author: Shea, J.

text:
    State of Connecticut v. Michael Joseph Marsala
    (13830)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Santaniello, Js.
    Argued May 1—
    decision released August 7, 1990

      Richard Emanuel, assistant public defender, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney for the appellee (state).
   Shea, J.

The dispositive issue in this appeal is whether evidence seized by police officers in violation of our state constitution may be admitted during a criminal trial, as part of the state’s case-in-chief, under a “good faith” exception to the exclusionary rule. The question comes to us upon certification from a decision rendered by the Appellate Court; State v. Marsala, 19 Conn. App. 478, 563 A.2d 730 (1989); affirming the conviction of the defendant, Michael Joseph Marsala, for two violations of the state dependency producing drug law, General Statutes § 21a-278 (b). We conclude that a “good faith” exception to the exclusionary rule is incompatible with the constitution of Connecticut, article first, § 7, and, therefore, that the decision of the Appellate Court, applying such an exception, must be reversed.

The facts underlying the defendant’s conviction are set forth in an opinion rendered by the Appellate Court after the defendant had appealed from that judgment. State v. Marsala, 15 Conn. App. 519, 520-22, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988) (Marsala I). Incriminating evidence was seized from both the defendant’s person and his home, pursuant to a search warrant issued for the purpose of allowing police officers to search those two places. More pertinent to our decision today, however, are the legal conclusions reached by both the trial and Appellate courts on the basis of the facts set forth in Marsala I. After a hearing conducted for the purpose of ruling on the defendant’s motion to suppress the evidence seized, the trial court granted the motion as to the evidence taken from the defendant’s home but denied the motion as to the evidence obtained from his person.

The trial court concluded that the affidavit, submitted in support of the search warrant application, contained no information from which the issuing judge could have determined the basis of knowledge of two informants whose observations had been relied on by the affiants. Further, the trial court concluded that information contained in the affidavit detailing a surveillance of the defendant conducted by police officers did nothing to corroborate, in regard to a search of the defendant’s home, the informants’ descriptions of the defendant’s activities. Marsala I, supra, 522; see State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). The trial court denied, however, the motion to suppress the evidence seized from the defendant’s person, reasoning that observations of the defendant’s activities, made by one of the affiants, had corroborated the details provided by the informants and that the combined information, therefore, constituted probable cause to arrest the defendant. Marsala I, supra.

Before the Appellate Court, the state conceded that the “warrant executed upon the person and residence of the defendant was fatally defective in that the underlying affidavit lacked the requisite indicia of reliability and basis of knowledge” of the two informants. Id., 523. The state argued, however, that the admission of the items seized from the defendant’s person could be justified under the investigative stop doctrine as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).The Appellate Court rejected this contention; Marsala I, supra, 523-24; but relying upon its prior decision in State v. Brown, 14 Conn. App. 605, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988), remanded the case to the trial court so that it could resolve certain factual matters and determine whether the admission of the seized items could be justified under the good faith exception to the exclusionary rule established by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). Marsala I, supra, 526.

On remand, the trial court issued a written decision in compliance with the directive of the Appellate Court to make four specific determinations. The trial court concluded: (1) “the affiants did not mislead the issuing judge”; see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); (2) there was “no evidence that the issuing judge wholly abandoned his judicial role”; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979); (3) “the police officers did have a reasonable belief that the warrant was valid”; see Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring); and (4) “the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid.” See United States v. Leon, supra, 923. In his appeal from this decision, the defendant did not contest the trial court’s first, second or fourth conclusions. State v. Marsala, 19 Conn. App. 478, 480, 563 A.2d 730 (1989) (Marsala II). Thus, the issue before the Appellate Court was “whether the trial court erred in concluding on remand that the officers executing the warrant acted in objectively determinable good faith and that, therefore, the ‘good faith’ exception to the exclusionary rule applied.” Id. The Appellate Court concluded, upon its own independent review of the record and transcripts, that the trial court had not erred and that the evidence seized from the defendant’s person was properly admitted at his trial. Id., 483.

We granted the defendant’s petition for certification; see Practice Book § 4126 et seq.; limited to the following issue: “Does a good faith exception to the exclusionary rule exist under Connecticut law; and if so, did the Appellate Court err in concluding that the good faith exception was applicable in this case?” State v. Marsala, 213 Conn. 805, 567 A.2d 836 (1989). We answer the first portion of this question in the negative and, therefore, need not consider the second portion.

I

The defendant claims that apart from any constitutional considerations, General Statutes § 54-33f mandates the exclusion of illegally seized evidence and that the statute’s operation is unimpeded by any good faith exception. See Practice Book § 822. The defendant relies principally on: (1) § 54-33f (c), which provides that if a suppression motion is granted, “the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial” (emphasis added); (2) Practice Book § 821, which provides that, upon motion of the defendant, “the judicial authority shall suppress potential testimony or other evidence if he finds that suppression is required under the constitution or laws of the United States or the state of Connecticut”; and (3) the fact that there have been two unsuccessful legislative attempts to amend § 54-33f, so as to include a good faith exception to the'exclusionary rule. See 1983 House Bill No. 5125; 1985 House Bill No. 7011.

The defendant’s reliance upon Practice Book § 821 is without merit. That provision establishes no substantive standard for the suppression of illegally seized evidence, but, rather, depends upon the applicable interpretation of either the United States or Connecticut constitution to determine whether evidence should be suppressed. If the provisions of either constitution, as currently interpreted, require the suppression of any evidence seized, § 821 merely directs the judicial authority to carry forth that suppression. In that regard, it is the constitution either of the United States or the state of Connecticut that requires the suppression, not § 821. Accordingly, § 821 incorporates the existing standards of search and seizure jurisprudence, as set forth by this court, our Appellate Court and the United States Supreme Court, leaving to trial courts the task of determining whether suppression is required in a particular case. See State v. Brown, supra, 625-26.

Regarding the defendant’s claim that § 54-33f and the virtually identical provisions of § 822 preclude the adoption of a good faith exception to the exclusionary rule, we agree with the Appellate Court’s resolution of this issue in State v. Brown, supra, 623-26, holding that the statute and Practice Book provisions are procedural rather than substantive and, therefore, do not define the extent of the exclusionary rule under Connecticut law. We have previously noted that § 54-33f was enacted in response to the United States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and that prior to that decision there was “no [express] provision in our practice for a motion to suppress.” State v. Mariano, 152 Conn. 85, 89, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965).

Section 54-33f provides expressly that evidence may be suppressed on the ground that “[t]he property was seized without a warrant,” and that if the motion is granted, “the property . . . shall not be admissible in evidence at any hearing or trial.” If we were to accept the defendant’s contention that § 54-33f provides substantive rights rather than a procedure for implementing motions to suppress evidence, numerous decisions of this court, upholding the introduction of evidence seized without a warrant, simply could not be justified, since the introduction would have been in direct violation of the statutory provision. See, e.g., State v. Magnano, 204 Conn. 259, 271, 528 A.2d 760 (1987) (exigent circumstances); State v. Gasparro, 194 Conn. 96, 107, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985) (inventory searches); State v. Graham, 186 Conn. 437, 443-45, 441 A.2d 857 (1982) (plain view doctrine); State v. Shaw, 186 Conn. 45, 48-49, 438 A.2d 872 (1982) (search incident to a lawful custodial arrest); State v. Januszewski, 182 Conn. 142, 155-57, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (automobile exception to warrant requirement).

