Opinion
No. CR 02-0557413
February 18, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS TANGIBLE EVIDENCE DATED JUNE 21, 2002
The defendant, Alex Ortiz, has filed a June 21, 2002 Motion to Suppress Tangible Evidence, including $266,000 in currency, seized from his apartment at 250 Main Street in Hartford on February 4, 2002. Testimony was taken on November 18, 19 and 20, 2003. Briefs were filed. The motion raises issues relating to the emergency doctrine and consent exceptions to the general requirement that a search warrant be obtained before authorities can enter a person's residence. For the reasons stated below, the motion is denied.
Factual Background
The evidence produced at the hearings indicated the following.
Officer Guiseppe Uccello of the Hartford Police Department testified on November 18, 2003. He stated that on February 4, 2002, he was dispatched to a "B and E" alarm — a breaking and entering alarm — at 250 Main Street, Apartment 330 in Hartford. Officer Eric Gaddy was the first respondent. Officer Uccello described 250 Main Street as a large, multiple dwelling apartment building with more than 10 floors. He met Officer Gaddy at the ground level. He also met Carmelo Robles, an employee. (Transcript, hereinafter "Tr.," 11/18/03, at pp. 5-13.) It was his understanding that the alarm service had contacted the police department, resulting in his having been dispatched. They went up to the third floor. The alarm, coming from inside the apartment, could clearly be heard from the hallway. The door was locked. His main concern was that the apartment "wasn't been burglarized." Tr. 11/18/03, at pp. 14-17. "If there was a burglar inside, we didn't want an ambush." Mr. Robles, who had a key, opened the outer door, but was initially left behind for "security purposes" while the two officers entered. They went through various rooms, including a first bedroom, looking only in locations where a person could hide. They then went through a second bedroom at the end of the hallway. This second bedroom led to a small hallway leading to another door, which was locked. Robles told the two officers the locked room was a bathroom. Officer Uccello noticed that the door was locked from inside and concluded that "either somebody was hiding in there or it was somebody injured" or who had fallen, and "may have been in need of medical assistance." Tr. 11/18/03, at pp. 17-21. He asked Robles for a key, but Robles did not have one. Using a screwdriver provided by Robles, he opened the door. Prior to entering, he announced that it was the police but heard no response. Tr. 11/18/03, at p. 65. The bathroom was small with no windows. In plain view on the ground was a cardboard shoe box with "wads of currency." On the sink were bags containing white powder and scales. Given his training and experience, including investigations he had conducted while he was with the narcotics division, he concluded that the apartment was a narcotics and stash house, a location used to hide illegal drugs and money. He had not observed any visible signs of forced entry in the apartment, nor any signs of tampering with the doors, a break-in, or damage to any windows. He called his supervisor and the narcotics division to report what had been discovered. Tr. 11/18/03, at pp. 21-36. He estimated the apartment was 50 to 60 feet off the ground. Tr. 11/18/03, at p. 51. The evidence was not initially seized or moved.
Officer Eric Caddy, the first responder, also testified on November 18, 2003 He knew only that he was responding to a "burglar alarm," but didn't know what he was venturing into. "We prepared for the worst," he said. Upon arrival, he, Uccello and Robles went upstairs to the third floor. They knocked on the outside door, and got no answer. Guns drawn, they entered the apartment. He testified that ". . . we were just seeing if there was anyone in the apartment or if anyone was hurt . . ." As they went through the apartment, they looked only in places where a person could be hiding. Tr. 11/18/03, at pp. 71-89. Like Officer Uccello, he had no idea who Alex Ortiz was or who lived at Apartment 330 when he arrived. Tr. 11/18/03, at p. 100.
