probable cause. See United States v. Canestri, supra, 272-73.

In this case, the informant indicated what he saw of this defendant’s conduct prior to informing the police. We, as an appellate court, should not evince a grudging attitude toward the trial court’s ultimate assessment of the evidence before it, when that assessment is reasonably supportable on the credible evidence. Practice Book § 3060D; see Solomon v. Aberman, 196 Conn. 359, 377-78, 493 A.2d 193 (1985). In the present case the trial court was not indulging in the hyper-technicality which Gates disapproves, but, rather, as was evident from the transcript, it was sifting and evaluating the oral evidence presented.

What may be called the “basis of knowledge” circumstance in the totality of circumstances discloses that there was no evidence that this informant bought or even saw the alleged narcotics. We say this aware that whatever a person knowingly exposes is not constitutionally protected from observation. United States v. Burns, 624 F.2d 95, 100 (10th Cir. 1980); see Katz v. United States, 389 U.S. 347, 363, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (White, J., concurring). In this case, given the complete lack of any independent police investigation or information tending to corroborate the informant’s information, we conclude that the trial court’s finding that probable cause was not demonstrated is supported in this record. Furthermore, although the trial court properly employed the Aguilar-Spinelli test, what we have pointed out clearly demonstrated that probable cause could not exist even under the Gates totality of the circumstances test.

In light of our conclusion that even under the Illinois v. Gates approach the motion to suppress was properly granted, we ordinarily need say no more. In this case, however, the defendant also asserted the protection of the Connecticut constitution in his motion to suppress. We thus address this claim separately in accordance with the decision of Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). In turning to article first, § 7, of the Connecticut constitution, we must decide whether that provision affords more substantive protection to citizens than does the fourth amendment to the federal constitution in the determination of probable cause. We conclude that it does.

Although we have not previously determined this particular question, we have invoked our constitution in the protection of individual rights. See, e.g., State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984); State v. Ferrell, 191 Conn. 37, 463 A.2d 573 (1983); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977). We clearly have the power to construe the Connecticut constitution in accordance with our particular analysis of the specific right in issue. Only recently we have said that “[f]ederal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Citations omitted.) Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984). In taking this position we recognize, as we must, the authority of the United States Supreme Court to act as the final arbiter of controversies arising under the United States constitution. This was established early in the history of our republic. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257 (1821) (authority to review state criminal cases); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L. Ed. 97 (1816) (authority to review state civil cases). We also recognize, and the United States Supreme Court has acknowledged, that such authority is limited when the federal courts undertake to review state court decisions construing state law. In Michigan v. Long, supra, 1041, Justice O’Connor, writing for the majority, said: “If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.” In construing article first, § 7, of our constitution in this case, we recognize that protections under our constitution may be afforded in accordance with Michigan v. Long, supra. It appears settled that federal court decisions do not limit the rights of state courts to afford greater rights than under the federal constitution. See, e.g., Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975); see also Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489 (1977).

The determination of “probable cause” under article first, § 7, is not to be made under the “fluid” concept of that term as set out in Gates, but rather, under the established principles developed in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). See Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985) (after remand); State v. Jackson, 102 Wash. 2d 432, 688 P.2d 136 (1984). Citation is not necessary to demonstrate this court’s invocation over the years of the AguilarSpinelli test, which we submit has not been applied hypertechnically.

We eschew the amorphous standard of Gates in passing upon article first, § 7, interpretation and apply the more specific standards of the Aguilar-Spinelli test, as did the Massachusetts Supreme Judicial Court on remand from the United States Supreme Court in Commonwealth v. Upton, supra. See also State v. Jackson, supra. The Aguilar-Spinelli test, with its two prongs of “veracity” or “reliability” and “basis of knowledge,” offers a practical and independent test under our constitution that predictably guides the conduct of all concerned, including magistrates and law enforcement officials, in the determination of probable cause. This test protects individual rights without disadvantaging law enforcement. It is salutary to recall, as Justice Brennan has said, that “one of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens.” Brennan, supra, 503.

The circumstances relevant to the issue of probable cause in this case have been set forth earlier in this opinion. As we have demonstrated above, the trial court made no piecemeal analysis of the testimony in applying the Aguilar-Spinelli test in this case. It concluded that there were “insufficient circumstances for the determination that the informant was credible or that his information was reliable.” The trial judge said that he did not have “any real evidence here about the reliability of this informant and the fact they made one narcotics arrest [the dropsy case] does not give me that evidence of reliability.” Additionally, the trial court pointed out that “there are no circumstances in this case corroborating the informant, except the fact that he [the defendant] was at this particular corner when the police arrived there.” Actually, the corroboration to which the court referred should have been corroboration existing prior to that time when the police decided to make the arrest and after an evaluation of the informant’s information with whatever independent police information known to them at that time. As pointed out, the police had absolutely no self-verifying detail in their collective knowledge to add to the informant’s information. Even though they had been observing him for about two weeks and knew he was recently released from prison, they had, on this record, no knowledge of any prior narcotics history of any sort of this defendant. The deference to be given a finding of probable cause should, even-handedly, not be diluted in evaluating a trial court’s finding of no probable cause. This includes the trial court’s careful evaluation of all the evidence.

While it is not crucial in this warrantless arrest and seizure case, we note the rationale of United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), that “doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants.” The real question is not “whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest.” United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820, 46 L. Ed. 2d 598, reh. denied, 424 U.S. 979, 96 S. Ct. 1488, 47 L. Ed. 2d 750 (1976). “There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few ‘jealously and carefully drawn’ exceptional circumstances.” United States v. Watson, supra, 427 (Powell, J., concurring). This clearly applies under article first, § 7, of the Connecticut constitution. The common sense application of the Aguilar-Spinelli test in this case by the trial court in its determination that there was not probable cause was not clearly erroneous, and the result reached under that test was constitutionally mandated under article first, § 7, of the Connecticut constitution.

There is no error.

In this opinion Dannehy and Santaniello, Js., concurred.

