Opinion
No. CR07-0229487-S
June 16, 2009
RULING ON DEFENDANT'S MOTION TO SUPPRESS
The defendant is charged with certain narcotics offenses. He moved to suppress the evidence seized from his bedroom at 32 Steuben Avenue, Bridgeport, Connecticut on the evening of December 18, 2007. The premises were searched and the items seized without a search warrant. The state claims that the search was pursuant to the defendant's consent to search for a fleeing suspect and that the items seized were in plain view and observed by officers during the consent search. In the alternative, the state argues that even if the court finds consent not given, or if given, not voluntarily so, entry and search of the premises was permissible under the exigent circumstances doctrine, and that therefore, the items were again, in plain view pursuant to that search.
The defendant denies that he gave consent to search his home and argues that exigent circumstances did not provide a valid basis for the police to make entry into the home. In the alternative, he argues, that if the court finds his consent was given, it was not given voluntarily and further that it was obtained in violation of his Miranda rights.
An evidentiary hearing was held on March 19 and March 20, 2009. The Court has reviewed the testimony as well as the exhibits offered and makes the following findings of fact by a fair preponderance of the evidence.
Factual Findings
On December 18, 2007, Officer Laura Acevedo was working the 4 to 12 shift in the patrol division of the Bridgeport Police Department. While she was on Sherman Street, she observed the defendant's vehicle, operating without headlights, drive through an intersection without stopping at a stop sign. She activated her lights and siren in an effort to effectuate a motor vehicle stop. The defendant, who was operating his car at the time, did not stop. He continued driving around the block, onto several different streets.
Officer Acevedo advised dispatch that the operator was not stopping and that she was in pursuit, which resulted in additional officers responding to the area. Ultimately, the defendant stopped his car at the corner of Gilmore St. and Steuben St.
Officer Acevedo got out of her car and approached the vehicle with her weapon drawn. She saw the front passenger reach down, pick something up and place it in his waistband. He then opened the car door and fled on foot down Steuben Street. While she was unable to see what the passenger had placed in his waistband, based upon her training and experience, she believed it was a firearm. She proceeded to give chase but within moments, the rear seat passenger opened his car door and fled in the same direction.
At this point, Officer Acevedo stopped trying to pursue the fleeing individuals and focused her attention on the driver. She also advised dispatch that she believed she had a fleeing suspect with a gun in the area. This call, coming on the heels of the "in pursuit" call, netted many police units converging on the scene.
The defendant remained in the driver's seat of the vehicle. Officer Acevedo approached the defendant's door with her gun drawn and told the defendant to place his hands out. He complied. She further advised him that she had a taser and would use it if he tried to run. By then, additional officers had arrived on the scene. They too approached the defendant's vehicle, though with their weapons holstered.
The location of the vehicle stop became the staging area for the neighborhood search for the fleeing suspect believed to have a gun. The defendant's vehicle was boxed in by one or more police cruisers and there were many police officers on site. The testimony is clear that the defendant was not free to leave and was being detained as part of an investigatory stop. At some point following the stop, the defendant, who is a paraplegic, accidentally defecated on himself. The police officers on the scene were aware of this event.
A few blocks away, responding officers had located and stopped the fleeing rear seat passenger. He was located at the corner of E. Main St. and Steuben. The rear passenger told Officer Carly, who had responded to the scene to assist, that the front seat passenger was the driver's brother and that he lived with him.
The defendant lives at 32 Steuben St., which is located between the location of the vehicle stop and the location at which the rear passenger was apprehended.
At that point, Officer Carly went to where the defendant was sitting in his vehicle. He asked the defendant who the front seat passenger was. The defendant stated he did not know. He asked where he went and the defendant stated he did not know. Officer Carly asked whether he might have gone to the defendant's house. He said he did not know. He asked whether they could check his house. The defendant said okay and gave them a key to his house.