Detective Anthony Martinez, senior detective for vice and narcotics, responded to 250 Main Street in response to what had been observed in the bathroom. He had learned that Officers Uccello and Gaddy suspected that someone might have been hiding in the bathroom or that an injured person was inside the bathroom. Tr. 11/18/03, at p. 143. After observing what had been found in the bathroom, he prepared an application for a search warrant, which was approved and then executed. The evidence seized, see Return for and Inventory on State's Exhibit 6, Affidavit and Application-Search and Seizure Warrant, included 20.2 ounces of cocaine, 91 green pills, 40 yellow pills, two scales, spoons, strainers and grinders with residue, a loaded 9mm Browning Arms pistol and a magazine and rounds for it. The loaded pistol, with a round in the chamber, was seized from a night stand in the bedroom. Tr. 11/18/03, at p. 131. It was determined that the defendant had a permit for the pistol. Detective Martinez testified that he disabled the alarm system. He had had no prior information relating to this location. Tr. 11/18/03, at pp. 136-37.
Michael Brightman, assistant manager of 250 Main Street for Harver Realty Advisors, testified on November 19, 2003. On the morning of Feb. 4, 2002, a maintenance worker fixed a malfunctioning heating unit in Apartment 330. Alex Ortiz and a female were in the apartment when the work was done, starting at 8:30 a.m. and ending at 8:45 a.m. The alarm in the apartment went off between 2:15 and 2:30 p.m. He received a call from ADT, the alarm monitoring company, which wanted to know if he was aware of the alarm. Brightman told ADT he would ask maintenance to look into it, and asked Carmelo Robles to do so. Alex Ortiz called on another line while Brightman was still talking with ADT. Brightman told Ortiz he had received a call from ADT in connection with the ongoing alarm. Ortiz said he had just missed a call from ADT. The policy was to give Carmelo Robles a key to check when it was possible that a burglary was occurring, or somebody was ill, or someone had fallen in an apartment — when there was an emergency. Tr. 11/19/03, at 2-56. Apartment 330 was the only apartment in the building with an alarm system. Tr. 11/19/03, at p. 22.
Carmelo Robles testified on November 19, 2003, also. He accompanied Officers Uccello and Gaddy up to the third floor and opened the front door for them with a master key. He thought the police were "looking for someone who was hiding." He provided Officer Uccello with a screwdriver from his work belt; Uccello used the screwdriver to open the bathroom door. Tr. 11/19/03, at pp. 78-93.
Testimony was also provided by Lucy DiGioia, an employee with ADT Security Services in Wallingford. ADT had contracted with the defendant for monitoring of the alarm system in Apartment 330. ADT received a burglar alarm from the motion detector in the kitchen at 2:13 and 59 seconds p.m., according to ADT records. Defendant's Exhibit F. ADT called the apartment at 2:15 and 14 seconds p.m., but there was no answer, so the police were called. According to notations contained in Defendant's Exhibit F, at 2:19 and 26 seconds p.m., a representative from ADT "spoke to Alex Ortiz stated that there were some men there fixing his heater but still wanted PD to g." Lucy DiGioia construed this to mean that Alex Ortiz still wanted the police department to go to the premises. Tr. 11/19/03 at pp. 119-25. DiGioia said ADT signs a contract with customers providing that if a burglar alarm goes off, the premises will be called, but if nobody is home, "we dispatch the police." Tr. 11/19/03 at p. 140.
The defendant argues that inconsistencies in the testimony render the State's witnesses unworthy of belief. For example, as the State acknowledges, there was conflicting testimony as to when the alarm was disabled, and by whom; different witnesses also have different recollections concerning precisely where evidence was seized. The Court disagrees, having personally observed the witnesses' testimony and having considered the full record. The inconsistencies, such as they exist, are relatively minor. Moreover, given the time that passed between the events in question and when the witnesses testified, some discrepancies are to be expected. The Court finds the testimony of the State's witnesses to have been credible and rejects the defendant's contention that discrepancies suggest that the witnesses were less than credible.