Shea, J.,

dissenting. The majority opinion goes far out of its way in seizing upon this case as the occasion to reject the “totality-of-the-circumstances” test established by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), as the touchstone for ascertaining probable cause to justify a search or seizure under the fourth amendment of our federal constitution. In two recent cases, State v. Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985), and State v. Gasparro, 194 Conn. 96, 106, 480 A.2d 509 (1984), this court has given its endorsement to Gates, declaring that “ ‘[t]he determination of probable cause must be made from the “totality of the circumstances.” ’ ” State v. Gasparro, supra. As applied in Gates, this broader statement of the criterion for determining probable cause obviated the necessity for disclosure of the manner in which the informant had acquired the information he had conveyed to the police, the so-called “basis of knowledge” part of the Aguilar-Spinelli test. Under that test “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were . . . .” Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); see Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In the case before us, the testimony was clear that the informant had personally observed the defendant offering packages he represented to contain cocaine for sale on the streets. Thus the “basis of knowledge” prong of the Aguilar-Spinelli test, which might not have been satisfied in Gates, was easily surpassed here. The so-called “veracity prong” of Aguilar-Spinelli, whether the police have reasonable grounds for crediting the information concerning criminal activity furnished by the informant, remains essentially untouched by the Gates “totality-of-the-circumstances” formulation. It is therefore wholly unnecessary for our disposition of this case to decide what we may do if we should some day be confronted with a situation like Gates where the “basis of the informant’s knowledge” is left to be inferred entirely from the details contained in the information furnished, some of which may have been verified by other sources. There is nothing in the language or history of article first, § 7, of our state constitution, paralleling the fourth amendment of our federal constitution, that mandates any particular test for determining the ultimate constitutional requirement of the existence of probable cause prior to a search. No one questions the authority of this court to construe our state constitution to afford greater protection to individual rights than that afforded by our federal constitution; see Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); but it is wholly inappropriate to declare our position in a particular instance before we have a case presenting the issue. Accordingly, I would follow our customary practice of not crossing constitutional bridges until we come to them. Carofano v. Bridgeport, 196 Conn. 623, 647, 495 A.2d 1011 (1985).

I also disagree with the majority’s resolution of this appeal under the standard two-pronged Aguilar-Spinelli test. As previously noted, the basis for the informant’s report of criminal activity in progress, the first prong of the test, was his personal observation of the defendant’s activities at the location specified. Such a situation “presents few problems: since the report, although hearsay, purports to be first-hand observation, remaining doubt centers on the honesty of the informant . . . . ” Spinelli v. United States, supra, 425 (White, J., concurring). It is this remaining veracity prong that the trial court as well as the majority maintain is not satisfied by the evidence presented at the suppression hearing.

The majority opinion sets forth a plethora of arguments to support the conclusion of the trial court that the police could not reasonably have relied on the information supplied by the informant in arresting and searching the defendant. Among them are: (1) the deference due the trial court’s determination; (2) the lack of a warrant for the arrest or search; (3) an insufficient “track record” of the reliability of previous tips given by the informant, none of which had thus far resulted in a conviction; (4) the fact that, because the defendant may have worked near the location where he was reported to be selling cocaine, Officer Howard’s several observations of him loitering there for extended periods of time and for no apparent reason were not actually corroborative of the reliability of the informant; and (5) the absence of any knowledge by the police or indication in the informant’s report concerning prior drug related activities of the defendant. None of these can withstand analysis.

First. With respect to our function in reviewing trial court decisions on probable cause, it is clear that upon disputed factual issues we are ordinarily bound by the finding of the judge who heard the evidence. We ought not, however, to defer to the legal conclusions drawn from those facts if in our judgment they are clearly erroneous. Practice Book § 3060D. We have heretofore treated probable cause as a question of law to be reviewed in the light of the subordinate facts found by the trial court or presented to us as undisputed. See State v. Daley, 189 Conn. 717, 458 A.2d 1147 (1983); State v. Jackson, 162 Conn. 440, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed 2d 121 (1972). In the present case the trial court made no finding that the information given to the police by the informant was not as indicated by Howard’s testimony. The court concluded simply that the information received was insufficient as a matter of law to justify a reasonable belief that the defendant had engaged in criminal activity. No more deference is due that determination than any other trial court decision on a question of law.

Second. It is utterly ridiculous to suggest that when the police receive a report of criminal activity presently occurring in a public street they must await issuance of a warrant before taking action. By the time the application for the warrant can be prepared and a judge found available the felon would be long gone. Effective law enforcement under such a requirement would be impossible. The report received by Howard five or ten minutes before the arrest was that the defendant was then engaged in selling narcotics. If Howard had reasonable grounds to credit that report, delaying action until a warrant could be obtained would have been a dereliction of his duty to prevent crime.

Third. The prior experience of Howard with this informant demonstrates an ample basis for his relianee upon the truth of the report received. Three previous arrests had been made on the basis of information furnished by the same informant, “[o]ne narcotics arrest and . . . two wanted felons.” Howard had participated in the narcotics arrest and when the suspect was approached he discarded some items containing heroin. Because Howard had been acquainted with the informant only for several months, he was aware of no convictions that had resulted from this informant’s tips, because the cases were still pending in court. Convictions are not essential for an informant to have an acceptable reputation for reliability. 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.3, p. 510. “Courts have consistently held that an informant’s track record is sufficiently established by a showing (i) that on one or more previous occasions the informant indicated that a certain object, usually narcotics . . . are concealed at a certain place, and (ii) that this information was verified as true by a search which uncovered the specified items at the place indicated.” Id., p. 511. The circumstances of the prior narcotics arrest, resulting from this informant’s tip, in which Howard had participated make this principle applicable to establish adequately the reliability of the informant even without the successful experience of the police with the information concerning the two wanted felons.

Fourth. The fact that Howard had seen the defendant loitering for extended periods of time at Dixwell Avenue and Lake Place even during cold and inclement weather did tend to confirm in his view the accuracy of the information received from the informant. Although the defendant may have worked in the vicinity, the location of his employment was not known to Howard at the time of the arrest and has no bearing upon the reasonableness of his judgment at that time. The weight given by the trial court as well as the majority to this innocent though unsupported explanation of the defendant’s frequent presence at the location where he was arrested is misplaced for the same reason that the fruits of a search, such as the cocaine found upon the defendant, cannot be used to justify the search.

