Opinion
CR130143102
02-02-2018
STATE of Connecticut v. Bobby GRIFFIN
UNPUBLISHED OPINION
OPINION
Vitale, J.
The defendant, Bobby Griffin, stands charged in Docket No. CR13-0143102 with inter alia, Felony Murder in violation of Connecticut General Statute § 53a-54c, and Murder, in violation of Connecticut General Statute § 53a-54a. The charges arise from a homicide that is alleged to have occurred on October 14, 2013, near the area of Goffe Street and Ella T. Grasso Boulevard in the city of New Haven.
On January 3, 2018, the defendant filed a motion to Suppress requesting that the court " suppress the evidence seized as the result of an unlawful seizure of the defendant and his residence by the New Haven Police." The address in question is 374 Peck Street New Haven. The defendant argues in his motion that the New Haven Police " lacked true exigency to seize the Defendant’s residence in the first place" and that " the warrant that was ultimately obtained by New Haven Police lacked sufficient probable cause."
The defendant further asserts that " a gun and ammunition" seized by police was obtained in violation of " the Fourth Amendment to the United States Constitution, an Article First, Section 7 and 9 of the Connecticut Constitution." The defendant submitted a memorandum of Law in support of the Motion. The state objects to the motion and claims that the warrantless entry into 374 Peck Street was permissible as the result of " exigent circumstances."
On January 16, 2018, the court conducted an evidentiary hearing on the Motion. The state presented the testimony of Detective Martin Podsiad and Officer Christopher Cameron of the New Haven Police Department. The defendant did not present any testimony.
The defendant has raised certain claims related to the seizure of a gun and ammunition from premises known as 374 Peck Street in New Haven. The events that are the subject of the defendant’s motion are alleged to have occurred during the evening hours of October 19, 2013, into the early morning hours of October 20, 2013. The state alleges that the defendant was present within 374 Peck Street immediately prior to the seizure of a gun and ammunition from said location.
The court heard oral argument on the Motion on January 16, 2018. The court will address each claim specifically raised in the defendant’s motion, memorandum and oral argument in turn.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, 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 exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.
To the extent it is necessary to further amplify, the court’s credibility determinations for each witness was made, inter alia, on the basis of the conduct, demeanor, and attitude of the witness as well as all the other factors relevant for each witness with respect to the credibility evaluation. See Lapointe v. Commissioner of Corrections, 316 Conn. 225, 268-71, 112 A.3d 1 (2015). Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34 (2016).
For the reasons set forth below, the Motion is hereby denied.
Although the defendant’s written motion appears to raise a state constitutional claim, he has not presented a separate analysis of his claims under the state constitution. As a result, the court’s analysis is confined to federal constitutional claims. See State v. Faust, 237 Conn. 454, 465 n.10 (1996).
I
Findings of Fact
Based on the evidence and the reasonable and logical inferences therefrom, the court finds the following facts.
Detective Martin Podsiad has been a detective with the New Haven Police Department since March or April of 2013, and has been assigned since that time to the Criminal Intelligence Unit. His employment with the New Haven Police Department commenced in 2008. Prior to his assignment to the Criminal Intelligence Unit. (" C.I.U." ), Detective Podsiad was assigned to the Street Interdiction Unit (" S.I.U." ). He was assigned to the S.I.U. for approximately one and a half years.
The S.I.U. was a " street level narcotics unit" that handled cases that did not " involve houses," or cases handled by the " tactical narcotics unit." The S.I.U. was involved with street level narcotics purchases as well as firearms purchases.
The purpose of the C.I.U. is to " gather intelligence" that does not fall within the purview of other specialized units within the New Haven Police Department. The unit gathers information for use in matters ranging from " street level" narcotics investigations to Federal " RICO" cases. Podsiad has experience in short and long term narcotic and firearms investigations.
Podsiad is certified as a gang expert. As a result, most of his work is concentrated in interview and interrogation, executing search warrants, and tactical planning for search warrants. He has received specialized training with regard to these areas of concentration. Specifically, with regard to his specialized training in firearms, he is a certified firearms instructor, and has been involved in investigations that involved the purchase of firearms from those illegally in possession of same.
Detective Podsiad was not involved in the initial investigation of the October 14, 2013 homicide. On October 18, 2013, Podsiad received a phone call from a confidential informant. The informant stated that Bobby Griffin, during a conversation with the informant, had admitted " being part of’ the October 14th homicide. Parenthetically, the informant was also characterized during the hearing as a " cooperating witness," due to his professed willingness to testify at trial. The informant further explained that Griffin was seeking to sell the firearm used to commit the homicide. Podsiad received that phone call while at home and recalled that it was " late" at night.
Podsiad then instructed the informant to obtain as much information as possible from the subject seeking to sell the firearm, and to attempt to set up a purchase. Podsiad decided to use the informant to locate and purchase the firearm. Podsiad was motivated not only to obtain firearm that had possible evidentiary value in the October 14, 2013 homicide, but was also motivated to remove an illegal firearm from the street where it posed a potential danger to the public. Podsiad was told by the informant that the firearm in question was a rifle.