Legal Analysis
The Fourth Amendment to the United States Constitution and Article 1, Section 7 of the Constitution of the State of Connecticut protect the right of people to be free from warrantless searches. Warrantless searches and seizures within a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). The State has the burden of proving by a preponderance of the evidence an exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971); State v. Eady, 249 Conn. 431, cert. denied, 528 U.S. 1030 (1999).
There are numerous exceptions to the warrant requirement. The State's response to the pending motion focuses on two of these exceptions. The State claims, first, that the evidence was lawfully seized pursuant to the "emergency doctrine" exception to the warrant requirement. Second, the State claims that the evidence was lawfully seized pursuant to the consent exception to the warrant requirement. These claims will be separately analyzed.
1. Emergency Doctrine Analysis
The State contends that the warrantless entry into the apartment — and then into the bathroom — was justified by the emergency exception to the warrant requirement. The court agrees.
For helpful discussions of the emergency exception, see Perry, "Fourth Amendment Protections and the Emergency Exception," 61 Neb. L. Rev. 545 (1982); and Mascolo, "The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment," 22 Buff.L.Rev. 419 (1972-73). Mascolo provides this summary of the emergency doctrine:
Law enforcement officers may enter private premises either without an arrest or a search warrant to preserve life or property, to render first aid and assistance or to conduct a general inquiry into an unsolved crime, provided they have reasonable grounds to believe there is an urgent need for such assistance and protective action, or to promptly launch a criminal investigation involving a substantial threat of imminent danger to either life, health or property, and provided, further, that they do not enter without an accompanying intent to either arrest or search. If, while on the premises, they inadvertently discover incriminating evidence in plain view, or as a result of some activity on their part that bears a material relevance to the initial purpose for their entry, they may lawfully seize it without a warrant. Thus, to qualify as an emergency exception, there must reasonably appear to exist an exigency in the course of which a discovery related to the purpose of the entry is made. The exigent circumstances legitimate the presence, and the relevance of the discovery to the justification for the entry sanctions the seizure.
22 Buff.L.Rev. at 426-27.
The emergency exception (sometimes referred to as the emergency doctrine) is premised on recognition of the simple reality that some situations require immediate action. While it shares some characteristics with the "exigent circumstances" doctrine used to justify warrantless searches, it is not identical. As Justice Jackson stated in Johnson v. United States, 333 U.S. 10, 14-15 (1948): "There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with." It has been repeatedly recognized that "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963). "We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid . . . And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities." Mincey v. Arizona, 437 U.S. 385, 392 (1975); see also United States v. Barone, 330 F.2d 543 (2d Cir. 1964) ("The right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers and derives from the common law").
As Justice Norcott, then on the Appellate Court, explained in State v. Klaus, 19 Conn. App. 296, 300:
The terms `exigent circumstances' and `emergency doctrine' are often used interchangeably when discussing warrantless entries into a home . . . The term `Exigent circumstances,' however, 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' . . . The `emergency doctrine' exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence. (Citations omitted.)
In Root v. Gauper, 438 F.2d 361, 364-65 (8th Cir. 1971), the court summarized the emergency doctrine as follows:
For purposes of the instant case, the emergency or exigency doctrine may be stated as follows: police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of assistance. In applying this doctrine, two principles must be kept in mind. (1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof is on the state to show that the warrantless entry fell within the exception . . . (2) An objective standard as to the reasonableness of the officer's belief must be applied.
(Citations omitted.)
In justifying the particular intrusion, the court continued, the police officer must be able to point to "specific and articulable facts," which, taken with rational inferences from those facts, reasonably warrant that intrusion. Using an objective standard, the question is whether a person of reasonable caution would conclude that the action taken was appropriate. Id. at 365.