The defendant also argues that the legislature’s failure to adopt two proposed amendments to § 54-33f, which would have included a good faith exception to the exclusionary rule, “are powerful signals that (1) our legislators did not believe that we already had a statutory good faith exception, (2) nor were they convinced that we should adopt one.” We conclude that the legislature’s failure to adopt these proposed amendments, although possibly indicative of both of the “signals” advanced by the defendant, cannot transform a procedural statute or Practice Book provision into one that provides criminal defendants with substantive rights. In cases in which this court has considered the legal effect of failed attempts to amend existing law, we have viewed those failures as indicative of legislative approval of an existing interpretation of substantive law. “The legislature is presumed to be aware of the interpretation placed upon its legislation by the courts and the effect which its own nonaction thereafter may ha ye.” Buxton v. Ullman, 147 Conn. 48, 56, 156 A.2d 508 (1959), appeal dismissed, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327,334 n.13, 471 A.2d 646 (1984); Herald Publishing Co. v. Bill, 142 Conn. 53, 63, 111 A.2d 4 (1955); see generally 2A J. Sutherland, Statutory Construction (1984) § 48.18; D. O’Con-nor," “The Use of Connecticut Legislative History in Statutory Construction,” 58 Conn. B.J. 422, 437-39 (1984). We discern, however, little or no inferential value in the failed amendments in this case, since § 54-33f has never been interpreted by this court as providing anything more than a procedural mechanism for the bringing of motions to suppress evidence. Thus, even if both of the defendant’s assumptions regarding “signals” from the legislature concerning a good faith exception to the exclusionary rule are correct, those “signals” are simply inapplicable when they concern substantive rights and the existing law is one of procedure.

II

The defendant’s principal claim, which we find persuasive, is that a good faith exception to the exclusionary rule is incompatible with article first, § 7, of our state constitution, which 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.” This language has remained unchanged since it was first adopted as article first, § 8, of our 1818 constitution, and is quite similar to the protections afforded by the fourth amendment to the United States constitution.

We have frequently relied upon decisions of the United States Supreme Court interpreting the fourth amendment, as well as other amendments to the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution. We have also, however, determined in some instances that the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). In so doing, we have recognized 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.” Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977).

In this case, we are called upon to determine whether the United States Supreme Court’s decision in United States v. Leon, supra, as adopted by the Appellate Court in State v. Brown, supra, and applied by that court in this case, upon “respectful consideration,” is to become the law of this state. In Leon, after “accepting the Court of Appeals’ conclusion that probable cause [for issuance of a search warrant] was lacking under the prevailing legal standards”; United, States v. Leon, supra, 905; the United States Supreme Court held, nevertheless, “that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id., 922.

In arriving at this conclusion, the court began its analysis by noting that: (1) the fourth amendment “contains no provision expressly precluding the use of evidence obtained in violation of its commands”; id., 906; (2) “the use of fruits of a past unlawful search or seizure ‘work[s] no new Fourth Amendment wrong’ ”; id., quoting United States v. Calandra, 414 U.S. 338, 354, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); (3) “[t]he wrong condemned by the Amendment is ‘fully accomplished’ by the unlawful search or seizure itself”; United States v. Leon, supra, quoting United States v. Calandra, supra; and (4) “the exclusionary rule is neither intended nor able to ‘cure the invasion of the defendant’s rights which he has already suffered.’ ” United States v. Leon, supra, quoting Stone v. Powell, 428 U.S. 465, 540, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (White, J., dissenting). On these grounds, the court reiterated that the exclusionary “rule thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ ” United States v. Leon, supra, quoting United States v. Calandra, supra, 348. Stating that the issue before it was “[wjhether the exclusionary sanction is appropriately imposed in a particular case,” and not “ ‘whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct’ ”; United States v. Leon, supra, quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); the court concluded that the question “must be resolved by weighing the costs and benefits of preventing the use in the prosecution’s case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.” United States v. Leon, supra, 906-907.

According to the court in Leon, “[t]he substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern.” Id., 907. Thus, according to the Leon court, “ ‘[o]ur cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.’ ” Id., quoting United States v. Payner, 447 U.S. 727, 734, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980). Despite noting that many researchers “have concluded that the impact of the exclusionary rule is insubstantial”; United States v. Leon, supra, 908 n.6; the court declared that “[a]n objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.” Id., 907. The court justified this observation by noting that the relatively small percentage of cases resulting in nonprose-cution or nonconviction because of the exclusionary rule “mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures.” Id., 908 n.6.

The Leon court’s conclusion regarding the costs of the exclusionary rule has been criticized on numerous levels. First, there is the obvious inconsistency between the “substantial” costs of the exclusionary rule, as identified by the court, and the “insubstantial” impact of the rule, as found by the research on which the court relied. As one commentator has stated, “[t]o date, the most careful and balanced assessment of all available empirical data shows ‘that the general level of the rule’s effects on criminal prosecutions is marginal at most.’ ” 1 W. LaFave, Search and Seizure § 1.3 (c), p. 52, quoting, T. Davies, “A Hard Look at What We Know (and Still Need to Learn) About the ‘Costs’ of the Exclusionary Rule: The NIJ Study and Other Studies of ‘Lost’ Arrests,” 1983 Am. B. Found. Research J. 611, 622.

Second, the Leon court’s assessment of the costs of the exclusionary rule is based on the effect of the rule in all cases instead of on the effect it would have in those cases in which evidence was suppressed despite the objectively reasonable behavior of the police officers involved. As Justice Brennan noted, the Leon majority “ignores this distinction and mistakenly weighs the aggregated costs of exclusion in all cases, irrespective of the circumstance that led to exclusion . . . against the potential benefits associated with only those cases in which evidence is excluded because police reasonably but mistakenly believe that their conduct does not violate the Fourth Amendment .... When such faulty scales are used, it is little wonder that the balance tips in favor of restricting the application of the rule.” United States v. Leon, supra, 951 (Brennan, J., dissenting). “This is not an insignificant error, for had the Court’s ‘cost’ inquiry been properly focused it would have been apparent that the relevant costs are insubstantial.” 1 W. LaFave, supra, § 1.3 (c), p. 52.

Finally, the Leon court “consistently and repeatedly refers to the costs of the exclusionary rule as if they were somehow a matter quite distinct from the Fourth Amendment itself.” 1 W. LaFave, supra, § 1.3 (c), p. 53. In this regard, we agree with former Justice Stewart, who has noted that “[mjuch of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the fourth amendment itself. . . . The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution’s prohibition against unreasonable searches and seizures and its requirement that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals. That is not a political outcome impressed upon an unwilling citizenry by unbeknighted judges. It is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, the home, and property against unrestrained governmental power.” P. Stewart, “The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Seareh-and-Seizure Cases,” 83 Colum. L. Rev. 1365, 1392-93 (1983).

Although we recognize that the exclusionary rule exacts a certain “cost” from society in the form of the suppression of relevant evidence in criminal trials, we conclude, nevertheless, that this “cost” is not sufficiently “substantial” to overcome the benefits to be gained by our disavowal of the Leon court’s good faith exception to the exclusionary rule. We base this conclusion on both the criticism leveled against the Leon opinion itself and our willingness in other areas of the law to uphold the exclusion of concededly reliable and relevant evidence on the basis of some greater benefit that will be realized by its suppression. Thus, for example, an otherwise voluntary and reliable confession is excluded from a criminal trial on the basis of a violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an exclusionary rule that we have adopted as an interpretation of the due process clause contained in article first, § 8, of the Connecticut constitution. See, e.g., State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987); State v. Brown, 199 Conn. 47, 51 n.3, 505 A.2d 1225 (1986); State v. Ferrell, 191 Conn. 37, 45 n.12, 463 A.2d 573 (1983). Similarly, numerous categories of reliable and relevant evidence are excluded from both civil and criminal trials on the basis of either a common law or statutorily created privilege against disclosure. See generally C. Tait & J. LaPlante, Connecticut Evidence § 12.5 (Attorney and Client), § 12.6 (Husband and Wife), § 12.7 (Minor and Advisor), § 12.8 (Physician and Patient), § 12.9 (Psychiatrist and Patient), § 12.10 (Psychologist and Patient), § 12.11 (Priest and Penitent), § 12.12 (Journalist and Source), § 12.13 (Identity of an Informer), § 12.14 (Management and Labor), § 12.15 (Deaf or Hearing-Impaired Persons), § 12.16 (Battered or Raped Victim and Counselor), and § 12.17 (Family Relations Officer).

In its own analysis of the “benefits” of the exclusionary rule, the Leon court first concluded that operation of the rule could have no deterrent effect upon the judicial authorities who actually issue search warrants. According to the Leon court, “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.” United States v. Leon, supra, 916; see S. Wasserstrom & W. Mertens, “The Exclusionary Rule on the Scaffold: But Was it a Fair Trial?” 22 Am. Crim. L. Rev. 85, 106 (1984).

