State v. Kalphat

• Decision Date: 05 February 2008
• Docket Number: No. 17932.,17932.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mark R. KALPHAT.

939 A.2d 1165

285 Conn. 367

STATE of Connecticut v. Mark R. KALPHAT.

No. 17932.

Supreme Court of Connecticut.

Argued October 18, 2007.

Decided February 5, 2008.

Norman A. Pattis, Bethany, with whom was Kimberly Coleman, for the appellant (defendant).

C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and SCHALLER, Js.

ROGERS, C.J.

The defendant, Mark R. Kalphat, appeals¹ from the judgment of conviction rendered by the trial court following his conditional plea of nolo contendere, under General Statutes § 54-94a,² to charges of possession of one kilogram or more of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), conspiracy to possess marijuana in violation of General Statutes §§ 21a-278(b), 21a-277, 21a-279 and 53a-48, and failure to appear in the first degree in violation of General Statutes § 53a-172(a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence that had been obtained by the police as the result of a warrantless search in violation of his rights under the fourth amendment to the United States constitution³ and article first § 7, of the constitution of Connecticut,⁴ on the ground that he lacked standing to raise a claim under those constitutional provisions. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On January 20, 2005, Linda Byczko, an employee of ABF Freight System, Inc. (ABF), noticed that several boxes that had arrived at ABF's facility were heavily taped and unusually heavy given that they purportedly contained clothing.⁵ Byczko reported the suspicious boxes to ABF's security manager, Bill Downs, who called the Stratford police department to request that it send to the facility a police officer and a police dog trained to detect narcotics. Before the police arrived, Jim Hinds, a supervisor at ABF, cut a hole in one of the boxes, revealing a hard inner box. The opened box smelled of fabric softener, a substance that often is used by drug traffickers to mask the smell of illicit drugs. When the police arrived at ABF's facility, the police dog alerted to the presence of drugs in the partially opened box. The box was then opened completely, revealing marijuana inside.⁶

The boxes were addressed to "M. Patterson" at 938 North Main Street in Waterbury. For reasons that are not disclosed in the record, ABF called the defendant to come to the facility and pick up the boxes. The defendant drove his truck to the facility and put one of the unopened boxes into the truck, at which point the police arrested him.

Thereafter, the defendant filed a motion to suppress the evidence seized at the ABF facility on the ground that it had been obtained as the result of a warrantless search in violation of his fourth amendment rights. In support of the motion, the defendant argued that he had a reasonable expectation of privacy in packages delivered by a private freight carrier, that the ABF employees were acting as agents of the state when they opened the box and that, even if the initial opening of the box was a private search that was not subject to the fourth amendment, the police officers were required to obtain a warrant before expanding the scope of the private search by opening the box completely.⁷

At the beginning of the hearing on the motion to suppress, the trial court stated that it would address as a threshold issue whether the defendant had standing to raise a fourth amendment claim in connection with the search. Counsel for the defendant responded that he had not briefed that issue and requested a short recess to review it. The court granted the request. When the hearing resumed, counsel for the defendant called the defendant as a witness. The defendant testified that he had picked up packages at the ABF facility approximately thirty-five times before he was arrested. The defendant did not indicate whether he was the addressee on the packages on those occasions, whether they also had been addressed to "M. Patterson,"⁸ or whether they had been addressed to another person or persons. He also did not offer any information about the existence or identity of "M. Patterson" or, if that person existed, about his relationship to the defendant.⁹ On cross-examination, the defendant testified that, at the time of his arrest, he occasionally stayed in an apartment above a bar owned by his father at 937 North Main Street in Waterbury. He also testified that he was not "M. Patterson" and that he had not signed for the boxes under that name. On redirect, the defendant testified that each time that he had picked up boxes at the ABF facility, he had presented identification and had signed his own name on the receipts.

In light of this testimony, counsel for the defendant argued that, under United States v. Perea, 986 F.2d 633 (2d Cir.1993), the defendant's course of dealing with ABF gave him standing as a bailee to challenge the warrantless search of the box. The state countered that the evidence did not support a finding that the defendant had a reasonable expectation of privacy in any of the boxes addressed to "M. Patterson" because he never had claimed ownership of them, they had not been addressed to him, he had not claimed that he had sent them and there was no evidence as to the scope of any bailment. The trial court concluded that, because there was no evidence as to whether the person to whom the boxes had been addressed was a fictitious person, an alter ego for the defendant or a real third person, and because the defendant had disclaimed ownership or knowledge of the contents of the box, the defendant had not met his burden of proving a bailment. Accordingly, the trial court concluded that the defendant lacked standing to raise his fourth amendment claim and denied the motion to suppress.

Thereafter, the defendant entered a plea of nolo contendere to the charges of possession of marijuana with intent to sell and conspiracy on the condition that he have the right to appeal from the trial court's denial of his motion to suppress. After the defendant failed to appear at his sentencing hearing, he was rearrested and charged with failure to appear in the first degree. He pleaded guilty to that charge. The trial court imposed an effective sentence on all of the charges of seventeen years imprisonment, execution suspended after nine years, with three years probation. This appeal followed.

The defendant claims on appeal that the trial court improperly concluded that he had no expectation of privacy under the fourth amendment to the United States constitution¹⁰ in the box that ABF partially had opened and, therefore, he lacked standing to challenge the alleged warrantless search of the package by the police.¹¹ We disagree.

"As an initial matter, we note that [o]ur standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's [ruling]...." (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, ___ U.S. ___, 128 S.Ct. 164, 169 L.Ed.2d 112 (2007).

"The touchstone to determining whether a person hag standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place.... 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.... Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing...." (Citations omitted; internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92-93, 675 A.2d 866 (1996).

In support of his claim that he had a reasonable expectation of privacy in the box that had been shipped through ABF, the defendant relies primarily on United States v. Perea, supra, 986 F.2d at 633. In that case, the defendant claimed that, as a bailee, he had a reasonable expectation of privacy in a duffel bag that another person had placed in the trunk of a taxicab in which he was the sole passenger. Id., at 637. The United States District Court determined that "[a]t best, the record suggests that [the defendant] was simply hired to transport the bag from one location to another. Because he does not assert any facts remotely suggesting that he had any expectation of privacy in the contents of the bag, the search did not violate any expectation of privacy that the defendant had in the duffel bag or its contents." (Internal quotation marks omitted.) Id., at 638.

On appeal, the United States Court of Appeals for the Second Circuit recognized the proposition that "[l]egitimation of expectations of privacy by law must have a source outside of the [f]ourth [a]mendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights...