Opinion
NNHCR150157364T
04-20-2018
STATE of Connecticut v. Dwayne SAYLES
UNPUBLISHED OPINION
April 23, 2018
OPINION
Brian T. Fischer, Judge
On January 18, 2018 the defendant, Dwayne Sayles filed a Motion to Suppress which was identified by his attorney as a Franks Motion. The defendant on January 12, 2018 filed a Motion to Suppress tangible evidence.
On January 24, 2018 the court heard testimony from the following witnesses concerning these motions:
1) Detective Christopher Perrone, New Haven Police Department.
2) Mary Sayles.
Numerous exhibits were offered at the hearing including the video of Detective Perrone and the defendant Dwayne Sayles at the New Haven Police Department on April 16, 2015. Also as exhibits were the search warrants addressed in this memorandum.
On January 24, 2018, before commencing evidence in the trial, the court made an oral decision on the record denying the defendants motions. This written memorandum corresponds and supplements this court’s January 24, 2018 ruling.
In reaching its conclusion, the court has fairly and impartially considered all of the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence, reviewed all evidence and relevant case law, and has drawn inferences from the evidence of facts established by the evidence it deems reasonable and logical.
For the reasons set forth below, the motions are hereby denied.
The court finds the following facts to be relevant and credible.
Detective Perrone has been assigned to the homicide unit as a detective since 2014.
On April 6, 2015 at approximately 7:30 p.m. two masked men entered the Pay Rite gas station on Forbes Avenue in New Haven. The men proceeded to rob the store clerk, shooting and killing him. After the shooting they fled the scene in a car driven by Leighton Vanderbergh, who was friends with both robbers.
On April 14, 2015 Vanderbergh gave a recorded statement to the New Haven Police. Vanderbergh indicated he gave a ride to the two masked men who committed the robbery and subsequent murder. He identified the men as Dwayne Sayles and Jamal Sumler.
In connection with Vanderbergh’s statement and other police investigations a search and seizure warrant was approved by a Superior Court judge for the defendant’s residence on April 15, 2015. The search warrant was carried out in the early morning hours of April 15, 2015. A ski mask and gloves were seized pursuant to the warrant. (Defendant’s Exhibit 1.)
Later in the day on April 15, 2015 the defendant called the police and agreed to go to the New Haven Police Department to meet with Detective Perrone and Detective Zaweski. The defendant came to the police station with his mother, Mary Sayles. The defendant had his cell phone with him. Prior to entering the interview room the defendant gave his mother his cell phone. The interview with the defendant was video taped, (State’s Exhibit A), Mary Sales was outside the interview room sitting on a bench.
On the night of the robbery defendant was using his cell phone before and after the shooting. He also posted on Facebook.
The defendant was free to go at anytime when he was at the police station. He was not under arrest. The defendant asked to speak to an attorney within a few minutes of the interview and the interview ended.
Detective Perrone intended to take the defendant’s cell phone as there was evidence it was used prior to and subsequent to the murder of the store clerk.
Detective Perrone had probable cause to seize the defendant’s cell phone. Detective Perrone was concerned about damage to the cell phone and/or data being erased.
When the interview with the defendant ended Detective Perrone inquired in the hallway of Mary Sayles if she had her son’s cell phone (the defendant). She said yes and handed it to Detective Perrone. Mary Sayles also gave the detective the cell number to the phone.
Mary Sayles voluntarily gave the phone to the detective. There was no threats made to Mary Sales for the phone.
The defendant and his mother than left the New Haven Police Department voluntarily.
Detective Perrone then applied for a search warrant for contents of the phone, which was approved by a Superior Court judge on April 16, 2015. (State’s Exhibit B.)
When Detective Perrone leaves the interview room he goes down the hallway to talk to Mary Sayles. Ms. Sayles has the defendant’s phone in her hand. Detective Perrone asks for the phone and Ms. Sayles gives him the phone. This interaction between Mary Sayles and the detective lasted approximately 30 seconds. Mary Sayles also gave the detective the defendant’s cell number.