Podsiad alerted his superior officers to the information he received from the informant.
On October 19, 2013, Podsiad received additional information from the informant regarding the subject alleged to be in possession of the rifle. Due to the subjects work schedule, the subject was unable to meet with the informant until the evening hours.
Podsiad and members of his unit considered various strategies in an effort to recover the rifle, with the safety of the informant, the public, and police being of utmost importance. In his past experience, such firearm purchases had " gone bad," and endangered police, the public, and the informant. Factoring into this discussion was that fact that Podsiad had learned from the informant that the defendant had directed that in order to obtain the rifle, the informant would have to provide him with $200.00 cash as well as a " handgun."
Podsiad determined through investigation that the defendant had a felony record, and further ascertained an address where he believed Griffin could be located. He did so by utilizing the New Haven Police Department " in house" system, or a data base called " Accurate." Utilizing either of those methods, Podsiad developed 374 Peck Street as an address associated with the defendant. The informant was not familiar with the 374 Peck Street address. Podsiad and members of his team decided that in order to obtain a search warrant for 374 Peck Street, confirmation of both the rifle and defendant’s presence within that address was needed. Police were uncertain at this point of the location of the rifle. The defendant had invited the informant to his residence at 374 Peck Street during a phone call. As a result, police arranged for the informant to enter 374 Peck Street. 374 Peck is one of a number of " condos" positioned in a row. The row of " condos" is depicted in State’s Exhibits Four, Five and Six.
Although the defendant’s motion refers to 374 Peck Street as the defendant’s " residence," the evidence produced is opaque on that point, and the reference is conclusory if based on the methods described by Podsiad to locate the defendant’s whereabouts. See State v. Braswell, 145 Conn.App. 617, cert. granted other grounds, aff’d 318 Conn. 815 (2015); State v. Vallejo, 102 Conn.App. 628, 636, cert. denied, 284 Conn. 912 (2017); State v. Davis, 283 Conn. 280 (2007). The analysis that follows should not be interpreted as an acknowledgment that the defendant has met his burden of establishing standing in connection with the instant motion. The court observes that the issue of standing was not raised or addressed by counsel during the evidentiary hearing or at argument. The record is nebulous as to the defendant’s reasonable expectation of privacy at 374 Peck Street, or any room therein. Although the police located the defendant at said address using the methods described earlier, the level and extent of his contact with that address or any rooms therein for purposes of conferring standing is elusive, and so is therefore his ability in fact to contest the warrantless police entry and search relative to said address he complains of. The defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing.
Podsiad and Officer Feliciano drove the informant to the area of 374 Peck Street in an unmarked rental vehicle. The informant was dropped off and was observed to enter 374 Peck Street. Podsiad parked nearby, and pursuant to a pre-arranged plan, received notification from the informant once he had exited 374 Peck Street. Podsiad estimated that the foregoing sequence of events at 374 Peck Street occurred between 6:30 p.m. to 8:30 p.m. on October 19, 2013. Approximately five minutes elapsed between the informants entry into 374 Peck Street and his notification to Podsiad that he had exited the residence. The informant was picked up by Podsiad and Feliciano on a nearby street. With the informant back in the vehicle, Podsiad drove back to Peck Street to verify the address with the informant. He then drove back to the police station. En route to the police station, the informant confirmed that there was a rifle inside the residence, which was located in the " defendant’s room." The record is silent as to the basis of the informant’s belief that it was " the defendant’s room." Specifically, the informant indicated that the rifle was " laying on a bed" with a " few boxes of ammunition" nearby. Of further significance, the informant in fact had provided money to the defendant. Podsiad had provided the informant with $200.00 in cash as requested by the defendant from a police fund. The informant provided the cash to the defendant in contemplation of later receiving the rifle. The informant gave the money to the defendant to display his intention to obtain the rifle. He told the defendant he would return later with the required handgun to complete the transaction. Upon his return to the police station, Podsiad discussed with superior officers the fact that both the presence of the rifle and the defendant had been confirmed at 374 Peck Street. The defendant was known to be a convicted felon. The police collectively were aware that the defendant had admitted to the informant his involvement in the October 13, 2013 homicide. As a result, the defendant was trying to sell the firearm he allegedly used. Additionally, according to the informant, the defendant had indicated that he planned to leave the house and travel to his girlfriends residence. Based on that comment, the police were concerned that the rifle, of evidentiary value in a homicide, could soon leave the house with the defendant. The police were determined to prevent the removal of the firearm from the house due to concerns the defendant would be able to then destroy or discard it. Additionally, the presence of the rifle on the street would create concerns for public safety. Podsiad then began work on a search warrant based on the informants observations inside 374 Peck Street, and the other information he provided.
