State v. Benton

• Decision Date: 24 February 1987
• Docket Number: No. 4250,4250
• Citation: 521 A.2d 204,10 Conn.App. 7
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leonard R. BENTON.

Page 204

521 A.2d 204

10 Conn.App. 7

STATE of Connecticut v. Leonard R. BENTON.

No. 4250.

Appellate Court of Connecticut.

Argued Nov. 6, 1986.

Decided Feb. 24, 1987.

John R. Williams, with whom, on brief, was Sue L. Wise, New Haven, for appellant (defendant).

C. Robert Satti, Jr., Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

DUPONT, Chief Judge.

The primary issue of this appeal is whether the failure to suppress statements overheard, without the use of any aural enhancement device, by a police officer stationed in an apartment adjacent to that of the defendant constituted a violation of the defendant's rights under the fourth amendment to the United States constitution. ¹ The precise facts of the case have not served as the background for a holding in any case, either federal or state, of which this court or the parties are aware.

The defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to a number of drug related charges after the trial court denied his supplemental motion to suppress. ² His sole claim on appeal is that the court erred in not granting the motion. The motion was directed to evidence gathered by an electronic wiretapping and a subsequent search of the defendant's apartment, both of which were conducted pursuant to warrants.

The affidavit attached to the wiretap application recited statements made by the defendant or other persons in his apartment. Those statements were overheard by a detective investigating the defendant's alleged criminal activities. At the time these statements were overheard, the detective was in the apartment adjacent to that of the defendant, with the permission of the resident of that apartment. While listening to the defendant's statement, the detective moved between rooms in the apartment he was in, remaining between one and three feet from the wall between the apartments, and did not use any type of electronic or sensory enhancing listening device.

In order for the defendant to succeed in his claim that the trial court erred in not suppressing the evidence gathered pursuant to the search warrant issued in partial reliance upon evidence gathered by the wiretap, he must demonstrate that the overhearing of those statements, which were later relied on in the wiretap warrant and which led to the issuance of the search warrant, constituted a search in violation of the defendant's rights under the fourth amendment to the United States constitution. In determining whether a search was conducted by the police, we must undertake a two-pronged inquiry, and determine, first, whether the defendant manifested a subjective expectation of privacy with regard to these statements and to that place from which the statements were gathered, and, second, whether society is prepared to recognize that subjective expectation as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

Our threshold inquiry is whether the defendant had a reasonable expectation of privacy in statements made in his apartment which could be overheard by a person in the adjacent apartment. With regard to the defendant's subjective expectation of privacy, we recognize that "[t]he very fact that a person is in his own home raises a reasonable inference that he intends to have privacy, and if that inference is borne out by his actions, society is prepared to recognize his privacy." United States v. Taborda, 635 F.2d 131, 138 (2d Cir.1980). In this case, the defendant's apartment was his home for the purpose of his seeking privacy and the protection of the fourth amendment. Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958). The record presents us with no evidence demonstrating that the defendant's actions fail to support the inference that he intended to have his privacy within the confines of his own home.

We must now examine whether his expectation of privacy in conversations carried on within his own home is reasonable in this case. "What a person knowingly exposes to the public, even in his home, is not a subject of Fourth Amendment protection." Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511; State v. Zindros, 189 Conn. 228, 238-39, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984).

There have been a multiplicity of fourth amendment eavesdropping cases decided in this nation. See United States v. Mankani, 738 F.2d 538 (2d Cir.1984); United States v. Ortega, 471 F.2d 1350 (2d Cir.1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Llanes, 398 F.2d 880 (2d Cir.1968), cert. denied, 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1969). It has widely been recognized, in cases involving apartments and hotel or motel rooms, that the technologically unaided or unenhanced overhearing of statements does not constitute a search under the fourth amendment. This view has been consistently upheld regardless of whether the eavesdropper was positioned in a common hallway of an apartment building, motel or hotel, or in an adjoining motel or hotel room. These cases do not hinge upon the single fact that the defendant is within the confines of his dwelling, but rather rely for their determination upon the conjunction of various facts, including especially the lack of sensory enhancement, the fact that the eavesdropping government agent was lawfully in position to overhear the statements, and that the presence of a person in that place could reasonably be anticipated. See United States v. Mankani, supra, 542-43; United States v. Hall, 488 F.2d 193, 198 (9th Cir.1973); United States v. Agapito, 620 F.2d 324, 329-32 (2d Cir.1980).

In this case, the eavesdropper neither secreted himself within the defendant's home, nor used any sensory enhancing devices. See Lopez v. United States, 373 U.S. 427, 465, 83 S.Ct. 1381, 1401, 10 L.Ed.2d 462, reh. denied, 375 U.S. 870, 84 S.Ct. 26, 11 L.Ed.2d 99 (1963) (Brennan, J., dissenting). The police officer here was allowed by the adjacent apartment dweller to enter and remain in his apartment during the time when the statements complained of were overheard. It is clear that the officer had a legal right to be in that position at that time. See State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986).

The risk of being overheard by an eavesdropper has long been recognized in the development of our fourth amendment jurisprudence. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1966); United States v. Martin, 509 F.2d 1211 (9th Cir.) cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975). "The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak." Hoffa v. United States, 385 U.S. 293, 303, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966), reh. denied, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967), quoting from the dissent of Justice Brennan in Lopez v. United States, 373 U.S. at 465, supra, 83 S.Ct. at 1401. Indeed, in this case, the defendant admitted at the suppression hearing that he could hear conversations occurring in that apartment in which the officer positioned himself to overhear the defendant's statements. Furthermore, the occupant of the adjacent apartment had complained to the police about noise emanating from the defendant's apartment prior to the date on which the statements had been overheard.

To hold, as we do here, that statements overheard, without the use of anything but the human ear, by a police officer lawfully stationed in an apartment adjoining that of a defendant can be used as support for an application for a wiretap without a violation of the fourth amendment to the United States constitution, is but a slight extension...