State v. Eady

733 A.2d 95, 245 Conn. 464, 1998 Conn. LEXIS 477

• Court: Supreme Court of Connecticut
• Decided: July 21, 1998
• Docket: SC 15858
• Status: Published

Opinions

Opinion

BERDON, J.

The defendant, Patrick S. Eady, was arrested and charged with illegal possession of narcotics in violation of General Statutes § 21a-279 (a),¹ illegal possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (b),² illegal possession of marijuana in violation of § 2 la-279 (c),³ and illegal possession of marijuana with intent to sell in violation of § 21a-277 (a).⁴ Prior to trial, the defendant moved to suppress the marijuana and cocaine seized from a cigar box located in his bedroom, claiming that the state’s warrantless entry into his house and the seizure of the evidence was unreasonable and, therefore, in violation of his reasonable expectation of privacy guaranteed by the fourth and fourteenth amendments of the United States constitution.⁵ Following a suppression hearing, the trial court, Graham, J., granted the defendant’s motion, concluding that the state had failed to prove that the warrantless search and seizure fell within one of the claimed exceptions to the warrant requirement.⁶ Thereafter, the trial court, Mullarkey, J., granted the defendant’s motion to dismiss the charges pursuant to General Statutes § 54-56⁷ on the ground that there was insufficient evidence to continue with the prosecution as a result of the trial court’s suppression of the evidence. The state, on the granting of permission from the trial court,⁸ appealed the judgment of dismissal to the Appellate Court, on the ground that the seizure of the contraband came within the “plain view” exception to the warrant requirement. We transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c). We affirm the decision of the trial court.

The following facts are not in dispute. Shortly after 3 p.m. on August 12,1995, firefighters from the Windsor volunteer fire department responded to a fire at a single-family house at 19 Songonosk Street in Windsor. Fire Captain Angel L. Marrero was one of the volunteer firefighters who responded to the fire.

Pursuant to standard procedure, Marrero and two other firefighters entered the front door of the house to suppress the fire to a point where they could search the house for individuals who might need assistance. Once the fire was sufficiently suppressed, Marrero and another firefighter commenced searching the residence for potential victims. At the same time, they opened windows and doors for ventilation and to allow heat from the fire to escape. When Marrero encountered a locked interior door, he forced his way into the room, which turned out to be the defendant’s bedroom. Finding no one in the room, Marrero proceeded to pull the screens from the room’s windows. While doing so, he observed an open cigar box and a closed cigar box on a dresser adjacent to the window. In the open box, Marrero saw aplastic bag containing what he described as “a green leafy substance,” which he believed might be marijuana. Marrero testified at the suppression hearing that he had no training in identifying drags. Moreover, there was no evidence to indicate that Marrero had any familiarity with the appearance or physical characteristics of marijuana or other drags. After observing the substance in the cigar box, Marrero notified Fire Chief William Lewis.

Lewis apprised Sergeant Thomas Lepore of the Windsor police department, who was outside performing traffic control duties, of Marrero’s suspicions. Lepore and Officer Casher Holt then made a warrantless entry into the defendant’s house, and Marrero led them to the defendant’s bedroom. After observing a plastic bag filled with a green leafy substance in the open cigar box, Lepore seized the box. Lepore examined the contents of the box and discovered that it contained marijuana, cocaine in both powder and rock form, a photograph of the defendant and a store shopping card with the defendant’s name on it.⁹

It is a “basic principle of Fourth Amendment law that searches and seizures inside a [person’s] house without warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances.’ ”¹⁰ Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); see Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Longo, 243 Conn. 732, 737, 708 A.2d 1354 (1998); State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). In Coolidge v. New Hampshire, supra, 443, “the United States Supreme Court held that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the fourth amendment.” State v. Ruscoe, 212 Conn. 223, 237, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). The plain view exception to the warrant requirement “is based upon the premise that the police need not ignore incriminating evidence in plain view while they are . . . entitled to be in a position to view the items seized.” State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980); see Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). Three requirements must be met to invoke the plain view doctrine: First, the items seized must be in the plain view of the police, second “the initial intrusion that enabled the police to view the items seized must have been lawful; and [third] the police must have had probable cause to believe that these items were contraband or stolen goods.” State v. Ruscoe, supra, 237-38; Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).

