State v. Pierre

139 Conn.App. 116

54 A.3d 1060

STATE Of Connecticut

v.Clerde PIERRE.

No. 33567.

Appellate Court of Connecticut.

Argued Sept. 12, 2012.

Decided Nov. 13, 2012.

Kristin B. Coffin, special public defender, for the appellant (defendant).

Maria del Pilar Gonzalez, certified legal intern, with whom, was Harry Weller, senior assistant state's attorney, and, on the brief, David I. Cohen, state's attorney, and Joseph C. Valdes, assistant state's attorney, for the appellee (state).

LAVINE, BEACH and ALVORD, Js.

ALVORD, J.

The defendant, Clerde Pierre, appeals from the judgment of conviction, rendered after a jury trial, of attempted criminal possession of a firearm in violation of General Statutes §§ 53a–49 (a)(1) and 53a–217 (a)(1), criminal possession of a pistol in violation of General Statutes § 53a–217c and possession of marijuana with intent to distribute in violation of General Statutes § 21a–277 (b). On appeal, the defendant claims that the court improperly denied his motion to suppress evidence that the police seized from the attic of a rooming house because he had a reasonable expectation of privacy in the attic space.¹ We affirm the judgment of the trial court.

The record reveals the following facts either were found by the trial court or are undisputed. At approximately 6:20 p.m. on February 14, 2004, members of the Stamford police department arrived at 1318 Bedford Street after receiving a 911 call from one of the building's tenants reporting a disturbance involving a gun. As officers arrived, they parked their cars in the rear lot and entered the rooming house through the unlocked back door. Police officers proceeded up the stairs to the third floor and encountered the defendant in the hallway. The jamb and molding surrounding the door to room 3A were damaged. When Officer Peter Altobelli engaged him in conversation, the defendant said he resided in room 3A.

Altobelli told the defendant that he was trying to locate a gun that was mentioned in a 911 call and asked if he could search the defendant's room. The defendant consented and, because his room was very small, the search was complete in three to four minutes. Officers also searched the second and third floor hallways of the rooming house and talked with the defendant's downstairs neighbor. Officer Don Walters searched the part of the third floor hallway located furthest from the stairway and the defendant's room. The hallway ended at an alcove, which was essentially a foyer for the door that opened onto the fire escape. In the alcove,² Walters noticed an opening in the ceiling that appeared to be access to an attic space. He could not see into the attic, but he was able to locate a stool just outside the alcove, and by standing on the stool, he was able to peek into the attic.

Peering into the attic, Walters believed he could see the butt of a gun, but he was unable to reach it. He enlisted the aid of Officers Chris Baker and Robert Somody, and Baker was able to pull himself into the attic by placing one foot in the clenched hands of Somody and placing his other foot on the knob of the fire escape door. Baker was unable to see anything initially, but after being handed a flashlight from his partner below, he saw a gun and a bag approximately three or four feet from the attic opening. He also noticed that the attic appeared to be unfinished. He retrieved the gun and the bag and, upon opening the bag, observed several smaller bags containing marijuana. The defendant was confronted with the items and subsequently gave a formal statement implicating himself as the owner of the gun and the marijuana.

The defendant sought to have the gun and the marijuana suppressed as products of an unlawful search and his statement to the police suppressed as “fruit of the poisonous tree.” ³ (Internal quotation marks omitted.) In a 2006 suppression hearing, the defendant argued that he had a reasonable expectation of privacy in the attic of the building. The state argued that the defendant did not have a reasonable expectation of privacy in the attic, and that, even if he did, the exigent circumstances of a 911 call referring to a gun allowed officers to ensure their safety and the safety of the building's occupants by conducting a search of the attic. The court agreed with the state's argument that the defendant did not have a reasonable expectation of privacy in the attic and denied the defendant's motion to suppress.⁴ The defendant subsequently was found guilty by a jury, and this appeal followed.

On appeal, the defendant claims that, pursuant to the fourth amendment of the United States constitution and article first, § 7, of the constitution of Connecticut, the court improperly denied his motion to suppress the evidence seized from the attic. He contends that he had a subjective expectation of privacy when he placed the items in the attic, and his expectation of privacy is one that society recognizes as reasonable. He therefore asserts that the evidence seized from the attic should have been suppressed. He further argues that his statement to the police should be suppressed as “fruit of the poisonous tree” because the seized evidence was the subject of the statement. Finally, the defendant maintains that the situation that led the police to the building did not constitute exigent circumstances, which would excuse the nonexistence of a warrant. Because the “fruit of the poisonous tree” and exigent circumstances arguments need only be addressed should we conclude that the defendant had a reasonable expectation of privacy, we begin there.

“As a threshold matter, we set forth the appropriate standard pursuant to which we review a challenge to a trial court's decisions regarding a suppression motion. This involves a two part function.... [T]o the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.... Because a trial court's determination of the validity of a ... search [or seizure] implicates a defendant's constitutional rights ... we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence.... However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it....” (Citation omitted; internal quotationmarks omitted.) State v. Miller, 137 Conn.App. 520, 528, 48 A.3d 748 (2012).

“The application of the fourth amendment prohibition against unreasonable searches and seizures requires the defendant to establish that he had a legitimate expectation of privacy in the invaded area.... Absent such an expectation, the subsequent police action has no constitutional ramifications.... The determination of whether such an expectation exists is to be made on a case by case basis ... and requires a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991). This two part test was first set forth by the United States Supreme Court in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), and has been referred to as the Katz test by subsequent courts. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Minnesota v. Carter, 525 U.S. 83, 97, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); State v. Payne, 121 Conn.App. 308, 329, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010).

Analyzing the objective second prong of the Katz test requires inquiring whether the open attic space of a three-story rooming house is a place where society recognizes that the defendant had a reasonable expectation of privacy. “The determination that a particular place is protected under the fourth amendment requires that it be one in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.” (Internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. at 95, 588 A.2d 145. “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”; United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); and therefore “[c]ontemporary concepts of living such as multi-unit dwellings must not dilute [the defendant's] right to privacy any more than absolutely required.” Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974). Attempting to define the “home” in the context of a rooming house must be done cautiously to ensure that the protections of the fourth amendment are afforded to citizens in a class neutral manner. “We should vigilantly guard against permitting ... inroads upon the reasonable expectations of privacy of the lesser situated of our citizens who are forced by economic circumstances to reside in rooming houses.” People v. Garriga, 189 App.Div.2d 236, 241–42, 596 N.Y.S.2d 25, appeal denied, 82 N.Y.2d 718, 622 N.E.2d 316, 602 N.Y.S.2d 815 (1993).

Courts have attempted to strike a balance between preserving the fourth amendment protections of one's home for those living in multiunit dwellings, while recognizing that certain characteristics of such structures inherently render places within them more public. “[A]n individual tenant may have a constitutionally cognizable expectation of privacy in areas where his use is exclusive, that is, where he has the right to control access and to exclude others.” (...