Opinion
KNLCR15128402
09-26-2017
State of Connecticut v. Dennis Foster
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS
Barbara Bailey Jongbloed, J.
On June 29, 2017, the defendant, Dennis Foster, filed a motion to suppress evidence obtained as a result of the execution of a search and seizure warrant on August 6, 2015 by the Norwich Police Department on the property of 94 Wawecus Hill Road, Norwich, CT. The defendant claims that the warrant violated the particularity clause of the United States Constitution. Specifically, he argues that because the search warrant failed to reference that 94 Wawecus Hill Road, Norwich, CT was a two-family dwelling, the warrant violated the particularity clause of the Fourth Amendment to the United States Constitution and article first, § 7, of the Connecticut Constitution and, therefore, all contraband seized from the location should be suppressed.
The court held an evidentiary hearing on the motion on August 8, 2017. Two witnesses testified at the hearing; Detective Jason Calouro of the Norwich Police Department and Dennis Shaw, the owner of the property. Based on the facts set forth below, and for the reasons set forth below, the motion to suppress is denied.
The defendant filed a memorandum in support of the motion on August 7, 2017 and a supplemental memorandum in support on August 15, 2017. The State filed a memorandum in opposition to the motion on August 16, 2017. The court heard argument on August 22, 2017.
FINDINGS OF FACT
The court credits the testimony of Detective Jason Calouro and Dennis Shaw and finds the following facts based on that testimony and exhibits submitted during the hearing.
The exhibits consisted of the affidavit and application in support of the warrant, numerous photographs of the interior and exterior of the house and a document from the web page of Vision Government Solutions.
1. On August 6, 2015, the Norwich Police Department executed a search and seizure warrant for 94 Wawecus Hill Road, Norwich, CT and the person of Dennis Foster. The affidavit in support of the warrant alleged in part that in February 2014, Detective Calouro received information from a reliable confidential informant (" CI") that a person known as " Jamaican D." lived at 94 Wawecus Hill Road in Norwich, that he operated a large scale crack cocaine enterprise and delivered narcotics in a silver Acura MD-X with extremely tinted windows. On February 10, 2014, the CI informed Detective Calouro that " Jamaican D." would be traveling to New York to purchase cocaine. Detective Calouro, who was assigned to the Statewide Narcotics Task Force--Eastern District, (" SNTF"), observed the defendant exit the front door of 94 Wawecus Hill Road, enter the silver Acura which had illegally tinted windows and proceed onto I-395 southbound and then I-95 southbound toward New York. Because he did not have any SNTF officers to help follow the defendant to New York, Calouro asked his supervisor for assistance from the Connecticut State Police in stopping the defendant's vehicle for the tinted windows. They did so and Foster was ultimately found in possession of $8, 050 with $6, 090 in a bag in the glove compartment of the car and $1, 960 on his person. (State's Ex. 24.)
2. The affidavit further stated that in August 2015, Calouro received information from two concerned citizens about suspicious activity occurring at 94 Wawecus Hill Road, including heavy vehicular and pedestrian traffic. One of the concerned citizens identified a person named Dennis as the occupant of 94 Wawecus Hill Road. The second concerned citizen observed a black Volvo frequently at that address and also observed people meeting with an individual named Dennis at the front door and exchanging small items by hand. On August 6, 2015, Calouro and Norwich Police Detective Nathaniel Tondreau set up surveillance of 94 Wawecus Hill Road and observed the black Volvo arrive. A white male got out of the vehicle and entered the premises of 94 Wawecus Hill Road through the front door. He then left the residence approximately 30 seconds later. Calouro and Tondreau attempted to follow, losing sight of the vehicle for a short time. Another officer, however, observed the vehicle going through a red traffic control signal and stopped the Volvo at the intersection of Wawecus Hill Road and Old Salem Road. The operator of the Volvo was identified as John Caulfield. Caulfield initially told the officers that he was coming from his mother's house, but after being informed that 94 Wawecus Hill Road had been under surveillance, he admitted that he had obtained crack cocaine from Dennis from inside of 94 Wawecus Hill Road for payment for errands he had run for Dennis earlier in the day. The police recovered a small plastic bag with a knotted end containing alleged crack cocaine from the vehicle which Caulfield stated was the item he received from " Dennis" while in the residence. A portion of the contents field tested positive for the presumptive presence of cocaine. Based upon this information, a warrant was then applied for and granted. (State's Ex. 24.)