The defendant and Mary Sayles then leave the police station.
Legal Analysis
Motion dated January 18, 2018
The defendant argues Detective Perrone’s affidavit requesting the seizing of defendant’s cell phone prepared on April 16, 2015 included a misrepresentation material to the seizing. Specifically in paragraph 18 of said affidavit (State Exhibit B) it states: " prior to Sayles leaving, his mother handed to detectives a cellular telephone she said belonged to Dwayne and provided (203) 901-8399 as the phone number."
The defendant argues in Detective Perrone’s supplemental report date June 23, 2015 he stated " I then seized as evidence Sayles silver iPhone from Sayles’ mother Mary Sayles who provided the telephone number (203) 901-8399 for her son’s phone.
There is a presumption of validity with respect to a supporting affidavit for a search warrant.
To prevail on this motion the defendant must make a showing that a false statement knowingly and intentionally or with reckless disregard for the truth was included by the affiant in the affidavit and that the allegedly false statement is necessary to a finding of probable cause. State v. Bergin, 214 Conn. 657, 666 (1990).
The defendant falls far short of his burden on this motion. This court finds that Detective Perrone asked for the cell phone and Mary Sayles handed the cell phone to him. This was done in a consensual manner.
The fact that Detective Perrone in his report dated June 23, 2015 states he " seized" the phone from Mary Sayles is just a difference in semantics.
At no time did Detective Perrone threaten Mary Sayles for the cell phone. Mary Sayles was friendly and amicable. The entire transaction lasted less than thirty seconds. The video in evidence supports this time frame.
The court finds Detective Perrone in Paragraph 18 of State’s Exhibit B did not make a false statement knowingly and intentionally or with reckless disregard for the truth when he indicated to the magistrate that Mary Sayles handed him the cell phone.
Motion Dated January 12, 2018
The defendant argues the taking of the defendant’s cell phone from Mary Sayles without a warrant constituted an unreasonable search and seizure.
The state argues the police had probable cause to seize the cell phone in order to prevent destruction of its’ contents while a warrant was being secured.
The court denies the motion as the police were justified in seizing the phone under the facts of this case and the law of exigent circumstances and inevitable discovery.
Under both the federal and the state constitutions, members of the public are protected against unreasonable searches and seizures by the police. U.S. Const., amend. IV; Conn. Const., art. I, § 7. A search or seizure is presumed to be unreasonable when it is conducted without a warrant issued upon probable cause, subject to a few well defined exceptions. State v. Lewis, 173 Conn.App. 827, 838, 162 A.3d 775, cert. granted, 327 Conn. 925, 171 A.3d 58 (2017). In those instances, " [t]he state bears the burden of proving that an exception to the warrant requirement applied." State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999).
" [P]robable cause is a dynamic concept, and [courts] have recognized that a law enforcement officer’s experience and training may permit the officer to discern probable cause from facts and circumstances where a layman might not." (Internal quotation marks omitted.) United States v. Babilonia, 854 F.3d 163, 178, cert. Denied, 138 S.Ct. 438, 199 L.Ed.2d 323 (2d Cir. 2017). " In evaluating probable cause for a warrantless search, the court may consider all of the legally obtained facts available to a police officer, and all of the reasonable inferences that might be drawn therefrom in light of the officer’s training and experience." State v. Leary, 51 Conn.App. 497, 501, 725 A.2d 328 (1999).
Though difficult to define, " [P]robable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed." State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S.Ct. 1404, 131 L.Ed.2d 291 (1995).
