Opinion
No. CR 07-0036479-T
August 26, 2010
ARTICULATION
The defendant, Marcos Mercado, moved to suppress oral and written statements he gave to members of the Southington Police Department and Lieutenant James Wardwell of the New Britain Police Department on December 30, 2007, while he was in custody for interfering with a search warrant and possession of illegal weapons. The defendant contends that the statements should be suppressed because they were obtained as a result of an illegal arrest, the result of an illegal search and seizure, obtained without having been properly advised of his constitutional rights, obtained without the defendant having knowingly, voluntarily or intelligently waived his right to remain silent and to have counsel present, and that the statements were not voluntarily made because they were the product of coercion, deception and manipulation. Having considered the testimony of the State's witnesses, the testimony of the defendant's witnesses, the arguments of counsel and the totality of the circumstances presented at the hearing on the defendant's motion to suppress, the Court finds that the defendant's motion is without merit. The Court denied the defendant's motion on March 2, 2010 and this articulation follows.
The Court finds that the facts that follow were proven by the State at the hearing on the defendant's motion to suppress held on February 3, 2010, February 4, 2010 and February 5, 2010.
On December 26, 2007, members of the Southington, Connecticut Police Department responded to 81 Academy Street on a welfare check after co-workers of Thomas Szadkowski, who lived alone, went to his residence to check on him because he had not reported to work that day. Upon arrival at 81 Academy Street, the co-workers found the main entrance to the residence ajar and called the police. In the kitchen, members of the Detective Division found the body of a deceased white male with blood splatter in the area of the head. The body had a paper substance covering the face which had been burned. Blue liquid laundry detergent had been poured over the body. The medical examiner certified the cause of death as a gunshot wound to the head and the manner of death as a homicide.
On an open screen on Szadkowski's computer, the officers observed an America Online Instant Message chat with the defendant where the defendant agreed to come to 81 Academy Street to engage in sexual activity. Another open screen displayed the defendant's photo and profile.
See, Search and Seizure Warrant, State's Exhibit 7.
Police investigation discovered that the defendant lived at 141 Hillhurst Avenue, New Britain, Connecticut and they obtained a search warrant for the residence, a single-family cape cod home with two floors. On December 30, 2007, at approximately 4:30 a.m., armed with the search warrant, members of the New Britain Police Department SWAT team went to the residence to secure it for officers of the Connecticut State Police who were assigned to execute the search warrant. The officers assigned to the front door knocked and announced that they were the police with a search warrant. The screen door was pried open and the interior door was rammed open. The officers ran up the stairs to the second floor continuously yelling that it was the police with a search warrant. At the top of the stairs, Officer Thomas Gray turned to the right and kicked open the bedroom door while still yelling that it was police with a search warrant. Upon entering the room, Gray observed a large bed which was not occupied. He heard a commotion to his left and saw the defendant moving away from him looking up, reaching for something and trying to climb over a foosball table. Gray looked up and saw a rifle. When the defendant disobeyed his command to stop, he had to be physically restrained. Gray grabbed him by the upper back area and pulled him to the floor. The defendant continued to resist and refused to put his hands behind his back so he could be handcuffed. With the help of Officer Ramon Reyes, the defendant was cuffed. After the defendant was secured, Gray took the rifle, a semi-automatic, which was set to fire with the safety off and the magazine loaded. It had a flash suppressor, a collapsed stock and a pistol grip. The defendant was arrested for interfering with a search warrant and illegal possession of firearms. After the defendant was removed, State Police processed the residence.
The defendant was taken to the New Britain Police Department where he was met by Officer Nicholas Spratto and Detective John Suski of the Southington Police Department. Spratto executed a search and seizure warrant on the defendant for fingerprints and palm prints in the detective division. The defendant was then taken to an interview room where Spratto read the defendant his rights from a Notice of Rights Form. After the defendant was allowed to read the form to himself, he initialed the boxes after each right and signed the form. The defendant agreed to speak to the officers and provided them with a signed sworn written statement. Prior to speaking with the officers, the defendant did not ask for clarification of his rights and did not ask for an attorney. He did not appear to be under the influence of alcohol or drugs and appeared to understand his rights. During the questioning process, the defendant was given breakfast, lunch and drinks throughout. He was allowed to use the restroom whenever he wanted. At no time was the defendant threatened and no promises were made to him to induce him to waive his rights or sign the written statement.
State's Exhibit 5.
States's Exhibit 6.
After completion of the written statement, the defendant agreed to submit to a polygraph by Lieutenant James Wardwell of the New Britain Police Department. Before speaking to the defendant, Wardwell activated the video recording equipment in the polygraph office where the interview of the defendant was to occur. With the defendant's knowledge, the entire conversation with Wardwell was videotaped. Before beginning the interview with the defendant, Wardwell again advised the defendant of his Miranda rights, which he waived. After administering the polygraph examination, Wardwell began to take a written statement from the defendant, but did not complete it because the defendant asked to speak to a lawyer. At that time, all discussions with the defendant ended.
State's Exhibits 10-a and 10-b.
State's Exhibit 11.
State's Exhibit 12.
