Opinion
No. CR07-358072
November 6, 2008
EXCERPT
THE COURT: Good morning. This is obviously the matter of State of Connecticut versus Robert Buie. It's time for me to issue my decision on the defendant's motion to suppress. Let me first give back to the clerk the exhibits. I have spent the past eight hours immersed in search and seizure law. I must say it's been an interesting and edifying experience. I wish I had eight weeks to resolve these questions but unfortunately with the trial I only had eight hours. The Appellate Court will get eight weeks or more to review my decision.
Let me first make some findings of fact as it relates to the motion to suppress. Based upon the evidence presented, I find the following facts. That Detective Michael Slavin was in charge of the police investigation of a sexual assault which occurred at 1812 Meriden Road in Waterbury, Connecticut. That he arrived at approximately 7 a.m. at 1820 Meriden Road, the front of — outside the front of 1812 Meriden Road where he met with the defendant and Beverly Martin. They were outside of apartment number seventeen with other police officers.
At the time the defendant and Beverly Martin were suspects in the alleged sexual assault. They were not, however, under arrest at the time.
Apartment number seventeen at 1820 Meriden Road is a townhouse with a front entrance on to the street.
Ms. Martin and the defendant were outside in the front of the townhouse. Both the defendant and Martin said they were willing to come to the police station for further questioning. They voluntarily indicated their willingness to go to the police station. They were not in handcuffs. They were not under arrest. At the time Ms. Martin indicated that before she was willing to go to the police station she needed to obtain some personal belongings that were in apartment number seventeen, specifically, keys and a cell phone. She stated to the police officers, I suppose you guys want to come in with me. The witness responded — Detective Slavin responded, yes, it would be a good idea and the police accompanied — two police officers accompanied Ms. Martin into the apartment to escort her when she picked up her belongings.
The reason they did so was because the police at the time knew details of the alleged sexual assault and they knew that a handgun had been involved in the sexual assault and they were concerned for officer safety because they had reason to believe that the handgun might be in the apartment, number seventeen, that Ms. Martin was entering to retrieve her belongings. That the police did not go into the apartment with any intent to search the apartment for evidence or any intent to seize any items. Their intent was solely to accompany Ms. Martin for officer safety.
Detective Baxter and Detective Mills accompanied Ms. Martin into the apartment.
They were gone a very brief period of time. They seized no items when they were in the apartment though they did observe at least one item that they believed was connected to the sexual assault. The police then secured the apartment, posted officers outside the apartment so that no one could enter the apartment. And Detective Slavin told Detective Baxter to apply for a search warrant for apartment number seventeen. The defendant and Ms. Martin were voluntarily transported to the police department. Again, they were not placed in handcuffs.
At approximately twelve noon a search warrant for apartment number seventeen was signed by Judge Upson. No police officers entered apartment number seventeen prior to the obtaining of the search warrant. That prior to the police entering apartment number seventeen initially to accompany Ms. Martin both the defendant and Ms. Martin said that they both lived in the apartment. At the time the police did not know whose name was on the lease.
That Lisa Ragaza, who was a crime technician with the Waterbury Police Department, entered apartment number seventeen at 1820 Meriden Road pursuant to the search warrant at approximately 12:15 a.m. In that time certain items were seized including dildos, guns, ammunition, and duct tape. Additionally, photos were taken.
I find specifically that Ms. Ragaza, that neither Ms. Ragaza or any member of the police department were in apartment seventeen at 9:26 or 9:30 a.m. as indicated by the wall clock.
With those findings of fact, let me address the issues raised by the motion to suppress. Let me first deal with the claim that the police conducted a search inside apartment number seventeen and seized items prior to obtaining the search warrant, so called wall clock issue, what I deem to be the wall clock issue. As I stated, the warrant, search warrant as signed by Judge Upson shortly before twelve noon. No police officer or anyone else entered apartment seventeen after the police escorted Ms. Martin out of the apartment upon obtaining her belongings at approximately 7 a.m. The police did not re-enter the apartment until approximately 12:15 a.m. after the signing of the search warrant. I credit Ms. Ragaza's testimony to that effect and find that the time indicated on the wall clock apparently was in error. So I conclude that the police conducted a search and seizure of the items pursuant to a valid search warrant.
With respect to the more interesting issue related to whether there was a valid consent to enter the apartment when the police accompanied Ms. Martin for her to obtain her belongings. It is actually axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. A warrantless search or entry into a home is not unreasonable, however, under the Fourth amendment to the United States Constitution or Article First section 7 of the Connecticut Constitution when a person with authority to do so has freely consented. It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. Such consent may not be established by mere acquiescence to police authority.
When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. That's United States versus Matlock, 415 U.S. 164. Common authority is not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. In addition, a warrantless search is valid when it is based on the consent of a third party who the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority. Illinois versus Rodriguez, 497 U.S. 177. As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard, would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.
So in this case in my view the result rests upon a determination of whether the police could reasonably believe at the time of the search that Ms. Martin possessed common authority over the premises and whether her consent to for the police to enter the apartment was freely given. I do not have to determine for purposes of these proceedings whether Ms. Martin actually possessed common authority over the premises, if I determine that it was reasonable for the police to believe that she possessed common authority. So it's to that issue that I now turn. And the first subpart is whether consent was freely given by Ms. Martin. As I understand the legal standard, the consent must be voluntary. It must be free from any aspect of coercion, it must be the product of an essentially free and unconstrained choice. I find that the facts in this case support an affirmative answer to both of those questions that it was free from any aspect of coercion, and it was essentially her free and unconstrained choice.
