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deeming reasonable the police entrance into the bedroom under the exigent-circumstances doctrine based on the officers' reasonable belief "that the entry was necessary for their own protection, as well as the protection of others in the apartment"
Summary of this case from State v. TerzianOpinion
No. 18914.
10-21-2014
STATE of Connecticut v. Said KENDRICK.
Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and David R. Applegate, assistant state's attorney, for the appellant (state). James B. Streeto, assistant public defender, for the appellee (defendant).
Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and David R. Applegate, assistant state's attorney, for the appellant (state).
James B. Streeto, assistant public defender, for the appellee (defendant).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.
Opinion
ESPINOSA, J. The sole issue in this certified appeal is whether the Appellate Court properly reversed the judgment of conviction of the defendant, Said Kendrick, of criminal possession of a firearm in violation of General Statutes (Rev. to 2007) § 53a–217 (a)(1), on the basis of its conclusion that the trial court improperly denied the defendant's motion to suppress evidence obtained by the police as a result of their warrantless entry into a bedroom where the defendant was sleeping. Following our grant of certification, the state appeals from the judgment of the Appellate Court, and claims that because the police officers reasonably believed that the warrantless entry into the bedroom was necessary to protect the safety of the officers and others on the premises, the entry did not violate the defendant's rights under the fourth amendment to the United States constitution. We agree and reverse the judgment of the Appellate Court.
Hereinafter, unless otherwise indicated, all references to § 53a–217 are to the 2007 revision of the statute. Although the judgment file indicates that the defendant was convicted of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 2007) § 53a–217c, that appears to have been a scrivener's error. The long form information charged the defendant with a violation of § 53a–217 (a)(1); the court consistently instructed the jury during trial that the defendant was charged with violating § 53a–217 (a)(1); and the jury's verdict found the defendant guilty of violating § 53a–217 (a)(1). At sentencing, the court mistakenly referred to General Statutes (Rev. to 2007) § 53a–217c, but the court imposed the mandatory minimum sentence of two years required under § 53a–217 (b), which clarifies that the statute under which the defendant was convicted was § 53a–217, not General Statutes (Rev. to 2007) § 53a–217c, which does not specify a mandatory minimum sentence.
This court granted the state's petition for certification to appeal, limited to the following question: “Did the Appellate Court properly determine that the trial court improperly denied the defendant's motion to suppress based upon the exigent circumstances of a warrantless entry?” State v. Kendrick, 303 Conn. 925, 925–26, 35 A.3d 1076 (2012).
The jury reasonably could have found the following facts. On the evening of May 12, 2008, Detective David Whipple, a police officer with the Somerset County Prosecutor's Office in New Jersey, informed officers in the Stamford Police Department that New Jersey police were investigating a homicide, and had reason to believe that a suspect, Malik Singer, was in the area of 239 Knickerbocker Avenue in Stamford. Sometime between 11 p.m. and midnight, after the Stamford police had received information causing them to focus on the third floor apartment of the building at that address, New Jersey and Stamford police officers proceeded to that third floor apartment, knocked on the door, and were invited into the apartment by the tenant, Blanca Valvo. After officers informed Valvo why they were there, she told them that two African–American males were in the rear bedroom of the apartment, along with her daughter, Andrea Valvo, and pointed to the bedroom door. The New Jersey officers immediately entered the bedroom, where the defendant was lying in bed with Andrea Valvo. A second man, James Spurgeon, was lying on a mattress that was on the floor at the foot of the bed. The officers ordered the bedroom occupants not to move, whereupon the defendant lunged toward an object on the floor near the bed. The police restrained and handcuffed the defendant and Spurgeon. After the two men were secured, Sergeant Louis DeMeo of the Somerset County Prosecutor's Office searched the area toward which the defendant had lunged and discovered a backpack that was partially opened. When he looked inside, DeMeo saw the handle of a revolver protruding from a pair of black sneakers inside the backpack. The Stamford police then took custody of the backpack, the defendant and Spurgeon. The defendant subsequently admitted to Whipple that he had received the backpack and revolver from Singer, who had asked the defendant to take them with him. The defendant further admitted that at the time that Singer gave him the backpack, the defendant knew that it contained the revolver. The defendant was charged with criminal possession of a firearm in violation of § 53a–217 (a)(1). Following the court's denial of the defendant's motion to suppress, the parties stipulated to the defendant's previous felony conviction, and the case was tried to a jury. The jury found the defendant guilty, the court rendered judgment of conviction in accordance with the jury's verdict, and the defendant subsequently was sentenced to a two year mandatory term of imprisonment. State v. Kendrick, 132 Conn.App. 473, 475–77, 31 A.3d 1189 (2011).
The defendant appealed from the judgment of conviction to the Appellate Court, which held that the trial court had improperly denied the defendant's motion to suppress. Id., at 475, 31 A.3d 1189. Specifically, the Appellate Court concluded that, viewing the evidence under the totality of the circumstances, “it was unreasonable for the police to assume that Singer was present in the apartment or the bedroom and [posed] an imminent threat of harm to its occupants.” Id., at 486, 31 A.3d 1189. Therefore, the Appellate Court reversed the judgment of conviction and remanded the case with direction to grant the defendant's motion to suppress. Id., at 490, 31 A.3d 1189. This certified appeal followed.
The state argues that the Appellate Court improperly required that there be “direct evidence” that Singer was present in the apartment in order to justify the warrantless entry into the bedroom. Although we disagree with the state's characterization of the Appellate Court's rationale, we conclude that viewed under the totality of the circumstances, the police had a reasonable belief that exigent circumstances justified the entry into the bedroom. Specifically, on the basis of the facts known to the officers at the time that they entered the bedroom, the police reasonably believed that the entry was necessary to protect their own safety and the safety of the occupants. The following additional facts are relevant to the resolution of this appeal. In connection with the shooting death of a victim whose body was discovered in New Jersey at 7 a.m. on May 11, 2008, New Jersey police officers obtained an arrest warrant for Singer, who police believed had fled the scene of the murder with a gun in his possession. At the time that New Jersey police were investigating Singer's whereabouts, they had reason to believe that Singer was using a cell phone that was registered to a person named Ann Marie Pettigrew. Specifically, the girlfriend of an alleged participant in the murder provided Pettigrew's cell phone number to the police, based on her belief that the cell phone belonged to Singer. Relying on that information, the police secured a subpoena ordering the cell phone company to “ping” the cell phone, a process that yielded a location defined by longitude and latitude. Whipple, who testified regarding the significance of the ping, initially indicated that a ping identifies “just a general area,” but later stated that the “general area” is “within a certain amount of degree of yards.” Based on the longitude and latitude, the ping was identified as originating from 239 Knickerbocker Avenue, a three-story multifamily home with several small apartments. After New Jersey police officers had conveyed this information to the Stamford Police Department, Sergeant Paul Guzda of the Stamford Police Department went to Knickerbocker Avenue to investigate. He spoke to the landlord of 239 Knickerbocker Avenue, who told him that on the third floor of the building lived a Hispanic woman whose daughter had been keeping company with an African–American man who fit Singer's general description.
Prior to the defendant's arrest, New Jersey police did not have any information regarding Pettigrew's identification. The record is somewhat unclear as to who she is. Whipple testified that police subsequently had learned that Pettigrew is the defendant's mother, but the trial court stated in its memorandum of decision that she is Singer's mother.
The record does not reveal any details regarding the precise nature of a cellular ping, the technology involved, or its accuracy. No expert testimony was offered, and Whipple acknowledged during his testimony that he was not an expert on cell phone technology or the process of “ping [ing]” a cell phone.
The record does not reveal when the cell phone company performed the ping. The trial court properly could have inferred, however, that the cell phone company could have performed the ping only after the witness provided Pettigrew's cell phone number to the New Jersey police—which must have occurred sometime after the victim's body was discovered on the morning of May 11, 2008—and sometime before Whipple spoke to the Stamford police on May 12, 2008.