Due to the foregoing concerns, Podsiad put in place surveillance in order to intercept vehicles observed to be traveling from 374 Peck Street in the event the search warrant being prepared was not completed prior to such activity occurring. Sometime after 8:00-8:30 p.m., and based on the informant’s information, police took surveillance positions in an effort to ensure the rifle did not leave 374 Peck Street. Officers were positioned in a rental vehicle at a location that provided a clear view of the front of the house. Additionally, other officers were positioned near the area of the " Star Diner," located near the intersection of Main Street and Lombard Street. This location provided officers with a view of the driveway exit located at the rear of the row of " condos" containing 374 Peck Street. The rear driveway and exit are depicted in State’s Exhibit Four. The officers located near the " Star Diner" were operating a " standard" white colored " Crown Victoria" motor vehicle, commonly used by the New Haven Police Department at that time. Because of their frequent use, many people on the street readily recognized such vehicles as police vehicles. Officers assigned to the S.I.U. and the Shooting Task Force, for example, all operated White Crown Victoria vehicles, which, although police vehicles, were note worthy for the absence of police markings and their distinctive color. Additionally, the vehicles did not have a " light bar" on the roof, but rather had police lights in " the window" and headlights. The fleet of Crown Victorias were often referred to in slang terms by New Haven residents, according to Podsiad, due to their distinctive white color.
Using a " threat matrix" usually consulted in situations involving the potential for violence, police concluded that the New Haven Police Department S.W.A.T team would be used to help effectuate the search warrant. Police were concerned that a " high capacity" weapon was inside 374 Peck Street along with the individual who had allegedly admitted to committing a murder. The physical attributes of the residence itself also posed concerns as well. The S.W.A.T Team was designated to secure the premises prior to the execution of the search warrant.
As the process unfolded, the informant remained at the police station with Podsiad because the informant had a direct line of communication with the defendant, via cell phone. While the informant was at the police station, he spoke directly with the defendant on more than one occasion. The defendant was planning on " going somewhere" and called to ask the informant " where are you" and " what’s going on." The informant, as previously noted, had already pursuant to a plan to keep the rifle and the defendant within 374 Peck Street, provided the defendant with $200.00. The defendant expected the informant to shortly return with the handgun required to complete the transaction that would result in the informant obtaining the rifle. The informant had explained to the defendant while inside 374 Peck Street that it was the informant’s family member who actually wanted to purchase the rifle. The informant provided the $200.00 to essentially place a " hold" on the rifle and explained to the defendant he had to travel to his family member’s home to retrieve the handgun required to complete the transaction, and would thereafter return to 374 Peck Street.
While the warrant was being drafted and arrangements for the S.W.A.T Team were being discussed, Podsiad received either a phone call or radio transmission from the officers near the " Star Diner" that a vehicle had been observed leaving the rear parking lot of the 374 Peck Street complex.
Concerned that the vehicle could potentially contain the rifle, police decided to conduct a motor vehicle stop. The search warrant had not been completed by that time. According to State’s Exhibit 9, the vehicle was stopped at approximately 10:30 p.m. on October 19th. Located within the vehicle was the defendant’s sister, Bobbi Griffin, and Tyrell Kennedy. Podsiad and his supervisors were concerned that since a white Crown Victoria had been used to stop the vehicle, people in close proximity to the area, including the defendant, would be alerted to the presence of " plain clothes" officers. Podsiad indicated on the basis of his experience, " plain clothes" officers in a Crown Victoria who effectuated a routine traffic stop were potentially viewed by people " in the community" as a precursor to another more significant police operation. Podsiad and his team were further concerned that either Bobbi Griffin or Tyrell Kennedy could contact the defendant and others within 374 Peck Street and alert them that plain clothes police or " S.I.U." were in close proximity. Police could not detain the vehicle indefinitely while the process of drafting and then judicial review of the search warrant unfolded. As a result of the foregoing, police were concerned that the defendant if alerted would be in a position to leave the residence doing so with the rifle.
Additionally, police were concerned that if the defendant was in fact alerted at some point to the presence of police and concluded that a search warrant may be forthcoming, he would have time to prepare for a violent confrontation with police. Police were aware of the lethal capability of the rifle and the defendant’s access to " boxes" of ammunition. The physical attributes of the residence also presented an issue.
The confluence of all of events previously described caused police to believe immediate action was required, despite the fact that the search warrant was not yet completed. Approximately one hour after the traffic stop, at 11:34 p.m., and while the vehicle containing the defendant’s sister was still detained, the S.W.A.T team arrived at the Peck Street " condo" complex. Although the search warrant being prepared by Podsiad was for the premises of 374 Peck Street, the S.W.A.T team for reasons not developed in the evidence, entered the residence of 374B Peck Street, which is next door to 374 Peck Street. 374B Peck Street was not the location of the rifle or the defendant as developed by the informant. The front doors of each residence were clearly marked. The defendant was inside 374 Peck Street when the adjoining residence was entered by the S.W.A.T team. The defendant then called the informant, and told the informant not to come back to his residence with the bargained for handgun, because the police were " raiding" the house next door. The informant notified Podsiad of the defendant’s comments.