This exchange was witnessed by Officers Acevedo, Jersey and Koval. At no point prior to this exchange had anyone given the defendant his Miranda warnings. Nor did Officer Carly advise the defendant of his Miranda rights. Officer Carly did not advise the defendant that he could refuse consent. Officer Carly did not request that the defendant sign a written consent to search his home.
However, large[y consistent, the officers testified that the exchange was calm and casual. Each testified that the defendant removed the house key from his key ring and handed it to Officer Carly upon giving consent to check his home for the fleeing suspect. On the other hand, the defendant describes the scene as chaotic and as one where he was being pressured and even ridiculed for being paralyzed and for having defecated on himself. He denies giving them permission to enter his home or giving them the key. The Court accepts that the questions posed to the defendant were posed in as calm a manner as the situation might have permitted. However, the police were responding in force, and with urgency, to the possibility of a suspect with a gun. The defendant's perception of chaos and pressure from the police, whether intentional or not, is credited. The defendant's testimony that he did not give consent for the search along with his house key to the officers is not.
Having received consent, Officers Carly and Jersey proceeded to 32 Steuben Street. There, they encountered the defendant's mother who was getting ready to go to work. They showed her the key and explained that the defendant had given them permission to search the premises and that they were looking for an individual who may have entered the apartment and who may have a firearm. She denied that any such person was there but did not interfere with the officers' efforts to search the apartment. The officers then conducted a search of the apartment for the suspect. He was not located and nor was there any indication that he had been there. While searching the defendant's bedroom, the officers located a cache of marijuana and other incriminatory items that were plainly visible during the sweep for the suspect. They left the items in place until the search was concluded. Thereafter, the scene was kept secure and Officer Jersey called his supervisor, Lt. Grech, to get guidance regarding the items in the defendant's bedroom. Lt. Grech arrived on the scene. He entered the defendant's bedroom to observe the items in question.
At that point, the defendant's mother and sister were asked for written consent to search the home. Each gave consent to search their respective bedrooms but the defendant's mother indicated that she would not, and could not, give consent to search the defendant's bedroom. Lt. Grech then asked the defendant for written consent to search his bedroom. The defendant had been moved to a patrol vehicle and brought down the block to the front of the premises. He refused to sign the written consent. Thereafter, Lt. Grech told Officers Carly and Jersey to seize only the items in plain view in the defendant's bedroom.
Exactly when is unclear, but Lt. Grech, who the court notes was the last officer to be summoned to and arrive at the scene, summoned paramedics to assist the defendant. The defendant was transported to the hospital. His car was returned to him. He was charged with the instant narcotics offenses.
There was no testimony to explain how and when the determination to call for assistance was made. It is clear from the testimony however, that from shortly after the initial stop, the defendant was in need of and had requested assistance. It is inexplicable that the paramedics were not even called until after Lt. Grech had arrived on the scene.
Applicable Law
"`The Fourth Amendment 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.' (Emphasis in original; internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L. Ed.2d 373 (1986)." State v. Jenkins, 104 Conn.App. 417 (2007). Indeed, it is well established that:
[a] warrantless search is not unreasonable under the fourth amendment to the United States constitution when a person with authority to do so has freely consented. State v. Martinez, 49 Conn.App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998). The question of whether a defendant has given voluntary consent to . . . search . . . is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the . . . search. State v. Vargas, 34 Conn.App. 492, 496 (1994). The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Ortiz, 17 Conn.App. 102, 103-04, (1988)." (Internal quotation marks omitted.) State v. Story, 53 Conn.App. 733, 737-38 (1999). "No one factor is controlling on the question of voluntariness . . ." (Citation omitted.) State v. Cobbs, 7 Conn.App. 656, 658-59, (1986), citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). "The determination to be made is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice." State v. Cobbs, supra, 659.
State v. Carcare, 75 Conn.App. 756, 771 (2003). The fact that consent was obtained from an individual who was in custody and therefore not free to leave is not a basis, in and of itself, to establish that consent was not voluntary. State v. Winot, 95 Conn.App. 332, 349 (2006), citing, United States v. Dozal, 173 F.3d 787 (10th Cir. 1999). Nor has the absence of Miranda warnings under such a situation been found determinative of this issue. Id.