The defendant relies on two items of testimony offered during trial that he claims conflict with Whipple's testimony during the suppression hearing that the cellular ping defined a target area within a few yards. Although the testimony that the defendant points to was not presented at the suppression hearing, we review the record in its entirety to determine whether a defendant's constitutional rights were infringed by the denial of a motion to suppress. See State v. Fields, 265 Conn. 184, 191, 827 A.2d 690 (2003) ; State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986). The mere fact that some of the testimony on which the defendant relies could have supported a ruling contrary to the trial court's ruling on the motion to suppress, however, does not require reversal. While it is true that we scrupulously examine the record when “a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights ... and the credibility of witnesses is not the primary issue,” our inquiry is aimed at discerning whether there is substantial evidence to support the trial court's ruling. State v. Boyd, 295 Conn. 707, 717, 992 A.2d 1071 (2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011).
The defendant relies on the testimony of Sergeant Paul Guzda of the Stamford Police Department and DeMeo at trial. Specifically, during cross-examination, Guzda stated that the information that the New Jersey police provided to the Stamford police regarding the area yielded by the cellular ping “initially ... may have been more general.” He immediately clarified, however, that “when we finally made our decision to go [to 239 Knickerbocker Avenue], most of the information came from one of the [New] Jersey officers.” Reading Guzda's testimony in its entirety, therefore, reveals that he stated that the information that he received from the landlord at that address did not “narrow down” the initial target area identified by the ping. Instead, the landlord's statement merely “reaffirmed” the information that the New Jersey police had conveyed, namely, that on the basis of the ping, they believed that Singer was located at 239 Knickerbocker Avenue. Guzda's trial testimony, therefore, is consistent with Whipple's testimony at the suppression hearing.
DeMeo's testimony is inconsistent with the implicit finding of the trial court that the cellular ping limited the search area to 239 Knickerbocker Avenue. Like Whipple, DeMeo prefaced his statements by admitting that he is not an expert on the process of pinging a cell phone. DeMeo suggested that a cellular ping yields a location narrowed “down to a street” and that the identification of a more precise location requires investigative follow up. The trial court, however, was free to credit the testimony of other witnesses, specifically, Whipple and Guzda, who testified that the cellular ping limited the search area to 239 Knickerbocker Avenue, and that subsequent police investigation merely confirmed that information and narrowed the target area down further to the third floor unit. The testimony of those two witnesses provides substantial support for the trial court's ruling.
Both the defendant and Singer are African–American. The precise nature of the description that Guzda provided to the landlord is not clear from the record. On cross-examination, he acknowledged that he did not “feel comfortable sharing too much” information with the landlord. He also admitted that the description that he provided could have fit numerous black men.
Whipple testified that while the New Jersey police were en route to Stamford, he contacted the Stamford Police Department and described Singer as a black male, approximately five feet, ten inches tall, with facial tattoos, but neither he nor Guzda testified that this description was communicated to Guzda in particular, or that Guzda provided this description to the landlord. It is undisputed that the New Jersey police did not provide a photograph of Singer to the Stamford police before they arrived in Connecticut.
The police did not obtain either a warrant to search the third floor apartment at 239 Knickerbocker Avenue or a warrant for the arrest of the defendant. Instead, armed with the arrest warrant for Singer, shortly before midnight on May 12, 2008, a large presence of New Jersey and Stamford police officers reported to Knickerbocker Avenue, including Guzda's entire squad, numerous police officers from New Jersey, as well as a number of patrol officers with the Stamford Police Department. Guzda and Miriam Delgado, a Stamford police officer who spoke Spanish, ascended the outside staircase to the third floor, accompanied by numerous Stamford and New Jersey police officers. Although Guzda and Delgado were in plainclothes, both had their badges displayed.
Although the focus of the investigation at that point in time was the apartment on the third floor, the police officers knocked on the doors to all of the apartments in the building that night.
Witness testimony regarding the interaction between the police officers and Valvo reveals that the details of that exchange were in dispute. Although the trial court made no specific findings regarding these details, in light of the trial court's ruling in favor of the state, it is logical to begin with the assumption that the court credited the testimony of the state's witnesses rather than that of the defendant's witnesses. Employing that presumption eliminates some, but not all, of the conflicting testimony, because the testimony of the state's witnesses was not internally consistent as to all of the details. Because, however, our review of the record reveals that the uncontroverted aspects of the testimony of the state's witnesses supports the ruling of the trial court, we need not speculate as to how the trial court might have resolved those inconsistencies, and we accordingly derive our summary of the facts solely from the internally consistent testimony of the state's witnesses.
We additionally observe that the defendant did not file a motion for articulation seeking to have the trial court clarify any findings it had made that may have resolved the inconsistencies.
When one of the officers knocked, Valvo opened the apartment door. After the officers identified themselves and told her that they needed to speak to her, Valvo let them in to the kitchen area. The apartment was very small, with a bedroom toward the back, about ten to fifteen feet from where the officers were standing, and another room to the right. The door to the bedroom was slightly open and the bedroom lights were off. In response to police inquiries related to their investigation, Valvo pointed toward the bedroom and indicated that there were two African–American men in the bedroom with her daughter. As soon as Valvo indicated that there were two African–American men in the bedroom, the New Jersey officers approached the bedroom door, then knocked and entered. Whipple was among the New Jersey police officers who entered the bedroom and identified themselves as law enforcement. As they entered the darkened bedroom, one of the officers turned on a light and Whipple saw the defendant in the bed with a Hispanic woman, and another African–American man, Spurgeon, lying on a mattress on the floor at the foot of the bed. The police instructed the persons not to move, whereupon the defendant lunged toward something beside the bed. After Whipple grabbed the defendant, the police handcuffed both him and Spurgeon. When DeMeo examined the area toward which the defendant had lunged, he discovered a partially opened backpack with a loaded .38 caliber revolver inside. The record does not reflect that the police recovered the cell phone, either from the defendant's person or from the apartment.
Although Valvo disputed at trial that she consented to the officers' entry into the apartment, the defendant does not contest this issue on appeal.
As we have explained, the remaining details regarding the exchange between the police and Valvo were in dispute. There were four different accounts. Guzda testified that when he and Delgado entered the apartment, they questioned Valvo, asking her whether she knew Singer, and she responded that she did not recognize the name and did not know what they were talking about. She also responded, however, that her daughter was in the bedroom with two African–American men. Guzda expressed doubt, when pressed, that anyone would have had time to show Valvo a photograph of Singer before the police entered the bedroom.
By contrast, Whipple testified that after they explained to Valvo that they were looking for Singer, he showed her a photograph of Singer. He did not recall that Valvo responded that she did not know Singer, just that she pointed toward the bedroom door and stated that her daughter was in there with two African–American men. Whipple also testified that Valvo gave the police permission to enter the bedroom.
Delgado testified that she questioned Valvo, and asked her who lived in the apartment with her. When Valvo replied that her daughter lived there, Delgado asked if the daughter was home at that time. Valvo responded yes, with two friends. When Delgado asked who the friends were, Valvo responded that they were two black males, then she pointed to the bedroom.
Valvo testified that when the police entered the apartment, they showed her several photographs of individuals, and when she responded that she did not recognize the individuals in those photographs, the police showed her a photograph of the defendant. She indicated that she knew the defendant and when they asked where he was, she pointed to the bedroom door.
Preliminarily, we clarify what is not at issue in this appeal. The defendant does not claim that the police lacked consent to enter the apartment, and does not challenge the search of the backpack in which the revolver was discovered. State v. Kendrick, supra, 132 Conn.App. at 478 n. 4, 31 A.3d 1189. He challenges only the warrantless entry into the bedroom. Additionally, the state does not contest that the defendant had an expectation of privacy in the bedroom. Id. Accordingly, the only question presented in this appeal is whether, once the officers were in the apartment with Valvo's consent, their subsequent warrantless entry into the bedroom violated the defendant's rights under the fourth amendment to the United States constitution, or whether that entry was justified under the exigent circumstances doctrine.
“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision....” (Internal quotation marks omitted.) State v. Boyd, 295 Conn. 707, 717, 992 A.2d 1071 (2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011). Accordingly, the trial court's legal conclusion regarding the applicability of the exigent circumstances doctrine is subject to plenary review. “Notwithstanding our responsibility to examine the record scrupulously, it is well established that we may not substitute our judgment for that of the trial court when it comes to evaluating the credibility of a witness.... It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony.... Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude....
