Opinion
No. CR-02-317243
October 24, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS TO SUPPRESS
The defendant, Thomas Garcia, has moved to suppress all evidence and statements obtained as a result of the Waterbury Police Department's search of his apartment on December 17, 2002. The motions were filed pursuant to the United States and Connecticut Constitutions. The defendant's motion to suppress evidence was filed on February 21, 2003; his motion to suppress statements was filed on March 21, 2003. An evidentiary hearing on the motions to suppress was conducted on September 26, 2003.
FACTUAL BACKGROUND
On December 16, 2002, detectives from the Waterbury, Connecticut, Police Department received a telephone call from detectives from the Fort Myers, Florida Police Department regarding a fugitive wanted on a homicide charge. It was determined that the fugitive, Jose Oscar Perez, Jr., had dropped a cellphone during the course of the crime. The cellphone records were obtained and showed that just prior to the homicide and immediately after the homicide telephone calls were made from the cellphone to a Jessica Fortier of 116 Angel Drive, Waterbury, Connecticut. The Fort Myers police detectives requested that Jessica Fortier be interviewed and forwarded copies of the Perez arrest warrant, fingerprints, wanted poster and criminal history. The crime in Fort Myers had occurred on October 26, 2002.
On the following day, December 17, 2002, three detectives, David Balnis, John Kennelly, and J. DiLeo, from the Waterbury Police Department went to 116 Angel Drive in order to interview Jessica Fortier. 116 Angel Drive is an apartment complex consisting of four apartments. The detectives knocked on doors of residents until they determined that Jessica Fortier resided in Apartment D. The detectives went to Apartment D, knocked on the door, and it was answered by the defendant, Thomas Garcia. In response to their inquiry, the defendant Garcia stated that although Jessica Fortier lived there she was not home at the time. The detectives did not show the photograph of Jose Perez to Garcia, nor make any inquiry whatsoever concerning Perez. The detectives had no reason to believe that Perez was there and went to 116 Angel Drive to determine why Jessica Fortier had been talking to Perez on the cellphone. The detectives did not wear body armor to conduct this interview.
After being told that Jessica Fortier was not there, the detectives asked if they could enter the apartment. The defendant Garcia motioned them in after telling them that Jessica Fortier was not there. The door through which the detectives entered opens into the kitchen of the apartment. While there the detectives asked the defendant's name and some general questions during which he told them that he lived there with Jessica Fortier who was at work. Through an opening larger than a doorway the detectives could see a woman and child on a couch in the living room, although their view was obstructed. When asked who else was in the apartment, the defendant stated that Joline Fortier (Jessica's sister) and her infant child were there. Without asking permission, the detectives entered the living room and asked Joline Fortier for identification and began to question her. The detectives showed both the defendant and Joline Fortier the wanted poster for Jose Oscar Perez and informed them that he was wanted for murder for Florida. Both Joline Fortier and the defendant told the detectives there was no one else present in the apartment.
Thereafter, the detectives heard some type of movement which appeared to be coming from the basement. The detectives could not further particularize the movement other than to describe it as "movement" "or someone or something . . . being moved or moving." Upon hearing the motion sound, two detectives went to the basement with guns drawn for purposes of officer safety. In the basement, the detectives located two individuals who were identified as Hector Colon and Francisco Martorell. Colon and Martorell were brought back upstairs into the living room to join the defendant Garcia, Joline Fortier and her child.
At this point, according to the testimony of one detective, the individuals from downstairs were not free to go but rather were in a form of "investigative detention." The detectives were trying to determine why everyone was being untruthful with them about who was in the apartment. Colon and Martorell were asked if there was anyone else in the apartment and each responded that they were unaware of anyone else in the apartment. Shortly thereafter, an individual identified as Christine Ybarra and her young child, identified as Alyssa Perez, entered the living room. Upon questioning, Ybarra stated that they were both from Lehigh, Florida, the last known residence of Jose Oscar Perez. One detective testified that when Ybarra came downstairs with the child bearing the same name as the fugitive and both were from the same hometown as the fugitive, namely, Lehigh, Florida, the detective felt there was reasonable suspicion to continue the search. That detective searched a half bath on the first floor that could be seen from the living room. The detective was looking for Jose Perez in the half bathroom. The detective did not find Jose Perez but did see six (6) glassine packets similar in appearance to narcotics, on top of the medicine cabinet.
Upon the arrival of other police officers, the three detectives went to the upper level of the apartment. In one bedroom a handgun was observed on a dresser near the bed, and in another bedroom the detectives found Jose Oscar Perez, the fugitive, lying on a bed. Perez was taken into custody, as was the defendant Garcia, on an outstanding warrant. All items of contraband which had been located were left in place. Thereafter, all of the individuals who had been located inside the apartment were transported to the Waterbury Police Department. Everyone was interviewed by various detectives at the police department. Other police officers had been left at the apartment to maintain its security.