3. The property to be searched was described as follows: " 94 Wawecus Hill Road Norwich, Connecticut. 94 Wawecus Hill Road is a raised ranch, white in color, with the number '94' clearly posted on the front of the structure. Access to the residence is gained by entering through the door located on the right side of the porch landing . . . The person of Dennis Foster . . ." (State's Ex. 24.)
4. On August 6, 2015, officers executed the warrant at 94 Wawecus Hill Road, Norwich, CT. Upon entering the residence through the front door, the police observed the defendant and another individual, Jimmy Wiggins, fleeing through the back sliding glass door. Both were detained on the back porch. Foster kept looking at a location in the back yard where the police subsequently located a clear plastic baggie containing crack cocaine and powder cocaine. Police also recovered individually bagged crack cocaine in the basement, white powdered substances in the kitchen and bathroom (which tested positive for acetaminophen and inositol, respectively), a glass jar which appeared to contain cocaine residue, a digital scale, sandwich baggies and a total of $10, 634 in cash from the rear bedroom. No items were seized from the upstairs rooms. The police recovered $1, 061 from Foster.
5. The only number on the exterior of the house was the number " 94" which was clearly visible above the main entrance to the residence. There were no numbers or identifying information of any kind on the exterior entrance to the second floor. (Def. Ex. F and G.) There were no numbers or identifying information of any kind on the doors on the rear of the residence or on the doorway in the garage. (Def. Ex. H, I and J.) The photographs depicting the interior doors reflect that there were no numbers or identifying information of any kind on any of the interior doors within the residence. (State's Ex. 3, 5, 6 and 22.) As Calouro testified, none of the interior doors were locked and nothing about the interior led him to believe that there was a separate residence of any kind within 94 Wawecus Hill Road. He stated that he was able to access the second floor of the residence through a door on the first floor, and that the door to the second floor was not locked or secured in any way. Calouro indicated that if the door had been locked or secured he would not have searched the second floor. It appeared to Calouro that Foster had access to the second floor which looked empty as though no one was living there. No items of evidence were seized from the second floor.
6. Three mailboxes were located on the roadside in front of 94 Wawecus Hill Road. One mailbox was white with " 94" clearly visible in three places. This white mailbox reflected " U.S. Postal Service." The second mailbox was black, with " 94" in small non-matching numbers at the lower front and no other visible markings. The third mailbox was also black with large white numbers reflecting " 93." (Def. Ex. E.)
7. The court credits Detective Calouro's testimony that he believed 94 Wawecus Hill Road to be a single-family residence. He described the neighborhood as rural, with a number of single family homes. Calouro stated that although he knew there was an external stairway on the side of the house leading up to the second floor, this did not cause him to think that the residence was anything other than a single-family residence. He based his belief that it was a single-family residence on his personal observations and the information provided by the two concerned citizens and Caulfield. His own observations included seeing Foster enter and exit through the main entrance to the home, seeing Caulfield also enter and exit through that entrance, the number 94 above the main entrance and no other numbers on the exterior of the residence. He stated that he did not recall seeing the mailboxes and confirmed that he did not investigate the land records for Norwich regarding whether 94 Wawecus Hill Road was a two-family home.
8. Dennis Shaw testified that he is the owner of 94 Wawecus Hill Road. He stated that he purchased the property in 1988 as a two-family residence and had maintained it as such since that time. He lived at the residence from 1988 to 1995 and began to rent it after he moved out in 1995. He identified the exterior staircase as the entrance to the second floor residence and one of the doors at the rear of the house as leading into a mud room with one interior door leading to the first floor and one leading to the second floor. He stated the doors accessed from the rear of the house had locks on them, but he did not know whether they were kept locked in the summer of 2015. Shaw confirmed that there were no numbers on the outside stairway or door to the second floor and there was no number on the door leading to the second floor from the rear entrance. Shaw stated that he thought he had a lease with tenants at one time, approximately 11-12 years ago, but he did not have a written lease agreement with any tenants in August 2015. Shaw's recollection was that he had tenants upstairs and downstairs in the summer of 2015 but did not have written leases. He stated that he had a tenant named Wiggins as well as Dennis and Rebecca Foster. He testified that he was generally paid the rent in cash which he picked up from 94 Wawecus Hill Rd. Shaw could not recall the last time he had entered either the first or second floors of the house prior to August 2015 and had not accessed his own items which he had stored in the basement there at all during 2015.
