Opinion
No. CR08 023 12 96-T
June 18, 2008
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS
The defendant, Ricky Owen, stands charged with firearm offenses arising out of the police seizure of a loaded .357 revolver from premises known as 1050 Stratford Avenue, Bridgeport. In the present motion, Owen moves to suppress the gun as evidence asserting that its seizure was illegal. An evidentiary hearing was conducted on the motion on June 16 and 17, 2008. For the reasons set forth below, the motion to suppress is denied.
I. FINDINGS OF FACT
Based upon the evidence presented at the hearing, the court makes the following findings of fact.
In the early morning hours of March 4, 2008, Sergeant Robert Magnuson was parked in his patrol car on Fifth Street in Bridgeport approximately 30 to 50 feet from its intersection with Stratford Avenue. The front of his patrol car faced Stratford Avenue. Sometime prior to 2:52 a.m., another patrol car, occupied by Officers Tucciarone and Leon drove from Stratford Avenue onto Fifth Street and stopped next to Sgt. Magnuson's car. This second patrol car was facing away from Stratford Avenue. At the corner of Stratford Avenue and Fifth Street was a building occupied by Pettway's Store. This building blocked the officers' line of sight up Stratford Avenue.
At approximately 2:52 a.m., the officers heard three to four gun shots. The shots were coming from the right of Sgt. Magnuson somewhere in front of Pettway's Store. Sgt. Magnuson believed that the shots had come from a location 12 to 20 feet from him.
After hearing the shots, Sgt. Magnuson immediately put his car in gear and turned right onto Stratford Avenue. As Sgt. Magnuson proceeded the wrong way up Stratford Avenue, he saw four persons in front of a residence. Three of those persons crossed Stratford Avenue and the fourth walked through a gate up the stairs and into 1050 Stratford Avenue.
Officer Tucciarone had followed Sgt. Magnuson onto Stratford Avenue. He also saw the four persons outside 1050 Stratford Avenue. Three of the persons ran across Stratford Avenue to Fourth Street and the fourth went inside 1050 Stratford Avenue.
The officers' observations of the four men occurred within seconds of the gunshots. Other than those four, there were no other persons on the street.
The police pursued the three persons who had crossed Stratford Avenue. Two were stopped by Sgt. Magnuson and Officer Leon. After a foot chase, the third person was stopped by Officer Tucciarone. All three were patted down and no guns or other weapons were found.
The police now believed that the shooter was the fourth person who had entered 1050 Stratford Avenue. Sgt. Magnuson directed that the building be surrounded. He then went onto the porch and knocked at the front door. At this point, approximately five minutes had elapsed from the time that the police had seen the fourth man enter the building.
After repeatedly knocking on the front door, the door was opened by Wanda Smith. She was obviously pregnant. Sgt. Magnuson explained that shots had been fired in the area and that a person had been seen entering her house. She said that the only persons inside were her and her child. Ms. Smith initially resisted the police request to enter her home. A conversation went on for some minutes with the police emphasizing to Ms. Smith that they needed to check the house for safety purposes. Ultimately, Ms. Smith agreed to let the police officers in on condition that she remain with the police during the search.
Sgt. Magnuson advised other officers who had arrived on the scene that "she gave us the okay" and the police then entered 1050 Stratford Avenue. To the right of the front door in a sitting/living room area, the police found the defendant in his underwear on a couch. He was detained. Almost simultaneously, an officer discovered a .357 magnum revolver on the floor of one of the bedrooms. The gun was located within seconds of the police entry. Upon inspection, the gun was found to contain four spent shell casings and two live rounds. After the gun was located, the defendant was arrested.
II. DISCUSSION
CT Page 10183
A. STANDING
The first question this court must consider is whether the defendant has standing to challenge the search of 1050 Stratford Avenue. The parties agree that the test is whether the defendant had a reasonable expectation of privacy in the area searched. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (fourth amendment protects people not places); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (capacity to claim protection of the fourth amendment depends upon whether the person had a legitimate expectation of privacy in the invaded place); State v. Carter, 22 Conn.App. 118, 121 (1990) (an expectation of privacy is said to be legitimate if it is one that society is prepared to recognize as reasonable).As applied to the present case, the law of standing further provides that an overnight guest has a legitimate expectation of privacy in the host's home. Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Accord, State v. Bronson, 24 Conn.App. 473, 478 (1991), rev'd on other grounds, 221 Conn. 788 (1992).
Wanda Smith, the lessee of 1050 Stratford Avenue, testified that the defendant was her boyfriend and had keys to her house. She also testified, however, that some weeks before March 4th they had had a falling out and she had sought return of the keys. The defendant had returned only the key to the front door and retained the key to the back door which he continued to use. Ms. Smith did not object to this continued use of the key and did not make further demands for its return. As of March 4, 2008, Ms. Smith viewed 1050 Stratford Avenue as the defendant's home. She was not, however, aware that he was in her house on March 4th when the police requested permission to search. She thought that he was elsewhere.
The court finds that the defendant had at least the status of an overnight guest at 1050 Stratford Avenue and accordingly has standing to challenge the warrantless entry of those premises.
B. CONSENT
In opposing the motion to suppress, the state first asserts that the police entry into the premises was legal because it was pursuant to Wanda Smith's consent.
A warrantless search or entry into a house is not unreasonable when a person with authority to do so has freely consented. State v. Douros, 90 Conn.App. 548, 559, cert. denied, 276 Conn. 914 (2005). The state has the burden to prove that consent was freely and voluntarily given and the person who consented had authority to do so. Id. Consent is not established by mere acquiescence to police authority. Id.
