State v. Bernier

• Decision Date: 04 August 1998
• Docket Number: No. 15781,15781
• Citation: 246 Conn. 63,717 A.2d 652
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Christopher G. BERNIER.

Page 652

717 A.2d 652

246 Conn. 63

STATE of Connecticut v. Christopher G. BERNIER.

No. 15781.

Supreme Court of Connecticut.

Argued Feb. 18, 1998.

Decided Aug. 4, 1998.

Timothy J. Sugrue, Executive Assistant State's Attorney, with whom were Guy W. Wolf III, Senior Assistant State's Attorney, and, on the brief, Frank S. Maco, State's Attorney, for appellant (State).

Joseph F. Keefe, with whom was A. Thomas Waterfall, Torrington, for appellee (defendant).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ.

NORCOTT, Associate Justice.

The sole issue in this certified appeal is whether, pursuant to article first, § 7, ¹ of the state constitution, a search warrant was required to perform a gas chromatography analysis on charred wood flooring samples that lawfully had been seized from the defendant's home pursuant to a fire investigation. The trial court granted the defendant's motion to suppress the results of the test and on the state's appeal the Appellate Court affirmed the granting of the motion to suppress and the judgment of the trial court dismissing the charges against the defendant. State v. Bernier, 46 Conn.App. 350, 352, 700 A.2d 680 (1997). We reverse the judgment of the Appellate Court.

The relevant facts and procedural history are set forth in the opinion of the Appellate Court. "On November 15, 1990, the fire department of the town of Morris responded to a house fire alarm at the [home of the defendant, Christopher G. Bernier]. Firefighters and equipment arrived at the scene at 8:37 a.m. to begin fire suppression measures. At 9:11 a.m., Joel Skilton, the local fire marshal, requested the state fire marshal's assistance in conducting an investigation to determine the cause and origin of the fire. At 10:53 a.m., Detectives James Pierpont and Julio Fernandez of the state fire marshal's office, arrived at the house and met with Skilton. Pierpont was accompanied by an accelerant detecting dog. The detectives and Skilton walked around the exterior of the house inspecting the fire damage and photographing the exterior. While taking photographs, they entered the interior of the home. As a part of their investigative inspection, they checked various rooms and moved various items of debris and furniture. In the living room, they observed a low burn pattern and pour patterns on the living room floor. These indicated the presence of a flammable liquid. Thereafter, the accelerant detecting dog was brought into the house. The dog alerted the fire investigators to several pour pattern areas. Because of those findings, four samples of charred wood flooring were taken from four different areas of the house....

"The samples were placed in four separate cans and transmitted to the state police forensic science laboratory on November 16, 1990, the day after the fire. A moderate odor of petroleum was detected when the lab personnel opened one of the cans containing the samples. Gas chromatographic analysis revealed the presence of something similar to gasoline in three of the samples and a 'medium range petroleum distillate' in all four samples. The laboratory report was dated November 29, 1990." State v. Bernier, supra, 46 Conn.App. at 352-53, 700 A.2d 680.

The defendant was charged with arson in the first degree in violation of General Statutes § 53a-111 ² and with arson in the third degree in violation of General Statutes § 53a-113. ³ The trial court denied the defendant's initial motion to suppress the wood samples themselves and the photographs of the fire scene that had been obtained without a warrant. "The court ruled that the warrantless seizure was legally justified ... because it was part of an investigation of the cause and origin of the fire." State v. Bernier, supra, 46 Conn.App. at 352, 700 A.2d 680. Thereafter, relying on this court's decision in State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), ⁴ the defendant filed an amended motion to suppress any and all evidence obtained as a result of the warrantless analysis of the charred flooring samples. The trial court granted the motion and then granted the defendant's subsequent motion to dismiss the charges against him. The state appealed to the Appellate Court.

The Appellate Court was divided, with the majority affirming the judgment of the trial court that a search warrant was required to conduct the testing of the flooring. ⁵ State v. Bernier, supra, 46 Conn.App. at 372, 700 A.2d 680. In determining whether the results of the tests should have been suppressed, the court had to resolve: " '(1) whether [the defendant had] a reasonable expectation of privacy in the [samples], (2) whether the testing of the [samples] at the state laboratory constituted a search, and (3) if so, whether the circumstances of this case fall within a recognized exception to the warrant requirement.' " Id., at 357, 700 A.2d 680.

