Opinion
No. CR4-08-0376034
May 17, 2010
MEMORANDUM OF DECISION
My decision will address four issues raised in the present case: (1) whether such execution of the search warrant by Waterbury police violated General Statutes § 7-281, (2) whether such violation, if any, also violated the fourth amendment to the United States constitution, (3) whether such violation, if any, also violated article first, § 7 of the constitution of Connecticut, and (4) whether the evidence obtained from the search warrant should be suppressed.
The undisputed material facts are as follows: In November 2008, Waterbury police officers were investigating the defendant, Jeffrey Padilla. They obtained a search warrant permitting them to search the person of the defendant, his Chevy truck and the premises located at 17 Lilac Avenue Oakville, Connecticut, which. is within the town of Watertown. Waterbury police officers executed the search warrant on November 8, 2008, without the presence of Watertown police officers. The search occurred entirely within the town of Watertown. Upon finding incriminating evidence as a result of the search, the Waterbury police officers arrested the defendant.
The state charged the defendant with one count of operating a drug factory, General Statutes § 21a-277(c), and one count of possession with intent to sell, General Statutes § 21a-278. The defendant then filed a motion to suppress the evidence obtained as a result of the search. In the memorandum of law supporting his motion, the defendant argues that the Waterbury police officers violated § 7-281 by executing the warrant outside of their jurisdiction, which is confined to the city of Waterbury. The defendant further argues that, because of the Waterbury police's "disregard for the law, lack of respect for the Watertown Police Department's authority, and belief of unfettered power and authority to act" the evidence must be suppressed. The state takes the position that the evidence should not be suppressed because the search was lawful under state law and violated neither the fourth amendment of the United States Constitution nor article first, § 7 of the constitution of Connecticut.
ISSUE I. Whether the Conduct of the Waterbury Police Violated General Statutes § 7-281.
Section 7-281 provides: "Active members of any legally organized police force in a town, city or borough shall have the same authority to execute criminal process in their respective towns, cities or boroughs as constables have in their respective towns, and, in addition, any such member having a warrant of arrest arising out of an offense allegedly committed in the town, city or borough in which such police force is located may execute such warrant in any part of the state." The Connecticut Supreme Court has suggested that this statute forbids municipal police officers from executing search warrants in a municipality other than their own unless officers from said municipality are present at the execution. This construction is consistent with the language of the statute, which specifically allows a municipal police officer to execute an arrest warrant "in any part of the state." General Statutes § 7-281. Thus, other types of criminal process, including a search warrant, may only be executed by an officer in his or her home municipality.
In the present case, Waterbury police officers executed the search warrant in Watertown without the presence of Watertown police officers. Therefore, the execution of the search warrant violated § 7-281.
ISSUE II Whether the Violation of § 7-281 by the Waterbury Police Also Violated the Fourth Amendment to the United States Constitution
The fourth amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "The fourth amendment is made applicable to the states by incorporation through the due process clause of the fourteenth amendment to the United States constitution."
The United States Supreme Court, in Virginia v. Moore, CT Page 11626 553 U.S. 164, 168, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), recognized that the fourth amendment is not "a redundant guarantee of whatever limits on search and seizure legislatures might have enacted." The Court then explained that, where "history" provides no guidance, it analyzes "a search or seizure in light of traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." In concluding that a police officer may constitutionally make a warrantless arrest when a crime is committed in the officer's presence even if the arrest is illegal under state law. The Court noted that "[w]hether or not a search is reasonable within the meaning of the [f]ourth [a]mendment, has never depend[ed] on the law of the particular [s]tate in which the search occurs." The Court also held that conducting a search after making such unlawful but constitutional warrantless arrest similarly does not violate the fourth amendment.
In United States v. Green, 178 F.3d 1099, 1106 (10th Cir. 1999), which predates Moore but is on point with the present case, the United States Court of Appeals for the Tenth Circuit upheld as constitutional an extraterritorial execution of a search warrant by police officers. In that case police officers from Wichita, Kansas, which is in Sedgwick County, received information that Glenn Green was distributing drugs out of his home in Butler County. Id., 1101, 1101 n. 1. After executing a successful controlled buy using a confidential informant, the Wichita officers sought and obtained a federal warrant to search Green's home. Without first seeking assistance from Butler County police officers, the Wichita officers executed the warrant, discovering incriminating evidence. Asserting that the Wichita officers acted outside of their jurisdiction, Green argued that the evidence should be suppressed as fruit of a fourth amendment violation.
It was undisputed that the Wichita officers were not legally permitted to execute a search warrant in Butler County. The court noted that the fourth amendment does not require that a warrant be executed by an officer acting within his or her jurisdiction; it requires only that the warrant be: (1) based on probable cause supported by oath or affirmation, (2) sufficiently particular, and (3) authorized by a magistrate of the relevant jurisdiction. Therefore, the court held that the officers' extraterritorial execution of the federal search warrant did not violate the fourth amendment.
