Opinion
No. CR09-131899
January 19, 2011
Memorandum of Decision
Facts
On April 30, 2009, Connecticut State Police Troopers Asman and Binkowski were assigned to accompany a state marshal who was serving a cease and desist order on a Michael Rost regarding the construction of a stone structure located on the Schaghticoke Reservation, Schaghticoke Road, Kent Connecticut. The three individuals proceeded to the location in separate vehicles and parked in a lot near what will be referred to as the "stone structure."
There was dispute between the parties regarding what purpose this stone structure served. The structure was clearly not a building in the traditional sense with walls, doors, and windows. Nor would it meet the definition of building contained in Conn. Gen. Stat. Section 53a-100, et seq. However the parties choose to define the structure does not affect the Fourth Amendment claims here. The question before this court is whether there was an expectation of privacy in the space.
The structure stood approximately 100 yards from the road and where the three individuals parked their vehicles. Testimony established that the structure was built against a mountain that formed its back wall. There are two separated stone pillars forming the front entrance with large rocks forming three-quarter walls extending back to the mountain. Four stripped tree trunks formed the roof. The structure was open to weather on all three sides; the roof was not fully enclosed. Depending on the approach from Schaghticoke Road, most of the interior of the structure was clearly visible. Because of the irregular size and shape of the stone, there were some areas within the structure that were not easily visible upon approaching the structure. Located within the interior of the structure were a mattress, fire pit and various miscellaneous items. Having no electricity or plumbing, the structure can best be described as a camp style setting.
The two troopers and state marshal approached the structure; with the marshal in the lead and the troopers flanking either side. As they approached, they could observe two individuals inside: a female, subsequently identified as the defendant Janet Lester and a male, subsequently identified as Ed Harrison. When Trooper Binkowski was within 50 to 75 feet of the front entrance, he observed Harrison walk toward the rear of the structure and begin to kneel down placing him within arm's reach of a rifle, which was "cocked and loaded with five rounds of ammunition." Harrison was ordered out of the structure and the trooper entered the structure to take control of the rifle. As the trooper was seizing the rifle he noticed a bag of green plant-like substance, suspected marijuana, tucked in a crevice in the rocks that the rifle was leaning against. After securing the rifle, Trooper Binkowski recovered the marijuana and the defendant admitted to its possession.
The defendant described the stone structure as a ceremonial building for the Schaghticoke Indian Reservation. She had been living within the stone structure for approximately two weeks. There was some hearsay evidence that the structure was the home or church of Michael Rost.
The cease and desist order was issued by the town of Kent, the Inland Wetlands Commission. It was issued against Michael Rost regarding the stone structure. No further evidence was provided by either party regarding the reason for the order.
Decision
Defendant has filed the Motion to Suppress claiming that the warrantless search of the stone structure and subsequent seizure of evidence violated her Fourth Amendment constitutional right against unreasonable search and seizure. Defendant claims that the structure was her home at that time and she was entitled to a reasonable expectation of privacy within the structure.
For the defendant to prevail on her claim, she must first establish that she had a reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128 (1978); State v. Brown, 198 Conn. 348 (1986) This rule of standing requires that defendant satisfy a two-part subjective-objective test: (1) whether [she] manifested a subjective expectation of privacy with respect to the invaded premises; and (2) whether that expectation is one that society would consider reasonable. State v. Boyd, 57 Conn.App. 176 (2000).
The defendant has the burden of establishing the facts necessary to substantiate her claim for standing. Brown, supra at 356, Boyd, supra at 184. This Fourth Amendment protection is personal; it extends to the person, not the place. Katz v. United States, 389 U. S. 347 (1967).
The first prong of the test requires the defendant to prove that she had a subjective expectation of privacy in the stone structure searched. This is proved not in her expressed expectation alone, but in "finding conduct that has demonstrated an intention to keep activities or things private and free from knowing exposure to others view." Boyd at 185 "To meet this burden [the defendant] must show facts sufficient to created the impression that (1) [her] relationship with the location was personal in nature, (2) [her] relationship with the location was more than sporadic, irregular or inconsequential and (3) [she] maintained the location and the items within it in a private manner at the time of the search." United States v. Gerena, 662 F.Sup. 1218 (1987), Boyd at 185.
