State v. Boyd

57 Conn. App. 176

749 A.2d 637

STATE OF CONNECTICUT v. DAVID BOYD

(AC 18167)

Appellate Court of Connecticut.

Argued October 19, 1999.

Officially released April 4, 2000.

Lavery, Schaller and Hennessy, Js.¹ Melvin A. Simon, special public defender, for the appellant (defendant).

Toni M. Smith-Rosario, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Warren Maxwell, senior assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, David Boyd, appeals from the judgments of conviction rendered following his conditional pleas of nolo contendere on consolidated informations to two counts of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53-202k, one count of assault in the second degree in violation of General Statutes § 53a-60 (2), two counts of illegal possession of a pistol or revolver in violation of General Statutes § 53a-217c, and one count of theft of a firearm in violation of General Statutes § 53a-212.² The defendant claims that (1) he was unlawfully compelled by police coercion and duress to waive his fourth amendment right to be free from unreasonable searches and seizures, and (2) the trial court improperly denied the defendant's motion to suppress. We affirm the judgments of the trial court.

The following facts are relevant to the determination of this appeal. On May 1, 1995, shortly after 9 a.m., the Hartford police learned that a robbery had been committed in a bank parking lot in Hartford. The victim described the assailant as a black male with a large build, wearing a dark coat with a bandanna around his face and brandishing a handgun. At the time of the robbery, the defendant was a suspect in six prior, unresolved robberies of a similar pattern, leading the police to conclude that the defendant might be a suspect in the current robbery.

Robert Garten, a detective with the crimes against persons division of the Hartford police department, learned of the robbery and contacted the defendant's parole officer, Gary Hyman. Garten told Hyman to contact the defendant. Hyman called the defendant to remind him of a future appointment, and called Garten back. Hyman told Garten that the defendant sounded uncharacteristically winded, out of breath and upset.

Soon after, Thomas Grodecki, an officer with the Hartford police department, arrived at the defendant's apartment building with three other officers. On Garten's request, Hyman telephoned the defendant again to inform him that police had surrounded his apartment, that they intended to question him regarding the robbery and that he should cooperate. Grodecki was aware that the defendant had a prior criminal history. Grodecki approached the apartment door with his gun drawn while another officer remained at the base of the stairwell, also with his gun drawn.

The defendant opened his apartment door without prompting. Grodecki, with his gun still drawn, explained why he was there and stated, "I'm not going to hurt you. I don't want you to hurt me. I'm a grandfather. I'm about to retire." The defendant then invited Grodecki into his apartment, and Grodecki patted him for weapons. Grodecki observed that the defendant was extremely polite and cooperative. Grodecki was given permission by the defendant for officers to look around the apartment for other people. While walking through the apartment, Grodecki observed a blue and black bandanna scarf that was placed on a radiator. After Grodecki completed his tour, the defendant agreed to let other officers into his apartment.

The defendant agreed to accompany another officer to police headquarters, and Grodecki remained at the scene to secure the apartment. Grodecki went to use the bathroom and saw a small portion of a Fleet Bank deposit slip floating in the toilet. Grodecki notified detectives, and the slip was removed from the toilet so it would not be destroyed.

Officers obtained a search warrant for the defendant's apartment. The defendant's apartment, in which he resided with his then girlfriend, was on the second floor of a three-story apartment building. The defendant's apartment connected to a back porch with a railing in the rear of the apartment building. The defendant's back porch was further connected by a stairwell to similar porches above and below the defendant's apartment. A door on the ground floor, which was locked, provided access to the outside. A common staircase provides tenants access to all three floors. Each tenant has items stored on the particular porch area on his or her floor.

While executing the search warrant, an officer entered the second floor back porch of the defendant's apartment and ascended the stairs to the third floor porch directly above the defendant's porch. On the third floor porch, the officer saw a bank bag hanging off one of the shelves. The bag contained $3000 and a revolver, the serial number of which matched that of a revolver stolen in a prior robbery.

"Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here 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...." (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

I

The defendant contends that he was unlawfully compelled by police coercion and duress to consent to the search of his apartment. He claims that the officers' encircling of the apartment building and approaching him with guns drawn created an impermissibly coercive environment vitiating the defendant's consent. We disagree.

"A warrantless search is not unreasonable under the fourth amendment to the United States constitution when a person with authority to do so has freely consented. State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1168 (1998). The question of whether a defendant has given voluntary consent to ... search ... is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the ... search. State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Ortiz, 17 Conn. App. 102, 103-104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988)." (Internal quotation marks omitted.) State v. Story, 53 Conn. App. 733, 737-38, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999). "`Whether there was a valid consent to search is a factual question that will not be lightly overturned on appeal.'" State v. DaEria, 51 Conn. App. 149, 170, 721 A.2d 539 (1998).

The police did not exert an unduly coercive force over the defendant. Although the presence of drawn weapons is certainly a factor in determining voluntariness; United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998) (stressing no weapons displayed in finding consent voluntary), cert. denied, 525 U.S. 1123, 119 S. Ct. 906, 142 L. Ed. 2d 904 (1999); State v. Reason, 263 Kan. 405, 415-16, 951 P.2d 538 (1997); it is not dispositive. The defendant was not greeted with a phalanx of weapons when he opened his apartment door for the police. Rather, one officer had his weapon drawn at the defendant's door while another with his weapon drawn remained at the bottom of the apartment stairs. See United States v. Smith, 973 F.2d 1374, 1376 (8th Cir. 1992).

Further, the manner in which the police encountered the defendant minimized the potentially coercive effect of their brandished weapons. Here, the armed officers did not rouse the defendant out of bed in the middle of the night; cf. Harless v. Turner, 456 F.2d 1337, 1338 (10th Cir. 1972); break down the door to the defendant's apartment in the early hours of the morning; cf. United States v. Mapp, 476 F.2d 67, 77-78 (2d Cir. 1973); or use threatening language. See Ex parte Tucker, 667 So. 2d 1339, 1344 (Ala.), cert. denied sub nom. Alabama v. Tucker, 516 U.S. 944, 116 S. Ct. 382, 133 L. Ed. 2d 305 (1995). Rather, the defendant's parole officer warned him in advance that officers were coming and suggested that the defendant cooperate. Furthermore, Grodecki's words when first encountering the defendant appear to show that Grodecki was more concerned with his own safety than with intimidating the defendant.

In addition, the defendant, through his words, acts and conduct, revealed that his consent to enter his apartment was given freely. See Poulos v. Pfizer, Inc., 244 Conn. 598, 609, 711 A.2d 688 (1998). The defendant opened his apartment door without the police having knocked first. The defendant was extremely polite and cooperative. The defendant was not taken by surprise— he knew why the police were there when the door opened, having spoken to his parole officer beforehand. After Grodecki began to explain the purpose of his presence, the defendant invited Grodecki inside the apartment. After Grodecki informed the defendant that he was a suspect in a robbery, Grodecki asked the defendant if he could look around the apartment for weapons, other people and contraband. The defendant responded, "I've got some problems. I don't want to have any more problems. You can do whatever you want." Detective Garten also noted the permission given to him by the defendant to walk through the apartment and stated that the defendant told him that he had nothing to hide. These facts reveal that throughout the time police were present, the defendant provided consent on repeated...