The defendant argues that this court must review the decision of the Appellate Court for abuse of discretion. The defendant relies on our decisions that have stated that “in a certified appeal, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.” (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 221, 926 A.2d 633 (2007). Apparently, the defendant reads our statement that we do not hear the appeal “de novo” to mean that the abuse of discretion standard applies to our review of the Appellate Court's decision. That reading is incorrect. The statement merely means that “[t]he only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court.” (Internal quotation marks omitted.) Id.
“[I]f, upon examination of the testimonial record, the reviewing court discovers but one version of the relevant events upon which both the state and the defendant agree, and such agreement exists both at trial and on appeal, the reviewing court may rely on that version of events in evaluating the propriety of the trial court's determinations and determining whether the trial court's factual findings are supported by substantial evidence. In a case where the trial court has concluded that the police action at issue was justified and the undisputed version of events reflected in the transcript was adduced by the state through testimony of the police officers who were involved, a reviewing court's reliance on that version of events is particularly appropriate. If the officers' own testimony as to what occurred is internally consistent and uncontested by the defendant but, in fact, undercuts the trial court's ruling in favor of the state, a reviewing court would be remiss in failing to consider it.” (Citation omitted; internal quotation marks omitted.) State v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014).
“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, 23 A.3d 694 (2011). Nighttime intrusions into the home are examined with particularly intense scrutiny. Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958).
The trial court analyzed the defendant's motion to suppress under the exigent circumstances doctrine, and we conclude that the doctrine is implicated by the facts of the present case. Because the trial court's factual findings in its ruling on the defendant's motion to suppress are very limited, in summarizing the relevant facts, we include facts that are implicitly included in the trial court's ruling, and we also look to the record for evidence that supports the trial court's ruling. See, e.g., State v. Azukas, 278 Conn. 267, 276, 897 A.2d 554 (2006) (reading trial court's decision denying motion to suppress to include implicit finding that homeowner had authority to consent to search of defendant's bedroom); State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984) (reading trial court's denial of motion to suppress, in light of evidence produced at suppression hearing, to “include implicit findings that the defendant's parents had the authority to consent to the searches and did in fact voluntarily consent”); see also State v. Martin, 2 Conn.App. 605, 614, 482 A.2d 70 (1984) (The Appellate Court declined to add facts not found by the trial court, because “the court issued a factually detailed memorandum of decision which did not refer to this evidence. When the court rules on a motion to suppress without detailing the facts supporting its decision, an appellate court may look to the evidence produced in support of the ruling.... But where, as here, the trial court performs its judicial function conscientiously by detailing the facts which the state has established, we are not free to add facts which are not found and which are not undisputed.” [Citation omitted.] ), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985).
The exigent circumstances doctrine is one of three exceptions to the warrant requirement that are triggered by the need for swift action by the police. All three exceptions, the exigent circumstances doctrine, the protective sweep doctrine and the emergency doctrine, must be supported by a reasonable belief that immediate action was necessary. Because our decisions have not been entirely clear regarding the distinctions among the three doctrines, as well as the areas in which they overlap, we take this opportunity to clarify. Our decision in State v. Aviles, 277 Conn. 281, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S.Ct. 108, 166 L.Ed.2d 69 (2006), illustrates the ease with which the doctrines may become confused, and thus, the need for clarification. In that case, the defendant had fled the murder scene after shooting the victim in the chest. Id., at 285, 891 A.2d 935. The murder weapon had not been recovered. Id., at 295, 891 A.2d 935. The next morning, police officers received information that the defendant was located in an apartment at 7 Cossett Street in Waterbury. Id., at 285, 891 A.2d 935. When a police officer arrived at the apartment, where the defendant was staying as an overnight guest, a woman opened the door and invited the officer into the apartment. Id., at 288, 891 A.2d 935. When he entered the apartment, the officer “could see the defendant through an open doorway in one of the apartment's bedrooms.” Id. The officer entered the bedroom, and, although he did not handcuff the defendant, he searched the area of the bedroom within the immediate reach of the defendant, including under the bed, for the gun involved in the shooting. Id., at 289, 891 A.2d 935. It was undisputed that the officer had not obtained any warrant, either for the defendant's arrest, or to search the apartment. Id., at 303, 891 A.2d 935. This court, however, took as its starting point the fact that there was probable cause to believe that the defendant was the shooter, and the fact that the officer was lawfully on the premises at the time that he saw the defendant in the bedroom. Id., at 295, 891 A.2d 935. In light of those facts, the issue was whether a reasonable officer would have believed that exigent circumstances justified the warrantless entry, that is, whether the entry into the bedroom was necessary because absent an immediate arrest, the defendant could destroy evidence, flee or endanger human life. Id., at 293–95, 891 A.2d 935. Although we properly concluded that exigent circumstances justified the warrantless entry into the bedroom; id., at 295, 891 A.2d 935 ; we inadvertently included in our analysis a discussion of the emergency doctrine that could be read to mean that the emergency doctrine and exigent circumstances doctrine are one and the same. Id., at 294, 891 A.2d 935. Although it is true that both doctrines are based on the principle that under certain circumstances the police must act immediately, we clarify that our decision in Aviles was grounded on our conclusion that exigent circumstances justified the warrantless entry into the bedroom.
In light of the past confusion in our application of the exigent circumstances, protective sweep and emergency doctrines, we take this opportunity to clarify the contours of each doctrine individually, summarizing its key elements, then highlighting the distinctions and similarities of the three doctrines. Of the three, the exigent circumstances doctrine arguably encompasses the widest variety of factual scenarios. We previously have recognized the catch-all quality of the doctrine, explaining that “[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.” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 63–64, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S.Ct. 1404, 131 L.Ed.2d 291 (1995). 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. State v. Guertin, 190 Conn. 440, 448, 461 A.2d 963 (1983). The exigent circumstances doctrine, however, is limited to instances in which the police initially have probable cause either to arrest or to search.
This court first formally adopted a test for determining when exigent circumstances justify a warrantless search or seizure in State v. Guertin, supra, 190 Conn. at 448, 461 A.2d 963. We considered a number of different tests that had been adopted in various jurisdictions, and opted for a broadly worded, totality of the circumstances test; id., at 454, 461 A.2d 963 ; specifically: “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.” (Emphasis omitted; internal quotation marks omitted.) Id., at 453, 461 A.2d 963. 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.
In adopting the totality of the circumstances test, we rejected two distinct tests that expressly would have required the police either to have a strong or at least reasonable belief that the suspect was present in order for exigent circumstances to justify a warrantless entry. One of those tests is the multifactored test favored by a number of federal circuit courts, first set forth in Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970). Courts that apply what are known as the “Dorman factors” consider the following in determining whether a particular set of circumstances rises to the level of exigency: “(1) that a grave offense is involved, particularly one that is a crime of violence; (2) that the suspect is reasonably believed to be armed; (3) that there is a clear showing of probable cause; (4) that there is strong reason to believe the suspect is in the premises being entered; (5) that there is a likelihood that the suspect will escape if not swiftly apprehended; (6) that the entry, though not consented to, is made peaceably, although forcible entry may be justified in some instances. Another factor to be considered is (7) the time of entry.” (Emphasis added.) State v. Guertin, supra, 190 Conn. at 449–50, 461 A.2d 963. In rejecting the Dorman factors, we expressed reservations about the workability of such a rule, which would require police officers “to make on-the-spot decisions by a complicated weighing and balancing of a multitude of imprecise factors.” Id., at 451, 461 A.2d 963, citing 2 W. LaFave, Search and Seizure § 6.1, p. 390 (1978). The second test that we considered and rejected in Guertin was one that had been proposed as an alternative to the Dorman factors: “Given probable cause to arrest and a reasonable belief that the suspect is in his home, exigent circumstances for a warrantless and nonconsensual entry into a suspect's home to effect this arrest exist when a reasonably prudent man in the circumstances would be warranted in the belief that delay incident to securing the warrant would pose a significant risk of danger to life or property, of the escape of the suspect, or of the destruction of evidence.” (Emphasis added; internal quotation marks omitted.) State v. Guertin, supra, at 451, 461 A.2d 963. Our rejection of both the Dorman factors test, as well as the proposed alternate test, in favor of the totality of the circumstances test, clarified that no single factor, such as a strong or reasonable belief that the suspect is present on the premises, will be determinative in evaluating the reasonableness of a police officer's belief that a warrantless entry or arrest was necessary. Rather than evaluating the significance of any single factor in isolation, courts must consider all of the relevant circumstances in evaluating the reasonableness of the officer's belief that immediate action was necessary.