THE ARREST
The defendant's claim that there was no probable cause for his arrest for interfering with a search warrant, in violation of General Statutes section 54-33d, is without merit. The Court credits the testimony of Detective Thomas Gray of the New Britain Police Department that when he entered the defendant's bedroom yelling "police with a search warrant," the defendant failed to obey Gray's command to stop. Instead, the defendant continued to climb over a foosball table and reach in the direction of a rifle he kept on top of a bookcase. The defendant had to be wrestled to the floor and forcibly handcuffed behind his back because he refused to comply with Gray's orders. Accordingly, the Court finds that probable cause existed for the defendant's arrest for interfering with the search.
THE LEGALITY OF THE SEARCH
The defendant claims that his statements should be suppressed because they were the fruit of an illegal search of his residence for violation of the knock and announce rule. "The `knock and announce' rule requires that an officer identify himself or herself, announce that the purpose of his or her presence is to execute a search warrant, and wait a reasonable time for the occupier to surrender his or her privacy voluntarily." State v. Pelletier, 209 Conn. 564, 574, 552 A.2d 805 (1989). "An executing officer's reasonable belief, however, that announcement might place him or his associates in physical peril . . . constitutes exigent circumstances that justify noncompliance with the rule." (Internal quotation marks omitted.) Id. See State v. Huff, 69 Conn.App. 51, 54-55, 793 A.2d 1190 (2002).
In the present case, the Court finds that the "knock and announce" rule was complied with because the officers knocked on the screen door and announced their presence at the defendant's residence. That the time between the knock and announce and the entry into the home was very brief does not necessarily violate the rule. See State v. Huff, supra, 69 Conn.App. 55. In any event, exigent circumstances existing at the time the officers executed the search warrant justified any possible noncompliance with the rule. Before the New Britain SWAT team members entered the home, they had been briefed on the nature of the crime by the Southington Police Department. They knew that a .22 caliber rifle type ammunition round was removed from the victim's head by the medical examiner during the autopsy. Police investigation determined that the defendant and his cousin lived at the residence and both had prior interactions with the Southington Police Department when they lived in Southington. A check with the State Police Firearms Unit revealed that the defendant and his cousin had firearms registered in their names. Although the defendant did not have a pistol permit, he owned two CBC (CIA Brazileria De Cautuchos).22 caliber, model 37043, 18" barrel firearms, and a 12 gauge, model 88, with a 20" barrel firearm of unknown manufacturer which was sold to the defendant by his cousin. His cousin, who had a valid firearms permit, had registered in his name a Glock .40 caliber, model 27, 3.46" barrel firearm and a Maverick Arms 12 gauge, model 88, 20" barrel firearm. Moreover, the murder of Thomas Szadkowski was committed in an extremely violent manner. Had the entry into the defendant's home been any later, the defendant may have had the opportunity to reach the rifle he was moving toward when Officer Gray entered his bedroom. Accordingly, in light of the foregoing, it was reasonable for the officers to fear for their safety and any noncompliance with the knock and announce rule was justified.
See State's Exhibit 7.
THE ADVISEMENT OF RIGHTS AND THE VOLUNTARINESS OF THE STATEMENTS
The remainder of the defendant's claims concern the waiver of his Miranda rights and the voluntariness of his statements. "`To be valid, a waiver must be voluntary, knowing and intelligent . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case.'" (Footnote omitted; citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 50, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).
"In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker . . . If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it . . . including both the characteristics of the accused and the details of the interrogation." (Internal quotation marks omitted.) Id., 54.
On December 30, 2007, the defendant was advised of his Miranda rights twice, once by Sergeant Spratto and again by Lieutenant Wardwell. Both times he signed a notice of rights form acknowledging that he had been advised of his rights and that he waived them. As previously noted, the Court credits the testimony of Officers Spratto and Suski that the defendant appeared to understand his rights. He could read, write and speak English. He is an intelligent person who worked in computer website design. At the time he made the statements, he did not appear to be under the influence of alcohol or drugs. During the questioning process, the defendant was given breakfast, lunch and drinks throughout the day. He was allowed to use the restroom whenever he wanted. At no time was the defendant threatened and no promises were made to him to induce him to waive his rights or sign the written statement. Indeed, the defendant told Lieutenant Wardwell that the Southington officers treated him very well, letting him use the bathroom, giving him water whenever he needed it, and offering him food without having to ask for it. Moreover, the videotape of the interview with Lieutenant Wardwell shows that the defendant was advised of his Miranda rights and that he voluntarily, knowingly and intelligently waived his rights. The defendant was composed, articulate and in full control of his faculties. He was treated very well by Wardwell and spoke to him freely and without being coerced. At no time was the defendant's will overborne by the Southington officers or by Wardwell. Indeed, when the defendant told Wardwell that he wanted to speak to an attorney, the interview ended and a written statement that the defendant said he would give remained unfinished. Therefore, the Court finds that the defendant's statements were not given in violation of his Miranda rights and were not involuntary.
State's Exhibits 5 and 11.
State's Exhibit 10-a.
State's Exhibits 10-a and 10-b.
State's Exhibit 12.
CONCLUSION
In the present case, the evidence establishes that the statements the defendant gave to Officers Spratto, Suski and Wardwell were not obtained as a result of an illegal arrest or detention. They were not obtained as a result of an illegal search and seizure of the defendant or his property. The defendant was properly advised of his Miranda rights and he knowingly, voluntarily and intelligently waived those rights. The statements were not the product of coercion, deception, manipulation or overreaching by the officers. Accordingly, the defendant's motion to suppress his statements is hereby denied in all respects.
Dated at New Britain, Connecticut this 26th day of August 2010.