In the present case, Detective Perrone testified that " through [his] training and experience [he knows] that cell phones are often used either before a crime or after, co-conspirators will talk on the phones, they’ll text each other, they’ll post things on Facebook about the crime. The phones can contain GPS coordinates on where that phone was at the time of the crime. They contain Facebook, Instagram, Snapchat, all of those types of things." Detective Perrone further testified that he had information that the defendant had a Facebook account; that the defendant used that Facebook account to communicate with one of the coconspirators; and that either the defendant or another co-conspirator communicated with the third co-conspirator via their cell phone on the night of the shooting. Detective Perrone additionally testified that he had probable cause to seize the defendant’s phone, and that he believed there was evidence of a crime on the defendant’s phone. Based on the foregoing, Detective Perrone testified that he believed he had probable cause to seize the defendant’s cell phone.
II. Exigent Circumstances
" The Fourth Amendment says that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... Its ‘central requirement’ is one of reasonableness ... In order to enforce that requirement, [the Supreme Court of the United States] has interpreted the Amendment as establishing rules and presumptions designed to control conduct of law enforcement officers that may significantly intrude upon privacy interests. Sometimes those rules require warrants. [The Supreme Court has] said, for example, that in ‘the ordinary case,’ seizures of personal property are ‘unreasonable to a judicial warrant,’ issued by a neutral magistrate after finding probable cause ... [The Supreme Court] nonetheless [has] made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the [Supreme] Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." (Citations omitted; internal quotation marks omitted.) Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). " One well-recognized exception [to the warrant requirement] ... applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." (Internal quotation marks omitted.) Missouri v. McNeely, 569 U.S. 141, 148-49, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
" Three categories of exigent circumstances exist: those that present a risk of danger to human life; the destruction of evidence; or the flight of a suspect." (Internal quotation marks omitted.) State v. Liam M., 176 Conn.App. 807, 822, 172 A.3d 243, cert. denied, 327 Conn. 978, 174 A.3d 196 (2017). " 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." (Internal quotation marks omitted.) State v. Fana, 109 Conn.App. 797, 814, 953 A.2d 898, cert. denied, 289 Conn. 936, 958 A.2d 1246 (2008). " It is well established in Connecticut, however, that the test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances." State v. Aviles, 277 Conn. 281, 293, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S.Ct. 108, 166 L.Ed.2d 69 (2006). " Put simply, given probable cause to arrest or search, exigent circumstances exist when, under the totality of the circumstances, the officer reasonably believed that immediate action was necessary to protect the safety of those present, or to prevent the flight of a suspect, or the destruction of evidence." State v. Kendrick, 314 Conn. 212, 227-28,100 A.3d 821 (2014). Consequently, " [r]ather than evaluating the significance of any single factor in isolation, courts must consider all of the relevant circumstances in evaluating the reasonableness of the officer’s belief that immediate action was necessary." Id., 229.
Detective Perrone testified:
Q: In your training and experience in a case such as this where someone has a cell phone what are the risks if you let them leave with the phone and then take the time to do a search warrant?
A: Well, the risks could be that the phone, one, gets damaged; two, any of the data on it can be erased. So those I would say are the main reasons why we didn’t want that phone to leave there.
Q: In your training and experience someone that’s suspected of committing a homicide would there be any incentive for that person to destroy a phone?
A: Yes.
Q: Would there be incentive for that person to erase data?
A: Yes.
Q: Would there be incentive for that person to cancel that phone?
A: Yes.
Detective Perrone also testified that, after acquiring the cell phone, the phone was wrapped up in aluminum foil and sealed to " [prevent] people from going on to another device and deleting stuff off that phone from another device. It doesn’t get a connection through the two. So that’s why we put it in that bag to prevent anything from being erased from it." Transcript, p. 30. Detective Perrone further testified:
Q: Now, did you believe at any point in time that it was exigent, meaning that you had to seize the phone at that time?
A: Yes, or it could have been destroyed or the contents could have been erased if they were allowed to leave with it.
Q: In your training and experience is that something that you would normally do with a suspect that has evidence of a crime on their phone?
A: Yes.
Q: You believe has evidence of a crime?
A: Yes.
During cross examination, Detective Perrone again testified that, with respect to the exigency that he felt compelled to seize the phone without a warrant in order to prevent the defendant from leaving the police station with it: " The phone could have been destroyed, discarded and things could have been erased on it."
