State v. Eady, (SC 15858)

• Court: Supreme Court of Connecticut
• Writing for the Court: CALLAHAN, C. J.
• Citation: 249 Conn. 431,733 A.2d 112
• Parties: STATE OF CONNECTICUT v. PATRICK S. EADY
• Docket Number: (SC 15858)
• Decision Date: 06 July 1999

249 Conn. 431
733 A.2d 112

STATE OF CONNECTICUT
v.
PATRICK S. EADY

(SC 15858)

Supreme Court of Connecticut.

Argued March 26, 1998.

Officially released July 6, 1999.

Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

249 Conn. 432

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and John H. Malone, assistant state's attorney, for the appellant (state)

Richard Condon, Jr., deputy assistant public defender, for the appellee (defendant).

Opinion

CALLAHAN, C. J.

The defendant, Patrick S. Eady, was charged in an information with illegal possession of narcotics in violation of General Statutes § 21a-279 (a),¹ illegal possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (b),² illegal

249 Conn. 433

possession of marijuana in violation of General Statutes § 21a-279 (c)³ and illegal possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (a).⁴ Prior to trial, the defendant moved, pursuant to Practice Book § 820 et seq., now § 41-12 et seq., and General Statutes § 54-33f, to suppress illicit drugs seized during a search of his residence. The defendant maintained that the warrantless search and the subsequent seizure of the drugs violated his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. After a hearing, the trial court granted the defendant's motion to suppress. Subsequently, pursuant to General Statutes § 54-56,⁵ the defendant moved to dismiss the charges

249 Conn. 434

against him for lack of sufficient evidence. The court granted the defendant's motion to dismiss. The state, on the granting of permission by the trial court, appealed from the trial court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). The appeal originally was argued before a five judge court. See State v. Eady, 245 Conn. 464, 733 A.2d 95 (1998). Thereafter, we granted the state's motion for en banc reconsideration pursuant to Practice Book § 71-5. See, e.g., State v. Brown, 235 Conn. 502, 506, 668 A.2d 1288 (1995); State v. Chapman, 229 Conn. 529, 532, 643 A.2d 1213 (1994); State v. Medina, 228 Conn. 281, 284 n.4, 636 A.2d 351 (1994). We now reverse the judgment of the trial court

The following facts are undisputed. At approximately 3 p.m. on August 12, 1995, the Windsor volunteer fire department responded to a reported fire in a single-family residence at 19 Songonosk Street in Windsor. Once the fire had been suppressed sufficiently to permit safe entry, Fire Captain Angel L. Marrero and other firefighters entered the residence to ventilate it and to search for possible victims. During the course of that procedure, Marrero came upon a closed door. The door, which was locked, led to the defendant's bedroom. Marrero forced the door open in order to search for possible victims of the fire. Finding none, he opened a window to ventilate the room. While opening the window, Marrero observed two cigar boxes in plain view on a dresser in the bedroom. One box was open and contained, among other things, a small, clear plastic bag with a small quantity of a green, leafy substance. At the time Marrero noticed the substance in the cigar box, he was lawfully present in the bedroom and was acting within the scope of his authority.

Marrero informed William Lewis, the fire chief in charge at the scene, that he believed that he had found

249 Conn. 435

marijuana in the house. Thereafter, Lewis conveyed that information to Sergeant Thomas Lepore of the Windsor police department, who was outside the residence directing traffic. Lepore entered the defendant's bedroom and observed in the cigar box a substance that he recognized as marijuana. Cocaine in rock and powder form was also found in the cigar box along with a shopping card with the defendant's name on it and a photograph of the defendant. Lepore seized the cigar box and its contents without obtaining a warrant

The sole issue in this appeal is whether Lepore's seizure of the drugs from the defendant's bedroom was the product of an illegal, warrantless search, in violation of the defendant's right under the fourth amendment to the United States constitution to be free from unreasonable search and seizure.⁶ The state claims that Lepore's entry into the defendant's bedroom and subsequent seizure of the drugs were valid under the "plain view" exception to the fourth amendment warrant requirement. We agree.

249 Conn. 436

As a threshold matter, we set forth the appropriate standard under which we review a challenge to a trial court's granting of a suppression motion. "`This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court's judicial review of decisions of the trial court. Beyond that, we will not go.' Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980)." State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984)

The fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. Subject to a few well defined exceptions, a warrantless search and seizure is per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993); State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The state bears the burden of proving that an exception to the warrant requirement applied. Mincey v. Arizona, 437 U.S. 385, 390-91, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993).

In Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the United States Supreme Court articulated what has become known as the plain view exception to the warrant requirement.

249 Conn. 437

The warrantless seizure of contraband that is in plain view is reasonable under the fourth amendment if two requirements are met: "(1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods."⁷ State v. Ruscoe, 212 Conn. 223, 237-38 n.8, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Reddick, 207 Conn. 323, 335, 541 A.2d 1209 (1988).

In Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), the United States Supreme Court concluded that the fourth amendment protection against unreasonable search and seizure applies to fire officials as well as other governmental agents. The court concluded, however, that "[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry `reasonable.' Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze.... [Furthermore, fire] officials need no warrant to remain in the building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional."

249 Conn. 438

(Citations omitted.) Id. In Michigan v. Clifford, 464 U.S. 287, 293-94, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984), the court expressly concluded that evidence of criminal activity observed in plain view by firefighters may be seized without a warrant, if it is observed after a lawful entry. Although both Tyler and Clifford involved the seizure of evidence relating to arson, numerous state and lower federal courts, including our Appellate Court, have concluded that evidence of crimes other than arson, when observed in plain view by fire officials who are lawfully present on the premises, also may be seized without a warrant. United States v. Johnson, 524 F. Sup. 199, 204-205 (D. Del. 1981) (drugs and drug paraphernalia), rev'd on other grounds, 690 F.2d 60 (3d Cir. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1212, 75 L. Ed. 2d 450 (1983); State v. Wilson-Bey, 21 Conn. App. 162, 166-67, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990) (same);⁸ Commonwealth v. Person, 385 Pa. Super. 197, 204, 212-13, 560 A.2d 761 (1989) (Beck, J., concurring and dissenting) (same); State v. Bell, 108 Wash. 2d 193, 196 n.1, 737 P.2d 254 (1987) (same); annot., Admissibility, in Criminal Case, of Evidence Discovered by Warrantless Search in Connection with Fire Investigation—Post-Tyler Cases, 31 A.L.R.4th 194 (1984).

It is undisputed that at the time Marrero observed the open cigar box and its contents, he was lawfully present in the defendant's bedroom and was acting within the scope of his authority as a firefighter. The

249 Conn. 439

open cigar box and its contents were, furthermore, in plain view. Consequently, the first element of the plain view exception to the warrant requirement, namely, that the initial entry be lawful, was satisfied.

The only questions that remain, therefore, are: (1) whether it was immediately apparent to Marrero that the cigar box contained...