State v. Reagan

Decision Date30 August 1988
Docket NumberNo. 13262,13262
Citation209 Conn. 1,546 A.2d 839
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Edward L. REAGAN.

M. Hatcher Norris, Glastonbury, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and SANTANIELLO, JJ.

CALLAHAN, Associate Justice.

The sole issue certified for review by this court from the decision of the Appellate Court in State v. Reagan, 11 Conn.App. 540, 528 A.2d 846 (1987), is: "Did the Appellate Court err in concluding from the transcript that the defendant's wife had consented to the officers' entry into his bedroom when the trial court had found that she had attempted to block their entry into that room?"

Prior to trial, the defendant moved to suppress, as the fruit of an illegal arrest and an unlawful search, "any and all tangible and intangible evidence ... which may have been obtained either during or as a result of any such search and seizure...." The trial court, Kline, J., denied the motion to suppress and ruled that "[b]ased on the totality of the circumstances, I think there is probable cause for the police to make that very determination that there are exigent circumstances, that they were to go on the man's premises to make a warrantless arrest." On appeal, the Appellate Court affirmed the trial court's denial of the defendant's motion to suppress not on exigent circumstance grounds but because it found that the defendant's wife had consented to the entry of the police into the defendant's house and bedroom. State v. Reagan, supra, 546-47, 528 A.2d 846. The Appellate Court also found that the plain view observations made by the police subsequent to their consensual entry were "justified." Id., 547, 528 A.2d 846. In light of these findings, the Appellate Court concluded that there was a valid consensual entry and refused to address the issues of whether the warrantless seizure of evidence was justified by either exigent circumstances or the inevitable discovery doctrine, calling them merely "alternate grounds presented." Id., 548, 528 A.2d 846. We find error.

We need not repeat the entire factual scenario set forth at length in the Appellate Court opinion. Id., 541-43, 528 A.2d 846. Briefly, the undisputed facts relevant to the issue certified for review are as follows: On May 24, 1985, based on information provided by a neighbor of the defendant, the Connecticut state police began a surveillance operation of the defendant's home located on Pettee Street in Lakeville. The same day, two of the surveilling officers observed what they believed to be a drug deal occurring between the defendant and David Earl Jones. 1 As Jones departed the defendant's home, the officers radioed their superior, Sergeant Brian Acker, who was in an unmarked car at the corner of Pettee Street and Route 44, 2 and informed him of what they had just observed. Subsequently, Jones drove past Acker and pulled into a gas station on Route 44 just opposite Pettee Street. Apprehensive that Jones would transfer what they then suspected to be narcotics to a person at the gas station or destroy them, Acker and Detective James Caputo arrested Jones.

On the basis of the items recovered and information received from Jones, and concerned that people who had observed Jones' arrest would tip off the defendant, Acker decided to return to the defendant's home and attempt to gain access. 3 In pursuit of this goal, Acker, accompanied by Detective John Merullo, knocked on the back door of the defendant's house. The defendant's wife answered the door and, without identifying themselves, the officers, who were in plainclothes, asked if "Ed" was there. The defendant's wife "responded" and Acker entered the house, went through four rooms and followed her up a stairway to a "foyer" on the second floor. 4 There the defendant's wife positioned herself in front of Acker, making it difficult for him to pass. At that point, Acker "kind of pushed [his] way by gently and went into [the defendant's] bedroom." Upon entering, he found the defendant in the room and observed a white powdery substance in a bowl on a small table near the defendant. He then placed the defendant under arrest, seized a check drawn on the Jones Automotive account for $120 that was made payable to cash and transported the defendant to the state police barracks. Thereafter, the remaining occupants of the house were assembled in a room on the first floor and detained until the arrival of a search warrant.

Prior to trial, the defendant moved to suppress the evidence seized when he was arrested as the fruit of an illegal arrest and an unlawful search and seizure of his person, home and curtilage. During the suppression hearing, the state, as well as the defendant, focused their attention on "exigent circumstances" as the sole justification for the warrantless entry of the defendant's house, the arrest of the defendant, and the subsequent seizure of evidence. In denying the defendant's motion to suppress, the trial court specifically found that "exigent circumstances" justified the warrantless entry. The trial court did not mention "consent" in any context in summarizing the evidence or in ruling on the defendant's motion.

After the defendant's motion to suppress was denied, he entered conditional pleas of nolo contendere pursuant to General Statutes § 54-94a 5 to violations of General Statutes §§ 21a-279(a) and 21a-277(a). 6 The trial court accepted the defendant's pleas and subsequently sentenced him to a five year term of imprisonment suspended after three years. The defendant appealed to the Appellate Court. 7 In that appeal the defendant addressed the litigated issue of whether exigent circumstances justified his warrantless arrest in his home. Apparently anticipating claims by the state that consent and inevitable discovery were alternative grounds on which the decision of the trial court denying the suppression of the seized evidence could be upheld, he also briefed those issues.

In its opinion the Appellate Court found that the police had obtained a voluntary consent to enter the defendant's home from the defendant's wife; State v. Reagan, supra, 546, 528 A.2d 846; that the police had not exceeded the scope of the consent; id 547, 528 A.2d 846; and there had not been a clear withdrawal of the consent. Id. In light of these findings, the Appellate Court refused to reach the issues of exigent circumstances and inevitable discovery. Id., 548, 528 A.2d 846. Thereupon, based not on exigent circumstances but on the consent of the defendant's wife to the entry of the home and bedroom, the Appellate Court affirmed the judgment of the trial court. The defendant then petitioned this court for certification. As indicated earlier, certification was granted limited to the following question: "Did the Appellate Court err in concluding from the transcript that the defendant's wife had consented to the officers' entry into his bedroom when the trial court had found that she had attempted to block their entry into that room?" In this court, the defendant argued that the Appellate Court erred in upholding the decision of the trial court on the basis of a consensual entry because the issue of consent had not been raised at the suppression hearing, the state had not established that consent to enter the home or bedroom had been voluntarily given, and the record was insufficient to support such a factual finding. We agree that the record is insufficient to support an appellate finding of consent.

It is axiomatic that "[a] warrantless search [or entry into one's home] is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented.... Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, [2058-59] 36 L.Ed.2d 854 (1973); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, [1791-92] 20 L.Ed.2d 797 (1968) [on appeal after remand, 5 N.C.App. 528, 169 S.E.2d 65, aff'd, 275 N.C. 670, 170 S.E.2d 457 (1969) ]; Dotson v. Warden, supra, [175 Conn. at] 618-19 .... 'The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, is "a question of fact to be determined from the totality of all the circumstances." [Emphasis added.] Schneckloth v. Bustamonte, supra, [412 U.S. at] 227 . As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence.' Dotson v. Warden, supra, [175 Conn. at] 619 ; see also State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983) [cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984) ]." State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984); see also State v. Cates, 202 Conn. 615, 620-21, 522 A.2d 788 (1987); State v. Reddick, 189 Conn. 461, 468-69, 456 A.2d 1191 (1983). "Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [101 S.Ct. 1642, 68 L.Ed.2d 38] (1981); Payton v. New York, 445 U.S. 573 [100 S.Ct. 1371, 63 L.Ed.2d 639] (1980); Johnson v. United States, 333 U.S. 10 [68 S.Ct. 367, 92 L.Ed. 436] (1948)." Donovan v. Dewey, 452 U.S. 594, 598 n. 6, 101 S.Ct. 2534, 2538 n. 6, 69 L.Ed.2d 262 (1981). After a careful review of the record before this court, we determine that the Appellate Court erred in coming to its own factual conclusion that the defendant's wife had consented to the entry by the police...

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