9. The defendant introduced a document from Vision Government Solutions, a subcontractor for the City of Norwich, reflecting that the house was described for appraisal and assessment purposes as a " two family." (Def. Ex. A.)
DISCUSSION
The defendant claims that the search of 94 Wawecus Hill Road was conducted in violation of the particularity requirement of the Fourth and Fourteenth Amendments to the United States Constitution and article first, section seven, of the Connecticut Constitution. The defense argues that law enforcement officers made no effort to determine whether 94 Wawecus Hill Road was a two-family home and that the exterior stairway as well as two mailboxes bearing the number 94 on each was sufficient to alert them such that they should have conducted a proper investigation to determine whether it was a single family residence. The court credits Detective Calouro's testimony that he believed the residence was a single-family residence and this reasonable belief was amply supported by the evidence. Further investigation into whether the property was a two-family residence was not required where, as here, the officers neither knew of or had reason to know the structure was considered a two-family structure. As set forth below, the court finds that the warrant in this case was not violative of the particularity requirement and was not defective for failure to specify a subunit within the named building.
In support of his motion, the defendant cites United States v. Clark, 638 F.3d 89 (2d Cir. 2011). In Clark, the U.S. Court of Appeals for the Second Circuit stated: " In the absence of a probable cause showing as to all the living units so as to justify a search of them all, a search warrant directed at a multiple-occupancy structure will ordinarily be held invalid if it describes the premises only by street number or identification common to all the subunits located within the structure." Id. at 95 (citation omitted). Clark also recognized, however, that " If the building in question from its outward appearance would be taken to be a single-occupancy structure and neither the affiant nor other investigating officers nor the executing officers knew of or had reason to know of the structure's actual multi-occupancy character until execution of the warrant was under way, then the warrant is not defective for failure to specify a subunit within the named building." Id. at 96. In Clark, the search warrant at issue listed the property to be searched as " 1015 Fairfield Avenue, being a multi-family dwelling" and allowed for the search of the entire premises including all persons present at that location. The issue in Clark was whether there was probable cause to search the entire multi-family dwelling. The Clark court stated:
it is generally understood that " probable cause to search is demonstrated where the totality of circumstances indicates a 'fair probability that contraband or evidence of a crime will be found in a particular place.'" This required nexus between the items sought and the " particular place" to be searched protects against the issuance of general warrants, instruments reviled by the Founders who recalled their use by Crown officials to search where they pleased." (Citations omitted.) Id. at 94.
The Clark court considered whether the facts set forth in the affidavit established probable cause to search each unit in the multi-family building. Finding that the warrant application did not set forth sufficient facts to support the determination that there was probable cause to believe that the items sought would be found in each unit, the court concluded that the warrant was invalid. Id. at 99.
Unlike the circumstances in Clark, the warrant in the present case established probable cause that the items sought would be found at a particular place, that is, the residence of Dennis Foster, 94 Wawecus Hill Road, Norwich, CT. By all outward indications, the building appeared to be a single family, raised ranch home in a rural residential neighborhood. There was only one number evident on the entire exterior of the residence and that number was located above the main entrance in the front of the house. Even if the officers had taken note that two of the mailboxes reflected the number 94, that would not have required the conclusion that the boxes were for two separate residences. The numbers were not, for example, shown as 94A and B, or Apartments 1 and 2, or first floor and second floor. Only the white mailbox had " U.S. Postal Service" on it. The interior of the structure also contained no visible indication of any separate living space utilized by a different tenant or any separate rental unit such as a name or number on any interior doors, or any locked interior doors. Unlike the circumstances in Clark, where the actual multi-occupancy character of the structure became clear after execution of the warrant was underway, in this instance, no actual multi-occupancy character of the structure became clear during the execution of warrant. Here the officers ultimately learned that an additional person may have been living within the structure although, as Calouro testified, the upstairs looked empty as though no one was living there. Even assuming an additional person lived there, that would not require the conclusion that the police reasonably should have ascertained that there was a separate " unit" prior to obtaining the warrant. Although Mr. Shaw testified that the building was a two-family residence, and that the upstairs was a separate unit, there was no observable evidence reflecting that the upstairs actually constituted a separate unit, and no evidence from which Detective Calouro or other officers would have drawn that conclusion. There were no locked doors or any demarcations separating the " units" and there was no indication of any separate living space. The second floor was accessed through an unlocked door on the first floor. Simply because a dwelling structure may be leased to two individuals, that does not establish that the structure was maintained as two separate living units such that the police reasonably should have discovered or recognized two separately leased spaces or even such that further investigation was necessary.