In People v. Mitchell, 39 N.Y.2d 173, 347 N.E.2d 607, 383 N.Y.S.2d 246 (1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976), the court set out guidelines for the application of the "emergency doctrine." Stated the Mitchell court at 347 N.E.2d at 609-10:
The basic elements of the exception may be summarized in the following manner: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance and for the protection of life and property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Our Supreme Court and Appellate Court have provided guidance concerning the application of the "emergency doctrine" in numerous cases. See, e.g. State v. Magnano, 204 Conn. 259 (1987) (where detectives responding to defendant's call legitimately searched premises pursuant to emergency, subsequent entry of detectives was a mere continuation of earlier legal entry); State v. Mann, 76 Conn. 48 (2003) ("emergency doctrine" inapplicable where police forced the door open and patted down defendant in the absence of reasonable belief that someone within the apartment was in danger or in immediate need of assistance); State v. Hoth, 50 Conn. App. 77 (1998), cert. denied 247 Conn. 922 (1998) (citing State v. Mitchell, supra, court notes that "emergency doctrine" is rooted in the community caretaking function of the police rather than criminal investigatory function, and serves the useful purpose of permitting police to save life and property without losing valuable time in emergency situations); State v. Klaus, 19 Conn. App. 296 (1989) (police were justified in making warrantless entry under the "emergency doctrine" where they had a report that defendant was intoxicated, armed with a gun and possibly suicidal, because a well-trained police officer would reasonably believe under the totality of the circumstances that a warrantless entry was necessary).
* * * * *
Viewed from an objective perspective, in light of all the circumstances and reasonable inferences, the fact that the burglar alarm was going off provided a factual basis to reasonably conclude that someone could be in need of immediate assistance or that life or property could be endangered. There was also a strong basis to associate the emergency with Apartment 330, given the obvious fact that the alarm was going off inside the apartment, the only unit in the building to have a burglar alarm. Under the circumstances of this case, society has a right to expect that police officers acting with a good faith belief that someone might be injured, or that a crime is being committed, will enter a residence and investigate further. All of the officers who testified testified that they were acting under the assumption that a crime was in progress, or that someone was in need of immediate medical assistance. There is no evidence whatever that the initial entry, initial limited searches, or entry into the bathroom were pretextual. See, e.g., State v. Klaus, 19 Conn. App. 296, 303 (1989). None of the officers testifying knew who the defendant was. Neither did any of them know that he was the occupant of the apartment. There is no evidence that when police entered the premises, or the bathroom, they were expecting or hoping to discover contraband or evidence of crime. The only credible evidence is that, upon initially entering the apartment, authorities searched only areas large enough to contain a human being, a security necessity under the circumstances. Nothing in the record supports the contention that the police used their initial entry as a pretext to search through drawers or other private areas.
It is unpersuasive to argue that if the police had a right to enter the apartment, they nonetheless should have stopped their inquiry before entering the bathroom. It is only necessary to consider this issue from another perspective to perceive the weaknesses in such an argument. If someone had been injured, or stricken ill, or suffering from a stroke or heart attack and was incapacitated in the bathroom, the failure of the police to check there could have resulted in serious harm or death. It is common knowledge that many injuries and accidents occur in bathrooms. If a burglar were hiding in the bathroom, and the police failed to check, this would expose the police themselves — as well as the occupant or a guest, later — to potential ambush or harm. Under the circumstances, the police were justified in taking reasonable security steps to protect themselves from possible ambush, and safeguard the occupant from a possible subsequent assault.
The evidence observed in the bathroom was found in plain view and its incriminating character was immediately apparent, rendering it subject to seizure. Horton v. California, 496 U.S. 128 (1990); Harris v. United States, 390 U.S. 234, 236 (1968); State v. Eady, 249 Conn. 431, 439 (1999) (the immediately apparent requirement of the plain view exception is satisfied if, at the time of the discovery of the contraband or evidence, there is probable cause to associate the property in plain view with criminal activity without further investigation). After observing the evidence, leaving the apartment, and securing it, the police took proper steps to obtain a warrant, permitting the subsequent search of the entire apartment, resulting in the seizure of the evidence.