Fifth. It is highly novel to suggest, as the majority opinion does, that Howard’s acquaintance with the defendant, whom he had once arrested, as a convicted felon recently released from prison was wholly insignificant in the probable cause determination because he was unaware of any prior involvement of the defendant with drugs. Courts frequently rely upon felony convictions as evidence of character just as lay persons do without consideration of the nature of the particular felony involved. See General Statutes § 52-145 (b); State v. Nardini, 187 Conn. 513, 523-25, 447 A.2d 396 (1982).

The case before us provides a stronger basis for relying upon the information supplied by the informant than that approved by the United States Supreme Court in Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), where a paid informant, who had given other information of narcotics violations found to be reliable during the preceding period of about six months, notified the arresting officer that the defendant would be returning to Denver from Chicago by train on one of two successive days with three ounces of heroin in his possession. He also gave a detailed description of the defendant and the clothing he would be wearing. When the defendant alighted from the train garbed as predicted he was arrested. The court upheld the finding of probable cause despite the absence of: (1) any disclosure of the basis for the informant’s knowledge of the defendant’s activities other than inferences that could be drawn from the details of his description and the accuracy of his prediction; (2) any “track record” of prior convictions based on previous tips of the informant; and (3) any confirmation by police observation of anything but noncriminal conduct of the defendant. “The detail provided by the informant in Draper v. United States, [supra,] provides a suitable benchmark.” Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

In the present case, the informant had obtained the information he gave the police by personal observation and was willing to risk his reputation for reliability as well as his source of income by reporting a crime in progress. He must have realized his report would be subjected to immediate verification by police action, as it was. Under these circumstances I cannot affirm the conclusion of the majority as well as the trial court that it was unreasonable for Howard to rely upon the truth of the information he had received and to arrest the defendant.

Accordingly, I dissent.

Callahan, J.,

dissenting. I concur with Justice Shea’s dissenting opinion.

I find myself at a loss as to why the majority feels it necessary to determine gratuitously that article first, § 7, of the Connecticut constitution requires the application of the Aguilar-Spinelli tests to a determination of probable cause.

I am in agreement with what was stated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), that “the ‘two-pronged test’ has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.” Id., 234-35.

“The strictures that inevitably accompany the ‘two-pronged test’ cannot avoid seriously impeding the task of law enforcement . . . .” Id., 237.

“We are convinced that this flexible, easily applied standard [totality-of-the-circumstances] will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.” Id., 239.

I feel that making Aguilar and Spinelli the test for determining probable cause under the state constitution is a step backward into that labyrinthine body of hypertechnical rules concerning the criminal law from which I thought we were gradually beginning to emerge.

       “MOTION TO SUPPRESS
      “Pursuant to Practice Book Section 821 the Defendant in the above-entitled matter respectfully requests the Court to Suppress all items seized from the person of the Defendant as such search was conducted: (a) without a warrant, or (b) without probable cause to search, or (c) pursuant to an unlawful arrest, in violation of Article 1, Section 8 of the Connecticut Constitution and the Fourth and Fourteenth Amendments of the United States Constitution.”
      The defendant’s motion to suppress actually cites “Article 1, Section 8 of the Connecticut Constitution” but there has never been any claim that anyone was misled by this obvious typographical error. Article first, § 7, however, is that provision which was involved. See footnote 15, infra.

       “MOTION TO DISMISS
      “Pursuant to Practice Book Section 815 (10), the Defendant in the above-entitled matter respectfully requests the Court to dismiss the information as there is a lack of probable cause within the four comers of the arrest warrant, thereby denying the Defendant rights of Due Process under Article 1, Section 8, of the Connecticut Constitution and the Fourth and Fourteenth Amendments of the United States Constitution.
      “Neither this motion nor one similar to it has previously been filed and decided in this case.”
      The defendant’s motion to dismiss actually cites “Article 1, Section 8 of the Connecticut Constitution.” Again, no claim has ever been made that anyone was misled by this obvious typographical error. See footnote 1, supra.

       Although the motion to dismiss in the record refers to an “arrest warrant,” there was no arrest warrant. This motion alleged the lack of probable cause and the trial court so found at the end of the evidentiary hearing. At that time, the trial court, after learning that the state could not proceed to trial without the evidence it had suppressed, granted the defendant’s oral motion to dismiss. It did so “with prejudice” so that the state could appeal.

        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 United States Supreme Court announced its decision in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), on June 8, 1983. We note that the trial court’s decision in the case before us was rendered on April 14, 1983.

       In its brief, the state reiterates at some length the testimony of Officer Joseph Howard who was the only witness who testified at the suppression hearing. This recital overlooks the circumstance that not everything so recited was found as a fact by the trial court. Moreover, there is no suggestion in the transcript of the suppression hearing, the state’s brief or oral argument that a contemporaneous written police report of the relevant events was ever made.

       Justice White’s concurring opinion in Gates forcefully notes that the majority’s claim that a deficiency on one of the Aguilar prongs can be compensated for by a “strong showing” on the other cannot be taken literally. Illinois v. Gates, 462 U.S. 213, 272-73,103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983) (White, J., concurring). One noted commentator has said that “were it so interpreted, it would lead to the bizarre result, repeatedly rejected by the [United States Supreme] Court in the past in cases reaffirmed by the Gates majority, that the unsupported assertion or belief of an honest person satisfies the probable cause requirement.” 1 LaFave & Israel, Criminal Procedure (1984) § 3.3, p. 194.

       There was no evidence on what charges Officer Howard had arrested the defendant in the past.

       Howard said that he had been instructed by police radio to phone this informant at a certain location, and after saying that “[e]ither [Officer] Savinelli [who was with Howard] or I returned the call,” he then said “I believe I did [return the call].”

       Officers Howard and Savinelli and Sergeant Gallo went to Dixwell Avenue and Lake Place at that time. Neither Savinelli, who had a broken hip, nor Gallo testified at the suppression hearing.

