State v. Ingala

• Decision Date: 21 July 2020
• Docket Number: AC 41135
• Citation: 199 Conn.App. 240,235 A.3d 619
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles J. INGALA

199 Conn.App. 240

235 A.3d 619

STATE of Connecticut

v.Charles J. INGALA

AC 41135

Appellate Court of Connecticut.

Argued March 10, 2020

Officially released July 21, 2020

Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Joseph S. Danielowski, for the appellee (state).

DiPentima, C. J., and Moll and Devlin, Js.

DEVLIN, J.

The defendant, Charles J. Ingala, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere,¹ of possession of a

sawed-off shotgun in violation of General Statutes § 53a-211 and criminal possession of a firearm in violation of General Statutes § 53a-217. The plea followed the trial court's denial of the defendant's motion to suppress the sawed-off shotgun seized by the police. The sole issue in this appeal is whether the warrantless search of the defendant's backyard and the warrantless seizure of the shotgun may be justified under the exigent circumstances exception to the warrant requirement of the fourth amendment to the United States constitution.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant's claims on appeal.³ At approximately 11 p.m. on August 28, 2016, police officers with the Watertown Police Department were called to the scene of a motor vehicle accident

that had occurred in Waterbury near the border of Watertown.⁴ Upon arriving at the scene of the accident, the officers learned that one of the vehicles involved had fled the accident. One of the officers, Jeffrey McKirryher, left in an attempt to locate this vehicle. Shortly thereafter, McKirryher was flagged down by George Petro, a motorcyclist, who had seen the accident. Petro told McKirryher that he had spoken to the driver of the vehicle who had left the scene of the accident and that the driver had pointed a sawed-off shotgun at Petro's head. Petro had a cut on his forehead

and later explained that the driver had struck him in the head with the shotgun. Petro then informed McKirryher that the driver had fled to a nearby home and led McKirryher to the defendant's home at 411 Falls Avenue in Watertown. Petro indicated that the driver "was down around [the] back" of the property. McKirryher alerted other police officers over his radio of the situation and informed them of his location. Shortly thereafter, four more officers from the Watertown Police Department arrived at 411 Falls Avenue, namely, Officer Jack Conroy, Officer Mark Raimo, Sergeant Jason Demarest, and Sergeant David Ciarleglio.

The officers later described the defendant's home as follows. Falls Avenue runs north to south, and 411 Falls Avenue is located on the western side of the road. The primary structure at 411 Falls Avenue is a multifamily, three-story home with a few separate units. The defendant resides in the basement apartment of this structure. To the north of the property is a wooded area. A large commercial building, which was vacant at the time of the investigation, abuts the property to the west. On the southern border, there is a chain link fence that is approximately four feet high, which separates the

property from a neighboring residential property. The land slopes down from Falls Avenue toward the western edge of the property such that the basement is visible and accessible from the rear of the property. A driveway runs from Falls Avenue to the rear of the property between the home and the northern edge of the property. Both the southern and northern sides of the property were open to the backyard.

After alerting the other officers over his radio, McKirryher walked down the driveway with his service weapon drawn and loudly announced his presence. As he reached the rear of the building, McKirryher saw the defendant's vehicle with severe front end damage parked at the end of the driveway. McKirryher then saw the defendant walk out of his apartment and instructed the defendant to raise his hands. When the police approached the defendant, he was visibly intoxicated. The defendant was placed in handcuffs and McKirryher questioned him about the shotgun. The defendant denied possessing a shotgun. The defendant then gave his consent to the officers to search his apartment and the backyard.

Over the course of approximately one-half hour, the officers searched the backyard and the defendant's apartment, but were unable to locate the shotgun. While the search was being conducted, the defendant was asked several times for the location of the shotgun, to which he repeatedly claimed that there was no shotgun. At one point, Demarest warned the defendant of the potential that a child could stumble across the shotgun in the woods, which appeared to concern the defendant despite his claim that there was no shotgun. When discussing the altercation with Petro, the defendant described Petro as a "bully" and remarked, "Don't bully me. ... I'll kill ya." During the search, one of the defendant's upstairs neighbors informed Raimo that he had observed the altercation between the defendant and Petro, saw the defendant holding a shotgun, and

believed that he knew where the defendant normally kept the gun inside the basement apartment.

Eventually, the officers decided to return to the front yard and removed the handcuffs from the defendant. As they were walking toward the street, Demarest remarked to the defendant: "We're leaving." This statement was a pretense because, although some officers left, several officers remained. They firmly believed that the shotgun was on the property and they were not going to leave until it was found.

Upon reaching the front yard, two officers—Mckirryher and Conroy—left the scene to resume their nightly patrol duties.

Unbeknownst to the defendant, the three officers who remained on the scene—Demarest, Raimo, and Ciarleglio—decided to keep watch over the backyard to see if the defendant would try to locate the shotgun. Demarest waited on the southern side of the front yard where he could see the southwest portion of the backyard. Meanwhile, Raimo and Ciarleglio remained on the northern side of the front yard where they could see the northwest portion of the backyard. Within a few minutes, Demarest saw the defendant walk out of his apartment directly toward the southwest corner of the yard, using the flashlight on his cell phone to illuminate the ground. Seeing this, Demarest was convinced that the defendant was retrieving the shotgun and moved into the backyard to intervene. Demarest stopped the defendant approximately six feet from a bushy area in the southwest corner of the yard. When Raimo and Ciarleglio reentered the backyard, Ciarleglio searched the bushy area and found the shotgun hidden under some scrap wood. The defendant then was placed under arrest.

The defendant was charged with two offenses: possession of a sawed-off shotgun and criminal possession

of a firearm.⁵ On May 26, 2017, the defendant filed a motion to suppress the shotgun as evidence, arguing that the search violated his rights under the fourth amendment and article first, § 7, of the constitution of Connecticut, and that none of the exceptions to the warrant requirement of the fourth amendment applied to the seizure of the gun. In response, the state argued, inter alia, that the danger of the defendant arming himself and harming someone with the gun justified the police intervention. The trial court, Cremins , J. , held a hearing on the motion to suppress and, over the course of two days, heard testimony from all five of the officers involved in the search of the defendant's home. After the parties concluded their arguments on June 8, 2017, the court issued its decision from the bench and denied the motion to suppress. The court found the officers’ testimony credible and concluded that the officers reasonably believed that the shotgun was located somewhere on the defendant's property. The court further concluded that the warrantless search of the defendant's backyard was lawful for three reasons: (1) the defendant had abandoned the shotgun and, thus, had no expectation of privacy to it; (2) the second search conducted when the officers returned to the backyard was a continuation of the first search and, therefore, the defendant's consent to the first search extended to the second search; and (3) the probability that the defendant would endanger human lives or destroy evidence constituted an exigent circumstance that excused the warrantless search.

Following the denial of his motion to suppress, the defendant entered a conditional plea of nolo contendere

to both charges on the condition that he could appeal the denial of his motion to suppress. The court, Fasano , J. , accepted the defendant's plea and determined that a ruling on the motion to suppress would be dispositive of the case. Thereafter, the court sentenced the defendant to a term of incarceration of three years for each charge, to be served consecutively, with a mandatory minimum sentence of two years of incarceration. This appeal followed.

We begin by setting forth our standard of review. "As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. ... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence. ... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are...