Whether consent is voluntary is clearly a fact bound determination and it is the State that bears the burden of establishing, by a fair preponderance of the evidence, that the consent was voluntary. State v. Douros, 90 Conn.App. 548, 554 (2005). Consent is not established by mere acquiescence to police authority. Id.
The defendant argues that the totality of the circumstances leads to but one conclusion: the defendant's consent, if found to have been given, was not his unconstrained choice but a mere acquiescence to police authority. That the situation was one in which the defendant's will was overborne. This court agrees.
In so finding, the court relies upon the following aggregate of facts. The defendant's car was boxed in by several police units. The defendant was not free to leave and was being held as part of an investigatory detention. The defendant is a paraplegic who was completely immobile insofar as he remained in the driver's seat and was not in his wheelchair. The scene, as the staging area for the search for the fleeing suspect, was inundated with police cars and officers. During the stop, but prior to the request for consent, the defendant had accidentally defecated on himself. He was, quite literally, at the mercy of the police in terms of when he might be permitted to clean himself up or get paramedic assistance. As no request for assistance was made until after Lt. Grech had arrived at the site of the search, the court reasonably infers that the defendant was aware that no help had yet been summoned at the time he gave consent. The defendant was not given Miranda warnings prior to being questioned about the fleeing suspect. The defendant was not advised that he could refuse consent to the search. The initial stop involved the use of Officer Acevedo's weapon and the threatened use of a taser. The police were, albeit entirely appropriately, responding to the scene with both urgency and in a show of force, both of which add a coercive element to the atmosphere in which the consent was sought and obtained.
The court's conclusion is bolstered by the fact that later in evening, as the events unfolded, the defendant refused to sign a written consent to search his bedroom when asked. The Court is mindful of the fact that no one of these facts is adequate, in itself, to render a consent involuntary. The court is further mindful that the defendant has a history of involvement with the criminal justice system and therefore police officers. The Court further credits the testimony of the officers that the exchange during which the consent was obtained was cordial and respectful. Ultimately, in a "close call" such as this case presents, it is imperative to remember that the state bears the burden of proof when it has conducted a search without the benefit of a warrant. The aggregate of the factors identified above, in this court's view, precludes a finding that the state has met its burden.
The court's finding does not include a determination that the police acted with malice or in reckless or wanton disregard of the defendant's constitutional rights. The decision is based upon the cumulative nature of the unique circumstances presented in this case.
Alternatively, the state argues that the defendant's mother consented to the search of the apartment for the fleeing suspect. The evidence does not support such a conclusion. Officer Carly testified that he "did not specifically ask her for consent" to search the premises; that he told her that the defendant had given his permission; that he was given a key which he showed her, and that thereafter "she did allow me to come in the house." Officer Jersey testified that the exchange between Officer Carly and the defendant's mother occurred inside the house, after they had crossed the threshold. The defendant's mother may have acquiesced to police authority, but she cannot be said to have consented to the entry into and search of the apartment. In fact, when subsequently requested to sign a consent to search form, she specifically advised the police that she could not and therefore would not give consent to search the defendant's bedroom.
This does not end the inquiry however. The state further argues that the police were authorized in their entry of the home in light of "exigent circumstances."
CT Page 10831
It is a fundamental principle of search and seizure law that, in the absence of exigent circumstances and probable cause for arrest, a person's house may not be entered without a warrant, and that warrantless searches and seizures inside a house are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). The term, "exigent circumstances," does not lend itself to a precise definition but generally refers to "`those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.' United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978)." State v. Guertin, supra, 447.
State v. Gant, 231 Conn. 43, 64 (1994). In determining whether exigent circumstances existed at the time of the search, the court's inquiry is an objective one, based upon the totality of the circumstances. Id. In State v. Januszewski, 182 Conn. 142 (1980), our Supreme Court stated that a search warrant is not required "where exigent circumstances exist that make the procurement of a search warrant unreasonable in light of the dangers involved." Id.