Having concluded that the exclusionary rule could have no deterrent effect on those who issue search warrants, the Leon court next reasoned that “[i]f exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect ... it must alter the behavior of individual law enforcement officers or the policies of their departments.” United States v. Leon, supra, 918. Responding to arguments that the exclusionary rule without a good faith exception would deter inadequate presentations by the police in the affidavits submitted in support of search warrant applications and would discourage “magistrate shopping,” the Leon court found “such arguments speculative and conclude[d] that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Id. Virtually foreclosing any exclusion when the police “officer’s conduct is objectively reasonable”; id., 919; the court concluded that “[i]n most such cases, there is no police illegality and thus nothing to deter. It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. . . . Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id., 920-21.

We simply cannot accept the conclusion reached by the Leon court as a result of its weighing of the relevant costs and benefits of excluding evidence obtained through police officers’ good faith reliance upon a warrant issued by a detached and neutral judicial official. Initially, we note that the exclusionary rule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that “it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.” S. Wasserstrom & W. Mertens, supra, 106. Just as with the fourth amendment, when article first, § 7, of our state constitution was adopted, “its purpose plainly was to prohibit the issuance of warrants that did not satisfy its requirements of probable cause and particularity.” Id. The text of article first, § 7, is clear: “[N]o warrant . . . shall issue . . . without probable cause supported by oath or affirmation.” (Emphasis added.) While we might agree that the exclusionary rule was not designed “to punish the errors of judges and magistrates”; (emphasis added) United States v. Leon, supra, 916; we cannot agree that the rule as it stood before Leon was not a significant factor inducing judges to take seriously their obligation to ensure that the probable cause requirement of article first, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers. We are confident that, at least in this state, search warrants failing to meet the probable cause requirement more often “result from carelessness than from intentional constitutional violations, and just as surely the exclusionary rule is logically directed to those more common violations.” 1W. LaFave, supra, § 1.3 (d), p. 55. In this sense, the issuing authority, when the determination of probable cause is overturned on appeal, is not being “punished” for a mistake, but is, rather, being informed that a constitutional violation has taken place and is also being instructed in how to avoid such violations in the future. “In other words, the longstanding applicability of the exclusionary rule in with-warrant cases has served not only to deter the occasional ill-spirited magistrate, but more importantly to influence judicial behavior more generally by . . . creating an ‘incentive to err on the side of constitutional behavior.’ ” Id., quoting United States v. Johnson, 457 U.S. 537, 561, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982). Thus, “[t]he more important issue ... is not the deterrent effect of the exclusionary rule on the conduct of individual magistrates, but the extent to which the rule helps preserve the integrity of the warrant issuing process as a whole.” S. Wasserstrom & W. Mer-tens, supra, 109.

We conclude that a good faith exception to the exclusionary rule would have several negative effects upon this constitutionally mandated warrant issuing process. First, under the good faith exception, “police need concern themselves only with getting a warrant and not with getting a warrant that will hold up on review.” Id. Thus, although we are confident that most police officers take very seriously their obligation to present a reviewing authority with a constitutionally adequate basis for the issuance of a warrant, the good faith exception would encourage some police officers to expend less effort in establishing the necessary probable cause to search and more effort in locating a judge who might be less exacting than some others when ruling on whether an affidavit has established the requisite level of probable cause. Second, the “exception for good faith reliance upon a warrant implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will from now on have virtually no consequence . . . .” United States v. Leon, supra, 956 (Brennan, J., dissenting). Finally, despite the Leon court’s assertion that there “is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated”; id., 924, it is unlikely “that overburdened trial and appellate courts will take the time and effort to write advisory opinions on [search and seizure] law when they can just as easily admit the evidence under the good faith exception.” S. Wasserstrom & W. Mer-tens, supra, 111; United States v. Leon, supra, 957 n.15 (Brennan, J., dissenting). If we were to adopt the good faith exception, our practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an “objectively reasonable” belief in its existence. Absent a meaningful necessity to review probable cause determinations, we conclude that close cases will become “both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest.” S. Wasserstrom & W. Mertens, supra, 112.

We also disagree with the Leon court’s assertion that “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope”; United States v. Leon, supra, 920; “[penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id., 921. As a threshold observation, we note again that the exclusionary rule is not designed to “punish” anyone. Id., 953 (Brennan, J., dissenting). It is, however, designed to deter future police misconduct and ensure, as nearly as can be, institutional compliance with the warrant issuing requirements of article first, § 7, of our state constitution. The relevant inquiry, therefore, is not whether the officer should be punished for his past behavior, but, rather, whether the sanction of the exclusionary rule is appropriate in cases where the officer in question believed that he was doing everything correctly, but in fact had not supplied the issuing authority with information sufficient to meet the constitutional requirement of probable cause. We conclude that the rule is appropriate in these situations. “[I]t is not as though we cannot expect the police to make accurate assessments of probable cause without the help of a magistrate, for we expect them to make such assessments whenever they search or seize without a warrant, something they do far more often than search or seize with warrant in hand.” S. Wasserstrom & W. Mertens, supra, 113-14.

Further, “[i]f the overall educational effect of the exclusionary ride is considered, application of the rule to even those situations in which individual police officers have acted on the basis of a reasonable but mistaken belief that their conduct was authorized can still be expected to have a considerable long-term deterrent effect. If evidence is consistently excluded in these circumstances, police departments will surely be prompted to instruct their officers to devote greater care and attention to providing sufficient information to establish probable cause when applying for a warrant, and to review with some attention the form of the warrant that they have been issued, rather than automatically assuming that whatever document the magistrate has signed will necessarily comport with Fourth Amendment requirements.” United States v. Leon, supra, 955 (Brennan, J., dissenting).

In short, we are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of “close enough is good enough” instead of under the “probable cause” standard mandated by article first, § 7, of our state constitution. We hold, therefore, that a good faith exception to the exclusionary rule does not exist under Connecticut law.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 21a-278 (b) provides in part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years.”

       The constitution of Connecticut, article first, § 7, 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.”

        State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985), held that the determination of “probable cause” under article first, § 7, of the Connecticut constitution is to be determined, when informants are relied upon, on the basis of the “veracity” or “reliability” and the “basis of knowledge” tests set forth in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), rather than the “totality of the circumstances” test adopted 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). Because the certified question is limited to the existence in this state of the good faith exception to the exclusionary rule, we have no occasion to reconsider our holding in State v. Kimbro, supra.

       “[General Statutes] Sec. 54-33f. motion foe return of unlawfully seized property and suppression as evidence, (a) A person aggrieved by search and seizure may move the court which has jurisdiction of his case or, if such jurisdiction has not yet been invoked, then the court which issued the warrant, or the court in which his case is pending, for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) that warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. In no case may the judge who signed the warrant preside at the hearing on the motion.
      “(b) The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
      “(e) The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.”

       “[Practice Book] Sec. 822.-return OF SEIZED PROPERTY
      “A person aggrieved by a search and seizure may make a motion to the judicial authority who has jurisdiction of his case, or if such jurisdiction has not yet been invoked, then to the judicial authority who issued the warrant or to the court in which his case is pending, for the return of specific items of property and to suppress their use as evidence on the grounds that:
      “(1) The property was illegally seized without a warrant under circumstances requiring a warrant.
      “(2) The warrant is insufficient on its face;
      “(3) The property seized is not that described in the warrant;
      “(4) There was not probable cause for believing the existence of the grounds on which the warrant was issued; or
      “(5) The warrant was illegally executed.”

       House Bill No. 5125 (1983) would have amended General Statutes § 54-33f to include the following: “When otherwise admissible in a criminal trial, evidence obtained in violation of any statute, rule or constitutional provision shall not be suppressed if the judicial authority determines that the officers obtaining the evidence held a good faith and reasonable belief that they were acting legally.”

       See Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 3, 1963 Sess., p. 875.