I point to the following facts for that determination. There was no display of weapons by the police or other show of force when conversing with Ms. Martin in obtaining her consent. Ms. Martin was not in — not in handcuffs or restrained in any way. That it was Ms. Martin who initiated the idea of entering the apartment. It was not at the initiation of the police officers. Ms. Martin suggested that the police might want to accompany her and the police simply answered in the affirmative. They did not, as I said, the police did not initiate the request to enter the apartment or the request to go with her into the apartment. Ms. Martin was not under arrest. Ms. Martin had already indicated her willingness to cooperate with the police. She had already agreed to accompany the police to the police station for questioning. Her conversation with the police took place outside in public not in any potentially coercive atmosphere such as a police station.
So I find under the totality of the circumstances that Martin voluntarily consented to the police entering the apartment with her in escorting her within the apartment so that she could retrieve her personal items.
So the next issue is whether it was objectively reasonable for the police to believe that Martin possessed common authority over the premises. I find that it was for the following reasons. That prior to entry Martin told police that both she and Buie lived in the apartment. That prior to entry the defendant similarly stated that both he and Martin lived in the apartment. The police had no reason to doubt Martin's statement that she lived there. Martin was standing outside in front of the entrance to the townhouse apartment. Though separated from Martin the defendant was nearby. Martin told the police that she had personal items inside the apartment, specifically, keys and a cell phone. Presence of those items inside the apartment were consistent with her statement that she lived there. Buie was present outside the apartment and did not object when police began to enter the apartment with Martin. The search warrant affidavit indicates that the police knew that Ms. Martin was the defendant's girlfriend, a relationship consistent with her living in the apartment with the defendant.
Finally, the police's intent in entering the apartment was not to conduct a search for evidence rather their intent was to preserve and protect officer safety. The police knew that a prior sexual assault had been accomplished by the use of a handgun and the police knew that Martin and the defendant were suspects and that a handgun could be potentially in the apartment.
I find that the facts of this case are very similar to the facts of the case in State versus Vazguez, 87 Connecticut Appellate 792. In that case the Appellate Court found that it was reasonable for police to rely on the apparent authority of the defendant's girlfriend who answered the door and told the police that she lived in the apartment with the defendant, although ultimately it was shown that she did not in fact have such authority, that she did not in fact live there.
The other issue that was raised by the defendant is also an interesting one which is whether the police were obligated to ask the defendant for his consent prior to entering the apartment. I find that they did not and for the following reasons. They already had the consent of a person who had apparent authority to authorize entry into the apartment. That is Ms. Martin. Under Georgia versus Randolph, 547 U.S. 103, the U.S. Supreme Court has specifically stated that the police are not required to confirm the actual authority of a consenting individual whose authority is apparent. In that case the U.S. Supreme Court also stated that consent of an individual apparent authority is sufficient to authorize entry. Police are not required to take affirmative steps to find a potentially objecting co-tenant provided that there's no evidence that the police have removed the potentially objecting tenant from the residence for the sake of evading a possible objection. Well, that is not the situation, here, there's no evidence that police removed Mr. Buie to be sure he wouldn't object. In fact, the evidence is quite contrary, that Mr. Buie was still present at the entrance to the apartment when Martin gave her consent.
I think it bears noting this is not a situation such as found in Georgia versus Randolph in which one co-tenant actually objected to the search and the police went in anyway. Georgia versus Randolph, the U.S. Supreme Court invalidated that search finding that when co-tenant actually objects, the police are not allowed to go in. There's no evidence here that Mr. Buie ever objected to their entering the apartment with Ms. Martin. It's also not the situation found in State versus Brunetti where one co-tenant consented and a second declined to sign a written consent to search.
Again, there's no evidence here that the defendant ever objected to entry or declined to consent to police entry into the apartment. And, again, it is important to note that the defendant is not claiming that he actually objected to the police entry. He's only claiming that the police were obligated to ask him for his consent. Which does raise the interesting issue of whether the police are required to seek consent of a person who they believe is a co-tenant of the premises in this case the defendant and who is present at the scene prior to entering the premises when they have already obtained the voluntary consent of a person who they reasonably believe is a co-tenant with common authority over the apartment.
And, I conclude that they do not and I specifically rely on the following language from Georgia versus Randolph. In that case the U.S. Supreme Court stated as follows; we have to admit that we are drawing a fine line, and the fine line is between when there actually has been an objection by a co-tenant and when there has not been any objection by a tenant. It a potential defendant with self-interest in objecting is, in fact, at the door and objects, the co-tenant's permission does not suffice for a reasonable search. Whereas, the potential objector nearby, but not invited to take part in the threshold colloquy, loses out.
That's this case. Mr. Buie was nearby. He wasn't invited to take part in the issue of consent and in the opinion of the U.S. Supreme Court in Georgia versus Randolph, he loses out.
So for those reasons the motion to suppress is denied.
I've not addressed the other issues raised by the state justifying their entry into the apartment. I think it is not necessary because of my decision on the issue of — whether it was reasonable for the police to rely on Ms. Martin's consent, which was freely given.
So having addressed that issue, is there anything we need to discuss before we take a brief recess and start the trial?
MR. DAVENPORT: I suppose, Your Honor, we still have the outstanding question of the juror and the letter.