State v. Brosnan

• Decision Date: 23 April 1991
• Docket Number: No. 9149,9149
• Citation: 24 Conn.App. 473,589 A.2d 1234
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John J. BROSNAN.

Page 1234

589 A.2d 1234

24 Conn.App. 473

STATE of Connecticut v. John J. BROSNAN.

No. 9149.

Appellate Court of Connecticut.

Argued Jan. 15, 1991.

Decided April 23, 1991.

Jacques J. Parenteau, with whom, on the brief, was Carol Ann Connors O'Dea, for appellant (defendant).

Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Sr., State's Atty., and Peter McShane, Deputy Asst. State's Atty., for appellee (state).

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

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a-167a(a) ¹ and one count of criminal mischief in the third degree in violation of General Statutes § 53a-117(a)(1)(A). ²

The defendant claims that the trial court improperly (1) refused to charge the jury on the defendant's privilege to resist an unlawful arrest, (2) refused to take evidence to determine whether the Groton police department's destruction of a certain videotape was done in bad faith, and (3) reserved its decision on his motion for acquittal that was filed after the state's presentation of evidence. ³ We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On September 23, 1989, at about 3:15 a.m., the Groton police received a complaint that fireworks were being discharged at an apartment complex located at 359 Long Hill Road. When Officer John W. Lambert responded to the call, he saw the defendant in the parking area of the apartments. In response to Lambert's questions, the defendant denied any involvement in discharging fireworks, and Lambert left the area.

At about 4:15 a.m., four members of the Groton police department responded to a second complaint that fireworks were being discharged at 359 Long Hill Road. The complainant directed the police officer's attention to a window that faced the parking lot, and stated that that was the window from which fireworks had been discharged. The police found pieces of paper from discharged firecrackers on the ground in front of this window. They also noticed the remains of exploded bottle rockets in the parking lot. The officers went to the window, which was three or four feet above the ground. They looked in the window and observed red cellophane wrappings on the floor of a bedroom. They also saw the fully clothed defendant lying on top of a bed.

After determining that the window was located in apartment eleven, two officers went to the front door of that apartment and two officers went to the rear sliding door. The officers knocked at the back door, and the tenant, Lisa Conte, answered that door. As these officers entered the apartment through the back door, the other two officers entered through the front door. Three of the officers went into the bedroom where the defendant was sleeping, shook him to awaken him, and told him to get up because he was under arrest. The defendant was groggy and smelled of alcohol. When the officers attempted to pull the defendant from the bed, the defendant attempted to break free, and a struggle ensued. As a result of this struggle, the defendant was charged with interfering with an officer in addition to the fireworks charge that had generated the police activity.

The defendant was transported to the police station and a second struggle ensued in the booking room. In the course of this struggle, the defendant kicked a computer, causing a key to break off in its lock. This resulted in a second charge of interfering with an officer, and one charge of criminal mischief. The jury convicted the defendant of the criminal mischief charge and of both of the interfering charges. He was acquitted of all of the other crimes with which he had been charged.

I

The defendant first claims that the court improperly refused to charge the jury on the common law right to resist an unlawful arrest in the home. We agree with the defendant.

Certain additional facts that were heard by the court out of the jury's presence must be understood for a proper resolution of this issue. The defendant and Conte, the lessee of the apartment in question, were good friends. The defendant lived in the same apartment complex in an apartment located upstairs from Conte's. He had stayed overnight at the Conte apartment five or six times over a four year period and was a welcome guest there. On the night of the incident, the defendant was in the apartment with Conte's permission and at her invitation. He was asleep on her bed at the time the police entered Conte's bedroom. He testified that it was his belief that no one would enter the bedroom without Conte's permission, and that he felt that being in her apartment was the same as being in his own apartment. Conte testified by deposition that the police forced their way into the apartment without her permission and entered the bedroom where the defendant was sleeping.

On the basis of these facts, the defendant, in a properly drafted request to charge; See Practice Book § 854; requested the trial judge to instruct the jury that, with respect to the charge of interfering that allegedly occurred at the apartment, the defendant had a qualified common law privilege to resist. ⁴ The trial court declined to instruct the jury to that effect. We agree with the defendant that he was entitled to such an instruction on that count, and therefore reverse his conviction.

A

The threshold question is whether the defendant has standing to raise this issue. We conclude that the defendant does have the requisite standing.

It is a well recognized precept of constitutional interpretation that the fourth amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The "capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). An expectation of privacy is said to be legitimate if it is one that society is prepared to recognize as reasonable. State v. Carter, 22 Conn.App. 118, 121, 576 A.2d 572 (1990). It is clear that under existing federal constitutional law an individual's status as an overnight guest alone is sufficient to show that the guest has a legitimate expection of privacy in the premises, and that this interest is protected by the fourth amendment. Minnesota v. Olson, --- U.S. ----, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); see also State v. Walker, 236 Neb. 155, 159, 459 N.W.2d 527, 531 (1990). Thus, as an overnight guest in Conte's home, the defendant has standing to challenge the warrantless entry.

As the United States Supreme Court stated in Minnesota v. Olson, supra, 1689: "To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home.

"From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth--'a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable.' Katz [v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 517]".

The defendant's expectation of privacy in the Conte apartment was legitimate because it was rooted in a generally accepted understanding that is recognized and permitted by society. Thus, the defendant can claim the protection of the fourth amendment. Rakas v. Illinois, supra, 439 U.S. 144 n. 12, 99 S.Ct. at 430 n. 12.

B

Having concluded that the defendant was entitled to claim the protection of the fourth amendment, we next turn to a determination of whether the defendant's arrest was lawful. We agree with the defendant that it was not.

Because the fourth amendment protects people, not places; Katz v. United States, supra; it necessarily follows that the defendant was entitled to fourth amendment protection within the confines of the Conte apartment. See State v. Carter, supra, 22 Conn.App. at 121-22, 576 A.2d 572.

The "Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." (Citations omitted.) Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1375, 63 L.Ed.2d 639 (1980). The holding in Payton applies with equal force to misdemeanor arrests. State v. Gallagher, 191 Conn. 433, 437 n. 4, 465 A.2d 323 (1983). Thus, the arrest of the defendant, under these circumstances, was unlawful.

On appeal to this court, the defendant properly recognizes that the illegality of...