State v. Kendrick

132 Conn.App. 473

31 A.3d 1189

STATE of Connecticut

v.Said KENDRICK.

No. 31896.

Appellate Court of Connecticut.

Argued Sept. 8, 2011.Decided Dec. 13, 2011.

James B. Streeto, assistant public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and David R. Applegate, assistant state's attorney, for the appellee (state).

ALVORD, BEAR and PELLEGRINO, Js.

BEAR, J.

The defendant, Said Kendrick, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1). The dispositive issue on appeal is whether the trial court improperly denied the defendant's motion to suppress certain evidence obtained by the police as a result of their warrantless entry into a bedroom where the defendant was found. Because we determine that the warrantless entry was not justified under the circumstances of this case, we reverse the judgment of the trial court.¹

The jury reasonably could have found the following facts. On the evening of May 12, 2008, New Jersey police contacted the Stamford police department, indicating that they were conducting a homicide investigation, and stating that they had reason to believe a suspect, Malik Singer, was in the area of 239 Knickerbocker Avenue in Stamford. The New Jersey police were led to focus on this particular area by a global positioning system (GPS) “ping” of a cellular telephone associated with their investigation.²

The New Jersey authorities described Singer to the Stamford police as a light-skinned African–American male with tear drop tattoos on his face. The New Jersey police did not provide a photograph of Singer to the Stamford police prior to their arrival in Stamford. In the course of investigating the Knickerbocker Avenue neighborhood, Stamford police were approached by the landlord of 239 Knickerbocker Avenue, who stated that a black male matching Singer's general description had been “keeping company” with a tenant residing in a third floor apartment of his building (apartment). Upon arrival of the New Jersey police in Connecticut, a team of Stamford and New Jersey officers approached and established a perimeter around 239 Knickerbocker Avenue. Although the New Jersey officers had a New Jersey arrest warrant for Singer, the police did not have a Connecticut arrest warrant for Singer or the defendant, nor did they have a search warrant for the apartment.

Between 11 p.m. and midnight, a number of New Jersey and Stamford police officers proceeded to the apartment, knocked on the door, and were met by a tenant, Blanca Valvo. Valvo permitted the officers to enter the apartment. After a period of questioning, Valvo informed the officers that two black males were present in a rear bedroom of the apartment, along with her daughter, Andrea. The New Jersey officers, weapons drawn, entered the bedroom, where they found Andrea Valvo lying in bed with the defendant. Another man, James Spurgeon, was lying on a mattress placed on the floor at the foot of the bed. The defendant reached for something near the bed, and the New Jersey officers, in response, secured the defendant and Spurgeon. After securing the defendant, a New Jersey officer searched the immediate area where the defendant had been reaching and discovered a backpack. The New Jersey officer then noticed what appeared to be—and, in fact, was—the handle of a revolver, sticking out from a pair of sneakers inside the backpack. The backpack was turned over to the Stamford police, and the defendant and Spurgeon were taken into custody. The defendant subsequently admitted to police that he had taken possession of the backpack and gun at Singer's request and had transported the articles to Connecticut. During the search, neither Singer nor the cellular telephone were found in the apartment.

At trial, the parties stipulated that the defendant previously had been convicted of a felony. The jury found the defendant guilty of criminal possession of a firearm, the court rendered judgment of conviction in accordance with the jury's verdict, and the defendant subsequently was sentenced to a two year mandatory term of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the defendant claims that the court improperly denied his motion to suppress certain evidence as the fruit of an unlawful search and seizure.³ Specifically, the defendant argues that the court erred in concluding that exigent circumstances justified the warrantless entry by police into the bedroom where he was sleeping. The defendant contends that the court's finding of exigent circumstances was based on a chain of speculation that did not rise to the level of a particularized, imminent danger. Furthermore, the defendant argues that the police did not have a reasonable basis for concluding that Singer was in the apartment.⁴ We agree with the defendant.