       Article first, § 8, of the 1818 constitution of Connecticut became article first, § 7, on December 30,1965, the date on which then Governor John Dempsey proclaimed the adoption of our present state constitution.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This provision was made applicable to the states, by virtue of the due process clause of the fourteenth amendment to the United States constitution, in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). The Wolf court’s decision not to apply to the states the federal exclusionary rule, adopted in Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652 (1914), was overruled in Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       The United States Supreme Court cited specific percentages from a study which “suggests that the [exclusionary] rule results in the nonprosecution or nonconviction of between 0.6% and 2.35% of individuals arrested for felonies . . . [while] the cumulative loss due to nonprosecution or non-conviction of individuals arrested on felony drug charges is probably in the range of 2.8% to 7.1%.” United States v. Leon, 468 U.S. 897, 907 n.6,104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), citing T. Davies, “A Hard Look at What We Know (and Still Need to Learn) About the ‘Costs’ of the Exclusionary Rule: The NIJ Study and Other Studies of ‘Lost’ Arrests,” 1983 Am. B. Found. Research J. 611. The same study, according to the Leon court, “suggests that [in California,] screening by police and prosecutors results in the release because of illegal searches or seizures of as many as 1.4% of all felony arrestees . . . that 0.9% of felony arrestees are released, because of illegal searches or seizures, at the preliminary hearing or after trial . . . and that roughly 0.05% of all felony arrestees benefit from reversals on appeal because of illegal searches.” United States v. Leon, supra, 907 n.6; see P. Nardulli, “The Societal Cost of the Exclusionary Rule: An Empirical Assessment,” 1983 Am. B. Found. Research J. 585, 606-607 (concluding that the exclusionary rule has a “truly marginal” effect on the criminal court system); P. Nardulli, “The Societal Costs of the Exclusionary Rule Revisited,” 1987 U. Ill. L. Rev. 223, 238-39 (confirming earlier study and concluding that “the prominence of the role played by the exclusionary rule does not necessarily increase with the size of the jurisdiction studied”).

       Neither the defendant nor the state has provided us with any empirical data regarding the impact of the exclusionary rule in this state.

       Historians have consistently concluded that constitutional provisions such as the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution were enacted to ensure that the newly formed federal or state governments “could not employ the two devices used by the British Crown that they believed jeopardized the liberty of every citizen: the general warrant and the writ of assistance.” P. Stewart, “The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases,” 83 Colum. L. Rev. 1365,1369 (1983); J. Landynski, Search and Seizure and the Supreme Court (1966) c. I. Regarding general warrants, see generally Frisbie v. Butler, 1 Kirby 213, 215 (Super. Ct. 1787), Grumon v. Raymond, 1 Conn. 39, 42-47 (1814), and 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 387. Regarding the refusal of then Chief Justice Jonathan Trumbull to issue writs of assistance in Connecticut, see O. Dickerson, “Writs of Assistance as a Cause of the Revolution,” Studies Inscribed to Evarts Boutell Greene (1939) pp. 52-54, and H. Gray, “Writs of Assistance,” J. Quincy, Massachusetts Reports (1865) pp. 501-506.

       See State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985), aff'd after remand, 210 Conn. 22, 554 A.2d 263 (1989); Moscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848 (1981) (Healey, J., concurring); State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974).

       We note that the good faith exception to the exclusionary rule has received mixed reviews in other state courts that have considered its application. It has been rejected on state constitutional grounds; People v. Sundling, 153 Mich. App. 277, 292, 395 N.W.2d 308 (1986), appeal denied, 428 Mich. 887 (1987); State v. Novembrino, 105 N.J. 95, 158, 519 A.2d 820 (1987); People v. Bigelow, 66 N.Y.2d 417, 427, 488 N.E.2d 451, 497 N.Y.S.2d 630 (1985); State v. Carter, 322 N.C. 709, 724, 370 S.E.2d 553 (1988); on statutory grounds; Commonwealth v. Upton, 394 Mass. 363, 370 n.5, 476 N.E.2d 548 (1985); Dees v. State, 722 S.W.2d 209, 213-14 (Tex. App. 1986); but see Lighter v. State, 741 S.W.2d 568, 569 (Tex. App. 1987) (noting statutory change adopting the exception); and on the basis of opinions issued by a higher state court. State v. Grawien, 123 Wis. 2d 428, 431-32, 367 N.W.2d 816 (Ct. App. 1985); but see State v. Brady, 130 Wis. 2d 443, 454, 388 N.W.2d 151 (Wis. 1986) (noting that adoption of the exception is still an open question). On the other hand, the good faith exception has been accepted and applied in a number of state court opinions. See People v. Fernandez, 212 Cal. App. 3d 984, 989-90, 261 Cal. Rptr. 29 (1989); State v. Bernie, 472 So. 2d 1243, 1248 (Fla. App. 1985), approved, 524 So. 2d 988 (Fla. 1988); State v. Schaffer, 107 Idaho 812, 821, 693 P.2d 458 (Ct. App. 1984); People v. Stewart, 104 Ill. 2d 463, 477, 473 N.E.2d 1227 (1984), cert. denied, 471 U.S. 1120, 105 S. Ct. 2368, 86 L. Ed. 2d 267 (1985); Mers v. State, 482 N.E.2d 778, 783 (Ind. App. 1985); State v. Huber, 704 P.2d 1004, 1011 (Kan. App. 1985); State v. Shannon, 472 So. 2d 286, 291 (La. App.), cert. denied, 476 So. 2d 349 (La. 1985); State v. Sweeney, 701 S.W.2d 420, 426 (Mo. 1985); State v. Wilmoth, 22 Ohio St. 3d 251, 266-67, 490 N.E.2d 1236 (1986); Commonwealth v. Edmunds, 373 Pa. Super. 384, 392-93, 541 A.2d 368, appeal granted, 520 Pa. 595, 552 A.2d 250 (1988).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Richard Lamme
    (13792)
    Peters, C. J., Shea, Glass, Hull and Borden, Js.

      Argued May 31—
    decision released August 7, 1990

      James J. Ruane, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and Donald A. Browne, state’s attorney, for the appellee (state).
   Peters, C. J.

The sole issue in this appeal is whether the provisions of article first, § 9, of the Connecticut constitution preclude the police from detaining a person for limited investigative purposes without having probable cause to arrest. The state charged the defendant, Richard Lamme, with the operation of a motor vehicle while under the influence of intoxicating liquor and with the operation of a motor vehicle while his license was under suspension, in violation of General Statutes §§ 14-227a (a) and 14-215 (a), respectively. The defendant unsuccessfully moved, prior to trial, for the suppression of evidence concerning his performance of field sobriety tests. The trial court rendered judgment against the defendant on a jury verdict finding him guilty as charged, and the Appellate Court affirmed that judgment in State v. Lamme, 19 Conn. App. 594, 563 A.2d 1372 (1989). This court granted certification to consider the merits of his novel state constitutional claim, and we now affirm.

The opinion of the Appellate Court reports the relevant facts. During the evening of October 22,1987, the defendant consumed several alcoholic beverages at the bar of the Trumbull Marriott hotel. At the request of the hotel management, in the early hours of the following day, police officer Richard Applebaum of the Trumbull police department wakened the defendant who was asleep in a chair in the front lobby. State v. Lamme, supra, 595. Noticing a strong odor of alcohol on the defendant’s breath, Applebaum offered to arrange a safe ride home for the defendant. Id. The defendant responded, however, that he would wait in his car for a friend to drive him home. Id., 595-96. Having watched the defendant walk to his car with an uncertain gait, Applebaum radioed police headquarters with a description of the defendant and his car. Id., 596.

Police Officer Thomas Savarese heard the police broadcast and drove down a public road in the vicinity of the Marriott, where he observed the defendant driving a car that matched the broadcast description and did not have its headlights illuminated. Because the failure to display lighted headlights while on a public highway at night is an infraction; see General Statutes § 14-96a (d); Savarese stopped the defendant’s car. Id. Savarese too noticed a strong odor of alcohol on the defendant’s breath and then asked the defendant to step out of his car to take roadside sobriety tests of his physical dexterity. Id. The defendant’s failure to pass these tests was the basis for his arrest for driving while under the influence of intoxicating liquor. Id. After the defendant’s arrest, Savarese took him to police headquarters. Id.

