State v. Bernier

Page 680

700 A.2d 680

46 Conn.App. 350

STATE of Connecticut v. Christopher G. BERNIER.

No. 15731.

Appellate Court of Connecticut.

Argued Feb. 28, 1997.

Decided Aug. 26, 1997.

Certification Granted Limited to the Following Issue Sept. 30, 1997.

Jack Fischer, Assistant State's Attorney, with whom, on the brief, were Frank S. Maco, State's Attorney, and Guy Wolf III, Senior Assistant State's Attorney, for appellant (State).

Joseph F. Keefe, with whom, on the brief, was A. Thomas Waterfall, Torrington, for appellee (defendant).

Before DUPONT, C.J., and SCHALLER and RONAN, JJ.

RONAN, Judge.

The principal issue in this appeal is whether the state constitution, article first, § 7, requires that a search warrant be obtained prior to conducting laboratory tests on charred wood flooring samples seized from the defendant's home. The flooring samples were seized incident to an investigation to determine the cause and origin of a fire that caused substantial damage to the defendant's home.

The defendant was charged with arson in the first degree in violation of General Statutes § 53a-111. ¹ The trial court denied the defendant's initial motion to suppress evidence obtained during a warrantless seizure incident to a fire investigation of the fire scene. ² The court ruled that the warrantless seizure was legally justified due to exigent circumstances and because it was part of an investigation of the cause and origin of the fire. Thereafter, in an amended motion to suppress, the defendant moved to suppress as the fruit of an illegal search any and all evidence obtained as a result of the chemical analysis of the charred flooring samples. The trial court granted that motion and ordered the chemical analysis of the flooring samples suppressed. The trial court then granted the defendant's motion to dismiss the charges against him, and the state requested permission to appeal pursuant to General Statutes § 54-96. ³ Upon denial of this request by the trial court, the state moved for review of the trial court's denial and requested permission to appeal. The state's motion for review and permission to appeal was subsequently granted by this court. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the state's appeal. On November 15, 1990, the fire department of the town of Morris responded to a house fire alarm at the defendant's home. Firefighters and equipment arrived at the scene at 8:37 a.m. to begin fire suppression measures. At 9:11 a.m., Joel Skilton, the local fire marshal, requested the state fire marshal's assistance in conducting an investigation to determine the cause and origin of the fire. At 10:53 a.m., Detectives James Pierpont and Julio Fernandez of the state fire marshal's office, arrived at the house and met with Skilton. Pierpont was accompanied by an accelerant detecting dog. The detectives and Skilton walked around the exterior of the house inspecting the fire damage and photographing the exterior. While taking photographs, they entered the interior of the home. As a part of their investigative inspection, they checked various rooms and moved various items of debris and furniture. In the living room, they observed a low burn pattern and pour patterns on the living room floor. These indicated the presence of a flammable liquid. Thereafter, the accelerant detecting dog was brought into the house. The dog alerted the fire investigators to several pour pattern areas. Because of those findings, four samples of charred wood flooring were taken from four different areas of the house. The cause and origin investigation was concluded prior to the investigators' leaving the scene of the fire.

The samples were placed in four separate cans and transmitted to the state public forensic science laboratory on November 16, 1990, the day after the fire. A moderate odor of petroleum was detected when the lab personnel opened one of the cans containing the samples. Gas chromatographic analysis revealed the presence of something similar to gasoline in three of the samples and a "medium range petroleum distillate" in all four samples. The laboratory report was dated November 29, 1990.

The state argues that although the trial court's decision rests on state constitutional grounds, it is based on an improper application of several Connecticut Supreme Court decisions, particularly State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), and State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993). The state urges this court to adopt its view that a warrant was not and should not have been required to test the samples that were seized at the scene of the fire as part of the cause and origin investigation. The underlying rationale of the state's argument is that such a requirement would add little or no privacy protection, while unnecessarily hampering the compelling public interest in determining the cause and origin of a fire.

I

General Statutes § 29-311 ⁴ entrusts the state fire marshal and any local fire marshal within his jurisdiction with the responsibility of investigating the cause and origin of any fire or explosion. General Statutes § 29-311(a) allows a fire marshal to make a warrantless entry onto any premises where a fire or explosion had occurred in order (1) to investigate to determine the cause and origin of the fire or explosion, (2) to prevent the intentional or unintentional destruction of evidence and (3) to prevent a rekindling of the fire. Other statutory sections, including General Statutes §§ 29-302 ⁵ and 29-310, ⁶ describe additional duties of the state and local fire marshals.

The constitutions of Connecticut and the United States " 'equally and conjointly prohibit unreasonable warrantless searches of private property. U.S. Const., amends. IV and XIV, § 1, Conn. Const., art. I, § 7.' " State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978).

"[W]arrantless searches and seizures inside a house are presumptively unreasonable." State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S.Ct. 1404, 131 L.Ed.2d 291 (1995); see State v. Zindros, supra, 189 Conn. at 237, 456 A.2d 288; State v. Vargas, 34 Conn.App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). The state bears the burden of showing that an exception to the warrant requirement applies. See State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993); State v. Vargas, supra, at 496, 642 A.2d 47; State v. Glenn, 30 Conn.App. 783, 785, 622 A.2d 1024 (1993). "[A]bsent consent to entry or exigent circumstances, a judicial determination of probable cause must stand in between the police and the door of a person's home, whether the object of an entry is to search and seize or to arrest." (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92 n. 17, 675 A.2d 866 (1996); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).

In recent years, our Supreme Court has decided a number of cases on the basis of the state constitution noting that " 'the law of the land' may not, in state constitutional context, also be the 'law of the state of Connecticut.' " State v. Dukes, 209 Conn. 98, 113-14, 547 A.2d 10 (1988); see also State v. Miller, supra, 227 Conn. at 379-80, 630 A.2d 1315; State v. Geisler, 222 Conn. 672, 684, 610 [46 Conn.App. 357] A.2d 1225 (1992). The Supreme Court has pointed out that "federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.... We have also, however, determined in some instances that the protections afforded to citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court...." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 716-17, 657 A.2d 585 (1995); State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990).

"In determining whether the results of [a] chemical test ... should have been suppressed under the state exclusionary rule, as a product of a search that violated the state constitution, we employ the same analytical framework that would be used under the federal constitution. We must determine (1) whether there was a reasonable expectation of privacy in the [samples], (2) whether the testing of the [samples] at the state laboratory constituted a search, and (3) if so, whether the circumstances of this case fall within a recognized exception to the warrant requirement." State v. Joyce, supra, 229 Conn. at 18-19, 639 A.2d 1007. Here, the trial court conducted a fact specific inquiry into all the circumstances and made the determination that the defendant did manifest the requisite subjective expectation of privacy with respect to his living room floor and that expectation is one that society would consider reasonable. We conclude that (1) the defendant had an expectation of privacy in the samples and that expectation was reasonable, (2) the testing was a search within the meaning of article first, § 7, of the Connecticut constitution, and (3) the search did not fall within a recognized exception to the warrant requirement.

A

For the samples to fall within the protection of article first, § 7, the defendant must have had a reasonable expectation of privacy. See State v. Joyce, supra, 229 Conn. at 20, 639 A.2d 1007; see also State v. Hill, supra, 237 Conn. at 92, 675 A.2d 866. To meet this rule of standing, a two part test must be satisfied: (1) the owner or custodian of the property must have manifested a subjective expectation of privacy with respect to it; and (2) that expectation must be one that society would consider reasonable. See State v....