State v. Ryder

969 A.2d 818

114 Conn.App. 528

STATE of Connecticut v. Gary RYDER.

No. 28448.

Appellate Court of Connecticut.

Argued September 18, 2008.

Decided May 19, 2009.

Gary Ryder, pro se, the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Ricki Goldstein, assistant state's attorney, for the appellee (state).

GRUENDEL, BEACH and WEST, Js.

GRUENDEL, J.

We return to the case of the large reptile discovered by police in a Greenwich home. In an earlier decision by this court, State v. Ryder, 111 Conn.App. 271, 958 A.2d 797 (2008), we noted our inability to determine whether this court has subject matter jurisdiction over the present appeal and remanded the case for further fact-finding on that question. Now that the case has returned to us from the trial court, we conclude that we do have subject matter jurisdiction. Thus, the only remaining issue requiring our attention is whether the court properly denied the motions of the defendant, Gary Ryder, to suppress the evidence obtained as a result of the warrantless search of his home and to dismiss the case. We conclude that it did and, accordingly, affirm the judgment of the trial court.

The court found the following facts in its April, 2006 memorandum of decision disposing of the defendant's motions to suppress and to dismiss: "Officer Andrew Kelly has been a member of the Stamford police department for approximately seven and one-half years. On August 15, 2004, he was working the 4 p.m. to 12 a.m. shift. He was ordered out of his daily `check out' at the beginning of his shift and told to report to dispatch. Officer Kelly testified that such a procedure was unusual and done only in cases of emergency situations, such as a motor vehicle accident.

"[Kelly] was informed that the dispatcher received numerous telephone calls from a father in Vermont, who was sounding increasingly frantic. The father informed the police that his two sons took the train to Greenwich for the weekend to visit friends, that they were supposed to return to Vermont by train at the conclusion of the weekend and failed to do so. The children had been missing for approximately twenty-four hours prior to the time the father called the police, during which time the father indicated that he was constantly trying to contact them. The father was finally able to contact one of his sons, who informed him that the other son was at the defendant's house in Greenwich. Officer Kelly was told by the dispatcher that the Vermont father and the defendant previously had a relationship and resided together. Officer Kelly also learned from the dispatcher that officers from the prior shift that day went to the defendant's house, spoke with him about the Vermont father's claim that his child inexplicably failed to return to Vermont and informed him that the father believed that he was at the defendant's residence. The defendant directed the officers to another address where he stated the child was staying, which proved to be wrong information.

"Officer Kelly proceeded to the defendant's house ... in Greenwich, which he described as an affluent area of town. He arrived at the house at [approximately] 4:30 p.m. and pulled into the beginning of the gated driveway, [the gate to which] was closed. He immediately noticed from that vantage point that there was a couch that was sticking partly out of the garage onto the driveway and a BMW convertible with its top down parked in the driveway.

"[Kelly], who was dressed in full uniform, used the intercom located at the driveway's entrance, but received no response. ... [H]e stepped over the low white fence and began to walk around the house, announcing the presence of the police. Officer Kelly rang the front doorbell and knocked on the front door to no avail. He then walked around the back of the house and approached a set of French doors. He observed through those doors a cot on which there was a bag of clothes that appeared suitable for a teenager, some video games and an otherwise impeccable house. Officer Kelly grabbed the handle, realized that the door was not locked and proceeded to open the door. At that point, he called for backup in accordance with police procedure relative to finding an open door in a residence. Officer Robert Smurlo arrived at the scene within a few minutes and was briefed by Officer Kelly before they entered the residence.

"Officer Kelly testified that based on the facts as he knew them to be, he believed that the missing child may be in danger inside the house. Important to that belief were the facts of a reportedly missing child, the nature of the couch and vehicle in the driveway area, no response to his repeated calls from outside the house, an unlocked door and the [child's] clothes strewn on the cot on the first floor. For those and other reasons, Officer Kelly decided to enter the residence along with Officer Smurlo to look in places where a child may be located.

"The officers searched the first floor of the house for the child and then proceeded upstairs. At one point, Officer Kelly went into a bathroom on the second floor and noticed what appeared to be a dark figure through the bathtub shower door. The glass was frosted. He testified that he believed the dark figure was the missing child. In this regard, he testified as follows: `I slid the door open to the tub. To the greatest bit of relief, just a crocodile or a large lizard [was] in the tub.' Officer Kelly estimated that the reptile was six or seven feet in length.

"Officer Kelly closed the shower door, and he and officer Smurlo continued to search the rest of the residence for the child. Officer Kelly did not know at the time whether the possession of the reptile in the tub was illegal. The officers, having completed their search for the child, exited the residence and left the reptile still in the bathtub where they found it."

"On September 8, 2004, almost four weeks later, the defendant was arrested on charges of risk of injury to a child in violation of General Statutes § 53-21 and illegal possession of a reptile in violation of [General Statutes] § 26-55.¹ On March 6, 2006, the defendant moved to suppress the evidence obtained from the search of his home and to dismiss the charges against him. After a three day suppression hearing, the court denied the defendant's motions. The state entered a nolle prosequi with regard to the charge of risk of injury to a child, and the defendant entered a plea of nolo contendere to the possession of a reptile charge, conditioned on reserving his right to appeal from the court's ruling on his motions to suppress and to dismiss." State v. Ryder, supra, 111 Conn.App. at 273-74, 958 A.2d 797. The court found that the rulings on the defendant's motion to dismiss and motion to suppress were dispositive of the case for the purposes of General Statutes § 54-94a and Practice Book § 61-6(a)(2)(i)² and sentenced him to pay a $35 fine, which he since has paid.

"On appeal, the defendant contends that the warrantless search of his house violated his right to be free from unreasonable searches and seizures pursuant to the fourth and fourteenth amendments to the federal constitution and article first, § 7, of the Connecticut constitution."³ State v. Ryder, supra, 111 Conn.App. at 274, 958 A.2d 797. In its appellate brief, the state did not address the defendant's claim but, rather, asserted that "this court lacks subject matter jurisdiction, arguing that payment of the defendant's fine prior to the hearing before this court rendered his appeal moot." Id.

We concluded, in the earlier opinion, that the defendant's appeal would indeed be moot unless he could demonstrate that payment of the fine was done involuntarily or that prejudicial collateral consequences were reasonably possible as a result of his conviction. Our rescript ordered the case remanded "for factual findings as to (1) whether facts came to light after the entry of judgment that would lead this court to conclude that there is a reasonable possibility that the defendant has suffered or will suffer prejudicial collateral consequences as a result of his conviction and (2) whether events occurred off the record that could lead this court to conclude that the payment of the fine was not done voluntarily by the defendant." Id., at 277-78, 958 A.2d 797.

On remand, in a convincing and thorough discussion of the law concerning mootness as it relates to the present case, the court determined that (1) payment of the fine was done involuntarily and (2) there exists a reasonable possibility that prejudicial collateral consequences would occur as a result of the defendant's conviction. State v. Ryder, 51 Conn. Sup. 91, ___ A.2d ___ (2009). In light of the court's conclusion, the state has conceded, and we agree, that we do have jurisdiction over the present appeal.

We therefore turn to the question of whether the defendant's fourth amendment rights were violated by the warrantless search of his 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, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Emphasis added.) "[P]hysical entry of the home is the chief evil against which the wording of the [f]ourth [a]mendment is directed. ... It is a basic principle of [f]ourth [a]mendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." (Citation omitted; internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

As our Supreme Court recently noted, "[o]ur cases consistently have held that both the state and ...