The warrant here established probable cause that the items sought would be located at a particular place, that is, the residence of Dennis Foster at 94 Wawecus Hill Road, Norwich. The property was described as " a raised ranch, white in color, with the number '94' posted on the front of the structure. Access to the residence is gained by entering through the door located on the right side of the porch area . . ." The warrant also included " [t]he person of Dennis Foster." This description was sufficient to alert the executing officers of the area to be searched. The description in the warrant comported with the place confronting the officers when they attempted to execute the warrant.
In State v. Buddhu, 264 Conn. 449, 825 A.2d 48 (2003), our Supreme Court concluded that a challenged search warrant for the residence of two individuals located at 958 Broad Street, Hartford, CT was valid and did not violate the particularity requirement of the fourth amendment. There, the location on Broad Street was a three-story multi-unit dwelling with two unlabeled doors on each floor. The police went to the third floor where there were two apartments, one belonging to each of the two individuals named in the warrant. The defendant, Deowraj Buddhu, moved to suppress the items seized from his residence claiming that the warrant violated the particularity requirement of the fourth amendment. The Supreme Court concluded that the warrant did not violate the particularity requirement finding that the police did not have to disclose in the warrant that the defendant resided in a multi-unit building or that the two individuals resided in separate apartments. In discussing Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), our Supreme Court wrote:
the court in Garrison did not hold, expressly or implicitly, that the officers have a duty to disclose to the judge issuing the warrant that the residence is located in a multi-unit building. The court in Garrison merely held that if the police knew or should have known that the third floor of the multi-unit building contained additional residences for which there was no probable cause to search, the officers would have had a duty to exclude those residences from the warrant application. Maryland v. Garrison, supra, 480 U.S. 84-85. Thus, Garrison stands for the limited proposition that police officers have a duty to disclose material information that they discover or reasonably should discover and that reasonably would promote a narrower description of the place to be searched so as to preclude indiscriminate searches of places for which there is no probable cause to search. (Emphasis in original.) Id. at 470-71.
The Buddhu court concluded that the warrant was validly issued because it included the correct address of the building and specifically named both individuals so that in the unusual circumstances presented there, the warrant affidavit established independent probable cause to search both residences. Thus " a Garrison inquiry into what the officers knew, or should have known, about the living arrangements . . . [was] unnecessary." Id. at 471-72.
The warrant in this case was valid and did not violate the particularity requirement of the fourth amendment. It described the premises with reasonable particularity and identified the defendant who resided there by name. As set forth above, the evidence established that the number " 94" was clearly posted over the door of the main entrance to the house. There were no other markings or any other indications of a separate dwelling unit within the residence. Under all of the facts as set forth above, the officers would not have had a basis on which to conclude that the residence was anything other than a single-family residence or that further investigation was necessary. A second entrance to a residence is not uncommon. Moreover, even if the officers had taken note of the additional mailbox, because it did not itself reflect a separate unit or resident or tenant, there was nothing about the existence of the second mailbox that created " a duty to disclose material information that . . . would promote a narrower description of the place to be searched . . ." Id. at 470-71. Thus, the residence at 94 Wawecus Hill Road, from its outward appearance, " would be taken to be a single-occupancy structure and neither the affiant nor the other investigating officers nor the executing officers knew of or had reason to know of the structure's actual multi-occupancy character until execution of the warrant was under way." Clark, supra, 638 F.3d at 96. Moreover, during the execution of the warrant in this case, the officers encountered no indication of a separate rental unit. Therefore, the warrant is not defective for failure to specify a subunit within the named building. This court cannot conclude based upon the evidence that the officers " had a duty to disclose material information that they discovered or reasonably should have discovered and that reasonably would promote a narrower description of the place to be searched . . ." (State v. Buddhu, supra, 264 Conn. at 470-71). The warrant is therefore valid and the officers properly executed the warrant.
For all the reasons set forth above, the motion to suppress is DENIED.
It is so ordered.