Other decisions have also rejected fourth amendment challenges to searches and arrests conducted by officers acting outside the bounds of their legal authority under state law. See, e.g., Bowling v. Rector, 584 F.3d 956, 970 (10th Cir. 2009) (holding that execution of warrant to search for evidence of mortgage fraud did not offend fourth amendment simply because specialized officer executing it was restricted under state law to investigating allegations of livestock theft); Holder v. Sandown, 585 F.3d 500, 506-07 (1st Cir. 2009) (deeming irrelevant for fourth amendment purposes officer's failure to follow state law requiring officer to identify aggressor before making warrantless arrest for offense of abuse); Tucker v. Jefferson, 110 F.Sup.2d 117, 123-24 (N.D.N.Y. 2000) (upholding as constitutional arrest based on valid warrant issued in Yates County that was executed in Jefferson County, even though arresting officer violated state law by neglecting to have Jefferson County criminal court endorse warrant). Courts have also rejected fourth amendment challenges based on officers' violations of state constitutional provisions. See, e.g., California v. Greenwood, supra, 486 U.S. 43-44 (holding state constitutional right to privacy in household garbage irrelevant to whether police "search" of household garbage implicated the fourth amendment).
This court, therefore, finds that there is no requirement in the fourth amendment that the officer executing a warrant must be acting within his or her geographical jurisdiction. Therefore, the violation of § 7-281 by the Waterbury police officers was not per se also a violation of the fourth amendment.
ISSUE III Whether the Violation of § 7-281 by the Waterbury Police Also Violated Article First, § 7 of the Connecticut Constitution
Article first, § 7 provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." The Connecticut Supreme Court construed article first, § 7 in State v. Miller, supra, 227 Conn. 363. In that case, West Hartford police officers were informed of the robbery of a West Hartford supermarket by witnesses who described the robbers' getaway car, including its license plate number. The officers used the license plate number to discover that it belonged to Jonathan Miller, who lived in Hartford. The officers went to Miller's Hartford residence and waited for him to arrive. When he did, the officers arrested him, searched his car, and then brought him and his car to the West Hartford police station, where they searched his car again, finding a .357 magnum revolver.
Miller moved to suppress the revolver, arguing, among other things, that the West Hartford police officers violated article first, § 7 by seizing him and his automobile in Hartford, which was out of their jurisdiction. The Supreme Court rejected his argument, holding that it was "not persuaded that the prohibition in article first, § 7, of unreasonable seizures encompasses the legislature's territorial restrictions on police conduct." It then cited several statutes, presumably as examples of such restrictions, including § 7-281. See id. (citing also General Statutes §§ 7-148, 7-276, 7-277a, 29-7, 29-169, 29-176 and 54-1f). The Court then explained that "[l]egislative enactments are expressions of this state's public policy and do not necessarily define the outer boundaries of constitutional protections. Indeed, the legislature has the power to prohibit, as a matter of policy, that which we have held to be constitutional."
The ruling in Miller that extraterritorial conduct by police officers does not offend the Connecticut constitution is consistent with decisions in similar Connecticut cases. State v. Czyzewski, 70 Conn.App. 297, 308, 797 A.2d 643, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002) (citing State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986); State v. Stevens, 224 Conn. 730, 620 A.2d 789 (1993); State v. Pierce, 67 Conn.App. 634, 789 A.2d 496, cert. denied, 260 Conn. 904, 795 A.2d 546 (2002); and State v. Andrews, 33 Conn.App. 590, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994)).
Therefore, this court finds that the extraterritorial conduct of the Waterbury police officers did not, by itself, violate article first, § 7 of the constitution of Connecticut.
IV ISSUE IV Whether the Waterbury Police Officers' Violation of § 7-281 Warrants Suppression of the Evidence Obtained in the Search
Practice Book § 41-12 provides: "Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut." The Connecticut Supreme Court has held that such "provision establishes no substantive standard for the suppression of illegally seized evidence, but, rather, depends upon the applicable interpretation of either the United States or Connecticut constitution to determine whether evidence should be suppressed. If the provisions of either constitution, as currently interpreted, require the suppression of any evidence seized, [ § 41-12] merely directs the judicial authority to carry forth that suppression. In that regard, it is the constitution either of the United States or the state of Connecticut that requires the suppression, not [ § 41-12]. Accordingly, [ § 41-12] incorporates the existing standards of search and seizure jurisprudence, as set forth by this court, our Appellate Court and the United States Supreme Court, leaving to trial courts the task of determining whether suppression is required in a particular case." State v. Marsala, 216 Conn. 150, 156, 579 A.2d 58 (1990)
In other words, § 41-12 and a related provision, General Statutes § 54-33f, are only procedural in nature and do not grant a substantive right to suppression of evidence. They were enacted in order to comply with the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), because Connecticut had no procedure for suppressing unconstitutionally seized evidence prior thereto.
Therefore, the court can only suppress evidence seized through a violation of a statute if the act is also a constitutional violation or if the law otherwise allows suppression as a remedy for such violation.
There is no statute or precedent providing for suppression of seized evidence as a remedy for the searches conducted in violation of § 7-281. Therefore, in light of the absence of any constitutional violation arising out of a violation of § 7-281, this court finds that the violation by the Waterbury police officers does not entitle the defendant to suppress the evidence seized.
Accordingly, the defendant's motion to suppress is denied.