The protective sweep doctrine, like the exigent circumstances doctrine, is rooted in the investigative and crime control function of the police. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). 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.” Id., at 333, 110 S.Ct. 1093. Although originally a protective sweep was defined as one made incident to a lawful arrest; id., at 334, 110 S.Ct. 1093 ; 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.’ ” (Emphasis added.) United States v. Miller, 430 F.3d 93, 98 (2d Cir.2005), cert. denied, 547 U.S. 1206, 126 S.Ct. 2888, 165 L.Ed.2d 916 (2006).
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, supra, 494 U.S. at 334, 110 S.Ct. 1093.
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.” United States v. Gould, 364 F.3d 578, 581 (5th Cir.), cert. denied, 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004). 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. See, e.g., id., at 587 ; United States v. Patrick, 959 F.2d 991, 999 (D.C.Cir.1992).
The emergency doctrine, unlike the exigent circumstances and protective sweep doctrines, is rooted in the caretaking function of the police. The purpose of the emergency doctrine is to allow the police to make a warrantless entry “to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance.” Root v. Gauper, 438 F.2d 361, 364 (8th Cir.1971) ; see also State v. Blades, 225 Conn. 609, 616, 626 A.2d 273 (1993). The police “must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.” (Internal quotation marks omitted.) State v. Ryder, supra, 301 Conn. at 826, 23 A.3d 694. In Blades, we explained that, similar to the exigent circumstances doctrine, the emergency doctrine justifies a warrantless entry or search when an officer's reasonable belief is “grounded in empirical facts rather than subjective feelings ... [and] [t]he test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed.” (Citation omitted; internal quotation marks omitted.) State v. Blades, supra, at 618–19, 626 A.2d 273. The circumstances set forth in Blades provide a classic example of facts that implicate the emergency doctrine. In that case, we held that a warrantless entry into the defendant's apartment was justified, where there had been a long history of domestic abuse of the victim by the defendant, concerned family members reported that the defendant had provided a false explanation for the victim's disappearance, and the police observed a smear of blood on the interior side of the rear entrance door to the apartment building. Id., at 615–16, 626 A.2d 273.
The protective sweep and exigent circumstances doctrines share significant areas of overlap, and some notable distinctions. Although the exigent circumstances doctrine allows the police to act upon their reasonable belief that immediate action is necessary to protect the safety of those present, or to prevent the flight of a suspect or the destruction of evidence, the police must have had probable cause for an arrest or search at the outset. State v. Guertin, supra, 190 Conn. at 447, 461 A.2d 963. Thus, the exigent circumstances doctrine lends itself to a situation such as in the present case, where the police reported to the scene to make a planned arrest on a warrant supported by probable cause, but subsequent circumstances arose that required them to take action that was supported only by their reasonable belief. By contrast, the police may conduct a protective sweep even in the absence of probable cause to search the premises or arrest a suspect, as long as the officer is lawfully present on the premises at the time that the officer conducts the protective sweep, which of course must be justified by the officer's reasonable belief.
The facts underlying State v. Mann, 271 Conn. 300, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005), aptly illustrate this principle. In that case, the police knocked on the defendant's door after receiving a tip concerning drug activity in that apartment. Id., at 303–304, 857 A.2d 329. The police were merely following up on the tip—the state did not claim that the police were acting upon probable cause to arrest or search. Id., at 306 n. 8, 857 A.2d 329. In response to the officers' knock, the defendant partially opened his door, then attempted to close it while placing his right hand inside his right pocket. One of the officers drew his gun, entered the apartment, conducted a patdown search of the defendant and discovered plastic bags with rock like substances in them. Id., at 304, 857 A.2d 329. In holding that the entry was justified, we relied in part on Buie to conclude that although there was no probable cause for a search, it was justified because the officers were legally present in the hallway, the defendant voluntarily opened the door, and the defendant's subsequent actions gave rise to a reasonable belief that he may be armed. Id., at 312–15, 324, 857 A.2d 329. We explained that “[w]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (Internal quotation marks omitted.) Id., at 318–19, 857 A.2d 329, quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Because the emergency doctrine is rooted in a different function of the police, it stands somewhat apart from the exigent circumstances and protective sweep doctrines. That is, although the emergency doctrine, like the protective sweep and exigent circumstances doctrines, requires that a search be supported by an officer's reasonable belief that immediate action is necessary, the doctrine is rooted in the principle that the police have a duty to respond to emergencies and should not be prevented from rendering emergency assistance when they reasonably believe that such assistance is necessary. This does not mean that there is no overlap between the emergency doctrine and the other two doctrines—it is not always a simple matter to delineate precisely pursuant to which function police are acting in carrying out a particular search or seizure. In fact, we expressly have acknowledged: “Police often operate in the gray area between their community caretaking function and their function as criminal investigators. Often there is no bright line separating the one from the other....” State v. Blades, supra, 225 Conn. at 619, 626 A.2d 273. In many instances, however, it is possible to discern whether the police are acting in their crime control or investigative functions, or instead are acting pursuant to their community caretaking function. That distinction, which depends on the particular facts of the case, will determine whether the emergency doctrine applies, as opposed to either the exigent circumstances doctrine or protective sweep doctrine.
In the present case, because the police had an arrest warrant for Singer, supported by probable cause, the trial court properly applied the exigent circumstances doctrine in analyzing the defendant's motion to suppress. The question presented, then, is whether, under the totality of the circumstances, a reasonable, well trained police officer reasonably would have believed that immediate entry into the bedroom was necessary to protect his own safety and the safety of others present in the apartment. See State v. Guertin, supra, 190 Conn. at 453, 461 A.2d 963. We must evaluate the reasonableness of the officers' belief in light of the speed with which events were unfolding, and on the basis of the facts known to them at the time that they were standing in Valvo's kitchen and she informed them that ten to fifteen feet away from them, behind a partially open door, were two African–American males. Those facts include that there was probable cause to believe that Singer had committed a homicide within the past two days, and that he was on the run. The murder weapon, a gun, had not been found at the scene of the crime, so police reasonably could have believed that Singer had taken it with him. It is highly significant that the police had traced to that address a cell phone that a witness told them was being used by Singer. That single piece of information limited the scope of the search to a very small area—the apartment units within the building at 239 Knickerbocker Avenue. The landlord of the building had informed police earlier that evening that an African–American man matching Singer's general description had been “keeping company with” the daughter of the tenant in the third floor unit. The information provided by the landlord must be understood in conjunction with the information provided by the cellular ping. Specifically, despite the lack of detail provided by the landlord, his information must be understood as merely narrowing the scope of the search further, from the very small target area of 239 Knickerbocker Avenue. The only question remaining at that point in time was in which unit were the police most likely to find the suspect. In evaluating the reasonableness of the officers' conclusion that the suspect was in the bedroom, we also must consider Valvo's statement to the police that there were two African–American men in the bedroom at that very moment.
We observe that because the officers entered the bedroom on the basis of their belief that immediate action was necessary to protect themselves and others in the apartment, and because the facts supporting that belief became known to the officers when they were lawfully present in the apartment, the protective sweep doctrine was also implicated by the facts of the case. The emergency doctrine was not implicated.
Although we recognize that the ping was significant, the dissent places too much emphasis on that single piece of information. We must analyze the propriety of the entry into the bedroom on the basis of all of the information available to the police at the time that they were standing in Valvo's kitchen. As our analysis demonstrates, at that time, the ping was but one of a multitude of pieces of information that the police relied on to support their reasonable suspicion that Singer or one of his associates was behind the partially opened bedroom door. The dissent mistakenly focuses on what the trial court did not know about the ping itself, and accordingly suggests that our focus should be on the information that the police did not have at the time that they entered the bedroom. To the contrary, our inquiry properly focuses on what information the police did have at the time of entry. Considering all of the facts known to the police, namely, the evidence that Singer had shot a man to death less than forty-eight hours prior to the search and was at large with the murder weapon, the ping, the information provided by the landlord, and the confirmation of that information by Valvo's statements, we conclude that even without the ping, the police would have had enough information—at the time that they were standing in Valvo's kitchen—to support their reasonable suspicion that Singer or one of his associates was behind the bedroom door.