The Appellate Court concluded that the defendant's expectation of privacy in the flooring samples was reasonable, relying principally on the fact that they had been taken from his home, an area traditionally afforded heightened protection from government intrusion, as well as the fact that the defendant owned the property at issue. Id., at 361, 700 A.2d 680. The court rejected the state's claim that the reasonableness of the defendant's expectation of privacy should be informed by General Statutes §§ 29-302, 29-310 and 29-311, ⁶ which require that fire officials conduct a thorough investigation into the cause and origin of fires. State v. Bernier, supra, 46 Conn.App. at 364-65, 700 A.2d 680. ⁷

The Appellate Court next concluded that the gas chromatography tests constituted a search because this court had reached a similar conclusion in Joyce. Id., at 365, 700 A.2d 680. Having determined that the defendant had a reasonable expectation of privacy in the flooring samples and that the gas chromatography analysis constituted a search, the Appellate Court was left to consider only whether there existed an applicable exception to the warrant requirement. Id. The Appellate Court concluded that the exigent circumstances exception did not apply here because, at the time of the testing at the state laboratory, any exigency had abated. ⁸ Id., at 366-67, 700 A.2d 680.

In his dissent, Judge Schaller asserted that the defendant's expectation of privacy in the charred remains of his living room floor was not one that society would recognize as reasonable in light of the statutory framework authorizing the seizure of evidence pursuant to a cause and origin investigation of a fire. Id., at 373-74, 700 A.2d 680. Specifically, Judge Schaller argued that these statutes contemplated the subsequent testing of the evidence because "[i]t would be incongruous ... to conclude that the legislature authorized, within the course of a cause and origin fire investigation, a seizure of investigative materials but failed to provide for the completion of the investigation by allowing the testing of those materials.... Clearly, the investigation authorized in §§ 29-302, 29-310 and 29-311 contemplated both the seizure and testing of those materials without the need for additional authorization, the original thorough investigation and seizure already having been authorized." (Emphasis in original.) Id., at 374, 700 A.2d 680. As a final matter, Judge Schaller maintained that the majority's reliance on Joyce was misplaced because the property in Joyce had been seized by the police pursuant to their community caretaking function as opposed to an investigation expressly authorized by statute. Id., at 375-76, 700 A.2d 680.

We granted the state's petition for certification to appeal from the judgment of the Appellate Court limited to the following issue: "Did the Appellate Court properly conclude that State v. Joyce, 229 Conn. 10 (1994), requires that a search warrant be obtained to test items lawfully seized as part of an investigation into the cause and origin of a residential fire?" ⁹ State v. Bernier, 243 Conn. 927, 701 A.2d 659 (1997).

The state argues that under article first, § 7, of the state constitution, a search warrant is not required to test the charred flooring samples because once the evidence was lawfully seized pursuant to the statutorily mandated cause and origin investigation of the fire scene, the defendant's expectation of privacy in the samples was not reasonable. The defendant concedes that a warrant was not required for the fire marshal to enter the premises and to seize the samples of the wood flooring. He contends, however, that the Appellate Court properly concluded that the defendant retained a reasonable expectation of privacy in the flooring samples. We agree with the state.

In order for the defendant to demonstrate that he had a reasonable expectation of privacy in the flooring samples: (1) he must have manifested a subjective expectation of privacy with respect to the samples; and (2) that expectation must be one that society would consider reasonable. State v. Joyce, supra, 229 Conn. at 19, 639 A.2d 1007; State v. DeFusco, 224 Conn. 627, 633, 620 A.2d 746 (1993). For the purpose of this appeal, we assume, arguendo, that the defendant sufficiently manifested a subjective expectation of privacy in the flooring samples. ¹⁰ The threshold question is, therefore, whether the defendant's expectation of privacy in the charred flooring samples was an objectively reasonable one for state constitutional purposes. See, e.g., State v. Hill, 237 Conn. 81, 96, 675 A.2d 866 (1996). The burden is on the defendant to prove that his expectation of privacy in the place searched was one that society would recognize as reasonable. State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). The analysis focuses on whether Connecticut citizenry "is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.... Under some circumstances, the...