In summary, the police had a right to be where they were when they initially observed the cocaine, drug paraphernalia and currency in plain view in the bathroom, and subsequently obtained a warrant providing a legal basis for searching the rest of the apartment. State v. Magnano, 204 Conn. at 271.
2. Consent Analysis
When the State seeks to rely upon the consent exception to the warrant requirement, it has the burden of proving that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). Many of the cases analyzing whether consent has been freely and voluntarily given involve situations in which a defendant is subject to possible pressure or coercion at the hands of authorities, See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and therefore involve detailed analysis of whether a defendant's consent to search was knowingly, intelligently, and voluntarily given.
When the subject of a search is not in custody, whether consent was voluntarily given depends not solely on whether the subject knew he had a right to refuse consent, but is a question of fact to be determined from all the circumstances. Id. at 293-94; State v. Torres, 197 Conn. 620 (1985). "An invitation to enter one's home does not necessarily imply an invitation or consent to enter all areas of that home . . . [W]hen the police are relying upon the consent as the basis for their warrantless search, they have no more authority than they have been given by the consent. It is therefore important to take into account of airy express or implied limitations or qualifications attending that consent which established the permissible scope of the search in tents of such matters as time, duration, area or intensity." State v. Regan, 209 Conn. 1, 13 (1988); State v. Garcia, 35 Conn. L. Rptr. 706, 2003 Ct. Sup. 11062 (Oct. 24, 2003).
In this case, the facts indicate that the defendant not only failed to object to the police presence in his apartment, but actually requested it. See ADT's records of the incident, Defendant's Exhibit F, page 2, as explained by the testimony of Lucy DiGioia, an ADT employee. As she testified, see Tr. 11/19/03 at pp. 124-25, ADT called defendant at 2:19 p.m. Defendant indicated that "it was some men in there fixing his heater but he still wanted the PD" to go to the apartment. Under all the circumstances, the Court concludes this constituted consent for the police to enter the apartment. Defendant must have been well aware that the consent he communicated to ADT would result in the police entering his apartment to investigate the apparent emergency. Defendant chose not to testify at the hearing, so there is no evidence as to precisely why defendant wanted the police to go to his apartment. In any event, defendant placed no limitations, express or implied, on the consent he expressed to ADT with respect to the area to be searched, or anything else. In the slightly unusual circumstances presented in this case, having consented to permit the police to enter his apartment, defendant effectively authorized the authorities to fully and carefully determine whether a criminal was hiding in the bathroom or whether an injured person was incapacitated there and in need of immediate assistance. There is no principled basis to argue that the authorities should have stopped their search on the other side of the bathroom door, or that the consent terminated on the other side of that door.
The court concludes, under the circumstances of this case, that defendant consented to the police entry into his apartment, and by extension, into the bathroom.
It is worth noting that State's Exhibit 5, the lease agreement signed by defendant which was in effect on February 4, 2002, contained the following provision, in relevant part:
18. Entering Apartment. We may also enter the apartment at any time without your consent in case of emergency, in accordance with Section 47a-16 of Connecticut General Statutes.
Section 47a-16(b) of Connecticut General Statutes states: "A landlord may enter the dwelling unit without consent of the tenant in case of emergency."
CONCLUSION
The Court concludes that the initial warrantless entry into the apartment was justified by the emergency doctrine. As a separate and independent basis for its ruling, the Court further concludes that, under the circumstances of this case, the defendant consented to the entry into his apartment. The Court concludes as well that the entry into the bathroom was justified as a logical extension of the reasons for the initial entry, as well as a reasonable security measure to avoid an ambush or harm. Having observed significant quantities of what was apparently cocaine, drug paraphernalia and currency in the bathroom, police authorities quite properly withdrew and obtained a search warrant, which led to the discovery and seizure of other items.
For the reasons stated above, defendant's June 21, 2002 Motion to Suppress Tangible Evidence is denied.
Douglas S. Lavine, J.