The S.W.A.T team was then notified that they were in fact, inside the wrong residence. The " element of surprise" now having been lost, the S.W.A.T team conducted a " hail out," in which a loud speaker was used to order people to exit the correct address at 374 Peck Street. The " hail out" was successful in causing occupants, including the defendant, to exit the residence. Although occupants, including the defendant, did exit, police nevertheless thereafter entered the residence to check for additional occupants who may not have exited. Police took this action due to concerns for officers’ safety given the potential presence of a rifle and ammunition, and the expected service of a search warrant at the location.
Officer Christopher Cameron was not present at 374 Peck Street during the S.W.A.T team operation, but as the result of his relatively small stature, was asked by his superiors to assist in ensuring the absence of additional occupants prior to the execution of the expected search warrant. Specifically, Cameron was instructed to search the attic. Of concern to police was evidence of damage to the ceiling in a laundry room located in close proximity to an attic hatchway. Police reasonably believed the damage was of recent vintage because of the presence of chunks of sheetrock on articles of clothing laying on top of the washing machine and dryer in the laundry room. State’s Exhibits Thirteen and Fifteen clearly depict the scene described as sheetrock by police. Additionally, State’s Exhibit Thirteen depicts a large hole consistent with someone in the attic having " broken through" the ceiling located in the laundry room, thereby dislodging sheetrock which fell onto the clothing depicted.
The purpose of the S.W.A.T team entering 374 Peck Street was to locate and secure individuals prior to the execution of the anticipated search warrant. It was reasonable for police to fear, under the circumstances previously described, that someone could be hiding in the attic and thus pose a danger to their safety. Cameron entered the attic through the actual attic hatchway designed for that purpose. It was in close proximity to the laundry room. While in the attic and using a flash light affixed to his police firearm to check for other occupants, Cameron observed in plain view a rifle. The rifle and its location are depicted in State’s Exhibit Fourteen.
Cameron left the rifle in place to await the arrival of officers assigned to execute the search warrant. Cameron did not locate any other occupants hiding in the attic.
A search warrant for 374 Peck Street was eventually finished during the early morning hours of October 20, 2013 and was signed by a Judge at 2:33 a.m.
Additional facts will be provided as needed.
II
Whether the Entry was Justified Due to Exigent Circumstances
" It is axiomatic that the police may not enter the home without a warrant or consent, unless one of the established exceptions to the warrant requirement is met. Indeed, [p]hysical entry of the home is the chief evil against which the wording of the fourth amendment is directed." (Internal quotation marks omitted.) State v. Ryder, 301 Conn. 810, 821, (2011). Nighttime intrusions into the home are examined with particularly intense scrutiny. Jones v. United States, 357 U.S. 493, 498, (1958).
The exigent circumstances doctrine is an exception to the warrant requirement triggered by the need for swift action by police. The exception must be supported by a reasonable belief that immediate action is necessary. State v. Kendrick, 314 Conn. 212, 225 (2014). The exigent circumstances doctrine encompasses a wide variety of factual scenarios.
" [T]he 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. There are three categories of circumstances that are exigent: those that present a risk of danger to human life; the destruction of evidence; or the flight of a suspect. The exigent circumstances doctrine, however, is limited to instances in which the police initially have probable cause either to arrest or to search. Kendrick, supra at 227 (Internal Citations omitted.)
Our Supreme Court in State v. Guertin, 190 Conn. 440 (1983), adopted a totality of the circumstances test for determining whether exigent circumstances existed to justify a warrantless search or seizure.
As explained in State v. Kendrick, supra, the totality of the circumstances test requires a determination " whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest [or entry] 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 ... officer actually did believe. 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." Id. at 227-28.
The court concludes that under the totality of the circumstances, the police had an objectively reasonable belief that immediate physical entry into 374 Peck Street was necessary to prevent the destruction or removal of evidence, or the flight of the defendant, and that the failure to take such immediate action may have also endangered the safety of police or others, or the property of others. The court further concludes that probable cause to search the premises at 374 Peck Street for the firearm and ammunition in question existed at the time of the entry.
