State Of Conn. v. Jevarjian.

• Decision Date: 05 October 2010
• Docket Number: No. 30485.,30485.
• Citation: 124 Conn.App. 331,4 A.3d 1231
• Parties: STATE of Connecticut v. Edward JEVARJIAN.
• Court: Connecticut Court of Appeals

124 Conn.App. 331

4 A.3d 1231

STATE of Connecticut

v.Edward JEVARJIAN.

No. 30485.

Appellate Court of Connecticut.

Argued June 3, 2010.

Decided Oct. 5, 2010.

COPYRIGHT MATERIAL OMITTED.

Frank J. Riccio, Bridgeport, with whom was Frank J. Riccio II, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEACH and ALVORD, Js.

ALVORD, J.

The defendant, Edward Jevarjian, appeals from the judgment of conviction following his conditional plea of nolo contendere ¹ to one count of possession of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The plea followed the trial court's denial of the defendant's motions to suppress the evidence that law enforcement officials had seized from his residence and garage and from a recreational vehicle that belonged to Dennis Earl Thompson that had been parked on the defendant's property. On appeal, the defendant claims that the court improperly (1) denied his first motion to suppress because law enforcement officials commenced the search prior to the time authorized in the search warrant, (2) denied his second motion to suppress that had been filed pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and (3) denied his motion to disclose the identity of a confidential informant. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. During the late evening hours of May 17, and into the early morning hours of May 18, 2007, law enforcement officials seized approximately 600 pounds of marijuana from the defendant's house and garage and from a recreational vehicle on the property that belonged to and was occupied by Thompson. The defendant and Thompson were arrested at that time. The defendant was charged with possession of marijuana with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and conspiracy to possess marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). Except for sentencing, the cases of the defendant and Thompson were prosecuted simultaneously.

On August 13, 2007, the defendant filed a motion to suppress the evidence that had been seized, claiming that the search had commenced prior to the time the judge signed the search warrant. After a four day evidentiary hearing, the court denied the motion in a memorandum of decision filed May 13, 2008. On May 22, 2008, the defendant filed a second motion to suppress, seeking an evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. at 154, 98 S.Ct. 2674, claiming that the application for the search and seizure warrant contained either a deliberate falsehood or a statement made in reckless disregard for the truth. Specifically, the defendant claimed that the search warrant affidavit contained uncorroborated assertions of an unreliable informant and, as such, did not provide a substantial basis to establish probable cause to conduct the search. The defendant also filed at that time a motion for disclosure of the name and location of the confidential informant who provided information contained in the affidavit. The court orally denied both motions on June 18, 2008. On July 16, 2008, the defendant entered a conditional plea of nolo contendere to one count of possession of marijuana with intent to sell in violation of § 21a-278 (b) ² and was sentenced to eighteen years incarceration, suspended after eleven years, and three years probation. This appeal followed.

I

The defendant claims that the court improperly denied his first motion to suppress the evidence seized from the house, garage and recreational vehicle because the search was commenced prior to the time noted on the warrant by the judge who signed the warrant. Before addressing that claim, however, we first address the issue of the right of the defendant to challenge the search of Thompson's recreational vehicle. ³ The state argued, and the trial court agreed, that the defendant did not have standing to contest the search of Thompson's recreational vehicle. The defendant challenges that determination on appeal.

A

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place.... Absent such an expectation, the subsequent police action has no constitutional ramifications.... In order to meet this rule of standing ... a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable.... This determination is made on a case-by-case basis.... Whether a defendant's actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact specific inquiry into all the relevant circumstances.... Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing.... [T]he trial court's finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 113 Conn.App. 250, 266, 966 A.2d 277, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

At the suppression hearing, the defendant testified as follows: Thompson, driving his recreational vehicle, arrived at the defendant's house on May 17, 2007, and parked his vehicle on the defendant's property; Thompson and the defendant went out to dinner; after dinner, Thompson and the defendant hooked up electric power and water from the defendant's house to the recreational vehicle in order that Thompson could use the washer, dryer, oven, dishwasher and air conditioning in his recreational vehicle; the defendant then left Thompson, went into his garage and did not see Thompson again until the search was conducted; the search occurred approximately four hours after Thompson's arrival at the defendant's property; when law enforcement officials arrived to search the premises, Thompson was asleep in his recreational vehicle and the defendant was in his garage; Thompson had been to the defendant's property on three or four prior occasions and always slept in his recreational vehicle under the same arrangement with respect to utilities hookup; the defendant never slept or traveled in Thompson's recreational vehicle; and the defendant did not have keys to the recreational vehicle. On the basis of that testimony, the defendant argued that he had a reasonable expectation of privacy in Thompson's recreational vehicle, particularly because it was “attached” to his house and was part of his property's curtilage.

The concept of curtilage refers to those areas immediately surrounding the house in which expectations of privacy are normally the greatest. “At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life ... and therefore has been considered part of the home itself for Fourth Amendment purposes.” (Citation omitted; internal quotation marks omitted.) Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). “Curtilage has been defined by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” (Internal quotation marks omitted.) State v. Brown, 198 Conn. 348, 359 n. 9, 503 A.2d 566 (1986).

In the present case, the court found that the defendant's testimony failed to establish that the defendant was Thompson's overnight guest or social invitee with respect to Thompson's recreational vehicle. The court further found that the defendant's argument that Thompson's recreational vehicle was an auxiliary building that should be considered part of the curtilage of the defendant's home was without legal support. As noted by the court, no evidence had been presented to show that the defendant even had the means of accessing the recreational vehicle. The court therefore concluded that the defendant did not have standing to challenge the search of Thompson's recreational vehicle.

The trial court clearly articulated the facts and the law that formed the basis of its conclusion that the defendant did not meet the burden of establishing a reasonable expectation of privacy in Thompson's recreational vehicle and, accordingly, held that he did not have standing to invoke his constitutional rights as to the evidence seized from that recreational vehicle. On the basis of our plenary review of this question of law, which we conduct in light of the court's factual findings, we do not find that the court's decision was clearly erroneous. See State v. Mitchell, 56 Conn.App. 561, 567-68, 744 A.2d 927, cert. denied, 253 Conn. 910, 754 A.2d 162 (2000).

B

As we previously noted, the defendant does have the right to challenge the search of his home and garage, and we therefore address his claim that the evidence was illegally seized because the search commenced prior to the time authorized by the judge who signed the warrant. In support of that claim, the defendant indicates that the judge noted the time as 10:51 p.m. when he signed each page of the search warrant. The search of the defendant's premises, however, commenced before 10:00 p.m. The defendant claims that the search was, therefore, premature and unlawful under the federal and state constitutions. ⁴ The trial court, after testimony from several...