Accordingly, once the police had the information from the cellular ping, the pool of potential suspects was not African–American men generally, or even African–American men within the city of Stamford, but African–American men at that particular address. There is no indication in the record that the landlord identified any other African–American men associated with any of the units at 239 Knickerbocker Avenue. Viewed in that light, the landlord's information, which by itself clearly would have been insufficient subsequently to support a reasonable belief that immediate entry into the bedroom was necessary to protect those present, provided an important piece of additional information by narrowing the target area to the third floor unit. Finally, when they entered Valvo's apartment to investigate further, they learned that there were two African–American men behind the partially open bedroom door, which was close enough to where they stood that whoever was behind the door could have heard the entire conversation that the police had with Valvo.
Viewed under the totality of the circumstances, we conclude that the trial court properly concluded that exigent circumstances justified the entry into the bedroom. The officers reasonably believed that the entry was necessary for their own protection, as well as the protection of others in the apartment. We emphasize that although the level of certainty that officers had regarding the presence of Singer or some person associated with him in the bedroom is relevant to our inquiry, we examine that question in light of the overall question of whether it was reasonable for the police to believe that immediate entry into the bedroom was necessary to protect the safety of those present. We also emphasize that it was unnecessary for the officers to have a level of certainty approaching probable cause to believe that Singer or an associate was present in the apartment. It was sufficient that the facts known to them at the time would support a reasonable belief that a person or persons in the bedroom—either Singer or a person connected to him—posed a threat of danger to the officers and others present.
That standard is satisfied in the present case. In that small apartment, with the information that the police had available to them, it would have been unreasonable and dangerous for the police to fail to take the final step of entering the bedroom to neutralize Singer or an associate, before that person could threaten the safety of the officers and others present in the apartment. The United States Supreme Court has recognized that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” (Internal quotation marks omitted.) Kentucky v. King, ––– U.S. ––––, 131 S.Ct. 1849, 1860, 179 L.Ed.2d 865 (2011). The factual circumstances known to the officers at the time of the warrantless entry in the present case constituted precisely the type of circumstances envisioned by the United States Supreme Court. As Guzda testified at trial: “We're looking for somebody who supposedly had a handgun. For everybody's safety, we're gonna check that apartment. I'm not gonna wait to get shot through a door, when he hears that we're out there.”
We find unpersuasive the defendant's contention that the information relied upon by the police was insufficient to support a reasonable belief that immediate entry into the bedroom was necessary. Specifically, the defendant contends that the information available to the police at the time of the warrantless entry did not rise to the level of “specific and articulable facts” required to support a reasonable belief that immediate entry was necessary. See Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868. Put another way, the defendant argues, the police did not have sufficient information to support a reasonable belief that Singer was in the bedroom. As we already have indicated, however, the police had sufficient information to support precisely that reasonable belief. The police methodically, in a very short time period, followed a logical chain of clues that pointed to the presence of Singer in the third floor apartment at 239 Knickerbocker Avenue, beginning with the cellular ping, then to the landlord's information, and finally to Valvo's statement that there were two African–American men behind the bedroom door. Standing alone, none of these pieces of evidence would suffice to support the officers' reasonable belief, but we must view them together.
The defendant's argument in support of this contention is three-pronged. He challenges the value of the cellular ping, claims that the landlord's description was too vague, and relies on disputed facts regarding the exchange that occurred between Valvo and the police. As to the ping and the landlord's description, the defendant claims that the cell phone was pinged hours before the police arrived. As we already have observed; see footnote 5 of this opinion; the record does not reflect when the ping occurred, and the most that the trial court could have inferred is that it occurred sometime after the cell phone number was provided to police and before Whipple relayed the information from the ping to the Stamford police. The defendant also suggests that the police improperly relied on the witness' statement that Singer was using the cell phone in question at the time, despite the fact that the cell phone was not registered to Singer. He also questions the inference drawn by the police that Singer would have retained the cell phone when he fled. He additionally points to the vagueness of the landlord's description, which was merely that a black male was associated with the third floor unit. The defendant seeks a level of certainty not required by the law. Certainly, if the police had asked the cell phone company to perform a subsequent ping immediately prior to entering the apartment, yielding the same address, if the cell phone had been registered to Singer rather than to Pettigrew, and if the landlord had described the man associated with the third floor apartment as a light-skinned, African–American male, approximately five feet, ten inches tall, with teardrop tattoos on his face, the police would have had a level of certainty approaching probable cause to believe that Singer was present in the apartment. But our law requires only a reasonable belief when exigent circumstances are present. As we have explained, the information available to the police at the time they entered the bedroom was sufficient to satisfy that standard. Regarding the defendant's reliance on disputed facts in the exchange between the police and Valvo, the defendant points only to those facts that would not support the trial court's ruling on the motion to suppress. That reliance is not consistent with the standard of review on a motion to suppress.
Finally, the defendant also argues that in order for the exigent circumstances doctrine to apply, the state bore the burden to establish that there was insufficient time to secure a search warrant for the apartment. The defendant's argument, which ignores the fact that the police were lawfully in Valvo's apartment with her consent at the time that the exigency arose, is one that we rejected in State v. Aviles, supra, 277 Conn. at 303, 891 A.2d 935, where we explained that “even if we were to assume that the police could have obtained an arrest and search warrant for the defendant prior to [the police officer] entering the premises, this fact does not mean that their failure to do so necessarily invalidates the warrantless conduct that followed. We reach this conclusion because, by obtaining consent to enter the apartment, [the police officer] was already lawfully in a position to observe the exigent circumstances that justified his further actions.” Similarly, in the present case, the police were lawfully present in the apartment when they became aware of the circumstances justifying the warrantless entry into the bedroom.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to render judgment affirming the judgment of the trial court.
In this opinion ROGERS, C.J., and ZARELLA and EVELEIGH, Js., concurred.
PALMER, J., dissenting. I agree with and join Justice McDonald's convincing dissent. As both Justice McDonald and the Appellate Court explain; see State v. Kendrick, 132 Conn.App. 473, 484, 31 A.3d 1189 (2011) ; the circumstances known to the police when they entered the room in Blanca Valvo's third floor apartment at 239 Knickerbocker Avenue in the city of Stamford, where the defendant, Said Kendrick, was located, were insufficient to support a reasonable concern that entry into that room was necessary to protect their safety. In particular, and contrary to the reasoning of the majority, the information that the landlord of 239 Knickerbocker Avenue provided to the police, namely, that “an African–American man matching [Malik] Singer's general description had been ‘keeping company with’ the daughter of the tenant in the third floor unit,” is not entitled to any weight because, in fact, the only information that the landlord provided was that the man in question was an African–American. Indeed, although the majority relies on the landlord's “description” of the man that he had seen with Valvo's daughter to support its conclusion that the warrantless search at issue was justified, the majority also appears to concede that that description was entirely devoid of any other identifying facts or information in noting “the vagueness of the landlord's description, which was merely that a black male was associated with the third floor unit.” Without anything more—and despite the cell phone “ping,” which provided a basis to believe only that Singer was somewhere in the vicinity of 239 Knickerbocker Avenue—the police had no more reason to think that Singer was in a room in Valvo's apartment than that he was in any other room in that entire apartment building. I therefore respectfully dissent.
McDONALD, J., with whom PALMER, J., joins, dissenting.
A fair reading of the evidence presented by the state in this case plainly reveals two things. First, the police exhibited a remarkable lack of inquisitiveness in eliciting information that might have confirmed whether Malik Singer, the New Jersey murder suspect being sought, had been in the vicinity of the Stamford apartment building where the warrantless search was performed. Second, the state had evidence other than that obtained by the so-called investigation that might have shed some light on this subject, but evidently concluded that it was unnecessary to produce that evidence to the court to justify that search. As a result of these omissions, it is clear that the state failed to meet its burden of proving that exigent circumstances existed to justify dispensing with the warrant requirements of the fourth amendment.
As I explain in more detail later in this dissenting opinion, at the time the police officers knocked on the door of the third floor apartment at 239 Knickerbocker Avenue, the sum of the evidence known to them consisted of nothing more than: (1) global positioning system (GPS) data linking a third party's cell phone thought to be in Singer's possession to somewhere in the general vicinity of this address for perhaps as little as an instant in the preceding forty-one hours; and (2) information that a resident of a third floor apartment at this address had recently been keeping company with a man who, like Singer, is black. Upon entering the apartment, the police obtained no further information other than the fact that there were not one but two black men staying in a bedroom of that apartment.