The collective knowledge of the police at the time of the entry on October 19, 2013 included the fact that a homicide had occurred six days earlier. The homicide involved the use of a firearm. An informant telephoned police during the evening of October 18, 2013 with information relevant to the homicide. There is no evidence to suggest that the police in any way solicited this information from the informant prior to the receipt of his call. The informant’s initial information was specific that the defendant had admitted his involvement in the homicide and remained in possession of the firearm used in the commission of the crime. The defendant sought to exchange the firearm- a rifle- for $200.00 in cash and a handgun. As of October 19, 2013, further contact between the informant and police had revealed that the defendant was located at 374 Peck Street in New Haven. Between 6:30 p.m. and 8:30 p.m. on October 19, 2013 police confirmed the presence of the defendant in said premises by means of the informants visit therein. The informant also observed a rifle and ammunition in the defendant’s room. The informant made a payment of $200.00 in cash as part of the arrangement requested by the defendant to ensure the rifle remained in the premises and was not sold to anyone else. The defendant accepted the money. The informant told the defendant he would return with a handgun- the remaining component required to obtain the rifle- shortly. The defendant telephoned the informant indicating he had plans to leave the premises and asked the informant’s whereabouts. The defendant also later alerted the informant to the presence of police conducting " a raid" in the residence next door and told him not to appear at his home with the handgun. With police literally next door, and given that he had a firearm in his residence according to the informant, the defendant a convicted felon and allegedly involved in a homicide that occurred only days earlier, reasonably could have been viewed by police to then be a greater risk to flee, destroy evidence, or endanger police or public safety without immediate action.
The concern of the police was also reasonably heightened by the motor vehicle stop of the defendant’s sister by plain clothes officers in close proximity to 374 Peck Street. She could not be detained indefinitely. Based on the uncontroverted evidence, the vehicle and tactics used by police may have aroused the suspicions of the defendant’s sister, passenger, or friends in the area as to the actual nature of the police presence in the area.
The decision of the court in State v. Reagan, 18 Conn.App. 32, cert. denied 211 Conn. 805 (1989) discussed facts that are analogous to those presented herein. In Reagan, on the basis of information provided by a neighbor regarding suspected narcotics activity, police began surveillance on the defendant’s home. Police thereafter observed what they believed was a drug deal between the defendant and an individual named Jones. Those officers notified their Sargent, who was parked nearby, of their observations. The Sargent thereafter observed Jones pull into a gas station and begin conversing with another individual. Apprehensive that Jones would destroy or transfer suspected narcotics, the Sargent stopped Jones, searched his car while at the gas station, and found narcotics. He was arrested. During the search and arrest of Jones, the individual with whom Jones had been conversing was standing near Jones, and several others were watching from a nearby distance. After the arrest of Jones, an application for a search warrant was made. Due to the length of the process, the Sargent determined there was a risk that the defendant would learn of Jones’ arrest and destroy any incriminating evidence. The Sargent concluded that it was necessary to enter and secure the defendant’s residence. Entry was made into the house and occupancy were secured awaiting the arrival of a search warrant until a warrant could be issued. The court held on appeal that the warrantless entry into the defendant’s home was justified by exigent circumstances, and cited a number of federal cases that " recognized that the possibility that a suspect knows or may learn that he is under surveillance or at risk of immediate apprehension may constitute exigent circumstances, on the theory that the suspect is more likely to destroy evidence, to attempt to escape, or to engage in armed resistance." Reagan, supra at 38.
Therefore, the court finds that the evidence, and reasonable and logical inferences therefrom, warrants a finding that probable cause to search the premises for the rifle and ammunition existed, and further, that under the totality of the circumstances, the police had an objectively reasonable belief that immediate action was necessary to prevent the defendant’s flight, protect police and public safety, or the destruction or concealment of evidence. Additionally, there is no evidence to suggest police knew who was in the vehicle stopped that night prior to effectuating the stop. There is no evidence to suggest that the police intentionally or deliberately entered the wrong house prior to gaining entry to the premises at issue. Nor is there any evidence that the police parked recognizable police vehicles near the front door of 374 Peck Street to provoke a response by the defendant or other occupants. Certainly, the police cannot deliberately create an exigent circumstance in order to subvert the warrant requirements of the fourth amendment. Specifically, " if the facts demonstrate that officers deliberately sought to provoke a dangerous encounter in order to circumvent the warrant requirement, the resulting search will be deemed per se unreasonable." State v. Mann, 271 Conn. 320, citing United States v. Cantu, 230 F.3d 148, 158 (5th Cir. 2000) (government cannot rely on exigency created by officers to justify warrantless search); United States v. Curzi, 867 F.2d 36, 43 n.6 (1st Cir. 1989) (police may not manipulate events to create exigency justifying warrantless entry). Additionally, when identifying a police created emergency, other courts have looked to " the reasonableness and propriety of the investigative tactics" that generated the exigent circumstances. (Internal quotation marks omitted.) United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995).
There is no evidence to suggest that the actions of Podsiad or police were objectively unreasonable under the circumstances that occurred in what was a very fluid situation. " The reasonableness of an officers determination that an emergency exits is evaluated on the basis of the facts known at the time of entry." State v. Aviles, 227 Conn. 281, 294 (2006). The reasonableness of the officer’s belief must be evaluated in light of the speed with which the events were unfolding, and on the basis of the facts known to them at the time. State v. Kendrick, supra at 234.