The court finds there existed exigent circumstances allowing Detective Perrone to take the defendant’s cell phone without a warrant.
III. Inevitable Discovery
" A ‘search’ for purposes of the Fourth Amendment occurs either when the government intrudes upon a person’s reasonable expectation of privacy or, alternatively, if the government otherwise intrudes upon a suspect’s person, home, papers, or effects for the purpose of acquiring evidence ... [A] ‘seizure’ of property occurs for purposes of the Fourth Amendment if the police meaningfully interfere with an individual’s possessory interest in that property." United States v. Robertson, 239 F.Supp.3d 426, 441-42 (D.Conn. 2017). " Under the ‘inevitable discovery’ doctrine, evidence obtained during the course of an unreasonable search and seizure should not be excluded if the government can prove that the evidence would have been obtained inevitably without the constitutional violation." (Internal quotation marks omitted.) In re 650 Fifth Avenue & Related Properties, 830 F.3d 66, 102 (2d Cir. 2016).
Put another way, " evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means." (Internal quotation marks omitted.) State v. Vallejo, 102 Conn.App. 628, 640, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007). " To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation." (Emphasis in Original.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). " [t]he inevitable discovery rule is fair in that it plac[es] the State and the accused in the same positions they would have been in had the impermissible conduct not taken place." (Internal quotation marks omitted.) State v. Ortiz, 14 Conn.App. 493, 502, 542 A.2d 734, cert. denied, 209 Conn. 804, 548 A.2d 441 (1988). See also State v. Vallejo, supra, 641 (rationale behind inevitable discovery rule is " to prevent the police from being in a worse situation than they would have been had the initial illegality not occurred" ). " [I]f the [state] can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings." Nix v. Williams, 467 U.S. 431, 447, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
In State v. Cobb, 251 Conn. 285, 337-41, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000), our Supreme Court detailed the relationship between the inevitable discovery doctrine and the independent source doctrine. " The inevitable discovery doctrine, with its distinct requirements, is in reality and extrapolation for the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." (Emphasis in original; internal quotation marks omitted.) Id., 337. The court noted that the doctrines both rest on the same premise: " the interest of society in deterring unlawful police conduct and the public interest in having [fact finders] receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred." (Emphasis in original; internal quotation marks omitted.) Id. The court further noted that while both doctrines also rest on the assumption that " if the law enforcement agencies involved had eschewed the illegal activity, they never the less would have procured the evidence at issue," the inevitable discovery exception, in contrast to the independent source doctrine, " assumes that the evidence was in fact obtained as a consequence of the primary illegality but is invoked by proof that- hypothetically- if the officers had not engaged in the primary illegality, they would nevertheless although in a different manner have obtained challenged evidence." (Internal quotation marks omitted.) Id., 338.
In the present case, Detective Perrone testified that one of the co-conspirators named the defendant as a participant in the shooting. Transcript, p. 7. Detective Perrone testified that the April 15, 2015 search warrant for the defendant’s residence included items used in the crime such as gloves, masks, and clothing. Transcript, p. 9. Although there was no subsequent outstanding warrant to seize the defendant’s phone at the time of the interview, Detective Perrone testified that he had information that the defendant had a Facebook account; that the defendant used that Facebook account to communicate with one of the coconspirators; and that either the defendant or another co-conspirator communicated with the third co-conspirator via their cell phone on the night of the shooting. Transcript, p. 24. Detective Perrone later testified that one of the co-conspirators had communicated at times specifically with the defendant. Transcript, p. 74. Detective Perrone testified that a search warrant for the contents of the defendant’s phone was approved by a judicial magistrate on April 16, 2015. Transcript, pp. 31-32. Detective Perrone further testified that the search warrant indicated that the phone was in the custody of the New Haven Police Department’s property room. Transcript, p. 71.
The court finds that under the facts of this case the defendants cell phone would clearly have been discoverable.
Based on the foregoing the motions to suppress are hereby denied.