On these facts, the trial court and the Appellate Court concluded that the defendant was not entitled to suppress evidence concerning his performance on the field sobriety tests. Both courts agreed that the police had legally stopped the defendant, in the first instance, for driving without illuminated headlights in the dark of night. Id., 599. Thereafter, the odor of alcohol on the defendant’s breath furnished a reasonable and articulable suspicion that the defendant might be involved in criminal activity and justified his further detention for the limited intrusion represented by sobriety testing at the place where he was being detained. As a matter of federal constitutional law under the fourth and fourteenth amendments to the United States constitution, the police made a valid Terry stop, as such a detention has been defined in Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and subsequent cases. See, e.g., United States v. Hensley, 469 U.S. 221, 227, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); Florida v. Royer, 460 U.S. 491, 499-500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Aillon, 202 Conn. 385, 398-402, 521 A.2d 555 (1987); State v. Carter, 189 Conn. 611, 617-18, 458 A.2d 369 (1983).

In the present appeal, the defendant urges us to hold that our state constitution requires a different result by virtue of article first, § 9, which provides that “[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law.” The defendant maintains that this section forbids the police to detain any person, even on reasonable and articulable suspicion, unless and until the police have probable cause to make an arrest. Applied to the facts of this case, the defendant's theory would require exclusion of the results of his roadside sobriety tests because the police concededly did not have probable cause to arrest him for driving while under the influence until he failed to pass these tests. We are unpersuaded.

The defendant’s constitutional claim focuses on the phrase “except in cases clearly warranted by law.” Although this court has not specifically addressed the import of this language in the context of an investigative detention short of an arrest, we have generally characterized article first, § 9, as one of our state constitutional provisions guaranteeing due process of law. See, e.g., State v. Marra, 195 Conn. 421, 425, 489 A.2d 350 (1985); State v. Castonguay, 194 Conn. 416, 420, 481 A.2d 56 (1984); Parks v. Bourbeau, 193 Conn. 270, 278 n.8, 477 A.2d 636 (1984). A due process perspective therefore informs our assessment of the defendant’s contention that, because warrants cannot be issued without a showing of probable cause, the phrase “clearly warranted by law” mandates a universal probable cause standard whenever the police restrain personal freedom to any degree.

In examining the text of article first, § 9, to determine the extent to which it supports the defendant’s claim, “we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state. Cahill v. Leopold, 141 Conn. 1, 19, 103 A.2d 818 [1954]; 1 Cooley, Constitutional Limitations (8th Ed.) p. 125. Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.” Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981). In article first, § 9, the “except in cases clearly warranted by law” clause modifies, without apparent distinction, the rights of a person “arrested, detained or punished.” Although the validity of an arrest turns on proof of probable cause, that standard of proof has no bearing on the legality of punishment. Accordingly, on its face, § 9 does not impose a universal probable cause standard in all the circumstances that the section encompasses. Furthermore, § 9’s separate inclusion of arrests and detentions counsels against finding an intent to impose a constitutional requirement for a parity of treatment between the greater intrusion on personal freedom represented by an arrest and the lesser intrusion represented by a detention. Read in its entirety, the text indicates that the specific content appropriately to be assigned to the phrase “clearly warranted by law” depends on the particular liberty interest that is at stake. Such a construction is, of course, entirely consonant with the general contours of a constitutional safeguard rooted in flexible principles of due process. See, e.g., Asherman v. Meachum, 213 Conn. 38, 46, 49-53, 566 A.2d 663 (1989); Mathews v. Eldridge, 424 U.S. 319, 324-25, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

The historical antecedents of article first, § 9, shed little light on the scope of the section’s mandate with regard to detentions. The precise language of the present section was originally adopted as article first, § 10, of the Connecticut constitution of 1818. Prior to 1818, Connecticut’s declaration of rights took the form of a statutory enactment dating back to the preamble to Ludlow’s Code of 1650. That preamble provided that “no mans life shall bee taken away . . . no mans person shall bee arrested, restrained, banished, dismembered nor any way punished . . . under colour of Law or countenance of Authority, unless it bee by the ver-tue or equity of some express Law of the Country warranting the same, established by a General Courte, and sufficiently published, or in case of the defect of a Law in any perticular case, by the word of God.” 1 Public Records of the Colony of Connecticut 509 (J.H. Trumbull Ed. 1850). This text survived with only minor changes until its last codification before the adoption of the constitution, in the 1808 Public Statute Laws of Connecticut. At that time, the final clause of the preamble read: “unless clearly warranted by the laws of this state.” Public Statute Laws of the State of Connecticut (1808), Title I, § 2.

For present purposes, the most significant aspect of the pre-1818 declaration of rights is that it had constitutional overtones even though it was statutory in form. “The Declaration and supplementary statutes relating to individual rights were grounded in the Connecticut common law and viewed as inviolate. Abridge-ments perpetrated by the government were considered void on their face and courts were to refuse to enforce them.” C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 94 (1982); see also H. Cohn & W. Horton, Connecticut’s Four Constitutions (1989) p. 18. The historical roots of “except in cases clearly warranted by law” appear therefore to provide protection for personal freedom through a blend of statutory and constitutional rights that, like the text of the current article first, § 9, incorporates no single constitutional standard.

The Connecticut constitutional convention of 1818 enacted a constitutional declaration of rights as an integral part of its major agenda of replacing a parliamentary form of government based on legislative hegemony with a system of government embodying a division of power among three distinct departments: legislative, executive and judicial. The adoption of a written declaration of rights reflected an important change in political attitudes. “[T]he old pre-Revolutionary leaders thought that republican government with legislative supremacy was the best safeguard of personal liberties. . . . By . . . 1818, the beliefs of the old revolutionaries were replaced by the thinking of the post-Revolutionary generation, who perceived the necessity of written guarantees . . . [for the protection of personal rights that might not] be safe with the legislature and the courts . . . .” C. Collier, supra, 98. The history of the convention, officially reported in the Journal of the Proceedings of the Convention of Delegates (1873), does not, however, reveal why, in formulating the new declaration of rights, the drafters elected to modify the terms of its statutory antecedent by replacing “restrained” with “detained” and by replacing “clearly warranted by the laws of this state” with “clearly warranted by law.”

This constitutional history demonstrates an underlying concern for protection of personal freedom that does not readily translate into constitutional doubt about the legality of brief investigative detentions. The available case law, in the period immediately antedating the adoption of the constitution of 1818, suggests that the official investigation of potentially criminal behavior was not then viewed as constitutionally suspect. See, e.g., Wrexford v. Smith, 2 Root 171 (1795); Knot v. Gay, 1 Root 66, 67 (1774); and see 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) 390-91. The only case decided reasonably contemporaneously with the adoption of the 1818 constitution followed the pre-constitutional pattern of construing “warranted by law” as having a statutory referent similar to that expressly contained in the pre-1818 statutory declaration of rights. In that case, Jackson v. Bulloch, 12 Conn. 38, 43 (1837), this court noted the “solicitude for personal liberty manifested in the constitution,” but attached no specific constitutional consequences to that constitutional solicitude. Faced with a petition for a writ of habeas corpus seeking the release of a slave brought to this state by her Georgia owner, the court framed the issue as “what was the state of our law upon this subject, at the time of the adoption of the constitution of this state: for it has not since been varied.” Id. The court resolved that issue, in favor of freedom, under the relevant “state of our law” as found in the provisions of pre-1818 statutes for the abolition of slavery in Connecticut. While the statutory resolution of the issue posed to the court may well have obviated the need to articulate a constitutional standard, Jackson v. Bulloch’s framing of a constitutional issue in statutory terms indicates that detentions under article first, § 9, near the time of its adoption, were not perceived as invoking special constitutional considerations apart from applicable statutory constraints.