III
Whether the Residence and Occupants Were Permissably Secured
Prior to the arrival of the search warrant, police were entitled, under the circumstances, to secure the premises to prevent the destruction of evidence. See State v. Reagan, supra 35-36.
A temporary seizure supported by probable cause and exigent circumstances, namely preventing the destruction of evidence, while the police diligently obtain a search warrant can be reasonable under the Fourth Amendment. See, e.g., Segura v. United States, 468 U.S. 796, 810, (1984) (" We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents." ). The Supreme Court has suggested that there is no Fourth Amendment violation where the securing of the premises is " undertaken to preserve the status quo while a search warrant is being sought." Segura v. United States, 468 U.S. at 809.
The Supreme Court in Illinois v. McArthur, 531 U.S. 326, (2001), set forth the relevant test for determining the reasonableness of a seizure of a residence. Under this test, courts are to " balance the privacy-related and law enforcement related concerns" using four factors: (1) whether the police had probable cause to believe that the home contained evidence of crime or contraband; (2) whether the police had good reason to fear that, absent restraint, evidence would be destroyed before they could return with a warrant; (3) whether " the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy" ; and (4) whether the " time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant." Illinois v. McArthur, 531 U.S. at 331-33. (holding that a seizure was not unreasonable where police officers, who had probable cause to believe a suspect had hidden marijuana in his home, prevented that suspect from entering his residence unaccompanied by an officer for two hours while a warrant was obtained); see also Rawlings v. Kentucky, 448 U.S. 98 (1980) (court did not question the admissibility of evidence discovered to a later issued warrant where officers secured, from within, the home of a person for whom they had an arrest warrant, and detained all occupants while other officers obtained a search warrant). Applying the foregoing principles, the court concludes that the restraints imposed upon the residence, the defendant, and other occupants of 374 Peck Street while police sought and obtained a search warrant were reasonable under the Fourth Amendment. The reasonable and logical inferences from the evidence demonstrate that the S.W.A.T operation resulted in the residence being secured at some point after 11:34 p.m. on October 19, 2013. The search warrant was signed at 2:33 a.m. on October 20, 2013, and officers at 374 Peck Street were notified of the fact. The court finds that the time period involved was matter of approximately three to four hours, and was not longer than reasonably necessary for the police acting with due diligence under the circumstances, to obtain a warrant, while the premises were secured.
IV
Whether the Search of the Attic was Justified as a " Protective Sweep"
" The protective sweep doctrine, like the exigent circumstances doctrine, is rooted in the investigative and crime control function of the police. As its name suggests, the purpose of the doctrine is to allow police officers to take steps " to assure themselves that the house in which a suspect is being, or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. Although originally a protective sweep was defined as one made incident to a lawful arrest the scope has since been broadened so that the current rule is that ‘a law enforcement officer present in a home under lawful process ... may conduct a protective sweep when the officer possesses " articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the ... scene.’ Courts that have rejected a rule confining valid protective sweeps to those conducted incident to an arrest have emphasized that, although the sweep in Buie was incident to an arrest, the court’s conclusion in Buie that the search was justified rested on the fact that the arrest ‘exposed the officers to danger.’ Courts have applied the broadened protective sweep rule set forth in Buie to uphold sweeps conducted subsequent to the entry into the home by consent, when the sweep was supported by a reasonable, articulable suspicion." State v. Kendrick, supra, 229-30 (internal citations omitted).
The facts known to Officer Cameron and police at the scene prior to his entry into the attic support a reasonable belief that other occupants potentially remaining in 374 Peck Street posed a danger to the officers or to public safety. The rifle had not yet been located. The evidence, and reasonable and logical inferences therefrom, supported the conclusion that the apparently recent and significant damage to the laundry room ceiling- as evidenced by the existence of sheetrock chunks on nearby clothing- was the result of an individual in the attic penetrating inadvertently through the ceiling. Cameron and the officer prevent reasonably believed as a result that entry into the attic was necessary for their own protection in order to determine whether any occupants remained in the premises. Without entry into the attic, police would have no way of knowing whether anyone was in the attic, a circumstance that could pose a danger to officers there present and those expected to arrive shortly in order to execute a search warrant. The damage to the ceiling was recent, given the presence of sheetrock chunks on articles of clothing. The court concludes that, under the totality of the circumstances, it would have been unreasonable and dangerous for the police, in view of the damage to the ceiling and with the facts known to them at the time, to fail to take the final step of entering the attic to ensure no other occupants of 374 Peck Street remained as a source of danger. The fact that the attic had its own hatchway supports the reasonable inference that space existed therein sufficient to conceal a person. The damage to the laundry room ceiling is consistent with that conclusion.
For a protective sweep of the immediate area surrounding an arrestee, an officer does not need either probable cause or reasonable suspicion as such a sweep is justified as a precautionary measure. Maryland v. Buie, 494 U.S. 325 (1990). The court concludes therefore, that the " protective sweep" doctrine justified the entry into the attic. As a consequence of the " protective sweep" in the attic, the rifle was observed in plain view, but was left in place in view of the anticipated arrival of a search warrant.