“[T]he burden is on those seeking [an] exemption [to the warrant requirement] to show the need for it. . . .” (Citation omitted.) United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59 (1951). “We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153 (1948); see State v. Zindros, 189 Conn. 228, 237-38, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). The United States Supreme Court explained in Jeffers that by placing this burden on the state, the fourth amendment “does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended.” United States v. Jeffers, supra, 51.

The trial court concluded that the warrantless seizure of the defendant’s cigar box did not fall within the plain view exception to the warrant requirement because “the police had no lawful basis for being in [the] defendant’s bedroom without a warrant . . . .” The state argues that the trial court incorrectly applied the plain view exception to the facts of this case. According to the state, the police officers’ entry of the house was a mere continuation of the firefighter’s initial lawful entry,¹¹ and it was permissible for the officers to seize evidence in the plain view of the firefighter.¹² The defendant responds that the officers’ warrantless entry was not lawful because it clearly was detached from the firefighter’s initial emergency entry into the house to extinguish the fire, and, even if the officers’ entry was lawful, the firefighter did not have probable cause to believe that the cigar box contained contraband.¹³ The state concedes that the firefighter was required to have probable cause in order to support its claim that the police officers’ entry into the house was a continuation of the firefighter’s lawful entry,¹⁴ but argues that the underlying facts support the legal conclusion that the firefighter had probable cause.

“[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” (Internal quotation marks omitted.) State v. Zarick, 227 Conn. 207, 222, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); see State v. Vincent, 229 Conn. 164, 171-72, 640 A.2d 94 (1994). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that [t]here is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. Brinegar v. United States, [338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. (1949)]. State v. Penland, 174 Conn. 153, 155-56, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).” (Internal quotation marks omitted.) State v. Dennis, 189 Conn. 429, 431-32, 456 A.2d 333 (1983). Consequently, “[t]here must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964) (Citations omitted; internal quotation marks omitted.) State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990).

As a threshold matter, we set forth the appropriate standard under which we review a challenge to a trial court’s granting of a suppression motion. “ ‘This involves a two part function: where the legal conclusions of the court are challenged, 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; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” State v. Zindros, supra, 189 Conn. 238.

Although the trial court focused upon the second requirement of the plain view exception in its memorandum of decision — whether the officers’ intrusion was lawful — it is obvious that once the trial court concluded that the state had failed to establish this requirement, it was not necessary to discuss the third requirement of probable cause. The trial court, however, in addressing the state’s alternative argument that Lep-ore’s warrantless seizure of the cigar box fell within the exigent circumstances exception to the warrant requirement, did determine the issue of whether Mar-rero had probable cause to believe that the substance was contraband. The trial court found that Lepore did not have probable cause under this exception because “the information upon which he decided to enter the house” — Marrero’s suspicion that the box contained marijuana — was insufficient.

