State v. Demarco

• Decision Date: 22 April 2014
• Docket Number: SC 18738
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. MICHAEL ANGELO DEMARCO

STATE OF CONNECTICUT
v.
MICHAEL ANGELO DEMARCO

SC 18738

Supreme Court of Connecticut

Argued October 24, 2012
Officially released April 22, 2014

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Rogers, C. J., and Palmer, Zarella, Eveleigh, Harper, Vertefeuille and Espinosa, Js.^*

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michele Bredefeld, deputy assistant state's attorney, for the appellant (state).

Lindy R. Urso, for the appellee (defendant).

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Opinion

EVELEIGH, J. The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court convicting the defendant, Michael Angelo DeMarco, of two counts of cruelty to animals in violation of General Statutes (Rev. to 2007) § 53-247 (a).¹ On appeal, the state claims that the Appellate Court improperly reversed the judgment of the trial court on the ground that the trial court improperly denied the defendant's motion to suppress evidence obtained during a warrantless entry into his residence.² Specifically, the state claims that the Appellate Court improperly applied the "scrupulous review" standard and did not give the required deference to the factual findings of the trial court. We agree and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "On January 11, 2008, the defendant filed a motion to suppress all evidence seized from his premises as a result of the warrantless entry by the police on October 21, 2007. In response, the state claimed that the warrantless entry was done pursuant to an emergency and, accordingly, no warrant was required. Following a hearing, the court denied the defendant's motion to suppress on the ground that the warrantless entry by the police was permissible under the emergency . . . exception to the warrant requirement.

"In its memorandum of decision, the court, Comerford, J., set forth the following facts: '[Tilford Cobb] has been an [A]nimal [C]ontrol [O]fficer with the Stamford [P]olice [D]epartment for the past ten years. In said capacity, he has had many contacts with the defendant as a result of neighbor complaints relating to the defendant's keeping of animals in his [Windell] Place residence.

" 'On October 11, 2007, [Cobb], as a follow-up to prior complaints, left a notice on the defendant's front door and on the windshield of an automobile parked on the premises, directing the defendant to contact the animal shelter. At the time, a neighbor indicated [that] he had not seen the defendant in several days. Further, the defendant did not respond to his cell phone. Prior history indicated that he had generally responded to such notices.

" 'On Sunday, October 21, 2007, [Cobb], as further follow-up, paid a home visit to the defendant's residence. When approaching the house, he saw the October 11 notice on the floor of the front porch and the second notice left on the car still in place. [Cobb] observed that mail, current and dated, had piled up in an overflowing mailbox, and the same neighbor he had spoken to before once again said that he had not seen

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the defendant in several days. Dogs were heard barking inside the house. As he approached the front door, a strong, "horrible odor," which he described as a "feces smell," emanated from the premises. He knocked on the door, which became ajar, with no response. At the time, he did not have the defendant's cell phone number with him.

" 'Feeling something was wrong in the house and out of concern for the defendant's welfare and any animals in the house, [Cobb] called headquarters, resulting in a response by Sergeant Thomas Barcello, who, shortly thereafter, arrived with backup officers. Barcello, after initial discussion with [Cobb], confirmed his observations by finding the house to be in disarray, two or three vehicles on the property and overflowing and dated mail together with the previously left notices by animal control. He and his men did a perimeter check of the house and attempted to look through the windows, which were so filthy that visual observation of the interior was not possible. Patrol Officer [Will] Mercado confirmed the observations made by [Cobb] and Barcello. Out of [Cobb's] express concerns and his own findings and after consultation with [Cobb] and his officers, [Barcello] too, concluded that the defendant and possibly others, together with the animals in the house, might be in danger and [in] need of assistance. The aforesaid observations, check of the premises and consultations all took place within a very brief period of time. Barcello concluded that a "welfare check" was necessary. As a result of the putrid smell emanating from the house and fear for the safety of his men, Barcello enlisted the aid of the Stamford [F]ire [D]epartment, [which] he felt had the proper breathing equipment to enter. Inspection by fire personnel disclosed no humans present but that the dogs in the house were in bad shape. It is uncontroverted that the house was in such deplorable condition at the time of the incident that shortly thereafter it was condemned by the city of Stamford.' " State v. DeMarco, 124 Conn. App. 438, 440-42, 5 A.3d 527 (2010).

The trial court further noted: " 'While the defendant argues that telephone contact could have been made prior to entry, the evidence indicated otherwise, given the immediacy of the situation. [Cobb] had specifically indicated that he did not have the defendant's cell phone number with him when he made the check. Although telephone contact was made with the defendant later in the day, the evidence and the reasonable inferences therefrom indicate that this information was not available to Barcello at the time of the perceived emergency. The court specifically credits Barcello's testimony in this regard.' " Id., 442.

"On July 10, 2008, following the denial of his motion to suppress, the defendant entered a plea of nolo contendere to two counts of cruelty to animals in violation

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of § 53-247 (a), conditioned on his right to appeal from the court's denial of his motion to suppress pursuant to General Statutes § 54-94a.³ The court accepted the defendant's plea and determined that its denial of the motion to suppress was dispositive of the case. Also on that date, the court, Comerford, J., sentenced the defendant to nine months incarceration, execution suspended, and three years probation on each of the two counts, the sentences to run consecutively." (Footnotes altered.) Id., 442-43.

Thereafter, the defendant appealed from the judgment of the trial court to the Appellate Court. On appeal, the defendant claimed that the trial court improperly denied his motion to suppress evidence obtained during a warrantless entry into his residence on the ground that the warrantless entry was justified under the emergency exception to the warrant requirement. Specifically, the defendant claimed that the trial court made erroneous factual findings and that "the evidence presented did not permit a finding that the police reasonably believed that a warrantless entry was necessary to help someone in immediate need of assistance." Id., 444-45. The Appellate Court, with one judge dissenting, agreed with the defendant. Id., 458; see also footnote 2 of this opinion.

Specifically, following "a thorough review of the record," the Appellate Court concluded that the trial court's factual finding "that Barcello did not have the defendant's cell phone number available to him while he was at the defendant's residence and before he decided to order the warrantless entry was clearly erroneous." Id., 447-48. The Appellate Court also concluded that the trial court's finding that Barcello did not have time to get the defendant's cell phone number due to "the immediacy of the situation" was also clearly erroneous. (Internal quotation marks omitted.) Id., 449-50. The Appellate Court further concluded that, "[b]ased solely on the facts found by the [trial] court, as corrected . . . the [trial] court...