In this century, the case law under article first, § 9, continued to emphasize the central role of statutory safeguards in implementing the constitutional right of personal liberty. In State v. Carroll, 131 Conn. 224, 227-29, 38 A.2d 798 (1944), this court held that a police officer could be charged with manslaughter for having used physical force to consummate a warrantless arrest under circumstances unauthorized by the applicable statute. Despite the broader reach of common law authority to arrest, and despite the reasonableness of the officer’s suspicions, this court characterized the officer’s attack on his victim as “a gross violation of his fundamental rights,” citing the text of article first, § 9. Id., 231; see footnote 7, supra. The basis for the constitutional violation was, however, the mandate of the statute: “[T]he purpose of the close restriction upon arrests without warrants is to protect the liberty of the innocent. We cannot say that the legislature adopted a wrong policy when it weighed that liberty against the possibility that some guilty person might escape.” State v. Carroll, supra; see also Sims v. Smith, 115 Conn. 279, 281-83, 161 A. 239 (1932).

Only in State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979), has this court assigned independent substantive significance to article first, § 9. Federici, like State v. Carroll, dealt with the consequences of an arrest that, lacking probable cause, was illegal under the relevant statute; General Statutes § 54-lf; and article first, §§ 7, 8 and 9, of the Connecticut constitution. We concluded, in State v. Federici, supra, 61-62, that when an arrest is tainted by its linkage to an unconstitutional search and seizure, the use of such illegally obtained evidence in a subsequent prosecution compromises the right to a fair trial and requires dismissal of the outstanding charges related thereto. See also State v. Fleming, 198 Conn. 255, 261-62, 502 A.2d 886 (1986).

Federici also addressed the validity of a detention short of an arrest. Because the defendant in that case had conceded the constitutionality of his initial detention; State v. Federici, supra, 51; we relied on Terry v. Ohio, supra, as well as article first, §§ 7, 8 and 9, to conclude that reasonably articulated suspicions justified the police in stopping the defendant’s car and in detaining him for routine questions and observations. State v. Federici, supra, 57. We held, further, that this justifiable stop, based on a police broadcast of the description of an escape vehicle and the lack of a displayed rear marker plate on the defendant’s car, permitted the police to “view” the contents of the car. Id. At the least, Federici suggests that this court did not then perceive any fundamental inconsistency between the legality of a detention under our state constitution and the principles of Terry v. Ohio.

In sum, the few available precedents, like the text of article first, § 9, counsel against the conclusion that only a detention supported by a showing of probable cause is “clearly warranted.” We have, however, never addressed this issue head on, and now must consider whether sound constitutional policy requires us to adopt a different view. “The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988). In searching for an appropriate contemporary interpretation of our constitution, furthermore, we may look to, but are not bound by, relevant precedents in the federal courts. “We have frequently relied upon decisions of the United States Supreme Court interpreting . . . the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution. We have also, however, determined in some instances that the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.” State v. Marsala, 216 Conn. 150, 159-60, 579 A.2d 58 (1990); State v. Dukes, supra, 112; State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Jarzbek, 204 Conn. 683, 707-708, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v. Kimbro, 197 Conn. 219, 234-35, 496 A.2d 498 (1985); Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977).

Our appraisal of the due process contours of article first, § 9, leads us to conclude that the principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime. We hold, therefore, that the principles underlying constitutionally permissible Terry stops, as further construed in cases such as United States v. Hensley, supra, 227, and Florida v. Royer, supra, 498, define when detentions are “clearly warranted by law” under article first, § 9. Balancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor, we are persuaded that the defendant’s brief detention did not violate his due process rights.

The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution. We have previously held that “the warnings enunciated by Miranda v. Arizona, [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] ... are independently required under the due process clause of article first, § 8, of the Connecticut constitution.” State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987), and cases therein cited. We have likewise concluded that a claimed right to hybrid representation, unavailable under the sixth amendment to the United States constitution, is equally unavailable, despite some textual distinctions, under article first, § 8. State v. Gethers, 197 Conn. 369, 382-88, 497 A.2d 408 (1985). Our decision to interpret article first, § 9, in light of Terry v. Ohio finds further support in the universal acceptance of its governing principles in state constitutional law cases around the country. See, e.g., State v. Kennedy, 107 Wash. 2d 1, 4, 726 P.2d 445 (1986).

In conclusion, the text, the history, and the policy embodied in article first, § 9, all rebut the position of the defendant that an investigatory detention without probable cause cannot pass constitutional muster. The defendant’s conviction must stand.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       Article first, § 9 of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       “[General Statutes] § 14-227a. operation while under the influence OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”
      “[General Statutes] § 14-215. operation while registration or LICENSE IS REFUSED, SUSPENDED OR REVOKED, (a) No person to whom an operator’s license has been refused, or whose operator's license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked.”

       In the defendant’s appeal to the Appellate Court, he unsuccessfully advanced three grounds for overturning his conviction. In addition to his challenge, under both the federal and the state constitutions, to the admissibility of evidence of his performance on two roadside sobriety tests, he contested the admissibility of opinion evidence offered by two police officers and the propriety of the trial court’s instructions on reasonable doubt.
      Our order on the defendant’s.petition for certification to appeal; State v. Lamme, 212 Conn. 820, 565 A.2d 541 (1989); granted the petition only with respect to the state constitutional law aspect of his claim concerning the admissibility of field sobriety tests. The question we certified is: “What standard governs the determination of whether the detention of a criminal defendant is ‘clearly warranted’ under article first, § 9, of the Connecticut constitution?”

       “[General Statutes] Sec. 14-96a. lighted lamps and illuminating DEVICES REQUIRED, WHEN. . . .
      “(d) Failure to provide lighted lamps and illuminating devices at such time as required by this section shall be an infraction.”

       The defendant was asked to perform two sobriety tests: to walk heel to toe in a straight line and to touch his index finger to the tip of his nose with his eyes closed.

       By contrast, article first, § 7, of the Connecticut constitution provides constitutional protection from unwarranted searches and seizures. The scope of § 7 is not currently before us in light of the question that we certified. The Appellate Court, however, rejected the defendant’s claim under § 7. State v. Lamme, 19 Conn. App. 594, 600-601, 563 A.2d 1372 (1989).

       The present enumeration results from the 1965 constitution’s incorporation of the former article first, § 4, into article seventh.

       We note that the timely intervention of the police in this case may well have saved the defendant from facing much more serious charges, as well as possible injury to himself.

       In light of the difficulties that attend research into state constitutional law, we commend both counsel for their highly professional and wide ranging briefs in this case.


author: Per Curiam.

text:
    State of Connecticut v. James J. Morrissey
    (13793)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued May 1—
    decision released August 7, 1990

      William F. Dow III, with whom were Steven D. Ecker and, on the brief, Ira B. Grudberg, for the appellant (defendant).

      Geoffrey E. Marion, assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and John M. Bailey, state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue in this appeal is whether, under article first, § 7, of the Connecticut constitution, evidence may be introduced at trial that results from a search conducted, in good faith, on the basis of a warrant unsupported by probable cause. The state charged the defendant, James J. Morrissey, with possession of cocaine with intent to sell, possession of drug paraphernalia, and possession of marihuana, in violation of General Statutes §§ 21a-277 (a), 21a-267 (a) and 21a-279 (c), respectively. The defendant filed a motion to suppress evidence and dismiss the information which, after a hearing, the trial court granted. The state obtained permission to appeal to the Appellate Court, which held that the suppressed evidence might be admissible, and remanded the case for further trial court proceedings. State v. Morrissey, 18 Conn. App. 658, 560 A.2d 471 (1989). We granted the defendant’s petition for certification; State v. Morrissey, 212 Conn. 821, 565 A.2d 541 (1989); and now reverse.

The Appellate Court in its decision addressed two issues arising out of the nonconsensual search of the defendant’s apartment. That search uncovered the evidence that led initially to the defendant’s arrest and ultimately to his prosecution upon the charges presently at issue. State v. Morrissey, supra, 18 Conn. App. 661. The court first concluded that the trial court had correctly determined the insufficiency of the affidavit supporting the search warrant upon which the police relied in undertaking their search. Id., 663-64. Like the trial court, the Appellate Court concluded that the affidavit failed to contain sufficient information to enable the issuing magistrate to evaluate the basis for the informant’s knowledge with respect to the alleged narcotics. Id. Contrary to the trial court, however, the Appellate Court concluded that, despite the insufficiency of the affidavit, the state could rely on a good faith exception to the exclusionary rule as a basis for introducing the disputed evidence at trial. Id., 664. The Appellate Court remanded the case for a factual determination of whether the state could meet its burden of proving that the police officer’s reliance on the defective warrant was objectively reasonable. Id., 658.