Professor Wayne LaFave has commented that exigent circumstances may exist where "there may be no risk of removal [of the evidence] whatsoever, but it may be thought that, if the police delay while a warrant is obtained, the object may cause or be used to cause harm within . . ." 2 W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment (2d Ed. 1987) § 6.5(d), p. 683. Generally, the immediate warrantless search for weapons is thought of in the context of protection of the investigating or arresting law enforcement official. Courts, however, have also noted that "[e]xigent circumstances also include fear for the safety of bystanders. United States v. Spinelli, 848 F.2d 26, 28 (2d Cir. 1988)." United States v. Turner, 926 F.2d 883, 886 (9th Cir. 1991).
Professor Lafave's commentary highlights the overlap between the "exigent circumstances" doctrine and the "emergency doctrine." However, the state has not argued that the emergency doctrine, which is rooted in the community caretaking function of the police, and which requires a similar but distinct analysis, is applicable to this case.
In Gant, the police had an active warrant for the defendant for a homicide in which a firearm was used. The police had information that the defendant had very recently threatened another individual with a firearm. The police had "real time" information that the defendant was at a particular address. Under those circumstances, the police, at first, only contacted the residence. They were advised that the defendant was not there. Present in the apartment were several children and adults. As the police were preparing to leave, other officers advised them that an unknown male was attempting to flee the apartment through a rear window and that he had retreated back into the apartment when he saw the police. At that point, the police made a warrantless entry into the home to search for the defendant, a decision ultimately approved by the Supreme Court under the exigent circumstances doctrine.
Similarly, in State v. Owen, 2008 Ct.Sup. 10181 (Jun. 18, 2008) (Devlin, J.), exigent circumstances were found to exist for a warrantless entry. There, police heard several gunshots from nearby but outside their field of vision. Within moments, the police saw four individuals near the location from which the shots came. There was nobody else present. Then, three of the men ran in one direction and the fourth entered a nearby residence. The police chased, stopped and searched the first three who were determined to be unarmed. They then proceeded to the residence into which the fourth suspect was seen making entry. Entry into this residence was approved under the exigent circumstances doctrine.
The court also relied upon the emergency doctrine in its decision.
The situation presented here is vastly different. While the police interest in determining whether the front seat passenger had entered the defendant's home was reasonable, the circumstances were not such as to authorize a warrantless entry. Unlike the situations in Gant and Owen, in this case, the police had very little information with which to work. It was only a possibility that the fleeing suspect even had a gun. Officer Acevedo did not see a gun and reported only the possibility of a gun to dispatch. She could not describe in any fashion the object that the fleeing passenger placed in his waistband. There were no witnesses who supported the conclusion/suspicion that he had a gun and there had been no gun shots reportedly heard. Officer Acevedo's concern that the suspect might have had a gun was based on his furtive movements of reaching under the seat and then placing an unknown item in his waistband.
Further, also unlike the situations in Gant and Owen, the police here had inadequate evidence that the fleeing suspect had entered 32 Steuben Street. Officer Acevedo did not see him enter 32 Steuben St. She only saw him run in the direction of East Main Street, which would have taken him by 32 Steuben Street, as well as other residences. No other witness reported to any of the officers that the fleeing suspect had entered 32 Steuben. The rear seat passenger had stated that the fleeing suspect was the defendant's brother and that he lived with the defendant. Both statements were denied by the defendant. While the defendant indicated he didn't know if the fleeing suspect had entered his home, he was in no better position than the police to know, one way or the other. The defendant's mother told the police that no one had entered her apartment. Finally, there was no indication that anyone had forced entry into the apartment.
Under the totality of the circumstances, the police lacked probable cause to search the residence and were therefore not authorized to make a warrantless entry into the home for reasons of exigency.
For all of the foregoing reasons, the motion to suppress evidence seized at 32 Steuben Street on December 18, 2007 is GRANTED.
The court does not reach the question of whether the request for consent was the result of a custodial interrogation, for which Miranda warnings were required.