The defendant fails to meet her burden in this first prong. The testimony presented at the hearing proved that the stone structure was considered a "ceremonial building" by the defendant, not a home or residence. The location as described by all witnesses during the hearing meets more the criteria for a communal campground. She was not an owner or a tenant. She testified she had only been staying there for approximately two weeks, having been given permission to stay by tribal members. She did not have exclusive use; her testimony indicated the premises could be used by any tribal members. In fact, at the time of the seizure, another person "who lived next door" was present. There was no testimony the defendant kept any personal belongings there. She had no property claims to the structure, nor did she present any testimony that she maintained any aspect of the structure.
The stone structure itself was open to public viewing on three sides. The troopers testified that they could view a majority of the interior portion of the structure from the street. "What a person knowingly exposes to the public, even in his own home or office is not a subject of Fourth Amendment protection." Brown, supra at 357. "Objects or activities located within a home which are visible to others in areas expressly or impliedly open to the public are not accorded Fourth Amendment protection . . ." Lorenzana v. Sup. Court, 9 Cal.3rd 626, 629 (1973); Brown, supra at 357. Thus, the defendant has failed to present evidence that she manifested a reasonable expectation of privacy in the stone structure.
The second prong of the test requires the court to assess whether society would accept and give deference to an expectation of privacy in this location. "This determination is made on a case-by-case basis . . . Whether a defendant's actual expectation of privacy is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances . . ." State v. Boyd provides ten factors as a guideline for the court to aid in evaluation whether defendant's expectation of privacy is legitimate within the norms of society. Boyd, at 184, 188.
This court finds that there is no expectation of privacy in the stone structure that society would find reasonable. The defendant neither had exclusive use or access to the structure. The defendant had only been residing there for a short period of time. Her statement to the trooper that she did not want anyone else to get in trouble for the marijuana, infers that many had access to the location. Nor did the defendant have the right to exclude others from entering the structure. There was neither lock, nor door that would prevent others from entering the structure. While the purpose of the structure was unclear, it was apparent that it did not belong solely to the defendant. Further, the interior of the structure and the contraband were clearly visible to the police officer and anyone else entering the location. As indicated earlier, she did not keep any personal belongings there, only generic items.
This court's decision is in line with many recent cases regarding the rule of standing in a Fourth Amendment analysis. In State v. Alexander, 115 Conn.App. 1 (2009), the court concluded that the defendant did not establish a reasonable expectation of privacy because he did not have exclusive control over a common hallway in his apartment building and could not control access to or exclude others from that hallway. In State v. Harris, 122 Conn.App. 521 (2010), the court concluded that the defendant did not establish a subjective expectation of privacy in a locked hallway closet in his apartment building as he lacked exclusive access to that closet. In State v. Boyd, 57 Conn.App. 176 (2000) the court found defendant lacked standing to challenge the seizure of evidence from a third floor exterior porch where the defendant lived on the second floor. In State v. Brown, 198 Conn. 348 (1986) the defendant lacked standing to challenge search of a separate two-car garage as there was no evidence presented to show defendant had exclusive possession or control of the area.
Accordingly, the defendant lacks standing to challenge the search of the stone structure and subsequent seizure of the alleged contraband. She has not established that she had a subjective expectation of privacy in the structure or that that expectation of privacy was one that society would recognize as reasonable.
While this ruling effectively ends the argument, even if the standing test had been met, the seizure would still have been within constitutional standards. This court disagrees with the defendant that the legality of the weapon should control the court's analysis in this regard. Evidence presented established that the officers were legally present at the scene. There was uncontroverted testimony that the troopers were entering a scenario that was volatile and had the potential for violence. Two troopers are routinely dispatched to calls on the reservation for that very reason. As Trooper Binkowski approached, he was able to see into the interior of the structure and observe the rifle leaning against a rock. The trooper certainly had the right and obligation to take control of the weapon for his safety and that of others present. State v. Mann, 271 Conn. 300 (2004); State v. Nash, 278 Conn. 620 (2006); United States v. Jones, 239 F.3d 716 (2001). Once the officer seized the weapon, he was in a position to observe and seize the suspected contraband which was in plain view.
Accordingly the defendant's Motion to Suppress is denied.