As the majority explains, the cell phone was registered to a third party who had no known connection to Singer when the search was performed, and the information linking the cell phone to Singer came from a girlfriend of an alleged accomplice of Singer.
The majority's conclusion that the record in this case supports a warrantless entry into a bedroom in the middle of the night should concern us all. The most likely, and profoundly sad, ramifications of today's decision will fall disproportionately on members of our minority communities, given that its import means that it is enough to cast suspicion on someone simply because he has the same skin color as a criminal suspect. I am compelled, therefore, to dissent. I agree with the majority that, in determining whether exigent circumstances existed due to concerns regarding the safety of the officers or others, the trial court was required to examine the “totality of the circumstances” to determine whether the police had reasonable grounds to believe that if an immediate entry was not made, the accused might endanger the safety of the officers or others. (Internal quotation marks omitted.) State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963 (1983). “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.” (Emphasis omitted; internal quotation marks omitted.) Id.
In reviewing the trial court's determination that such reasonable grounds existed in the present case, I note that, although unacknowledged, the majority decides this case on a different basis than the one on which the trial court relied. The majority concludes that exigent circumstances arose once Blanca Valvo, the tenant of the apartment, indicated to the police that there were two black men in the bedroom with her daughter. It is manifest from the trial court's memorandum of decision, however, that it found that exigent circumstances justifying the warrantless entry arose before the police entered Valvo's third floor apartment. Specifically, after summarizing the testimony at the hearing on the motion to suppress, the trial court commenced its ruling by acknowledging that the testimony of the state and defense witnesses was in conflict. The testimony offered by the defense witnesses, Valvo and her daughter, related only to the events that transpired after the police knocked on the apartment door. One such conflict accurately recounted in the trial court's summary was that Valvo testified that she did not consent to the police entry into her apartment, whereas the police witnesses for the state testified that Valvo had given consent. The trial court found it unnecessary, however, to make any credibility assessments or to make any specific, or even implicit, findings on the issue of consent or any other issues on which the testimony was in conflict. Instead, in stating the basis of its decision, the trial court relied exclusively on facts that occurred, or the court mistakenly believed had occurred, before the police knocked on Valvo's apartment door. Indeed, the trial court cited the safety of the apartment building occupants as the exigency, with no mention of any risk to the officers.
Contrary to the majority's approach, I would begin with the trial court's essential finding in support of exigent circumstances: “The cell phone ping indicated that the fugitive had connections with a residence in Stamford focusing on the third floor apartment at 239 Knickerbocker Avenue. ” (Emphasis added.) As I explain subsequently in this dissenting opinion, to the extent that this finding assumes that the police had information connecting the ping to the third floor apartment, it is clearly erroneous. Indeed, contrary to the majority's conclusion, there was no evidence presented specifically connecting the ping to 239 Knickerbocker Avenue.
I begin with what the evidence does not reveal about the ping information provided to the police, as certain fundamental information clearly was available to, but not produced by, the state. The state did not introduce into evidence the subpoena issued to the cellular service provider. It proffered no other evidence as to the specific request(s) therein, the time when the ping was elicited, or the manner in which the information was obtained. The New Jersey police officers testifying regarding the ping did not indicate whether they had played any direct role in obtaining that information from the service provider. Except for an acknowledgment by one officer that this procedure or technology “may be beyond [his] expertise,” and a statement by a second officer that he is “not an authority on cell phone pinging,” neither officer indicated the extent, if any, of his prior experience with this procedure.
Although no evidence regarding this technology was introduced in the present case, it appears that a cell phone may be “pinged” in one of two ways. According to technical sources cited in one law review article: “To ‘ping’ a device, the carrier essentially sends a signal to the phone, similar to a call. The phone responds by sending a signal to the closest towers, resulting in the phone's location using triangulation. This entire process is done without the knowledge of the user.... Alternatively, most modern cellular phones are equipped with internal software and hardware to receive information from global positioning satellites in orbit around the globe, and the phone can use this information to determine its own location.... The phone can then pass on this location data to any program or application which requests it.” (Citations omitted.) Note, “Keeping Track of the Joneses: Redefining the Privacy Boundaries of the Digital Age,” 87 S. Cal. L.Rev. Postscript 1, 5 n. 7 (2014), available at http:// lawreview.usc. edu/wpcontent/uploads/Kroll-87-PS-Final-PDF.pdf.
Some courts have concluded that expert testimony is required when such evidence is presented to a jury. See, e.g., Coleman–Fuller v. State, 192 Md.App. 577, 615–19, 995 A.2d 985 (2010). In the present case, the defendant did not challenge the qualifications of the officers presenting testimony on this subject.
Thus, no evidence was proffered as to whether a single ping or a series of pings was collected. Cf. Reynolds v. Commonwealth, Docket No. 2179–12–4, 2014 WL 2187774, at *3 (Va.App. May 27, 2014) (“The March order authorized AT & T to ‘ping’ [the] appellant's phone every fifteen minutes and provide its physical location data to [an] [o]fficer.... Beginning at approximately 7:00 p.m., AT & T sent four electronic signals in fifteen-minute increments to [the] appellant's phone. The ping signals registered with cell towers near [the] appellant's phone and provided the phone's approximate GPS coordinate location information to AT & T, which AT & T then forwarded to [the] [o]fficer ... via email.”).
No evidence was proffered as to whether the ping information revealed that the cell phone was stationary, and, if so, for what period, or whether it was in transit. Cf. People v. Barnes, 216 Cal.App.4th 1508, 1511, 157 Cal.Rptr.3d 853 (2013) (“[The officer] ... testified that ‘I asked them to ping the cell phone; they ... advised me that it was ... stationary at 16th and Mission Street.’ ... Officers ... were ‘updated’ with the results of the continued pinging, i.e., that ‘the ping was moving towards the north.’ ”); Devega v. State, 286 Ga. 448, 453, 689 S.E.2d 293 (2010) (defendant's cell phone provider “complied [with a request to ping the defendant's phone] and informed the police that the phone was moving north on Cobb Parkway”); State v. Taylor, Docket No. 25764, 2014 WL 2700846, at *1 (Ohio App. June 13, 2014) (“Sprint provided ping information for that phone, and police were able to trace its path from Detroit to the pawn shop at the time of the shooting and then back to Detroit”); see also United States v. Skinner, 690 F.3d 772, 776 (6th Cir.2012) (“[b]y continuously ‘pinging’ the ... phone, authorities learned that [the defendant] was traveling on Interstate 40 across Texas”), cert. denied, ––– U.S. ––––, 133 S.Ct. 2851, 186 L.Ed.2d 913 (2013). Accordingly, the cell phone believed to be in Singer's possession may have been at the location ascertained for only an instant while it was in transit.
In the absence of such basic evidence, we are left with whatever reasonable inferences may be drawn from the limited evidence proffered. First, as the majority acknowledges, it is reasonable to infer that the ping information was captured between the time that New Jersey police officers discovered the victim's body and the time that they contacted the Stamford Police Department with the information yielded from the ping. That simply means that the ping was undertaken sometime within an approximate forty-one hour period before the officers arrived at Valvo's apartment at approximately midnight on the day after the murder. Second, the ping was described as yielding information through GPS data that gave a latitude and longitude corresponding to the “vicinity,” “general area,” or “generalized area” of a location around 239 Knickerbocker Avenue.
The evidence reveals that the victim's body was discovered around 7 a.m. on May 11, 2008, and the New Jersey officers contacted the Stamford Police Department with the location yielded from the ping sometime around 9:30 p.m. on May 12, 2008. This means that the ping was elicited some time within an approximate thirty-eight and one-half hour period, and approximately two and one-half hours later, at approximately midnight, the police arrived at Valvo's apartment door.