       Officer Howard also testified concerning this prior narcotics arrest and in response to the question: “When you made that [earlier] arrest, did you find narcotics on that person?” he answered: “When we approached that person they did discard items that were later proven to be heroin.”
      In oral argument before us, the state admitted that a fair reading of this portion of the transcript indicated that that earlier arrest was a “dropsy” case. See People v. McMurty, 64 Misc. 2d 63, 66, 314 N.Y.S.2d 194 (1970).

       Officer Howard said that he could not quote the informant exactly, pointing out that the arrest had taken place several months ago. The arrest was on November 8, 1982, and the suppression hearing was on April 14, 1983. There is no indication of any written police report of this arrest and its circumstances in the record before us.

       One noted commentator points out that the preference for warrants “has resulted in a subtle difference between the probable cause required when there is no warrant and that required when there is. As the court put it in United States v. Ventresca, [380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965)], ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’ ” 1 LaFave & Israel, Criminal Procedure (1984) § 3.3, p. 185.

       Although the officer testified that the defendant had recently been released from prison, there was no evidence that the defendant had since that release been suspected of engaging in any criminal activity prior to his instant arrest.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      Identical provisions were contained in the Connecticut constitutions of 1818 and 1955 (art. I § 8).

       In doing so, we fully understand that we cannot afford any lesser protection than that to which a comparable right is entitled under the United States constitution.
      The dissenting opinions seem to intimate that we are ignoring settled principles in our resolution of this case. We have only recently said, however, that “[federal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984), and cases cited therein. This court has recognized this as its duty and, in this specific context, we said quite clearly in Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977), that “[i]n the area of fundamental civil liberties — which includes all protections of the declaration of rights contained in article first of the Connecticut constitution— we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” Id., 641-42. Further, we have frequently invoked the principle of Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), in cases involving criminal defendants’ rights that this court has decided were abridged. See State v. Scully, 195 Conn. 668, 674 n.11, 490 A.2d 984 (1985); Gaines v. Manson, 194 Conn. 510, 528 n.15, 481 A.2d 1084 (1984); State v. Cohane, 193 Conn. 474, 498-99 n.19, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); State v. Ferrell, 191 Conn. 37, 45 n.12, 463 A.2d 573 (1983); see also State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Therefore, it is by now settled in our jurisprudence that, when it has been raised in a case, the Connecticut constitution may serve as an alternative, independent basis of our decision, as it has done in this case.

       In addition, we note that our legislature by statute has essentially incorporated the Aguilar-Spinelli test as a requirement for information to be included in a wiretap or electronic surveillance application. See General Statutes § 54-41c; State v. Ross, 194 Conn. 447, 463, 481 A.2d 730 (1984).
      Noted commentators in the field have been critical of the Gates approach by the United States Supreme Court. See Kamisar, “Gates, ‘Probable Cause,’ ‘Good Faith,’ and Beyond,” 69 Iowa L. Rev. 551, 569-584 (1984); LaFave, “Fourth Amendment Vagaries (Of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and Balancing Askew),” 74 J. of Crim. L. & Criminology 1171, 1186-97 (1983); 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1985 Sup.) §§ 2.4 through 2.6, pp. 134-41, 143-45.

       We identify with the concern of the Massachusetts Supreme Judicial Court on remand when it said in Commonwealth v. Upton, 394 Mass. 363, 370 n.7, 476 N.E.2d 548 (1985), “[w]e do not know whether the Supreme Court of the United States intended a lower definition of probable cause when, in Illinois v. Gates, 462 U.S. 213 (1983), it used words such as ‘fair probability’ (id. at 238) and ‘substantial chance’ (id. at 244 n.13).”

       The Washington Supreme Court has rejected application of the Gates approach under the Washington state constitution calling the Gates standard “nebulous.” See State v. Jackson, 102 Wash. 2d 432, 435, 688 P.2d 136 (1984).

       Officer Howard, who had received the tip from the informant, testified in this respect as follows:
      “I don’t recall the exact verbiage but the conversation was that Mr. Kimbro was in possession of it, that he was offering it for sale on the street and that the informant had seen the package that was offered, that was purported to be cocaine.”
      On cross-examination, after responding that the informer had not told him he had seen an actual sale, the testimony of Howard continued:
      “Q. He did not tell you he had seen an actual sale. Did he tell you he had seen narcotics on the defendant?
      “A. No, merely packages of what the defendant was purporting to be cocaine.
      “Q. What the defendant was purporting to be cocaine?
      “A. Yes.
      “Q. How did the informant know that the defendant was in fact purporting to have cocaine? “A. The informant had overheard the defendant purport that the package of substance was cocaine.”
      Upon inquiry by the court as to how the informant knew the defendant was offering cocaine for sale, Howard testified further:
      “Mr. Howard: Overheard-well, you can call it a transaction. A transaction is something that takes place between people.
      “The Court: He said he had overheard what?
      “Mr. Howard: And observed the packages being displayed and the offer of the purported cocaine for sale.
      “Q. How did he know it was cocaine?
      “A. The only way he knew was by Mr. Kimbro purporting it to be that.”

       See footnote 1, supra.

       The only testimony at the suppression hearing concerning the defendant’s place of employment occurred during the cross-examination of Officer Howard as follows:
      “Q. Officer, you stated that you had observed him for two weeks and that you knew where he lived, you had his home address. Did you know where he worked?
      “A. No, ma’am.
      “Q. Were you aware that he worked across the street, at the Triangle Garage, from the corner where he was found?
      “A. I didn’t have any knowledge of that nor do I now.
      “Q. Now you do.”
      The last remark by the defendant’s attorney, designated as a question in the transcript, does not qualify as testimony. See generally State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 462 U.S. 1001, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Nevertheless, the trial court in rendering its decision declared: “The fact that the officer testified that he had seen [the defendant] loitering at that comer about half a dozen times in the past did not impress me either, particularly in view of the indication that he worked in that area.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. John McCarthy
    (10917)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 30
    decision released August 20, 1985

      Bruce L. Levin, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   Shea, J.

