State v. Buie

129 Conn.App. 777

21 A.3d 550

STATE of Connecticut

v.Robert S. BUIE.

No. 31049.

Appellate Court of Connecticut.

Argued Feb. 14, 2011.Decided July 5, 2011.

Neal Cone, senior assistant public defender, for the appellant (defendant).Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and John J. Davenport, supervisory assistant state's attorney, for the appellee (state).LAVINE, BEAR and DUPONT, Js.LAVINE, J.

In this appeal, we must determine whether the apparent authority doctrine,¹ which is an exception to the warrant requirement, is constitutional under the constitution of Connecticut. We conclude that the apparent authority doctrine does not offend the right of Connecticut citizens to be free from unreasonable searches, a right guaranteed by article first, § 7.²

The defendant, Robert S. Buie, appeals from the judgment of conviction, rendered following a jury trial, of two counts of aiding and abetting aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–8 and 53a–70 (a)(1), and one count each of attempt to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) [129 Conn.App. 780] and 53a–70a (a)(1), conspiracy to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–70a (a)(1), and burglary in the first degree in violation of General Statutes § 53a–101 (a)(1). On appeal, the defendant claims that the court erred in denying his motion to suppress all evidence seized from his apartment because it improperly concluded that the police were permitted to enter his apartment without a search warrant pursuant to the apparent authority doctrine. Specifically, the defendant claims that although the apparent authority doctrine is recognized as an exception to the warrant requirement under federal law, it violates article first, § 7, of the constitution of Connecticut. We do not agree and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In September, 2005, LB moved into an apartment adjoining the defendant's apartment in a residential complex (complex). ³ Upon moving into her new apartment, LB first encountered the defendant, and, approximately one month later, LB also met the defendant's girlfriend, Beverly Martin.⁴

On the night of November 18, 2006, LB and a friend visited two bars, and LB arrived home at approximately 1:30 a.m. the following day. LB fell asleep on her living room couch, and, at approximately 4:26 a.m., with her apartment completely dark, she awoke to what she believed was a gun pressed against her head.

The person holding the gun to her head ordered LB to put her hands behind her back. LB recognized the voice as that of the defendant. A man later identified as the defendant then forced LB to put her arms behind her back and put a piece of duct tape over her mouth and also bound her hands together with duct tape. With her pants removed, the defendant and Martin then took turns inserting a dildo into LB's vagina and rectum while holding the gun to her head. When they were finished, the defendant inserted his penis into LB's vagina.⁵

After the defendant and Martin left LB's apartment, LB went to a neighbor's apartment and had the neighbor call the police. Officer Joseph Farina arrived at the complex and spoke to LB. LB told Farina that the defendant and Martin had raped her. After an ambulance transported LB to the hospital, Farina and several officers began searching for the defendant and Martin. Farina found the defendant sitting in front of the complex, speaking with two officers.

Sergeant Michael Slavin arrived at the complex at approximately 7 a.m. Slavin learned that the defendant and Martin were willing to go to the detective bureau for further questioning about the incident involving LB. Prior to departing the complex, Martin stated that she wanted to retrieve some items from “her room.” Without prompting, Martin stated to Slavin, “I suppose you guys want to come with me....” Slavin agreed, and Detective Richard Baxter and another detective accompanied Martin into the apartment. While in the apartment, Baxter observed something that he believed was connected to the sexual assault. When he exited the apartment, he told Slavin about what he had seen in the defendant's apartment.⁶ Officers secured the apartment, and the defendant and Martin were transported to the detective bureau. ⁷ Later, after the police obtained a search warrant for the defendant's apartment, they recovered, among other things, a flesh-colored dildo, a black dildo, two BB guns, a container of BBs and a roll of duct tape.

When LB arrived at the hospital, she met with Christina Strachan, an emergency room nurse. Strachan examined LB and noticed a lump on the back of her head, which was consistent with blunt trauma. Strachan also observed red marks on the back of LB's neck and her left shoulder and marks on both knees, consistent with a rug rash. Finally, Strachan observed that the bottom wall of LB's vagina was very tender, which Strachan stated occurs when the vagina is penetrated and the woman is not aroused. After her medical examinations were complete, an officer drove LB to the police station where she identified the defendant and Martin in a photographic array as her attackers.

On January 16, 2007, the police arrested the defendant in New York City, with the assistance of the United States Marshals Service's violent fugitive task force, and one day later, Martin surrendered at the Waterbury police station. The defendant was charged with two counts of aiding and abetting aggravated sexual assault in the first degree and one count each of attempted aggravated sexual assault in the first degree, conspiracy to commit aggravated sexual assault in the first degree and burglary in the first degree.

On March 4, 2008, the defendant filed a motion to suppress all evidence seized from his apartment. Specifically, the defendant claimed that because Martin did not live with him in his apartment, the “police were without authority to enter into the apartment without [his] consent in the course of conducting [their] investigation,” and, therefore, they violated his state and federal constitutional rights. On October 27, 2008, the court held a hearing on the defendant's motion. The defendant testified that Martin only had access to his apartment when he also was present in the apartment, that Martin's name was not on the lease and that only he and his former wife had keys to the apartment. He also claimed that he and Martin were not in a romantic relationship and were nothing more than friends. Finally, the defendant argued that because he was present at the scene, the police were obligated to obtain his permission before entering the apartment.

Slavin also testified at the hearing and stated that on November 19, 2006, the police did not know who held the lease for the defendant's apartment. He claimed, however, that “I feel that [Martin] said she was living there. She obviously had personal belongings there. We felt she established residency there. Therefore ... she was able to give consent for the officers to go in with her.” When asked whether the defendant told him that Martin lived in the apartment, Slavin responded that “Ms. Martin told us she lived there.”

On October 29, 2008, the court denied the defendant's motion to suppress in an oral decision. Before issuing its decision, the court made several findings of fact. The court first concluded that Slavin was in charge of the police investigation of the sexual assault and that when he arrived at the complex, he met with the defendant and Martin, who were not under arrest at the time. The court then concluded that Martin had indicated that before she was willing to go to the police station, she needed to obtain some personal belongings that were in the apartment, specifically, keys and a cellular telephone. She stated to the officers, “I suppose you guys want to come in with me.” ⁸ The court found that the police agreed to follow Martin because “the police at the time knew details of the alleged sexual assault, and they knew that a handgun had been involved in the sexual assault and they were concerned for officer safety because they had reason to believe that the handgun might be in the apartment ... that ... Martin was entering to retrieve her belongings. That the police did not go into the apartment with any intent to search the apartment for evidence or any intent to seize any items. Their intent was solely to accompany ... Martin for officer safety.” ⁹

After making these factual findings, the court, citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), stated that “a warrantless search is valid when it is based on the consent of a third party whom the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority.” The court concluded that Martin voluntarily provided the police with permission to enter the apartment and that it was reasonable for the police to have believed that Martin possessed common authority over the apartment. The court based this determination on its findings that Martin told the police that both she and the defendant lived in the apartment, that Martin had personal items in the apartment, that the defendant was present outside the apartment and did not object when the police entered the apartment with Martin and because the police knew that Martin was the defendant's girlfriend. ¹⁰ The court also relied on State v. Vazquez, 87 Conn.App. 792, 867 A.2d 15, cert. denied, 273 Conn. 934, 875 A.2d 544 (2005), in which this court, without adopting the apparent authority doctrine, held that it was...