Opinion
No. CR07-0212833
May 23, 2008
Memorandum of Decision on Defendant's Motion to Suppress
For purposes of this motion, the parties have stipulated to the following facts. The Defendant, James Harris is charged with six counts of narcotics offenses relating to his alleged possession of a quantity of crack cocaine found in a utility or storage closet in the second floor hallway of an efficiency apartment building where the defendant lived. The defendant lived in Apartment #6, 84 Burnside Avenue, East Hartford, Connecticut. On August 22, 2007, police officers and detectives with the Statewide Narcotics Task force executed a search warrant on the premises belonging to Mr. Harris. The defendant's apartment is on the second floor of the building. A corridor on the second floor lies between six apartments. Three apartments are on each side of the hallway. Approximately thirty-nine feet from the defendant's apartment doorway lay a "utility closet." The closet sits between two front end apartments that overlook Burnside Avenue on the South side of the building. The closet door is ordinarily but not always locked. Not all of the keys to the closet were accounted for at the time of the search. The closet was not an extension of the defendant's apartment. The accused did not have exclusive control over the closet. His name was not listed on the door of the closet. There was no name, number or other information on the closet door. The closet door, itself, is distinguished from the doors which access the eight apartments in that the closet door was "substantially narrower" than the apartment doors. The building was owned by another individual whom the parties have stipulated to also had access to the closet. The police learned that the defendant was also the superintendent for the apartments and had keys to all the doors in the building on a key ring.
By way of information, the defendant is charged with Possession of Narcotics in violation of C.G.S. Sec. 21a-279(a) (Count One), Possession of Narcotics within 1500 feet of a licensed Daycare Center in violation of C.G.S. Sec. 21a-279(d) (Count Two), Operation of a Drug Factory in violation of C.G.S. Sec. 21a-277(c) (Third Count), Possession Within Intent to Sell Narcotics in violation of C.G.S. Sec. 21a-277(c) (Fourth Count), Possession with the Intent to Sell Narcotics within 1500 feet of a Daycare Center in violation of C.G.S. Sec. 21a-278a(b) (Fifth Count), and Possession with the Intent to Sell Narcotics in violation of C.G.S. Sec. 21a-277(b) (Sixth Count).
At approximately 11:00 a.m., members of the task force executed a warrant to search the defendant's apartment. The police also searched one or more automobiles thought to be associated with the defendant. In addition, the police searched the defendant, himself, who was home at the time the warrant was executed. A "white powder residue on a single razor blade" was found in the defendant's residence.
After searching the defendant's apartment, an officer with a canine entered the hallway where the canine, Zoey, began to pull the officer. The canine pulled the officer toward maintenance closet approximately thirty-nine feet away from the defendant's apartment door. Once at the door, the canine began to alert to the presence of drugs within the closet. The door was locked. Officers then obtained the key to the closet from the defendant's key ring. Members of the task force unlocked the door. Once inside, the police found approximately one point one pounds of suspected crack cocaine. Thereafter, the defendant was charged with the instant offenses.
The defendant claims the evidence should be suppressed because, he argues, the search violated his rights to be protected from unreasonable search and seizure pursuant to the 4th, 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution and Sections 7, 8, 9 and 10 of Article One of the Connecticut Constitution. For reasons set forth below, the Motion is Denied.
Legal Discussion
General Statutes § 54-33f and Practice Book §§ 41-12 and 41-13 provide the procedural mechanism by which a motion to suppress may be raised; they do not define substantive rights. See State v. Marsala, 216 Conn. 150, 155-57, 579 A.2d 58 (1990); State v. Brown, 14 Conn.App. 605, 624-26, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). "[I]t is the constitution either of the United States or the state of Connecticut . . ." State v. Marsala, supra, 216 Conn. 156.
"The fourth amendment to the United States constitution, which was made applicable to the states through the due process clause of the fourteenth amendment in Wolf v. Colorado, 338 U.S. 25, 28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), 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 probably cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.'" State v. Johnson, 286 Conn. 427, 434 n. 4, 944 A.2d 297 (2008).
"Article first, § 7, of the Connecticut constitution provides: `The people shall be secure in their persons, houses, papers and possessions from unreasonable searched or seizures; and no warrant shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.'" State v. Johnson, supra, CT Page 9170 286 Conn. 434 n. 5.
"`The [f]ourth [a]mendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state establish the exception.' . . . State v. Badgett, 200 Conn. 412, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986)." State v. Johnson, supra, 286 Conn. 434.
"`It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights . . . Furthermore, although we often rely on the United States Supreme Court's interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, we have also recognized that, in some instances, our state constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.' . . . State v. McKenzie-Adams, 281 Conn. 486, 509, 915 A.2d 822 (2007). Indeed, this court has determined that, in certain respects, article first, § 7, of the state constitution affords greater protection than the fourth amendment to the United States constitution. E.g., State v. Miller, 227 Conn. 363, 377, 630 A.2d 1315 (1993) (article first, § 7, requires police to obtain warrant to search impounded automobile); State v. Geisler, 222 Conn. 672, 291-92, 610 A.2d 1225 (1992) (emergency exception to warrant requirement is narrower under article first, § 7, than under federal constitution); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (good faith exception to warrant requirement does not exist under article first, § 7, of the state constitution); State v. Dukes, 209 Conn. 98, 120-21, 547 A.2d 10 (1988) (search incident to arrest exception to warrant requirement is narrower under article first, § 7, than under federal constitution)." State v. Davis, 283 Conn. 280, 305-06, 929 A.2d 278 (2007).