After reviewing the record of this case, we conclude that the trial court’s legal conclusion that Marrero did not have probable cause to believe the substance was marijuana is legally and logically correct, and that it finds support in the facts set out in the court’s memorandum of decision. First, Marrero testified at the suppression hearing that he had no experience in identifying drugs and that when he first saw the bag, he “had a question in [his] mind if it happened to be marijuana.” Because of Marrero’s lack of experience and training in identifying marijuana, he requested that Lepore observe the item. At best, Marrero had a reasonable suspicion that the substance in the plastic bag was marijuana.¹⁵ Marrero’s reasonable suspicion that the item was contraband, however, “means something less than probable cause.” Arizona v. Hicks, supra, 480 U.S. 326 (police officer lacked probable cause to conduct search of defendant’s expensive stereo equipment, found in plain view, because officer had only reasonable suspicion— i.e., less than probable cause to believe — that stereo equipment was stolen). In Beck v. Ohio, supra, 379 U.S. 97, the United States Supreme Court explained that “[i]f subjective good faith alone were the test [of probable cause], the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only [at] the discretion of the police.” (Internal quotation marks omitted.) See Byars v. United States, 273 U.S. 28, 29, 47 S. Ct. 248, 71 L. Ed. 520 (1927) (warrant issued upon information that “states only that affiant has good reason to believe and does believe the defendant has [contraband] in his possession . . . clearly is bad if tested by the Fourth Amendment and the laws of the United States” [internal quotation marks omitted]); State v. DeChamplain, 179 Conn. 522, 528, 427 A.2d 1338 (1980) (“[p]urely conclusory affidavits by the affiant . . .that he or she believes that probable cause exists . . . cannot be relied upon”).

Second, the state failed to prove that Marrero’s belief was “reasonably corroborated by other matters” within his knowledge.¹⁶ Jones v. United States, 362 U.S. 257, , 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). “[I]t [is] incumbent upon the prosecution to show with considerably more specificity than was shown in this case” why Marrero thought the substance was marijuana. Beck v. Ohio, supra, 379 U.S. 97; see Jones v. United States, supra, 271 (“[c]orroboration through other sources of information reduced” chance that officer did not have probable cause to search apartment). Marrero testified that he had a question in his mind whether the substance in the cigar box was marijuana. He never testified why he thought it might be marijuana, nor did the state present any evidence to corroborate his belief. In Nathanson v. United States, 290 U.S. 41, 47, 54 S. Ct. 11, 78 L. Ed. 159 (1933), the United States Supreme Court held that “mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances” was insufficient to support the state’s request for a search warrant. See Spinelli v. United States, 393 U.S. 410, 423, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) (White, J., concurring) (where police “officer simply avers, without more, that there is gambling paraphernalia on certain premises, the warrant should not issue, even though the belief of the officer is an honest one, as evidenced by his oath, and even though the magistrate knows him to be an experienced, intelligent officer who has been rehable in the past”). Likewise, Marrero’s affirmance of his suspicion and belief that the substance inside the cigar box was marijuana is insufficient to support a finding of probable cause.

We conclude, on the basis of the facts found by the trial court, that Marrero did not have probable cause to believe that the substance he observed in plain view was marijuana or other contraband.

The judgment is affirmed.

In this opinion NORCOTT and KATZ, Js., concurred.

1 General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

2 General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

3 General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

4 General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

5 Although the defendant raises the protection of article first, § 7, of the Connecticut constitution, we decide this case on the more limited grounds of the federal constitution. State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992).

6 The state argued in its trial brief opposing the defendant’s motion to suppress that the search and seizure met the requirements of one or more of the following exceptions to the warrant requirement: consent, emergency, exigent circumstances and plain view.

7 General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

8 General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

9 The trial court made the following further findings: “The sole reason for the police officers’ presence in the house was to view and seize the cigar box. Neither officer was present for any other purpose. Lepore had no fear of fire destroying the drugs. The house was watched and secured by police officers to ensure no one entered it except police and fire officials. Lepore was afraid someone might take the drugs, given that the fire department would eventually turn the house back to its occupants. However, following standard procedure, after the fire department concluded its work, the premises were turned over to the fire marshall, a full-time town employee, until his investigation as to fire cause and origin was complete. Only then was the homeowner able to reenter.

“While the timing of the sequence of events was never precisely established by the state, the fire marshall arrived in the area of 3:30 p.m. and stayed approximately two hours, until his investigation was completed (at least one hour) after the cigar box was seized. The fire was determined to be an accidental cooking fire.”

10 The fourth amendment applies equally to police officers and firefighters. Michigan v. Tyler, 436 U.S. 499, 506, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978).