On May 20, 1981, the defendant, John McCarthy, was found by a jury to have committed the crimes of larceny in the first degree and burglary in the third degree in violation of General Statutes §§ 53a-122 (a) (2) and 53a-103 (a), respectively, and was sentenced to an effective prison term of not less than ten nor more than twenty years. From this judgment the defendant appeals, claiming that the trial court erred (1) in denying his fair cross-section challenge to the jury array, (2) in failing to suppress inculpatory statements that he gave to the police after a claimed illegal arrest and that were allegedly prompted by promises of beneficial treatment, (3) in permitting cross-examination of the defendant beyond what he claimed was the scope of direct, and (4) in refusing to instruct the jury on the crimes of larceny in the second and third degrees as lesser included offenses. We find no error.

On June 20,1980, the defendant was arrested by the Westport police on charges unrelated to those at issue here. Knowing that the defendant was a suspect in certain burglaries that had occurred in Wilton, the West-port police contacted the Wilton police and informed them that the defendant was in custody. The next day, two Wilton police officers spoke with the defendant at the jail in Westport, and then took him for a drive through Wilton, where the defendant incriminated himself in several burglaries, including the one involved in this appeal. More than two weeks later, a warrant was issued for the arrest of the defendant for the present burglary and larceny. At trial the defendant stipulated that he had committed the theft in question, but denied having the requisite mental state for the crimes charged. He also contested the valuation of the property stolen. The jury found him guilty of the crimes charged.

I

In support of his claim that he was deprived of his due process right to a jury made up of a fair cross section of the population, the defendant presented expert testimony that, of the 12,351 persons called for jury duty in Fairfield county during the two and one-half year period immediately preceding his trial in April, 1981, only 240, or 1.9 percent, had Hispanic surnames. On the basis of the Hispanic population of Fairfield county as documented by the United States census of 1970, 3.75 percent of the 12,351 potential jurors, or 465 Hispanics, should have been included in the venires. The plaintiffs expert testified that the chance of this disparity occurring randomly was less than one in two and one-half million based on “statistical decision theory.” The court denied the challenge to the array without elaboration.

We have recently had occasion to consider the appropriate test to be applied to a fair cross section challenge of a jury array. In State v. Castonguay, 194 Conn. 416, 481 A.2d 56 (1984), we quoted from Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), wherein the United States Supreme Court declared that “ ‘[i]n order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.’ Duren v. Missouri, supra, 364. Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Id., 367.” State v. Castonguay, supra, 421-22.

With respect to the first requirement of Duren, we have noted on several occasions, and the state has conceded in this appeal, that Hispanics constitute a “distinctive” group in the community for purposes of this fair cross section claim. See State v. Couture, 194 Conn. 530, 551, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Castonguay, supra, 424.

In State v. Castonguay, supra, we discussed the different approaches used by courts in examining the second prong of Duren, the requirement of fair and reasonable representation of the group involved. We considered and rejected three such theories in that opinion, among them the statistical decision theory relied upon by the defendant, before settling on the “substantial impact” test as best suited to a fair cross section claim. We considered the statistical decision theory to be more relevant to the issue of discrimination posed in an equal protection challenge to jury composition than to the question of whether the jury pool reflects adequately the diversity of the community from which it is selected. See Villafane v. Manson, 504 F. Sup. 78, 84 (D. Conn. 1980). Under the substantial impact test, on the other hand, the “focus is not on numbers and percentages but rather on whether the underrepresentation substantially affects the composition of the grand [or petit] jury.” State v. Couture, supra, 552. Thus “[t]he disparity is measured in terms of its impact on juries, not simply percentages in the abstract. This analysis allows the courts to reject challenges when the challenged practices did not significantly alter the composition of the typical grand or petit jury.” Beale, “Integrating Statistical Evidence and Legal Theory to Challenge the Selection of Grand and Petit Jurors,” 46 Law and Contemp. Probs. 269, 275 (1983); see United States v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977); Anderson v. Casscles, 531 F.2d 682, 685 n.1 (2d Cir. 1976); United States v. Goff, 509 F.2d 825, 826-27 (5th Cir.), cert. denied, 423 U.S. 857, 96 S. Ct. 109, 46 L. Ed. 2d 83 (1975); United States v. Jenkins, 496 F.2d 57, 65 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95 S. Ct. 1119, 43 L. Ed. 2d 394 (1975); United States v. Facchiano, 500 F. Sup. 896 (S.D. Fla. 1980); see also Waller v. Butkovich, 593 F. Sup. 942 (M.D.N.C. 1984). Using this common sense approach, we recently determined that one less Hispanic on every other eighteen member grand jury did not constitute the “substantial” underrepresentation of a distinct group that is a prerequisite to judicial intervention in a fair cross section challenge. State v. Couture, supra, 552; State v. Castonguay, supra, 430-31; State v. Haskins, 188 Conn. 432, 440, 450 A.2d 828 (1982).

The defendant has provided us with no reason to abandon this analysis, and we are not inclined to do so. The remaining question then is whether there was such an underrepresentation of Hispanics, compared to their population in the community as a whole, in the pools from which jurors in Fairfield county were drawn during the period from September, 1978, to April, 1981, as to have substantial impact upon the composition of Fairfield juries. We conclude that no such impact has been shown. According to the defendant’s figures, of the 12,351 potential jurors during the period examined, 240 or 1.9 percent were Hispanics. The 3.75 percent of Hispanics in the community, if this group were proportionally represented in the jury pool, would have resulted in the inclusion of 465 Hispanics, 225 more than were actually contained in the pool of jurors. The 12,351 veniremen would, if divided into juries of six, which hear cases such as the defendant’s, have served 2000 potential juries. See General Statutes §§ 54-82 (c), 54-82b (c). Were the 225 missing Hispanic jurors evenly distributed among this number of juries, one more Hispanic would have been available for selection on only one out of nine juries. This is a substantially smaller discrepancy than those we upheld in Couture and Castonguay. The lesser numerical discrepancy found here, as compared to those cases involving Hispanic representation on grand juries, must be balanced against the greater influence a single juror may have in a group of six, comprising a petit jury, rather than eighteen persons, necessary for a grand jury. The decision of the six must be unanimous while only twelve of eighteen grand jurors must agree upon an indictment. General Statutes § 54-45 (b). Even taking this into account, however, we cannot conclude that the underrepresentation of Hispanics in the jury venires of Fairfield county was so substantial as to violate the defendant’s due process right to a jury representing a fair cross section of the community. Accord Beale, supra, 280; see also United States v. Armstrong, 621 F.2d 951, 955-56 (9th Cir. 1980); United States v. Potter, 552 F.2d 901, 905-906 (9th Cir. 1977); United States v. Nordwall, 555 F. Sup. 37 (D. Nev. 1982); State v. Elbert, 424 A.2d 1147, 1149 (N.H. 1981). “It should ... be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). We conclude that the veniremen from whom the defendant’s jury was drawn were sufficiently representative to provide a “fair possibility for obtaining a truly representative cross section.” State v. Nims, 180 Conn. 589, 595, 430 A.2d 1306 (1980), quoting United States v. Kennedy, 548 F.2d 608, 614 (5th Cir. 1977). The defendant, therefore, has not sustained his burden of proving a lack of fair and reasonable representation of Hispanics in the array from which his jury was selected.

The defendant was not deprived of his right to a jury drawn from a fair cross section of the community and the trial court did not err in denying his challenge to the jury array.

II

The defendant next claims that his inculpatory statements made to the Wilton police should have been suppressed because they resulted from an illegal arrest and were elicted under such circumstances as to impinge upon their voluntariness. We conclude that the trial court did not err in refusing to suppress the statements.

A

The defendant claims an illegal arrest by virtue of his being in the physical custody of two Wilton police officers from the time he left the Westport police station for his trip to Wilton until he was returned to West-port. He maintains that acquisition of his custody by the Wilton officers was an arrest. The defendant continues further that the Wilton police officers had no cause or authority to arrest him at that time and that any confession he made to them resulted directly from the illegal arrest.

We have recognized that the fourth amendment to the United States constitution requires suppression of statements obtained as a result of an illegal arrest “ 'in order to deter similar police misconduct in the future and to protect the integrity of the courts.’ ” State v. Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985), quoting State v. Derrico, 181 Conn. 151, 157, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Dunaway v. New York, 442 U.S. 200, 216, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 600-603, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We find this principle to be inapplicable in this case because the essential predicate of an illegal arrest, or any arrest by the Wilton police, is lacking.

It cannot be denied that the defendant was under arrest during his trip through Wilton. In Dunaway v. New York, supra, 216, the court equated an arrest with “detention for custodial interrogation,” which the Wilton officers undeniably conducted. It is equally clear that the Wilton police had not arrested the defendant before he confessed but that his custody had been transferred to them by the Westport police who had arrested him. The defendant does not challenge the legality of his arrest by the Westport police. The defendant’s claim, therefore, goes not to the legality of his arrest, but to the authority of the Wilton police to hold him in custody pending disposition of the Westport charges. In analyzing this claim, we start with a recognition that after the defendant had been given Miranda warnings he expressed his consent when asked to accompany the Wilton officers. The defendant can hardly be heard now to complain about the place of his custody or the authority of his custodians when he voluntarily consented to go with these officers on the trip to Wilton. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 246, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Anonymous (1981-1), 37 Conn. Sup. 755, 759-60, 436 A.2d 789 (1981).

Moreover, once a prisoner is lawfully in custody and thus deprived of his freedom, he has no constitutional basis for complaining about the identity of those assigned to hold him by the arresting authority. The temporary transfer of the defendant’s custody from the Westport police authorities, who had arrested him legally, to the Wilton officers did not constitute a new arrest requiring those officers to have justification for such an arrest. We conclude that the lawful deprivation of the defendant’s liberty resulting from his unchallenged arrest by the Westport police was still in force at the time he made the statements concerning his involvement in the Wilton offenses. Those statements, therefore, were not the product of an illegal arrest, as the defendant asserts and his claim of a fourth amendment violation is without merit.

B

The defendant’s second argument for suppression focuses on comments made to him by the Westport police claimed to constitute promises that impermissibly induced his confession to the Wilton police. See Brady v. United States, 397 U.S. 742, 753, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Bram v. United States, 168 U.S. 532, 542, 18 S. Ct. 183, 42 L. Ed. 568 (1897). During the suppression hearing, Officer Gary Tranberg of the Westport police testified that the defendant was a known drug addict and was experiencing drug withdrawal symptoms shortly after his arrest. The following exchange then occurred between defense counsel and Tranberg. Counsel: “Did you ever talk to Mr. McCarthy about anything to the effect that, if he gave a statement concerning the houses that he burglarized, that you would help him get into a drug program or help him in any way concerning [his] drug habit?” Tranberg: “We had indicated to him that if he did cooperate with us, we would make that indication to the prosecutor and also indicate the fact that he was a drug addict and he did need some medical treatment for his drug addiction. I, certainly, never said that I was going to get him into a drug program per se.” Tranberg also testified that the defendant was told that if he cooperated with respect to the Westport crime, for which he had been arrested, no other warrants would be issued “[a]s far as the town of Westport is concerned.” This conversation with the defendant took place on the morning of June 20,1981, the day before the defendant confessed to the Wilton burglaries. The defendant generally corroborated Tranberg’s account, but also testified that the Wilton police “promised me the same thing the Westport Police promised me,” that being “[n]o warrants. And then when I went to court, they and the Westport Police would be there to request the Prosecutor that I be given a drug program.” The Wilton police denied making any such promises.

“It is the state’s burden to prove by a preponderance of the evidence that the challenged confession was made voluntarily. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Hawthorne, 176 Conn. 367, 370, 407 A.2d 1001 (1978). The test of voluntariness is whether an examination of all the circumstances shows that the conduct of the police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined.’ (Citations omitted.) State v. DeForge, 194 Conn. 392, 397-98, 480 A.2d 547 (1984); see also State v. Stankowski, 184 Conn. 121, 131-32, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).” State v. Perry, supra, 516.