In State v. Davis, supra, 283 Conn. 280, the Connecticut Supreme Court considered and rejected the defendant's claim that article first, § 7, of the state constitution embraced the automatic standing doctrine, which doctrine allows a defendant who does not have a legitimate expectation of privacy in the area or thing to be searched to seek to suppress the fruits of the search if he legitimately was on the premises searched or has been charged with an offense of which possession of the seized item is an element. Id. Noting that the automatic standing doctrine had been accepted by the United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) [overruled by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)], but later rejected in United States v. Salvucci, supra, 448 U.S. 83, and that Connecticut jurisprudence has tracked the development of the automatic standing doctrine in the United States Supreme Court, the Connecticut Supreme Court considered and applied the factors of analysis set forth in State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1995), and concluded that article first, § 7, of the Connecticut constitution does not embody the automatic standing rule or the "legitimately on the premises" rule of standing. State v. Davis, supra, 283 Conn. 293-324. The Supreme Court stated: "We again emphasize that all of our cases defining the scope of the right secured by article first, § 7, focus on the defendant's reasonable expectation of privacy." Id., 324.
"The application of the fourth amendment prohibition against unreasonable searches and seizures requires the defendant to establish that he had a legitimate expectation of privacy in the invaded area. State v. Reddick, 207 Conn. 323, 330, 541 A.2d 1209 (1988). `Absent such an expectation, the subsequent police action has no constitutional ramifications.' State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). The determination of whether an expectation exists is to be made on a case by case basis; State v. Reddick, supra, 331; and requires a two-part inquiry: `first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable.' Id. Whether a defendant's actual expectation of privacy in a particular place is one that society is prepared to recognize as reasonable involves `a fact specific inquiry into all the relevant circumstances.' State v. Brown, supra, 356. Although `the Fourth Amendment protects people, not places"; Katz v. United States, 389 U.S. 347, 3511, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); the place searched is highly relevant to the fourth amendment analysis because `expectations of privacy in some places are afforded greater constitutional legitimacy than in others.' State v. Brown, supra; United States v. Ruckman, 806 F.2d 1471, 1473 (10th Cir. 1986) (determination of protection of fourth amendment requires, in given case, reference to place; defendant had no reasonable expectation of privacy in cave, located on public land, where he lived); see also Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979) (capacity to claim protection of fourth amendment depends `upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place')." State v. Mooney, 218 Conn. 85, 94-95, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991). "The burden is on the defendant to prove that his expectation of privacy in the place searched was one that society would recognize as reasonable." State v. Bernier, 246 Conn. 63, 72, 717 A.2d 652 (1997). "Legitimate expectations of privacy derive from `concepts of real or personal property law or [from] understandings that are recognized and permitted by society. One of the main rights attached to property is the right to exclude others . . . and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of his right to exclude.' Rakas v. Illinois, supra, [439] U.S. 144 n. 12." State v. Mooney, supra, 218 Conn. 95.
"A tenant has a reasonable expectation of privacy "`in areas where his use is exclusive, that is, where he has a legal right to control access and to exclude others." United States v. Holland, 755 F.2d 253, 255-56 [(2d Cir.), cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985)] (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant's exclusive control); United States v. Arboleda, 633 F.2d 985, 991 (2d Cir. 1980) [cert. denied, 450 U.S. 917, 101 S.Ct. 1362, 67 L.Ed.2d 343 (1981)] (apartment dweller's legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So.2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access).' State v. Sealy, 208 Conn. 689, 693-94, 546 A.2d 271 (1988), quoting State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986)." State v. Torres, 36 Conn.App. 488, 500, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995).
In State v. Torres, supra, 36 Conn.App. 500, the Appellate Court concluded that the trial court had properly denied the defendant tenant's motion to suppress the evidence seized from a common hallway. "The defendant cannot establish a reasonable expectation of privacy in this case because he did not have exclusive control over the hallway and could not control access or exclude others from the hallway." Id. "Here, as in State v. Sealy, supra, 208 Conn. 69, the building owner and the tenants shared that same access to the common hallway and the same means of admitting guests through the buzzer system. The mutual use and control of the property by the tenants and the building owner undermines the defendant's asserted expectation of privacy." State v. Torres, supra, 501.
Here, the facts are undisputed. The defendant tacitly admits that he did not possess exclusive use and control over the closet containing the contraband. The owner had access, the defendant had access, and according to the agreed-upon facts, keys to the closet were missing, suggesting that others may have had access. That notwithstanding, the court need not wade into the waters of speculation where the defendant here admits a lack of exclusivity. Having so stipulated, the defendant can not now claim he had both a subjective expectation of privacy as is required under the two-prong analysis as set forth in State v. Torres or that the expectation was reasonable under all the circumstances. It is of no consequence that the defendant as superintendent in possessing the key to the closet had the ability to exercise control and exclude others. Again, the parties agree that the closet, itself, was sometimes left unlocked. The defendant, himself, did not testify or provide any other evidence to sustain his burden that he subjectively possessed a legitimate expectation of privacy. The closet was in a common hallway between several apartments. The defendant was not the owner of the closet, the hallway or any other the building's structure. Because the defendant has failed to establish exclusive control or access, having established the contrary conclusion, the defendant's motion to suppress must be denied.
Where a defendant asserts claims under both the state and federal constitutions but fails to provide an independent legal analysis of the state law claims, the court need not consider such. See, e.g., State v. Canales, 281 Conn. 572, 592 n. 3, 916 A.2d 767 (2007) ("We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant's claim.").