On the issue of consent, there is a conflict in the evidence. Ms. Smith, while acknowledging the extended discussion with the police at her door, maintains that she never consented to the police entry. Sgt. Magnuson described the same extended discussion but testified that Ms. Smith was persuaded to allow the police in on condition that she accompany them and that her child not be disturbed.
The court finds that Ms. Smith did voluntarily consent to the search of her house based on three factors. First, the court finds the testimony of Sgt. Magnuson to be credible and the court accepts it as accurate. Second, it is undisputed that there was an extended discussion at the front door during which the police sought Ms. Smith's permission to enter her home. Such restraint suggests that Sgt. Magnuson would not simply push his way into the house as claimed by Ms. Smith. Third, Sgt. Magnuson's testimony is corroborated by two other witnesses. Officer DeBaros testified that just prior to the police entry, Sgt. Manuson stated "She gave us the okay." Moreover, Sherdly Charles, a tenant living at 1050 Stratford Avenue, was awakened by the police knocking at the door and left her room. She saw Ms. Smith at the front door and heard her say to the police, "Okay, I just need you guys to be quiet" and further heard Ms. Smith express concern for her son. This testimony strongly suggests that the police entered pursuant to Ms. Smith's permission.
It is true that about a week after the incident. Ms. Smith made a written complaint to the Bridgeport Police Department that her home had been illegally searched. This complaint, however, was made after others, including the defendant, advised her that the police search was improper.
As stated above, the court finds that the more credible evidence establishes that Ms. Smith orally consented to the police entry and search of her home. Accordingly, the subsequent seizure of the gun did not violate the defendant's rights.
C. EXIGENT CIRCUMSTANCES
As its principal ground opposing the motion to suppress, the state asserts that the search was justified by the exigent circumstances confronting the police. Searches conducted pursuant to the emergency or exigent circumstances doctrine are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions. State v. Geisler; 222 Conn. 672, 691 (1992).
The 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. State v. Aviles, 277 Conn. 281, 293 (2006); State v. Gant, 231 Conn. 43, 63-64 (1994). The test for the application of this doctrine is objective and not subjective and looks to the totality of the circumstances. Id.
The criterion to be applied is what a reasonable well-trained police officer would believe. The reasonableness of a police officer's determination that an emergency exists is evaluated on the basis of the facts known at the time of the entry. State v. Blades, 225 Conn. 609, 619 (1993).
Our Supreme Court has explained the underlying basis of this doctrine as follows:
The emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. It must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation . . . Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life . . . Police often operate in the gray area between their community caretaking function and their functions as criminal investigators. Often there is no bright line separating the one from the other; the emergency doctrine relies on an objective test where in the reasonableness of the officer's belief is assessed on a case-by-case basis.
State v. Blades, supra, 225 Conn. 619.
The three general categories that the courts have identified as justifying the application of the doctrine are danger to human life, destruction of evidence and flight of a suspect. State v. Guertin, 190 Conn. 440, 448 (1983).
Applying the above legal principles to the present case, the court finds that the police were confronted with exigent circumstances that justified their entry into 1050 Stratford Avenue.
The defendant asserts that, when viewed objectively, the facts known to the police provided only a suspicion that a person with a gun was in the house and not the requisite probable cause. The defense position is based on the fact that the police lacked direct evidence that the person who fired the gun had retreated into the house. This focus, however, is too narrow. The cases instruct that the totality of the circumstances are to be viewed from the perspective of a reasonable well-trained police officer. From this perspective, the situation confronting the police was that (1) at about 3:00 a.m. they suddenly hear multiple gunshots fired from a location very close to them but outside their line of sight; (2) they immediately drive to the vicinity of the shots and see a deserted street except for four men located in the area from which the shots came; (3) three men flee across the street and are ultimately stopped, searched and found to be unarmed; (4) the fourth man entered the front door of 1050 Stratford Avenue; and (5) upon knocking on that door, a pregnant woman opens the door partially and while speaking with the police states that her child is also in the house.
The court finds that the reasonable inferences from the facts known to the police supported a reasonable belief that an armed man who had fired a gun minutes before, upon seeing the police, had fled inside a home occupied by a pregnant woman and her child. The situation presented sufficient exigent circumstances to justify immediate police action in order to protect human life, prevent destruction of evidence and apprehend a suspect who had fled the police.
The defendant further asserts that even if an emergency existed, it only authorized an entry in order to detain the defendant and that the search exceeded the permissible scope justified by the emergency. In this regard, the defense relies on United States v. Lawrence, 2006 U.S. Dist. LEXIS 17123. In Lawrence, the police, pursuant to an emergency, had entered the defendant's home without a warrant, detained him, and placed him into a police car. The police also determined that there was no one else in the house. While the defendant was handcuffed in the police car, the officers continued their search and ultimately found a rifle hidden under a mattress. The district court ruled that the seizure of the rifle was not justified and that the police should have sought a warrant.
The present case is clearly distinguishable from Lawrence. First, unlike Lawrence, the defendant was not the only person inside 1050 Stratford Avenue. The police knew that at least Wanda Smith and her child were also there. Second, the handgun seized by the police was not hidden but in plain view on the floor of one of the bedrooms. Third, the detaining of the defendant and discovery of the gun occurred almost simultaneously and not in the sequential manner described in Lawrence.
In sum, the court finds that the warrantless entry into 1050 Stratford Avenue was justified by exigent circumstances and that, while addressing the emergency situation, the police located a loaded handgun in plain view that they properly seized.
CONCLUSION
For the reasons set forth above, the motion to suppress is denied.