11 See Michigan v. Tyler, 436 U.S. 499, 511, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978) (holding “that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze”).

12 The defendant argues thatfthe state failed properly to preserve before the trial court its claim that the plain view exception to the warrant requirement applies to the firefighter’s actions. See Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”).

We note that the state’s argument in its trial brief — predicated on the police officers’ plain view of the items seized — did not expressly raise this claim that the officers could seize items that were in the plain view of the firefighter. Nevertheless, in its trial brief, the state argued that “[t]he contents of the open cigar box came into [Marrero’s] view while he was engaged in firefighting activity. When the police were summoned to the room, their attention was directed by Captain Marrero to the open cigar box that he had already observed.”

Although the issue of the applicability of the plain view exception to the firefighter’s actions was not raised in an artful fashion, it was raised sufficiently to require this court to review it.

13 The state argues that the defendant’s failure to inquire about the firefighter’s basis of knowledge at the suppression hearing demonstrates that he did not dispute that the firefighter had probable cause to search the cigar box. We disagree. Whether the defendant inquired about the firefighter’s basis of knowledge is irrelevant to our determination of whether the state has borne its “burden of showing that an exception to the warrant requirement exists.” State v. Geisler, 222 Conn. 672, 682, 610 A.2d 1225 (1995); Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979).

14 The defendant argues that the police officers’ entry into the house could be justified as a continuation of firefighter Marrero’s legal entry into the house, in order to dispense with the warrant requirement, only if the item seized was related to the firefighter’s purpose in entering and searching the house and bedroom — for example, if the item seized was evidence of arson. Otherwise, the defendant argues, the police officers were required to obtain a warrant. See Michigan v. Tyler, 436 U.S. 499, 511, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978) (warrant is not necessary for reentry of house, close in time to initial fire emergency, when reentry is by officials investigating cause and origin of fire); State v. Magnano, 204 Conn. 259, 267, 528 A.2d 760 (1987) (when law enforcement officer “enters private premises in response to a call for help, and during the course of responding to the emergency observes but does not take into custody evidence in plain view, a subsequent entry shortly thereafter, by detectives whose duty it is to process evidence, constitutes a mere continuation of the original entry”).

We do not decide in this appeal whether the police officers’ entry into the house and the defendant’s bedroom was lawful as a continuation of the firefighter’s initial lawful entry because we conclude that the firefighter did not have probable cause to believe that the substance in the cigar box was contraband.

15 The trial court’s memorandum of decision provided: “Lepore testified that the information upon which he decided to enter the house was that items found by Marrero were ‘suspected’ to be drugs. Marrero, in his own words, testified that when he saw the open cigar box in [the] defendant’s bedroom he thought, ‘Not being an expert, but I had a question in my mind if it happened to be marijuana.’ Marrero also admitted to having no training in identifying drugs. Nor did Lepore, the ranking officer present and [the] lead policeman in the seizure, believe Marrero to be so trained. No evidence was presented to indicate any familiarity on Marrero’s part with the appearance or physical characteristics of marijuana or other drugs.”

16 Contrary to the dissent’s assertion, our conclusion that Marrero lacked probable cause does not rest “exclusively” on the fact that Marrero did not subjectively know that the observed substance was marijuana. Instead, we reach our conclusion on the basis of two factors: (1) Marrero had no more than a reasonable suspicion that the substance was marijuana; and (2) facts and circumstances within Marrero’s knowledge do not justify the belief of a reasonable person that the substance was marijuana.

Furthermore, we take issue with the dissent’s dim view of humanity that “an average citizen who has been reasonably alert the last several years almost certainly would conclude,” on the basis of the fact that (1) the substance was green and leafy, (2) it was in a clear plastic bag, (3) it was in an open cigar box, and (4) the cigar box was found inside a locked bedroom, “that the substance in the cigar box was probably marijuana.” Although we concede that an average citizen would be suspicious that the substance was marijuana, suspicion does not constitute probable cause. State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992).