In support of its conclusion that the ping “limited the scope of the search to a very small area—the apartment units within the building at 239 Knickerbocker Avenue,” the majority mischaracterizes the testimony. According to the majority: “Based on the longitude and latitude, the ping was identified as originating from 239 Knickerbocker Avenue....” What Detective David Whipple of the Somerset County Prosecutor's Office actually said was that the GPS data “would give you a generalized area around the location, within a certain amount of degree of yards.” Whipple never indicated whether that amount was three yards or 300 yards. A review of other cases in which courts have relied on cell phone ping information reveals that a ping can correspond to a fairly large area. See, e.g., People v. Barnes, supra, 216 Cal.App.4th at 1511 (officer testified that he had been informed by telephone company that pinging would “find a general location within [fifteen] yards or [fifteen] meters of where the phone was”); People v. Henry, Docket No. 3–10–0106, 2011 WL 10468068, at *3 (Ill.App. November 8, 2011) (“ping identified a 698–meter range in which the phone was located,” corresponding to approximately 763 yards or 2290 feet); Stone v. State, 178 Md.App. 428, 437, 941 A.2d 1238 (2008) (“[a]t [a trooper's] request, the service provider conducted a ‘ping’ of the appellant's cell phone, which revealed that the phone was ‘within a two mile radius of the Frederick County Detention Center’ ”); People v. Moorer, 39 Misc.3d 603, 606, 959 N.Y.S.2d 868 (2013) (officer “was advised by Sprint that it had an ‘[eleven] meter ping’ of the phone on Zimbrich Street, between Remington Street and Joseph Avenue,” area that corresponds to thirty-six feet); State v. Taylor, Docket No. 25764, 2014 WL 2700846, at *1 n. 2 (Ohio App. June 13, 2014) (“[p]ings are GPS locations that are [emitted] from phones that will give a geographic location of the phone, and it will range usually in meters” [internal quotation marks omitted] ); Commonwealth v. Rushing, 71 A.3d 939, 946 (Pa.Super.2013) (“[p]olice were able to fix the location of [the] [a]ppellant's phone within [ninety-eight] meters or approximately 300 feet”), appeal granted in part, ––– Pa. ––––, 84 A.3d 699, appeal denied, ––– Pa. ––––, 85 A.3d 483 (2014) ; see also In re Application of United States, 727 F.Supp.2d 571, 580 (W.D.Tex.2010) ( “[e]stimates from three years ago were that over 90 [percent] of cell phones then in use had GPS capabilities, through which the target phone could be located to within as little as [fifty] feet”). Because the area in which 239 Knickerbocker Avenue is located was described as “a residential area” in which “[h]omes are very close together,” the “degree of yards” would have been essential to narrow down the location of the cell phone when it was pinged.
The following exchange occurred during Whipple's cross-examination at the hearing on the motion to suppress:
“Q. With regard to the GPS, you said that you had a generalized area.
“A. Correct.
“Q. And that generalized area was Knickerbocker Avenue?
“A. In the vicinity of 239 Knickerbocker Avenue.
“Q. How was it that it's the vicinity of 239 Knickerbocker?
“A. Well, it may be beyond my expertise, but the GPS—what they'll do is, the cell phone company will ping a cell phone. And that would give you a generalized area around the location, within a certain amount of degree of yards.
“Q. Okay.
“A. That's the information of longitude and latitude which the cell phone company provided us.
“Q. Okay. So, if I'm not mistaken, didn't you say in direct [examination] that it was the Stamford Police Department's investigation that actually led to 239 Knickerbocker Avenue?
“A. Yes.
“Q. Okay. So, before that, you didn't know it was 239.
“A. Specifically, no.”
The wide range of areas yielded in these cases seems to suggest that various factors may affect the size of the area corresponding to the ping, including the type of cell phone and the technology used by the service provider. See, e.g., In re United States for an Order Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F.Supp.2d 202, 208 (E.D.N.Y.2008) (indicating that “the information revealed by triangulation or by more advanced communications devices like the iPhone, which contain [g]lobal [p]ositioning [s]ystem devices, is ... precise enough to enable tracking of a telephone's movements within a home”); see also F. Arcila, Jr., “GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum,” 91 N.C. L.Rev. 1, 7 n. 16 (2012) ( “[c]ellular tracking is less precise than GPS tracking”).
Indeed, consistent with the testimony in the present case, these decisions indicate that it is often through the process of subsequent investigation that the area identified is narrowed to a more particularized location. See, e.g., People v. Henry, supra, 2011 WL at 10468068, at *3 (“The ping identified a 698–meter range in which the phone was located. A canvass of that area revealed it to be in the neighborhood of the victim's apartment complex.”); People v. Washington, Docket No. 11–255(LMH), 2012 WL 2031345, at *1 (N.Y.Co. June 4, 2012) (“One or more cell phones were stolen during the robbery and by ‘pinging’ them, the officers were able to trace the location of the phones to Newland Avenue in Jamestown. They went to Jamestown and, assisted by members of the Chautauqua County Sheriff's Department and Jamestown Police Department, attempted to more precisely locate the phones.”); Commonwealth v. Rushing, supra, 71 A.3d at 946 (after police fixed location of appellant's cell phone within approximately 300 feet through ping, “[p]olice determined [the] [a]ppellant's precise location after observing [his former girlfriend's] stolen car outside of a residence and interviewing two individuals who exited that home”); State v. Harrison, Docket No. 02–13–00255–CR, 2014 WL 2466369, at *4 (Tex.App. May 30, 2014) (“police officer found [the] appellee after officers did a ping on his phone that [they] knew he was using and it put him in a location and area, and phone records came back and gave [the officer] an address directly to that area” [internal quotation marks omitted] ).
I next turn, therefore, to the evidence presented regarding the information gleaned as a result of the subsequent investigation at the area identified by the ping. Sergeant Paul Guzda of the Stamford Police Department, who conducted that investigation, was operating under the misimpression that the cell phone ping had been connected specifically to 239 Knickerbocker Avenue. He acknowledged that the only thing he knew about Singer's appearance at this time was that Singer was black. After arriving at this location, Guzda was approached by a “concerned citizen”—the landlord of 239 Knickerbocker Avenue. Guzda indicated that he had provided this person with “limited information as to why we were there.” Guzda further indicated that, in response to whatever he had conveyed, the landlord volunteered that the daughter of the Hispanic woman living in the third floor apartment recently had been “keeping company with” a black man. It is clear from Guzda's testimony, however, that he did not recite the landlord's comments verbatim. For example, Guzda initially reported the landlord's statement as conveying that this man “basically” matched Singer's “description.” Subsequent repeated questioning clarified that the only physical characteristic reported by the landlord was the man's skin color—black. Although Singer has
The following exchange took place during Guzda's direct examination at the hearing on the motion to suppress:
“Q. Where—let me ask that differently. Did you—what did you do, with respect to the area of Knickerbocker Avenue. Did you do any kind of investigation about that area?
“A. Yes, we did.
“Q. And what did you do?
“A. Knowing that we were looking for somebody who was wanted for a homicide, and was probably armed and dangerous, we made sure that we carefully checked the area. Specifically the area of 239 Knickerbocker Avenue. During that time, we spoke with a concerned citizen who lived in that area, who had direct knowledge of 239 Knickerbocker Avenue, and the residence.
“And we took this person into our confidence, giving them limited information as to why we were there. And they explained to us, on the top floor of that building, there was a Hispanic female, who lived there with her daughter. And most recently, she was keeping company with a black male who fit the description of Singer.”
The following exchange later ensued at the hearing during Guzda's cross-examination:
“Q. ... [W]hen were you contacted by the New Jersey authorities with regard to the ... Singer matter?
“A. Sometime that evening—earlier that evening.
“Q. Okay. Did they fax you over a photo of him?
“A. I do not recall.
“Q. Was it requested by you?
“A. No....
“Q. Was it requested by anyone in your unit?
“A. Not that I know of.
“Q. So all you had [was] a description of ... a black male.
“A. Yes.
“Q. That could have been any black male in the city of Stamford?
“A. Yes.
“Q. Okay. So you went to 239 Knickerbocker Avenue. And this concerned party, all they told you was, there's a black male on the third floor?
“A. Who told me that?
“Q. The concerned citizen that you spoke with.
“A. When we shared information with this concerned citizen, he in turn, confirmed who lived on that third floor—that top floor. And told us that the young lady who lived there, was recently keeping company with a black male that basically fit the description of ... Singer.
“Q. Okay. But again, you indicated that could have been almost any black male in the city of Stamford?
“A. The description was that they—sure, it could have fit the description of numerous other black males.
“Q. Did you ask this concerned citizen, whether or not it was ... Singer [that] was on the third floor?