This court granted the defendant’s petition for certification limited to the following issue: “Did the Appellate Court err in remanding this case for a factual determination concerning the reasonableness of the police officer’s search in reliance upon its decision in State v. Brown, 14 Conn. App. 605, holding that there is a good faith exception to the exclusionary rule under article first, § 7, of the Connecticut constitution?” State v. Morrissey, supra, 212 Conn. 821. In State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990), we have concluded that the Connecticut constitution does not authorize a good faith exception to the exclusionary rule. That holding is entirely dispositive of the issue certified in this case.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.


author: Borden, J.

text:
    State of Connecticut v. William S. Watlington
    (13775)
    Shea, Callahan, Covello, Hull and Borden, Js.
    Argued June 7—
    decision released August 7, 1990

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, was John Connelly, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a, and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that: (1) the prosecutor’s comments during final argument were an appeal to the jurors’ passions and sympathies that denied him his state and federal constitutional rights to due process; (2) the trial court improperly instructed the jury that the trial was a “search for the truth”; and (3) the trial court improperly instructed the jury on an element of the affirmative defense of extreme emotional disturbance. We affirm.

The jury could reasonably have found the following facts. The defendant, William Watlington, resided in Waterbury with his wife, Nadine Beamon Watlington, and their three children. The defendant and his wife had a history of drug abuse and marital problems. Several months prior to the incident in question, the defendant voluntarily admitted himself into an inpatient drug program at the Institute of Living in Hartford. After he completed the program and returned home, he continued to attend outpatient treatment sessions six days a week and maintained a drug free life. The defendant encouraged and assisted his wife in attending several outpatient treatment sessions, including Alcoholics and Narcotics Anonymous.

The defendant’s brother-in-law, Tommy Beamon, moved into the defendant’s house in late February, 1988, because of his own marital problems. After Bea-mon moved in, the defendant’s wife stopped attending outpatient treatment sessions and began drinking and using crack coeaine. The family began to disintegrate and the defendant blamed Beamon for the family’s problems. On April 15, 1988, the defendant told Beamon to leave the house. He helped Beamon pack his clothes and drove him to his parents’ house.

The following night, the defendant went to a gospel concert at the University of Bridgeport and later went out to dinner with Mends. When the defendant arrived home, Beamon was lying on the living room floor. He asked Beamon what he was doing there and told Beamon he did not want him in his house again. According to the defendant, Beamon stated that the defendant’s wife gave him permission to stay there. The defendant went upstairs to his wife’s bedroom to ask her why she let Beamon into their house. After receiving no response from his wife, he went back downstairs and again ordered Beamon out of his house. When Bea-mon refused to leave, the defendant left his house and drove to his brother’s house where he stored his .38 snubnose revolver. After obtaining his revolver, the defendant drove baek to his house and again ordered Beamon to leave, but he refused. The defendant then shot Beamon in the buttocks. Upon hearing the shot, the defendant’s wife came downstairs. She told the defendant that “if you are going to shoot my brother, you are going to have to shoot me also.” The defendant shot his wife in the right side. He then shot Bea-mon a second time in the left side of the upper back. Beamon died as a result of the bullet to the upper back, which punctured his left lung and his heart. The defendant’s wife recovered from her wound.

The defendant testified at trial and admitted to firing the fatal shot at Beamon and injuring his wife. He claimed, however, that he had done so under the influence of extreme emotional disturbance. In support of this defense, the defendant presented twelve lay witnesses.

I

The defendant first claims that the prosecutor’s remarks during closing argument were so egregious that they deprived him of his constitutional right to due process under the constitution of Connecticut, article first, § 8, and the fourteenth amendment to the United States constitution. The defendant asserts that the prosecutor on three separate occasions appealed to the jurors’ passions and sympathies during his closing argument. Specifically, the defendant claims that the prosecutor improperly stated to the jurors not to “forget” Beamon and the “victims.” The defendant failed to preserve this claim at trial, however, and now seeks review under the “exceptional circumstance” provision in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we reformulated the standard announced in State v. Evans, supra, for appellate consideration of constitutional claims that were not preserved at trial. We stated that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra. We noted that we would remain free to dispose of the claim “by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. In this case, we conclude that the defendant’s claim is insufficient to satisfy the second condition in Golding.

It is true that a “prosecutor may not appeal to the emotions, passions and prejudices of the jurors” because such appeals “ ‘ “have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.” ’ State v. Couture, [194 Conn. 530, 562, 482 A.2d 300 (1984)].” State v. Williams, 204 Conn. 523, 545, 529 A.2d 653 (1987). It is also improper for a prosecutor to inject extraneous issues into the case by encouraging the jury to identify with the victim. Id., 547. Nonetheless, we have held that “Evans review of such a claim is unavailable when the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial”; State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); because in such a case the claimed misconduct is insufficient to infect “the fundamental fairness of the trial itself.” Id. The defendant bears the burden of “demonstrating that his claim is indeed a violation of a fundamental constitutional right”; State v. Golding, supra, 240; rather than a common law or statutory claim wearing a constitutional mask. State v. Somerville, supra. Although we disapprove of the prosecutor’s references in his closing argument to the victims and their families, we conclude, under the circumstances of this case, that these remarks did not rise to the level of egregious misconduct implicating the denial of the defendant’s state and federal constitutional rights to due process. State v. Northrop, 213 Conn. 405, 421, 568 A.2d 439 (1990); State v. Rodgers, 207 Conn. 646, 654, 542 A.2d 1136 (1988); State v. Tyler-Barcomb, 197 Conn. 666, 672-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986). Accordingly, we dismiss this claim of the defendant. State v. Somerville, supra.

II

The defendant next claims that the trial court improperly instructed the jury that the trial is a “search for the truth” rather than an evaluation of whether the evidence was sufficient to prove guilt beyond a reasonable doubt. The defendant maintains that the court’s instructions negated the presumption of innocence and diluted the burden of proof, thereby leaving the jury without any standard to decide the case, in violation of his state and federal constitutional rights to due process of law. See footnote 1, supra. Although the defendant did not properly preserve this claim at trial, he now seeks review under State v. Evans, supra, and the plain error rule of Practice Book § 4185. We conclude that this claim is not of constitutional magnitude, but simply masquerades as such, and we therefore dismiss it under State v. Golding, supra, 241. We also conclude that the instruction did not involve plain error.

The defendant challenges the following instruction of the trial court: “Now, in every trial there should be a search for the truth. And, the duty of the members of the jury in a criminal case is to search the evidence for the truth. Having found it to your satisfaction, then report it and your findings to the court by means of a proper verdict under the law, as I am instructing you.”

It is well established that individual jury instructions will not be judged in isolation from the entire charge; rather, the charge must be read as a whole. State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990); State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989). Furthermore, isolated passages from a jury instruction must be read in the context in which they were given and with regard to how the jury was likely to have understood them. State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990).

In the present case, the challenged instruction was given as part of the court’s instructions to the jury on its role in gauging the credibility of witnesses. Near the end of the court’s instruction regarding credibility, immediately after its instruction on how to evaluate expert opinion testimony, the court gave the instruction that the defendant now challenges. That instruction was immediately followed, however, by the following instruction: “When you go into the jury room, analyze the testimony that you have heard from the witness chair and decide what credibility you are to give to those witnesses. You are not expected to abandon your common sense while sitting in the jury room, the jury box or in the courtroom. Your function is to decide where the truth lies, obviously. I use the word testimony, I am also using a concept of considering all of the exhibits that have been presented to you. It will be a matter for you to determine and decide how much weight and what credibility you are to give to the witnesses and the exhibits in this case.” (Emphasis added.)

Furthermore, prior to and numerous times after this instruction, the court properly charged the jury on the presumption of innocence and the state’s burden of proving the defendant guilty beyond a reasonable doubt. Nothing in those instructions suggested any linkage between, on one hand, the presumption of innocence and the state’s burden to prove the defendant’s guilt beyond a reasonable doubt, and, on the other hand, the court’s instruction that, in determining the credibility of witnesses, the jury should search for the truth. The court did not repeat the challenged instruction, and the defendant does not contest any other part of the court’s instruction. In fact, at the end of the court’s charge, the defendant’s counsel stated: “I have no objection. I thought it was an excellent charge.”