With respect to the promises claimed to have been made by the Wilton police, we are presented with a plain question of fact involving the credibility of witnesses. “This court cannot retry the facts or pass upon the credibility of the witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1978).” State v. Hawthorne, supra, 371; State v. DeForge, supra, 398. Where the trial court found against the defendant on the ultimate issue without articulation, we may assume that it resolved any underlying factual disputes against him as well. See State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); State v. Schonagel, 189 Conn. 752, 762, 459 A.2d 106 (1983), vacated and remanded, 465 U.S. 1002, 104 S. Ct. 990, 79 L. Ed. 2d 224 (1984); State v. Reddick, 189 Conn. 461, 470 n.8, 456 A.2d 1191 (1983). On the basis of the record before us, it has not been established that any promises were made by the Wilton police, and we decline to pass upon a version of events not established by the record. See State v. Perry, supra, 516.

The situation differs as to the promises by the West-port police, concerning which there was no factual dispute at trial. It is clear, however, that the trial court could have found that the defendant understood those promises to relate only to his interaction with the West-port police and not his subsequent dealings with the Wilton police. When he testified at the suppression hearing, the defendant stated that the Westport police “promised me that if I had agreed to help them with any investigation and any burglaries pertaining within Westport, that they would take me to the hospital so I could get medication for my withdrawals. And when I went to court for this charge, they would see that I would be given a drug program.” (Emphasis added.) Similarly, Tranberg’s testimony concerning the promise that no other warrants would be issued against the defendant aside from that for which he was already in custody was qualified to apply only “[ajsfar as the Town of Westport is concerned. ” (Emphasis added.) Given the limits of these promises, it would have been fair for the trial court to conclude that they had no impact on the defendant’s decision to confess to having committed crimes in Wilton. “ ‘A confession, otherwise freely and voluntarily made, is not vitiated by a promise of leniency unless such promise was the motivating cause of the confession.’ (Citations omitted.) State v. Tardiff 374 A.2d 598, 601 (Me. 1977).” State v. Perry, supra, 519.

Thus neither the nature of the defendant’s custody nor any promises made to him required a finding that the defendant’s confession was inadmissible, and the trial court did not err in denying his motion to suppress.

Ill

The defendant’s third claim of error relates to the questions asked of him on cross-examination after he had exercised his right to testify in his own behalf. On direct examination, the defendant testified only about his drug addiction and the drugs he ingested on the day he entered the victim’s home. On cross-examination, the state attempted to inquire about the defendant’s actions preceding, during and directly following the time he entered the victim’s home. The defendant objected on the ground that the state’s inquiry was outside the scope of his direct examination. The state responded that the defendant’s actions at the time in question related to his state of mind, which the defendant had put in issue through his testimony on direct. The trial court, noting that the defendant had earlier stipulated to having entered the victim’s house and to having taken some property and was relying as a defense on a claimed lack of mental capacity, agreed with the state that the defendant’s conduct at the time of the crime was a permissible subject of cross-examination. The defendant properly excepted.

The defendant correctly states the rule that “[t]he scope of cross-examination is limited by the scope of the direct examination unless there is an attack on the credibility of the witness.” State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977); State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). The rule in its application is not so narrow as he would suggest, however. “It [is] within the broad discretion accorded the court in its control over the cross-examination to admit [a] question and forestall any erroneous impression which the jury might otherwise have obtained as to the significance of the actions of the contestants. The court could properly allow the proponents to inquire as to any facts which would tend to rebut or modify any material conclusion or inference resulting from the facts elicited on the direct examination. Levine v. Marcus, 90 Conn. 682, 684, 98 A. 348 [1916].” Shulman v. Shulman, 150 Conn. 651, 661, 193 A.2d 525 (1963).

The defendant’s testimony on direct examination was plainly intended to raise an inference that his mental State was such that at the time of the incident he could not have formed the intent requisite to criminal responsibility for the crimes charged. See General Statutes §§ 53a-103, 53a-119. The testimony elicited by the state relating to his thoughts and actions at that time was clearly intended to rebut that inference by showing the nonrandom and deliberate nature of his conduct. Moreover, given that the defendant had already stipulated that he had entered the victim’s home and taken his possessions, it is difficult to perceive any prejudice to the defendant in the admission of this testimony. This evidence merely provided details of the entry and theft, the ultimate facts that had been already admitted. “[A]s a rule although the extent of cross-examination is within the trial court’s discretion it should be liberally allowed. State v. Reed, 174 Conn. 287, 299, 386 A.2d 243 [1978]. Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only where an injustice appears to have occurred. State v. Martin, 170 Conn. 161, 365 A.2d 104 [1976]; State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 [1975].” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); see also State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). We find no such injustice here.

IV

Finally, the defendant claims error in the trial court’s refusal to charge the jury on the crimes of larceny in the second and third degrees as lesser included offenses of first degree larceny. The trial court, after receiving the defendant’s written request for a charge on these lesser degrees of larceny, instructed the jury only on the lesser offense of larceny in the fourth degree. At the time of the offense, the material distinction between the crimes was that of value. A theft constituted first degree larceny if the property stolen was worth more than $2000; General Statutes (Rev. to 1979) § 53a-122; second degree if between $500 and $2000; General Statutes (Rev. to 1979) § 53a-123; third degree if between $50 and $500; General Statutes (Rev. to 1979) § 53a-124; and fourth degree if the property was worth less than $50 or was of undetermined value. General Statutes (Rev. to 1979) §§ 53a-125, 53a-121 (a) (3).

At trial, the state presented the testimony of the victim and his sister. Both described the flatware and other table pieces taken in the burglary of the victim’s home on June 7, 1980, and indicated that most of the pieces taken were sterling silver. An expert for the state also identified many of the stolen pieces as sterling silver and valued them between $7839 and $8845. Two police officers testified that the defendant had told them that after he took the silver he sold it in New York for $2500. Aside from cross-examination of witnesses for the state, the defendant presented no evidence relating to the value of the stolen goods.

“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Failure to charge on an included offense when this test is met is reversible error. State v. Harris, 189 Conn. 268, 274-76, 455 A.2d 342 (1983); State v. Falby, 187 Conn. 6, 28-30, 444 A.2d 213 (1982).