“A. No.
“Q. So, at that moment all you have is; there's on the third floor, a black male?
“A. Yes.”
According to Whipple's testimony at trial, the New Jersey officers had been informed that all that the landlord conveyed was that the man with his tenant's daughter was black. The following exchange occurred during Whipple's cross-examination:
“Q. When you arrived at 239 Knickerbocker—I apologize. I withdraw that. The Stamford police officers, when they went there, asked the landlord of that building whether or not they knew of an African–American male?
“A. I wasn't present when they were talking to him, but they reported that to me.
“Q. Okay. And that person—that landlord said, on the third floor?
“A. They said that there were—there was supposedly an African–American gentleman that resided somewhere, or was located somewhere on the third floor.
“Q. Okay. And I think you testified to the fact that you also knocked on other doors—a second floor apartment—first floor apartment.
“A. I didn't. Other officers did.
“Q. Okay. Because you weren't sure as to which apartment ... Singer may have been in?
“A. Specifically; no.
“Q. Okay. When you arrived at the scene with the photo of ... Singer, did you show the landlord that picture?
“A. I didn't speak with the landlord.
“Q. Okay. Did you provide it to the Stamford Police Department?
“A. I had showed it to them earlier that night.
“Q. Did you provide—did you ask the Stamford Police Department to show the landlord, to make sure it was the right person?
“A. No.
“Q. Okay. You identified [the defendant, Said Kendrick]. Does [the defendant] have teardrop tattoos on his face?
“A. Nope.
“Q. So, the only thing tying him to ... Singer, is that he's an African–American male.
“A. I'm not sure I understand the question.
“Q. The only physical—the only comparable physical qualities that [the defendant] has with ... Singer is that he's an African–American male?
“A. Physical description-wise?
“Q. Yes.
“A. Yes.”
a facial tattoo, a unique and obvious identifying feature, the landlord made no reference to that feature, and nothing indicates that Guzda asked for any further descriptive information.
In addition, to the extent that the landlord indicated that this man “recently” had been keeping company with his tenant's daughter, nothing indicates that Guzda sought to ascertain the period to which the landlord referred. Recently could mean the past six months, the past few weeks, or the past few days. Guzda apparently did not determine whether the man observed by the landlord had been seen in Stamford at the same time that Singer was allegedly committing the murder in New Jersey, a fact that would have made clear that this man was not Singer. Moreover, neither Guzda nor any other officer showed the landlord a photograph of Singer after the New Jersey police arrived with one because they “didn't feel comfortable sharing too much with this party.” Thus, at the time the police knocked on Valvo's apartment door, all they reasonably believed was that Singer possibly was in possession of a cell phone, that this cell phone had been in the vicinity of 239 Knickerbocker Avenue at some moment in the preceding forty-one hours, and that a man who has the same skin color as Singer had been staying in the third floor apartment of 239 Knickerbocker Avenue for an unspecified period of time. Any fair application of the law to the facts should inexorably lead to the conclusion that these facts are insufficient to support the trial court's finding that exigent circumstances existed on the basis of information known to the police before they entered the apartment.
Testimony from Valvo and her daughter indicated that the defendant had been living at Valvo's apartment for as long as two years. Therefore, it is unclear whether the defendant was the person who the landlord had observed recently keeping company with the daughter or whether it was the defendant's cousin, who was the other “black” man in the daughter's bedroom.
Nevertheless, for reasons that are not apparent, the defendant implicitly has conceded on appeal that Valvo consented to the police entry into her apartment. Therefore, I agree with the majority that it is appropriate for us to consider whether there is a reasonable view of the evidence that demonstrates that such exigency arose after the police entered. The only fact that this evidence reveals, however, is that Valvo indicated in response to police questioning that there was not one undifferentiated black man in the apartment, but two! This fact does nothing to elevate the ambiguous information known before the police knocked on the door to a reasonable basis to believe that either black man might be Singer.
Each officer testifying as to the exchange with Valvo provided slightly different versions of that exchange. The officers testified, however, in a generally consistent manner to a sequence of events under which Valvo acknowledged the presence of the two black men in the bedroom in response to a series of specific innocuous questions, and pointed to the bedroom simply to indicate where her daughter and these two black men were located. One of the officers testified that Valvo specifically stated in response to statements or questions by the officers that she did not know anyone named Malik Singer, although it undoubtedly is possible that Singer might have been known to Valvo by another name. Another officer indicated that he had showed Valvo a photograph of Singer, a fact that was either unobserved or contradicted by the testimony of all three of the other officers present, but that officer's testimony did not indicate that Valvo pointed toward the bedroom in response to, or immediately after being shown, that photograph.
Whipple initially gave the following testimony during direct examination at the suppression hearing:
“Q. When—what happened when ... Valvo invited you into the apartment?
“A. Myself, as well as a few of my colleagues were invited into the living room. I—obviously we identified ourselves as police. I had my badge displayed. We explained we were there searching for an individual known as Malik Singer, and asked if in fact, that individual was present.
“Q. And did she tell you anything specific about ... Singer?
“A. Not about ... Singer. She indicated that her daughter was in a bedroom with two African–American males.
“Q. And did she show you where that bedroom was?
“A. Yes.”
On cross-examination, Whipple provided the only testimony that Valvo had been shown a photograph of Singer, but the following exchange clearly indicates that Valvo pointed toward the bedroom in connection with her response that there were two black men with her daughter, not in response to being shown Singer's photograph:
“Q. ... Who knocked—you said—you indicated you knocked on the door?
“A. I was one of them, yes.
“Q. And you spoke to ... Valvo?
“A. Yes.
“Q. Okay. And you showed her a picture of ... Singer; correct?
“A. I did.
“Q. Okay. And then, she told you she didn't know who he was?
“A. Basically, the conversation I had with ... Valvo, she indicated that two African–American males were in the bedroom currently, with her daughter. Then she pointed to it, once I explained what we were there for.
“Q. Okay. But you showed her a picture?
“A. Yeah.
“Q. And that picture was of ... Singer?
“A. Correct.
“Q. Which wasn't one of the persons in that bedroom?
“A. Correct.
“Q. Okay. And she told you, she didn't know who that person was?
“A. I don't recall that specifically.”
Even if we were to assume that Whipple's testimony is ambiguous as to whether Valvo pointed toward the bedroom in response to something he said or did rather than in connection with her exchange with the Stamford officers, the appropriate recourse would be for this court to remand the case to the trial court for another hearing on the motion to suppress to allow a trier of fact to make the requisite findings, not for this court to do so. “[W]e may uphold the court's ruling [of exigency to excuse the warrant requirements] if there is any reasonable view of the evidence to support it.” (Internal quotation marks omitted.) United States v. Creighton, 639 F.3d 1281, 1290 (10th Cir.2011). In the present case, the trial court did not determine that exigency arose after the police entered Valvo's apartment, and reading Whipple's testimony to mean that Valvo pointed to the bedroom in response to being shown Singer's photograph places it in conflict with the other officers' testimony.
Thus, the exchange with Valvo added nothing of substance to the information known to the police before they entered her apartment except that there were in fact black men in the apartment. I concede that it is entirely possible that the state had other evidence that it did not present that could have demonstrated the reasonableness of the belief of the officers at the scene that Singer, or one of his associates, was in the third floor apartment of 239 Knickerbocker Avenue. After all, it would have been an enormous stroke of luck to have located such an associate on the basis of the evidence proffered at the hearing on the motion to suppress. Moreover, I appreciate that, because the police officers were searching for a presumably armed and dangerous murder suspect, they must be afforded some latitude in securing premises in which such a suspect may be hiding. Nonetheless, it is the state's obligation to come forward with evidence to demonstrate that there was an objectively reasonable basis to believe that such a danger existed. The majority has failed to hold the state to that burden.
Although our inquiry focuses on what the officers reasonably believed before entering, I note that the police did not recover the cell phone that had been pinged at the Stamford apartment. The information connecting the cell phone to Singer was tenuous. See footnote 1 of this dissenting opinion. Moreover, according to a statement purportedly made by the defendant, Said Kendrick, to the police after being taken into custody, the defendant obtained the gun from Singer in New Jersey. Singer was arrested in New Jersey. Thus, there is nothing to indicate that Singer ever was in Stamford.