It is clear that there is no basis for the defendant’s claim that this instruction, although perhaps worded too broadly, negated the presumption of innocence and diluted the state’s burden of proof. Reading the instruction in its context and viewing the jury charge in its entirety, we cannot conceive that the jury heard that instruction as a statement by the court that the jury should exercise its factfinding function unburdened by the presumption of innocence or by the necessity that it be persuaded of the defendant’s guilt beyond a reasonable doubt.

For much the same reason, the defendant’s claim is unreviewable as plain error under Practice Book § 4185. Plain error review “ ‘ “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” ’ ” State v. Thomas, supra, 120. In this case, after a careful review of the record, we cannot say that the trial court’s instruction affected the fundamental fairness of the trial or resulted in any manifest injustice to the defendant.

Ill

The defendant next claims that the trial court improperly instructed the jury on the affirmative defense of extreme emotional disturbance. The defendant’s claim is based on the following instruction: “Now, the second element, the defendant was exposed to an extremely unusual and overwhelming state, that is more than mere annoyance or unhappiness. And, the next element, the defendant had an extreme emotional reaction to that state, as a result of which, there was a loss of self-control and his reason was overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, other similar emotions.” (Emphasis added.) The court, at the request of the jury and after deliberations began, repeated the same instruction on the affirmative defense to the jury.

The defendant maintains that the court’s use of the words “that state” in its instructions on the “third element” of the defense was an inaccurate statement of the law. According to the defendant, the court’s use of the words “that state” referred to the circumstances in which the defendant found himself rather than to the defendant’s mental state. The defendant argues that the court should have used “it,” which would have properly referred to the defendant’s mental state, as the defendant had provided in his request to charge and as stated in State v. Elliott, 177 Conn. 1, 9-10, 411 A.2d 3 (1979). Therefore, according to the defendant, the trial court’s improper instruction violated his due process right to establish a defense. We do not agree.

It is well established that when a proper request is filed pursuant to Practice Book § 852 and the trial court has failed to charge the jury in the exact language of the request, the test is whether the court’s instructions properly covered the substance of the written request. State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986). “A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). “The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978); State v. Harrell, supra.

The defendant’s request to charge on the affirmative defense of extreme emotional disturbance provided in part: “In determining whether [the defendant] has proven the affirmative defense . . . you must find that the [defendant] was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness, and he had an extreme emotional reaction to it . . . .” (Emphasis added.) The word “it” in the request to charge is used as a pronoun to substitute for and to represent the word “state” in the “second element” of the defense. Similarly, the use of “that state” in the trial court’s instructions on the “third element” of the affirmative defense was used as a referent to the type of “state” mentioned in the second element.

The word “that” preceding “state,” in the court’s instructions, is used as an adjective. As an adjective it refers to “the thing, or idea, pointed to, mentioned, or understood from the situation.” Webster’s Third New International Dictionary. The only type of “state” mentioned or that the jury could reasonably understand from the court’s instructions was the type of “state” in the “second element” of the defense. Because the substitution of “that state” refers to the type of “state” mentioned in the “second element” of the defense, and thus, had the same effect as would the use of “it,” the court’s instructions did not, contrary to the defendant’s claim, convey or infer to the jury a different type of “state.” Therefore, whether the court’s substitution of “that state” refers to the defendant’s mental state or to the circumstances the defendant found himself in depends on the meaning of the word “state” in the “second element” of the affirmative defense. Because the defendant does not challenge the court’s instructions on the “second element” of the affirmative defense, nor any other part of the court’s instructions on the affirmative defense, we need not decide whether the word “state” in that context refers to the defendant’s mental state or the circumstances in which he found himself.

We conclude that the trial court’s instructions on the affirmative defense covered the substance of the defendant’s request and adequately apprised the jury of the law to guide them to a just determination. Therefore, the court’s substitution of “that state” for “it” did not prejudice the defendant or mislead the jury so as to constitute a violation of the defendant’s state and federal constitutional rights to present a defense.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       The constitution of Connecticut, article first, § 8, provides in part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. ...”
      The fourteenth amendment to the United States constitution, § 1, provides in part: “No State shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Because the defendant has not presented a separate analysis under the state constitution, we consider his claims under the federal constitution only.

       On three separate occasions during the prosecutor’s closing argument, the prosecutor referred to the victims:
      (1) At the beginning of the opening portion of the state’s closing argument: “But, again, on behalf of the State’s Attorney’s Office, I would like to thank you for your time and your patience. And, I know that Mr. Bea-mon and his family would like to thank you and Mrs. Watlington.”
      (2) At the end of the opening portion of the state’s closing argument: “And, in this case, although you have seen Mr. Watlington here for the last couple of days and he may look like a nice fellow, may seem like a nice fellow, don’t forget the victims. . . . Let’s not forget the victims in this case, you know. We haven’t seen Mr. Beamon. The only time you are going to get to Mr.—see Mr. Beamon is his back. Mr. Beamon only could talk to you through his wounds. Mr. Beamon is dead. We could kick Mr. Bea-mon’s name around here and say he was on narcotics and is a drunk and everything else. Man can’t defend himself because he is dead. . . . Let’s not forget about Mrs. Watlington. Let’s not forget about Mr. Beamon. Thank you.”
      (3) At the end of the state’s final closing argument: “You know, and don’t—when you go into that jury deliberation room, don’t forget Tommy Beamon. I mean, you know, Tommy Beamon, he had a life too. He had kids. He had a family. He served his country. He was only thirty years old. I mean, is he not entitled to live because he wanted to sleep an extra night at his sister’s house? Thank you.”

       Practice Book § 4185 provides: “errors considered
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       The defendant claims that this court has reviewed similar claims under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), in State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986), State v. Findlay, 198 Conn. 328, 345, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 72 (1986), and State v. Moss, 189 Conn. 364, 365-66, 456 A.2d 274 (1983). Those cases, however, do not help the defendant. The alleged erroneous jury instructions in Brown, Findlay andllioss involved instructions on reasonable doubt quite different from the instructions at issue in this case, and, in any event, we rejected the constitutional challenge to the instructions at issue there. See also State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990).

       The defendant relies on State v. Giroux, 151 Vt. 361, 561 A.2d 403 (1989). We conclude that Giroux is inapposite. In that case, the trial court, in its instructions to the jury, defined reasonable doubt as meaning that the jury must be “convinced the charge is true.” Id., 363. The court held that the trial court’s instructions “did not effectively tell the jury that the search for truth involved a search for truth beyond a reasonable doubt.” Id., 365. In the present case, unlike Giroux, the challenged instruction was not given as part of the instructions on the burden of proof, nor was it linked to that instruction in any way.

       Although we have recently held in State v. Forrest, 216 Conn. 139, 578 A.2d 1066 (1990), that the three guidelines this court established in State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979), are not “elements” of the affirmative defense of extreme emotional disturbance, we refer to them as such for consistency purposes only, since the trial court used similar language in its charge, and the defendant has adopted that phraseology in his brief.

       The defendant requested the court to charge the jury as follows: “In determining whether . . . Mr. Watlington has proven the affirmative defense of an extreme emotional disturbance by a fair preponderance of the evidence as a mitigation of murder to manslaughter you must find that . . . Mr. Watlington was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness, and he had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions. Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act.”

       Although the defendant had properly preserved this claim for appeal pursuant to Practice Book § 852, he sought review of this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and the plain error rule in Practice Book § 4185. Our recent decision in State v. Foreshaw, 214 Conn. 540, 544, 572 A.2d 1006 (1990), disposes of the defendant’s claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), State v. Evans, supra, and the plain error rule. In Foreshaw, we held that an unpreserved challenge to an alleged erroneous instruction on an element of the affirmative defense of extreme emotional disturbance was not reviewable under Golding and the plain error rule, because such claims of error do not raise a constitutional question and do not constitute a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial.