State v. DeMarco, No. 30152.

5 A.3d 527

124 Conn.App. 438

STATE of Connecticut

v.Michael Angelo DeMARCO.

No. 30152.

Appellate Court of Connecticut.

Argued Feb. 8, 2010.

Decided Oct. 12, 2010.

Lindy R. Urso, Stamford, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michele Bredefeld, deputy assistant state's attorney, for the appellee (state).

BISHOP, DiPENTIMA and BEACH, Js.^*

BISHOP, J.

The defendant, Michael Angelo DeMarco, appeals from the judgment of conviction, following his conditional plea of nolo contendere, of two counts of cruelty to animals in violation of General Statutes § 53-247(a). ¹ On appeal, the defendant claims that the trialcourt improperly denied his motion to suppress evidence obtained by the police pursuant to a warrantless entry into his residence. Specifically, he claims that the court improperly found that the warrantless entry was justified under the emergency doctrine exception to the warrant requirement and that the court based its finding, in part, on erroneous factual findings. We agree and, accordingly, reverse the judgment of the trial court.

The following procedural history is relevant to our review. On January 11, 2008, the defendant filed a motion to suppress all evidence seized from his premises as a result of the warrantless entry by the police on October 21, 2007. In response, the state claimed that the warrantless entry was done pursuant to an emergency and, accordingly, no warrant was required. Following a hearing, the court denied the defendant's motion to suppress on the ground that the warrantless entry by thepolice was permissible under the emergency doctrine exception to the warrant requirement.

In its memorandum of decision, the court, Comerford, J., set forth the following facts: "Officer Tilford Cobb has been an animal control officer with the Stamford police department for the past ten years. In said capacity, he has had many contacts with the defendant as a result of neighbor complaints relating to the defendant's keeping of animals in his Wendell Place residence.

"On October 11, 2007, Officer Cobb, as a follow-up to prior complaints, left a notice on the defendant's front door and on the windshield of an automobile parked on the premises, directing the defendant to contact the animal shelter. At the time, a neighbor indicated [that] he had not seen the defendant in several days. Further, the defendant did not respond to his cell phone. Prior history indicated that he had generally responded to such notices.

"On Sunday, October 21, 2007, [Cobb], as further follow-up, paid a home visit to the defendant's residence. When approaching the house, he saw the October 11 notice on the floor of the front porch and the second notice left on the car still in place. [Cobb] observed that mail, current and dated, had piled up in an overflowing mailbox, and the same neighbor he had spoken to before once again said that he had not seen the defendant in several days. Dogs were heard barking inside the house. As he approached the front door, a strong, 'horrible odor,' which he described as a 'feces smell,' emanated from the premises. He knocked on the door, which became ajar, with no response. At the time, he did not have the defendant's cell phone number with him.

"Feeling something was wrong in the house and out of concern for the defendant's welfare and any animals in the house, [Cobb] called headquarters, resulting in a response by Sergeant Thomas Barcello, who, shortly thereafter, arrived with backup officers. Barcello, after initial discussion with [Cobb] confirmed his observations by finding the house to be in disarray, two or three vehicles on the property and overflowing and dated mail together with the previously left notices by animal control. He and his men did a perimeter check of the house and attempted to look through the windows, which were so filthy that visual observation of the interior was not possible. Patrol Officer [Will] Mercado confirmed the observations made by [Cobb] and Barcello. Out of [Cobb's] express concerns and his own findings and after consultation with [Cobb] and his officers, he, too, concluded that the defendant and possibly others, together with the animals in the house, might be in danger and need of assistance. The aforesaid observations, check of the premises and consultations all took place within a very brief period of time. Barcello concluded that a 'welfare check' was necessary. As aresult of the putrid smell emanating from the house and fear for the safety of his men, Barcello enlisted the aid of the Stamford fire department, [which] he felt had the proper breathing equipment to enter. Inspection by fire personnel disclosed no humans present but that the dogs in the house were in bad shape. It is uncontroverted that the house was in such deplorable condition at the time of the incident that shortly thereafter it was condemned by the city of Stamford.²

"While the defendant argues that telephone contact could have been made prior to entry, the evidence indicated otherwise, given the immediacy of the situation. [Cobb] had specifically indicated that he did not have the defendant's cell phone number with him when he made the check. Although telephone contact was made with the defendant later in the day, the evidence and the reasonable inferences therefrom indicate that this information was not available to Barcello at the time of the perceived emergency. The court specifically credits Barcello's testimony in this regard."

On July 10, 2008, following the denial of his motion to suppress, the defendant entered a plea of nolo contendere to two counts of cruelty to animals in violation of § 53-247(a), conditioned on his right to appeal from the court's denial of his motion to suppress pursuant to General Statutes § 54-94a.³ The court accepted thedefendant's plea and determined that its denial of the motion to suppress was dispositive of the case. ⁴ Also on that date, the court, Comerford, J., sentenced the defendant to nine months incarceration, execution suspended, and three years probation on each of the two counts, the sentences to run consecutively. This appeal followed.

We begin by setting forth the well established principles that govern the suppression of evidence derived from a warrantless entry into a home. "The fourth amendment to the United States constitution 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...." (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 681, 610 A.2d 1225 (1992). The United States Supreme Court has stated that "physical entry of the home is the chief evil against which the wording of the [f]ourth [a]mendment is directed." (Internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Thus, "[i]t is a basic principle of [f]ourth [a]mendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." (Internal quotation marks omitted.) Id., at 586, 100 S.Ct. 1371. There are, however, certain recognized exceptions to the federal constitutional requirement that searches and seizures be conducted pursuant to a warrant, one exception being in cases of emergency. SeeMincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978);State v. Magnano, 204 Conn. 259, 265, 528 A.2d 760 (1987). When a warrantless search has been conducted inside a home, the state bears the burden of showing that an exception to the warrant requirement exists to justify that entry. State v. Geisler, supra, at 682, 610 A.2d 1225. If none of the exceptions apply to a warrantless search, "[u]nder the exclusionary rule, [the] evidence must be suppressed [as] it is ... the fruit of prior police illegality." (Internal quotation marks omitted.) State v. Wilson, 111 Conn.App. 614, 623, 960 A.2d 1056 (2008), cert. denied, 290 Conn. 917, 966 A.2d 234 (2009). "The requirement that a warrant be obtained before conducting a search reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual's personal effects should be made by a neutral magistrate.... The point of the [f]ourth [a]mendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." (Internal quotation marks omitted.) State v. Trine, 37 Conn.App. 561, 567, 657 A.2d 675 (1995), rev'd on other grounds, 236 Conn. 216, 673 A.2d 1098 (1996).

The defendant claims that in denying his motion to suppress the evidence obtained by the police pursuant to their warrantless entry into his home, the court improperly concluded that the emergency doctrine applied to the circumstances of this case. Specifically, the defendant argues that the court made erroneous factual findings and that the evidence presented did not permit a finding that the police reasonably believed that a warrantless entry was necessary to help someone inimmediate need of assistance. We agree with both assertions.

"The emergency exception refers to ... warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence." (Internal quotation marks omitted.) State v. Klauss, 19 Conn.App. 296, 300, 562 A.2d 558 (1989). "[T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in...