V
Whether the " Inevitable Discovery" or " Independent Source" Doctrines Apply
Having concluded in Part III of this decision that the police were permitted to secure the premises of 374 Peck Street awaiting the arrival of a search warrant, even if the entry into the attic was not permitted under the " protective sweep" doctrine, the court concludes that the seizure of the rifle was lawful pursuant to the " inevitable discovery’ or related " independent Source" doctrines.
The evidence may also warrant the conclusion that the police may have been entitled to seize the rifle following the lawful protective sweep, since it was observed in plain view by Officer Cameron during his lawful protective sweep. See State v. Ortiz, 95 Conn.App. 69, 84, cert. denied, 280 Conn. 903 (2006).
" Under the inevitable discovery rule, 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 ... 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." (Citations omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 280 n.29 (2001); see Nix v. Williams, 467 U.S. 431, 444, (1984). The inevitable discovery rule applies in a situation in which, as here, the police would have legally discovered the evidence eventually. Here, the police would have discovered the rifle during the execution of the search warrant. The police were actively preparing a search warrant, that would have permitted the search of the attic and seizure of the rifle located therein. The police would have located the rifle when they executed the search warrant. See also State v. Vallejo, 102 Conn.App. 628; cert. denied, 284 Conn. 912 (2007); State v. Degourville, 41 Conn.App. 772; cert. denied, 239 Conn. 907 (1996); Vivo v. Commissioner of Corrections, 90 Conn.App. 167, cert. denied, 241 Conn. 925 (2005).
A review of State’s Exhibit Eleven reveals that the search warrant affidavit omitted any reference to the observation of the rifle at issue by Officer Cameron during his protective sweep of the attic. The search warrant required authorization to search " the residence" of 374 Peck Street. See State v. Cobb, 251 Conn. 285 (1995) (The independent source rule applies upon proof of actual fact that officers did not obtain the challenged evidence as a result of the primary illegality; doctrine applies when the tainted evidence was obtained in fact by a search untainted by illegal police activity).
VI
Validity of Search Warrant
The defendant argues in his memorandum of law that " [t]he warrant that was ultimately obtained by the New Haven Police Department lacked sufficient probable cause."
" The standards for upholding a search warrant are well established. We uphold the validity of [the] warrant ... [if] the affidavit at issue presented a substantial factual basis for the magistrates conclusion that probable cause existed. [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories. We are also reminded that [i]n a doubtful or marginal case ... our constitutional preferences for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination. Lastly, it is well established that, in reviewing a search warrant affidavit, the reviewing court may consider only the information that was actually before the issuing judge at the time he or she signed the warrant." (Case citations and internal quotation marks omitted.) State v. Batts, 281 Conn. 682, 699-700 (2007). " Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched ... Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. [I]t is axiomatic that [a] significantly lower quant[um] of proof is required to establish probable cause [rather] than guilt ... [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Case citations and internal quotation marks omitted.) Id. At 700-01. The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a " totality of circumstances" test. Illinois v. Gates, 462 U.S. 213, 231-32 (1983); State v. Barton, 219 Conn. 529, 544 (1991). Under the Gates test, a court must examine all of the evidence relating to the issue of probable cause and, on the basis of that evidence make a commonsense, practical determination of whether probable cause existed. See State v. Barton, supra, at 544. The question is whether there is a fair probability that the contraband was in the place to be searched. State v. Smith, 257 Conn. 216, 223 (2001). Where, as here, the police relied on information provided to them by an informant, an examination of the informant’s reliability (or veracity) and the basis of his or her knowledge should be regarded as highly relevant in determining whether, under the " totality of the circumstances," probable cause existed. Id. at 223-24; State v. Barton, supra, at 537-38; State v. Velasco, 248 Conn. 183, 192 (1999).
Although during the course of the evidentiary hearing the individual who supplied information to Det. Podsiad was described at various points as " an informant," as noted earlier, in the search warrant affidavit he was described as a " cooperating witness" who was willing to testify in court proceedings. State’s Exhibit Eleven contains the search warrant affidavit. He was referred to as a " cooperating witness" (" C.W." ), whose identity was kept " anonymous for her/his safety, but in the future will be willing to testify in court." According to the affidavit, the C.W. was known to Det. Podsiad and had provided information " proven true and reliable" in the past. The affidavit contained information detailing the very recent presence of the C.W. inside 374 Peck Street in a bedroom located on the upper floor of the two floor apartment. It was described as " Griffin’s bedroom." The C.W. had been there within " the past twenty-four hours." While inside the bedroom, the C.W. confirmed that the defendant was in possession of a black rifle along with magazines and ammunition. The affidavit also described admissions allegedly made to the C.W. by the defendant prior to the C.W. gaining access to 374 Peck Street. According to the affidavit, the defendant allegedly told the C.W. that he was responsible for the homicide that had occurred on October 14, 2013. The defendant told the C.W. that he was still in possession of the firearm used to commit the crime. The defendant allegedly told the C.W. he wanted to " get rid" of the firearm. The affidavit revealed that the defendant allegedly also told the C.W. that the firearm used to commit the homicide was a 9mm. The affidavit noted that Podsiad had confirmed with his Sargent that the weapon allegedly used in the homicide was a 9mm.
