State v. Houghtaling, AC 35720

• Decision Date: 17 March 2015
• Docket Number: AC 35720
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. RICHARD A. HOUGHTALING

STATE OF CONNECTICUT v. RICHARD A. HOUGHTALING

AC 35720

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 21, 2014

March 17, 2015

Gruendel, Beach and Alvord, Js.

(Appeal from Superior Court, judicial district of Windham, geographical area number eleven, Riley, J.)

David V. DeRosa, with whom, on the brief, was Austin B. Johns, for the appellant (defendant).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Matthew A. Crockett, assistant state's attorney, for the appellee (state).

Opinion

ALVORD, J. The defendant, Richard A. Houghtaling, appeals from the judgment of conviction following his conditional plea of nolo contendere¹ to one count of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b) and one count of possession of more than four ounces of marijuana in violation of General Statutes § 21a-279 (b). The plea followed the trial court's denial of the defendant's motion to suppress evidence seized from a property the defendant owned, statements made by the defendant and others,² and the fruits of the allegedly unlawful search and seizure and unlawfully obtained statement. On appeal, the defendant claims that the court's denial of his motion to suppress was improper because (1) he had a reasonable expectation of privacy in the area searched, including the home and the area surrounding it, (2) his fourth amendment rights were violated by the warrantless search³ conducted by the statewide narcotics task force, (3) the police lacked a reasonable and articulable suspicion to conduct a motor vehicle stop of the van operated by the defendant and his resulting arrest was unsupported by probable cause, and (4) the defendant's statement given to police was involuntary.

The following facts were found by the court. On August 9, 2010, a marijuana eradication operation was being conducted by the statewide narcotics task force in the northeastern part of the state. The operation included members of the task force positioned in a Massachusetts Air National Guard helicopter and a ground team conducting raids. In the early afternoon, officers in the helicopter observed what they believed to be a large crop of marijuana being grown in the area of 41 Raymond Schoolhouse Road in Canterbury (property). The officers in the helicopter provided the ground team with the coordinates, and the officers in the ground team approached the property. Several officers were on the ground, driving separate, unmarked vehicles. They drove down the narrow, dirt driveway, near which was posted a "no trespassing" sign. The officers stopped in front of an open, steel gate, parked their vehicles, walked toward the house, and knocked at the front door. After no one answered, the officers walked around the side of the home. The officers saw a pool area containing dozens of marijuana plants. They walked toward a greenhouse, which had no side walls. As they approached, they saw two men inside the greenhouse, which contained marijuana plants. The two men, identified as Thomas Phravixay⁴ and Sisouk Phravixay, were given Miranda⁵ warnings. Phravixay indicated to officers that he was renting the home. Shortly thereafter, Phravixay provided written consent to search.

At some point after encountering the two men, officers returned to their vehicles. Matthew Moskowitz, a member of the Bristol Police Department assigned tothe statewide narcotics task force, radioed that a white van had entered the driveway, turned around and left quickly.⁶ Moskowitz and Officer Mark Wiener, a member of the state police assigned to the statewide narcotics task force, followed the van and observed it parked on the side of the road. The officers approached the van with their weapons drawn and asked the occupants, later identified as the defendant and William Eichen, the defendant's brother-in-law, why they had turned into the property and then left. The defendant explained that he went to the property to visit a friend, but that he left because he did not recognize the vehicles. The officers then looked into the back of the van and saw lumber and irrigation piping, which they believed to be consistent with the construction of the greenhouse on the property. The defendant and Eichen were then handcuffed and transported to the property, where they were advised of their Miranda rights. Although initially reluctant to speak, the defendant gave a statement after the officers provided him with information, including that Phravixay had consented to a search, the evidence the officers had seen so far, that officers had found mail with the defendant's name on it, and that he was "going to jail." The defendant stated that he had purchased the home one year ago and had decided to rent it to Phravixay because he could not afford the mortgage payment. He also said that Phravixay paid him "periodically for the rent," and that he had decided to help Phravixay cultivate marijuana about four or five months ago.

The defendant filed a motion to suppress on July 3, 2012, and the state filed an objection on December 19, 2012. A hearing was held on January 31, 2013, at which the defendant did not testify. The court issued a written memorandum of decision denying the defendant's motion to suppress on March 6, 2013. The defendant subsequently entered a conditional plea of nolo contendere to one count of possession of marijuana with intent to sell and one count of possession of more than four ounces of marijuana, and was sentenced to five years imprisonment, suspended after four years, with five years of probation. This appeal followed.

ISTANDING

The defendant first claims that the court incorrectly determined that he lacked standing to challenge the search of the property.⁷ He specifically argues that he had a reasonable expectation of privacy in the property searched such that the warrantless search violated his rights under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut.⁸ We are not persuaded.

Two Part Test

We first set forth the applicable law surroundingstanding to contest an allegedly illegal search. "The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). Absent such an expectation, the subsequent police action has no constitutional ramifications. . . . In order to meet this rule of standing . . . a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant's actual expectation of privacy . . . is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances." (Citations omitted; internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92, 675 A.2d 866 (1996).

"Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing . . . and the trial court's finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law." (Citation omitted; internal quotation marks omitted.) State v. Boyd, 57 Conn. App. 176, 184, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000); see also State v. Mitchell, 56 Conn. App. 561, 566, 744 A.2d 927 (defendant has burden of proving that he had reasonable expectation of privacy in premises), cert. denied, 253 Conn. 910, 754 A.2d 162 (2000). "The right of privacy is personal to the party seeking to invoke it, and thus cannot be left to the court's speculation." State v. Michael D., 153 Conn. App. 296, 310, 101 A.3d 298, cert. denied, 314 Conn. 951, 103 A.3d 978 (2014).

Subjective Expectation of Privacy

To evaluate whether a defendant has demonstrated a subjective expectation of privacy in a location, our courts employ the following test: "a defendant must show facts sufficient to create the impression that (1) his relationship with the location was personal in nature, (2) his relationship with the location was more than sporadic, irregular or inconsequential, and (3) he maintained the location and the items within it in a private manner at the time of the search." State v. Boyd, supra, 57 Conn. App. 185; see also State v. Braswell, 145 Conn. App. 617, 642, 76 A.3d 231 ("[e]vidence of the defendant's relationship with the location is necessary to establish a reasonable expectation of privacy"), cert. granted on other grounds, 310 Conn. 939, 79 A.3d 892 (2013).

The trial court made several factual findings indetermining that the defendant did not exhibit a subjective expectation of privacy in the property. The court found that Phravixay lived at the property, stored possessions there, and "paid rent periodically" to the defendant. The court found that the defendant neither stored possessions at the property nor lived there, and that he lived approximately two hours away in Danbury. Further, noting that the defendant had not introduced any facts to suggest that the rental agreement had ended at the time of the search, the court concluded that the defendant did not have a reasonable expectation of privacy in the property.

First Boyd Factor

We now consider the defendant's claims under applicable law. The defendant, conceding that "ownership of the property alone does not establish standing," argues that he had a personal relationship with the property. He claims that he was "a co-occupant on the property, and not just an...