Without having to consider the other elements, we find that the defendant has failed to satisfy the third prong of the Whistnant test and therefore was not entitled to the requested charge on larceny in the second and third degrees. In support of his claim of error, the defendant argues that because the jury could have disbelieved the evidence tending to prove the stolen items to be sterling silver, it might have determined the value of the items to have been less than that asserted by the state and thus to fall somewhere between $50 and $2000, the value range for second and third degree larceny. While this contention might be sufficient to satisfy the fourth requirement of Whistnant, the fact remains that there was no evidence placing the value at less than $2500. If the jury had concluded that the evidence of value was insufficient for first degree larceny, it was possible for it to find only that the value of the stolen property was undetermined, and that a fourth degree larceny had been committed. The third prong of Whistnant requires that there be “some evidence . . . which justifies conviction of the lesser offense.” (Emphasis added.) State v. Whistnant, supra, 588. Evidence tending to show one value, if disbelieved, cannot be said to establish affirmatively another. State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972); Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 257 (1967). Thus the weakness claimed in the state’s proof that the property had a value of more than $2000 would not in itself justify a finding that its value fell within the range of $50 to $2000 for second and third degree larceny. There is no other evidence that would support such a finding and, thus, the third Whistnant criterion has not been satisfied. The court therefore did not err in refusing to charge on the crimes of second and third degree larceny.

There is no error.

In this opinion the other judges concurred.

       In Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S. Ct. 672, 42 L. Ed. 2d 690 (1975), it was determined “that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial” that is applicable to the states by virtue of the due process clause of the fourteenth amendment to the United States constitution. Id., 528. This holding was reinforced in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).

       The trial court refused to admit the applicable figures contained in the 1980 census because the 1980 census results were at that time provisional. The defendant does not claim error in that ruling, but instead urges this court to take judicial notice of results of the final 1980 census now available. We decline to take judicial notice of facts that were not available, and therefore could not have been judicially noticed, at the time of trial. See State v. Kilpatrick, 1 Conn. Cir. Ct. 298, 303, 23 Conn. Sup. 437, 184 A.2d 191 (1962). To hold otherwise would be to permit a party to appeal a case on a basis completely different from that presented below, essentially rendering the lower court decision superfluous. The judicial notice of facts unavailable at the time of trial would be inconsistent with the appellate function of this court. Styles v. Tyler, 64 Conn. 432, 449-56, 30 A. 16 (1894); cf. People v. Harris, 36 Cal. 3d 36, 679 P.2d 433, 201 Cal. Rptr. 782 (1984).

       The statistical decision theory as it applies to jury array challenges was propounded in Pinkelstein, “The Application of Statistical Decision Theory to the Jury Discrimination Cases,” 80 Harv. L. Rev. 338 (1966), and discussed in Casteneda v. Pardita, 430 U.S. 482, 497 n.17, 97 S. Ct. 1272, 51 L. Ed. 2d 491 (1977).

       In State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), we declined to review a challenge to a jury array where the defendant failed to obtain findings from the trial court on the subordinate questions of fact and failed properly to set forth in his brief facts on the record that supported his claim. Id., 74 n.2. This defendant has likewise failed to request an articulation, but he has outlined in his brief the relevant facts before the trial court upon which his challenge to the jury array was rejected. We find that the defendant has presented a record adequate for appellate review.

       While a due process challenge to a jury array may be brought regardless of whether a defendant is a member of the group he claims to have been excluded from jury service; Duren v. Missouri, 439 U.S. 357, 359 n.1, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 672, 42 L. Ed. 2d 690 (1975); standing to advance an equal protection claim is limited to members of the excluded group. Casteneda v. Pardita, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 491 (1977). The defendant here does not claim to be a member of the Hispanic community.

       We agree with the observation in United States v. Test, 550 F.2d 577, 584 (10th Cir. 1976), that “the mathematical conclusion that the disparity between . . . two figures is ‘statistically significant’ does not . . . require an a priori finding that these deviations are ‘legally significant.’ ”

         “From time immemorial in this state, the community unit which is the basis for the source of a jury array is that of the county .... The issue to be determined then is whether the array was a fair cross section of that community.” State v. Townsend, 167 Conn. 539, 551, 356 A.2d 12, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 62 (1975).

       The courts that have continued to employ an absolute discrepancy test; see State v. Castonguay, 194 Conn. 416, 428, 481 A.2d 56 (1984); have required a deviation from community composition much greater than that shown by the defendant’s evidence here. See, e.g., United States v. Tuttle,
        729 F.2d 1325, 1327 (11th Cir. 1984); United States v. Yazzie, 660 F.2d 422 (10th Cir. 1981), cert. denied, 455 U.S. 923, 102 S. Ct. 1282, 71 L. Ed. 2d 464 (1982).

       “The courts that have applied the impact standard have generally concluded that the challenger failed to prove a sufficient disparity when proportionate minority representation would have added only one or two additional minority jurors to a typical grand or petit jury.” Beale, “Integrating Statistical Evidence and Legal Theory to Challenge the Selection of Grand and Petit Jurors,” 46 Law and Contemp. Probs. 269, 280 (1983).

       Our conclusion that the promises that were made to the defendant did not relate to his Wilton confession makes it unnecessary for us to consider whether those promises were of such a nature as to vitiate an otherwise voluntary confession. Cf. State v. Perry, 195 Conn. 505, 519-20, 488 A.2d 1256 (1985); State v. Carter, 189 Conn. 631, 638-39, 458 A.2d 379 (1983).

       The defendant also made a motion to dismiss on the same grounds relied upon in his motion to suppress. It follows from our conclusion that the court did not err in failing to suppress the evidence that the defendant was not entitled to dismissal of the charges against him, and the trial court did not err in denying the motion.

       The defendant’s claim at trial and on appeal is that the state’s cross-examination sought to elicit information that was beyond the scope of direct examination. The defendant has made no constitutional claims involving his right not to incriminate himself, and therefore we have not analyzed his claim from that perspective.