The defendant suggests that the affidavit lacks probable cause because it lacks a sufficient basis to find that the C.W. was reliable. However, in the court’s view, the C.W. provided more than the naked assertion that the defendant had made certain admissions. The C.W. stated he had personally observed within 24 hours the defendant’s possession of the weapon which related to the admissions the defendant allegedly made. Importantly, the C.W. was not an anonymous informant. His identity was known to police and the affidavit contains an averment that the C.W. was willing to " testify in court" in the future. The C.W.’s reliability is enhanced by the fact that he was known to the police. " The fact that an informant’s identity is known ... is significant because the informant could expect adverse consequences if the information he provided was erroneous. Those consequences might range from a loss of confidence or indulgence by the police to prosecution for ... falsely reporting an incident under General Statutes § 53a-180[c] had the information supplied proved to be a fabrication." State v. Rodriguez, 163 Conn.App. 262, 270, cert. denied, 320 Conn. 934 (2016).
Also, contrary to the defendant’s claim, the search warrant affidavit validated the reliability of the C.W. The officers stated that they had been contacted by a C.W. " whose information has proven true and reliable." " If an informant has a track record of providing reliable information, the issuing judge may credit the information given in the present case." State v. Rodriguez, 223 Conn. 127, 136 (1992). See also State v. Morrill, 205 Conn. 567 (1987). Based on the totality of the circumstances, the affidavit accompanying the search warrant provided a substantial factual basis for the magistrate’s conclusion that probable cause existed that a firearm and ammunition were illegally on the premises at 374 Peck Street in New Haven.
VII
Whether the " Cooperating Witness" Was an Agent of the Police for Purposes of the Fourth Amendment
The defendant claimed at oral argument that the C.W. was acting as a " agent" of the police at the time of his one time entry into 374 Peck Street and that as a result, this single entry constituted an " illegal search" under the Fourth Amendment. The Supreme Court extensively examined similar claims in State v. Lasaga, 269 Conn. 454 (2004). The court therein stated as follows:
As we have noted, ‘a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and ... such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully’ ... A private citizen’s actions may be considered state action, however, if he acts as an instrument or agent of the state ... Although there is no bright line test for examining when a private citizen is acting as an agent of the police, we have stated that the ‘existence of an agency relationship ... turns upon a number of factual inquiries into the extent of police involvement with the informant. Those inquiries include the following: whether the police have promised the informant a reward for his cooperation or whether he is self-motivated ... whether the police have asked the informant to obtain incriminating evidence and placed him in a position to receive it ... and whether the information is secured as part of a government initiated, pre-existing plan.’ (Internal citations omitted.)
The court in State v. Alexander, 197 Conn. 180 (1985), concluded that " although the police may have supported, and even encouraged [a private citizen’s] efforts to obtain information from the defendant, the involvement was not so extensive as to create an agency relationship." Id. at 185-86.
The C.W. in the instant matter originally himself initiated contact with the police. At the time of the C.W.’s initial contact with police, the defendant had already allegedly admitted involvement in the homicide to the C.W. and had already himself actively solicited the C.W. in an effort to sell the firearm allegedly used to commit the crime. Thus, the defendant himself had initiated the contact with the C.W. prior to any police involvement with the C.W. Further, the C.W. initiated his own contact with the police. The evidence added at the evidentiary hearing was nebulous as to whether in this case, the police had promised the C.W. a reward for his cooperation, or any other kind of benefit. See State v. Betts, 286 Conn. 88, 101 (2008). He was paid $1,500.00 afterward, and it was unclear whether this was discussed in advance.
Also, rather than being specifically told by police to procure possibly incriminating information, the C.W. was merely asked on a single occasion to enter 374 Peck Street to confirm the defendant’s prior assertions that the rifle was in fact located within 374 Peck Street. Thus, rather than an affirmative, pre-arranged plan to actively solicit incriminating information from an unsuspecting individual, the C.W. was simply asked on a single occasion to enter a location and report back to police whether the admissions made by the defendant to the C.W. regarding his possession of a firearm, and made prior to any police involvement, were verifiable by observation.
The court as a consequence does not view the C.W., under the totality of the circumstances presented, as an agent of the police as described by State v. Lasaga, State v. Alexander, or State v. Betts, supra, when he entered the premises of 374 Peck Street.
Therefore, for all the foregoing reasons, the defendant’s Motion to Suppress Gun and Ammunition is Denied.