The following additional facts and procedural history are relevant to our resolution of the defendant's claim. Prior to trial, the defendant moved under the fourth, fifth, sixth and fourteenth amendments to the United States constitution and pursuant to article first, §§ 7 and 8, of the constitution of Connecticut to suppress certain evidence, including the handgun and statements made to the police, as fruit of an unlawful search and seizure. After a hearing, the court issued an oral ruling denying the defendant's motion. In a subsequent written memorandum of decision in which it effectively adopted its oral ruling, the court found that exigent circumstances justified the warrantless entry by police into the bedroom.⁵

Specifically, the court's written memorandum provides in relevant part: “The court finds that there was no search warrant issued to search the apartment ... nor was there an arrest warrant secured for the arrest of [the defendant] from any court in Connecticut. However, there was a homicide committed in New Jersey, and the alleged suspect, identified by witnesses as Malik Singer, fled the scene. No handgun was found at or near the scene, and a rational conclusion would be that Singer fled with the gun in his possession.

“The New Jersey police also uncovered a [cellular telephone], registered to the mother of Malik Singer, which a witness said was used by Singer. The [New] Jersey officials secured a subpoena to have the [cellular] telephone company ping the phone, [the result of] which indicated calls to the area of 239 Knickerbocker Avenue. They also were able to secure a warrant for the arrest of Singer within a day after the body of the shooting victim was found at [7 a.m.] on May 11.

“What ... information the police had led to a conclusion that the shooter, Malik Singer, was a fugitive, that the fugitive was armed, that he was dangerous because he had committed a homicide. The [cellular telephone] ping indicated that the fugitive had connections with a residence in Stamford focusing on the third floor apartment at 239 Knickerbocker Avenue. That building had several small apartments in it and was located in a residential area of small homes close together. As [New Jersey] Detective David Whipple answered, in response to defense counsel's question, it was close to midnight when all this information came together. This state has a doctrine that you do not enter a residence to search for a person or evidence without a search warrant and you do not make arrests for felonies unless committed in the presence of the officer or upon speedy information without an arrest warrant. The police had neither.

“But there certainly existed an exigent circumstance, which is recognized by our courts in the state of Connecticut and by courts in most of the United States. Here, there was reason to believe that the suspect who fled might be in the apartment at the third floor of 239 Knickerbocker Avenue, that he was armed and homicidal, that there were Blanca and [Andrea] Valvo in that apartment and that there were occupants in the other apartments in the building who could be injured if there was gunfire. To get a warrant at midnight would require time and to assemble and place the number of officers that might be needed to secure the safety of the residents in the apartment house and the neighborhood might alert the fugitive and result in his escape or in actual gunfire. Fortunately, the police were able to recover a gun, which Blanca Valvo did not know was in the bedroom and in the possession of the defendant, and in doing so, prevented him from using the weapon or from being shot.”

In addition, the following uncontroverted testimony was adduced at the suppression hearing. Whipple testified that “[w]e had reason to believe, during the course of my investigation that at one period of time, Mr. Singer had obtained a [cellular telephone], which was registered to an Ann Marie Pettigrew, which she may have been using during the crime I was investigating.” Whipple further testified that the police did not know that Pettigrew was connected with Singer at that time. Whipple, however, testified that he believed Singer was in possession of the telephone. Paul Guzda and Miriam Delgado of the Stamford police, along with Whipple and Luis Demeo of the Somerset County prosecutor's office, also testified that, prior to police entry, the door to the bedroom was slightly ajar and that the bedroom lights were off. Guzda testified that the New Jersey police had an arrest warrant for Singer.

The scope of review when analyzing the application of the exigent circumstances doctrine is well established. “The trial court's finding of facts will stand unless they are clearly erroneous. Its legal conclusion regarding the applicability of the doctrine, however, is subject to de novo review. State v. Blades, 225 Conn. 609, 617, 626 A.2d 273 (1993). The burden is on the state to...