At the police station, the defendant, Thomas Garcia, was advised of his constitutional rights and waived those rights. The defendant then gave an inculpatory statement to the police.
The Waterbury Police applied for and obtained a search and seizure warrant for narcotics and weapons located at 116 Angel Drive, Apartment D. There, the police seized quantities of cocaine and heroin, two (2) handguns, narcotics paraphernalia, and over $36,000. As a result, the defendant has been charged in a five-count Information with three (3) counts of narcotics offenses and two (2) firearms offenses.
LEGAL DISCUSSION
It is clear that both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the constitution of the State of Connecticut protect the rights of people to be free from warrantless searches. The state has the burden of persuasion to show justification on the basis of one or more of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971); State v. Eady, 249 Conn. 431, cert. denied, 528 U.S. 1030 (1999). In the present case, the state relies on the following exceptions to the warrant requirement: (1) consent; (2) plain view; (3) search incident to a Terry stop; and (4) exigent circumstances.
Searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). However, it is well settled that consent to a warrantless search is an exception to the requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); State v. Zarick, 227 Conn. 207 (1993). Whether a defendant has voluntarily consented to a search is a factual question, to be determined from the totality of the circumstances. No one factor is controlling. State v. Torres, 197 Conn. 620, 627 (1985); State v. Daeria, 51 Conn. App. 149 (1998). The state has the burden of proving consent by a preponderance of the evidence standard. That burden is not satisfied by showing no more than acquiescence to a claim of lawful authority. State v. Jones, 193 Conn. 70 (1984); State v. MacNeil, 28 Conn. App. 508, cert. denied, 224 Conn. 901 (1992).
"An invitation to enter one's home does not necessarily imply an invitation or consent to enter all areas of that home . . . when the police are relying on the consent as the basis for their warrantless search, they have no more authority than they have been given by the consent. It is thus important to take account of any express or implied limitations or qualifications attending that consent which established the permissible scope of the search in terms of such matters as time, duration, area or intensity." State v. Reagan, 209 Conn. 1, 13 (1988).
In the present case, the state has not met its burden of proof regarding the defendant's consent to a search of his entire residence. This court will find that the defendant by motioning the detectives in through the door, did consent to their entry into his kitchen. However, the credible evidence showed that that consent went only so far as entry into the kitchen where the defendant allowed the detectives to talk with him.
The detectives had knocked on the door in order to talk to a potential witness, Jessica Fortier. The defendant motioned the detectives in after telling them that Jessica Fortier was not there. According to the testimony of Detective Balnis, the defendant was asked his name and general questions in the kitchen where he informed the detectives that Jessica Fortier was at work. When asked about others in the apartment, he informed the detectives that Jessica Fortier's sister and child were there in the living room. This questioning took place in the kitchen. The detectives then went into the living room uninvited and began to question Joline Fortier, the sister of Jessica Fortier. Additionally, this court will find that the detectives' entry into and search of the basement, the half bath, and the upstairs bedrooms was without the consent of the defendant, based upon the evidence and lack thereof. There was no consent for the expanded search of the residence. A reasonable person in the defendant's position would not have understood by the exchange between him and the detectives that by allowing the detectives into the kitchen to discuss Jessica Fortier and her whereabouts, that there was thereby a consent to search the entire apartment.
The state has failed to present any other evidence concerning the extent or scope of the invitation to enter by the defendant. Thus, the state has failed to meet its burden of proof concerning consent.
Having entered the living room to question Joline Fortier and the defendant, the detectives heard some type of movement which appeared to be coming from the basement. Although the sound could only be described as "movement" two of the detectives then proceeded to the basement to determine the source of the sound. According to Detective Kennelly, the detectives had their guns drawn while proceeding to the basement. After hearing the sound of movement, the detectives had gone to the basement for reasons of personal safety. In the basement, two other individuals, Hector Colon and Francisco Martorell, were discovered contrary to the prior statements of the defendant and Joline Fortier.
The courts have defined three areas of exigencies which would justify a warrantless search or seizure: (1) danger to human life; (2) destruction of evidence; and (3) flight of a suspect. State v. Guertin, 190 Conn. 440 (1983). The state did not offer any analysis to support the argument that the search was justified by exigent circumstances. Nonetheless, an independent analysis suggests that the present case does not involve exigent circumstances.
"[W]arrantless searches and seizures conducted under the exigent circumstances exception to the warrant requirement are constitutionally impermissible unless supported by probable cause." State v. Mann, 76 Conn. App. 48, 55 (2003). "The test of exigent circumstances for the making of an arrest for a felony without a warrant . . . is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable well-trained police officer would believe, not what the arresting officer actually did believe." State v. Mills, 57 Conn. App. 202, 217 (2000). Likewise, a police officer's objectively reasonable belief that an exigency exists will justify a warrantless entry. State v. Blades, 225 Conn. 609, 622-23 (1993).
In the present case, there existed no objectively reasonable belief which would justify the warrantless entry into the bathroom, the basement or upstairs into the bedrooms. The sound of some type of movement in the basement does not create exigent circumstances when talking to the roommate of a potential witness in the kitchen or living room of an apartment. Even with the addition of Christine Ybarra and her young child, Alyssa Perez, who had come down from upstairs and Christine Ybarra's indication that their hometown was the same as the fugitive's, namely Lehigh, Florida, there still existed no objectively reasonable belief that exigent circumstances existed.
"When there are reasonable alternatives to a warrantless search, the state has not satisfied its burden of proving exigent circumstances." State v. Guertin, supra, 190 Conn. at 449. As testified to by one detective, the premises could have been secured and the detectives could have applied for a search warrant. Thus, the state has failed to meet its burden with respect to proving exigent circumstances.
The state also attempts to justify the search of the entire house on the basis of a Terry v. Ohio, 392 U.S. 1 (1968), stop. It is true that a police officer may detain an individual briefly for investigative purposes if the officer has reasonable and articulable suspicion that the individual is engaged in criminal activity. Alabama v. White, 496 U.S. 325 (1990).
"During the course of a lawful investigatory detention, if the officer reasonably believes that the detained individual might be armed and dangerous, he or she may undertake a pat down search of the individual to discover weapons . . . additionally, under the federal constitution an officer conducting a Terry stop of an automobile may search the passenger compartment of the automobile for weapons, limited to areas where the weapon might be hidden, if he or she reasonably believes the suspect is potentially dangerous." Michigan v. Long, 463 U.S. 1032.
The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. State v. Daeria, supra, 51 Conn. App. at 155. The facts must raise a suspicion that the particular individual or individuals being stopped are or are about to be engaged in wrongdoing. State v. Scully, 195 Conn. 668, 674-75 (1985). In the present case, prior to the searches of the various rooms in the apartment, including the basement, there was no suspicion whatsoever that the defendant was engaged in wrongdoing. The defendant simply was the roommate of a potential witness whom the detectives wished to interview. Moreover, this court is unwilling to extend the Terry principle, and the state has cited no authority which would justify that extension, to include the search of an entire apartment including the basement and upstairs bedrooms, based on a suspicion of wrongdoing. Thus, this court finds the Terry exception to the search warrant requirement inapplicable to the present case.
Finally, the state seeks to justify the seizure of the six (6) packets of narcotics on the basis of the plain view doctrine. The plain view doctrine holds that the warrantless seizure of contraband that is in plain view is lawful if the initial intrusion is lawful and the police had probable cause to believe that the items seized were contraband or stolen goods. Coolidge v. New Hampshire, 403 U.S. 443 (1971); State v. Eady, 249 Conn. 431 (1999).
The six (6) packets of narcotics were found on top of the medicine cabinet in a half bath located off the living room. This half bath was searched by one of the detectives in an attempt to locate the fugitive Perez.
The plain view justification of the seizure of this evidence fails because the initial intrusion into the bathroom was not lawful. For reasons previously cited in this opinion, there was no consent to a search or even entry by the police past the kitchen. When the "plain view" of the contraband occurred in the bathroom, the police were not legally on the premises. Thus, the plain view doctrine is inapplicable in the present case.
Based on all of the foregoing, the defendant's Motion to Suppress Evidence is granted.
The defendant also has moved to suppress a statement which he gave to the police subsequent to his arrest. The defendant argues that his statement to the police should be suppressed because of the illegal conduct of the police based on the fruit of the poisonous tree doctrine. "It is well settled that [i]f the police obtain physical evidence or statements as the result of the seizure of a person without probable cause . . . the fruit of the poisonous tree doctrine requires that the evidence be suppressed as the product of the unlawful seizure . . . therefore, a two-part analysis is required: was the defendant seized; and, if so, was there probable cause for the seizure." State v. James, 237 Conn. 390, 404 (1996); State v. Riddick, 61 Conn. App. 275 (2001).
Here, this court has found that the police violated the fourth amendment rights of the defendant in conducting the search of his apartment. Incriminating statements made by a suspect who is improperly detained without probable cause in violation of the Fourth Amendment will be suppressed. State v. Geisler, 222 Conn. 672, 696 (1992); Dunaway v. New York, 442 U.S. 200, 216-18 (1979).
The court finds that the defendant's statement should be suppressed as a result of the initial police illegality. There was not evidence to show that the statement was sufficiently attenuated from the initial police illegality.
Accordingly, the defendant's Motion to Suppress Statement is granted.
SO ORDERED.
HARTMERE, J.