State v. Kennedy

• Decision Date: 19 December 1989
• Docket Number: No. 7012,7012
• Citation: 20 Conn.App. 354,567 A.2d 841
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Paul KENNEDY.

Page 841

567 A.2d 841

20 Conn.App. 354

STATE of Connecticut v. Paul KENNEDY.

No. 7012.

Appellate Court of Connecticut.

Argued Oct. 6, 1989.

Decided Dec. 19, 1989.

Laura P. Gordon and Dana E. Shaw, Certified Legal Interns, with whom were Michael R. Sheldon and, on the brief, Timothy H. Everett and Todd D. Fernow, and Karen D. Steinberg, Pamela J. Bristol and Claudia Baio, Certified Legal Interns, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Sr., State's Atty., and Irving Aronson, former Asst. State's Atty., for appellee (state).

Before DALY, EDWARD Y. O'CONNELL and FOTI, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122(a)(2). ¹ The defendant claims that the court erred (1) in denying his two amended motions to suppress, (2) in admitting the testimony of an incompetent witness regarding the value of the items allegedly stolen, and (3) in denying his motion for judgment of acquittal. We find no reversible error.

The following facts are relevant to our resolution of this appeal. On Friday, September 27, 1985, during or shortly after Hurricane Gloria, a break-in occurred at the Slater Museum located on the grounds of the Norwich Free Academy in Norwich. A large wooden display case that housed a set of Japanese and Korean pottery and ivory carvings known as Netsukes (Netsuke collection) was ransacked. Mary-Anne Hall, the museum's docent, ² and two assistants compiled a complete list of the missing items from inventory cards and gave the list to the Norwich police. Included in this information was a valuation of each item that was based on a 1979 appraisal made by Betty Killam Leavitt, a recognized authority on Netsukes hired by the museum.

On October 8, 1986, the Norwich police obtained a search warrant for 57 Freeman Avenue, Norwich, to search the premises for the defendant. That warrant was based on information provided by the Waterford police department that the defendant was wanted for larceny in the fourth degree, criminal trespass in the first degree and failure to appear in the second degree, crimes unrelated to the museum break-in. Four members of the Norwich police department proceeded to the premises to execute the warrant. Sergeant Robert Bernes was in charge of the search. Officers Kenneth Simoneau, Raymond Perry and Warren Mocek assisted him. Bernes and Simoneau comprised one team and Perry and Mocek comprised a second team; only Bernes and Perry were equipped with radios. When they arrived on the premises, the two teams divided and Bernes and Simoneau entered the one-story house through the front door, while Perry and Mocek entered through the garage located on the lower level.

After several unsuccessful attempts to inform the owner of their presence, Bernes and Simoneau forcibly opened the front door. Once inside, Bernes informed the owner, Pasquale Tamborra, the defendant's bedridden grandfather, of the purpose of their intrusion. Bernes then remained on the first floor while Simoneau went to the attic to search for the defendant.

Meanwhile, Perry and Mocek entered the house through the lower level basement garage, smashing locks to gain entrance. While searching for the defendant, Perry uncovered a tarpaulin that was bulging and large enough to conceal a man, and observed contraband, money, and an opened nylon gym bag containing two antique pottery bowls and some other artifacts. Perry also saw a label on the pottery that said "Chinese Han Dynasty." Perry seized the gym bag and notified Bernes of this discovery by radio. Five to ten minutes after Perry had informed Bernes of his discovery, Perry received a call from Bernes who told him that the defendant had been apprehended and the search ended. The defendant was found in the attic by Simoneau, who sought and received Bernes' help in apprehending and securing the defendant because the opening to the attic was small and the situation was potentially dangerous. After the defendant was taken into custody, Perry brought the gym bag upstairs. Mocek remained at the house to secure the residence.

At least one of the bowls inside the gym bag was later identified by the museum as part of the missing Netsuke collection. The officers obtained a second search warrant that afternoon to search the premises for the remaining artifacts missing from the museum's Netsuke collection. The officers executed the second warrant the same day and recovered additional artifacts from the missing Netsuke collection in the basement garage. The police subsequently obtained an arrest warrant and arrested the defendant for his participation in the Slater Museum theft.

The defendant filed a motion to suppress the evidence seized during the first search, claiming that it was unconstitutionally seized. The defendant made a separate motion on similar grounds to suppress the museum artifacts seized during the second search. The court denied these motions after determining that the defendant lacked standing to challenge the seizures.

Soon after jury selection began, the defendant filed amended motions to suppress the fruits of the October 8, 1986 searches of and seizures from his residence after he obtained additional evidence to show that he had a reasonable expectation of privacy in the basement garage. The court denied the amended motions because it found that the defendant lacked standing. The court further found that even if the defendant had standing, the seizure of the original items was reasonable under the plain view doctrine. At the end of the state's case, the defendant also moved unsuccessfully for a judgment of acquittal on the ground, inter alia, that the only evidence of value was uncorroborated hearsay. The defendant was convicted after a jury trial and appealed after the court denied his motion for a new trial.

I

The defendant's first claim is that the trial court erred in denying his amended motions to suppress when it concluded that he did not have standing to raise the motion, and when it concluded that the original seizure was justified under the plain view doctrine. We find no reversible error.

A

The defendant argues, and the state concedes, that the trial court erroneously found that the defendant lacked standing because he did not exercise "sole or exclusive control" over the searched premises. "The capacity to claim the protection of the fourth amendment does not depend upon a property interest, permanency of residence, or payment of rent but upon whether the person who claims fourth amendment protection has a reasonable expectation of privacy in the invaded area.... Further, the fact that a person does not have the exclusive use of an area does not bar his having a reasonable expectation of privacy that furnishes standing to object to a government search. Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120 [2123], 20 L.Ed.2d 1154 (1968); Garrison v. State, , 345 A.2d 86, 93 (Md.App.1975)." (Citations omitted.) State v. Reddick, 207 Conn. 323, 330-31, 541 A.2d 1209 (1988). Id., 330-31, 541 A.2d 1209. Thus, the court in the present case misapplied the law in determining that the defendant could not have had a reasonable expectation of privacy in the basement garage merely because he did not have sole and exclusive control of the basement garage.

This, however, does not end the inquiry. We must next determine whether the defendant proved that the search and seizure invaded his reasonable expectation of privacy. "Whether a reasonable expectation of privacy exists is a determination to be made on a case-by-case basis." Id., at 331, 541 A.2d 1209. "That determination entails a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable. Katz v. United States, [389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) ]; United States v. Cassity, [720 F.2d 451, 456 (6th Cir.1983), vacated and remanded, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984), rev'd on other grounds, 604 F.Supp. 1566 (E.D.Mich.1985), aff'd, 807 F.2d 509 (6th Cir.1986) ]; State v. Zindros, [189 Conn. 228, 239, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984) ]; State v. Cooper, 9 Conn.App. 15, 20, 514 A.2d 758 (1986)." Id.

After carefully reviewing the record, we conclude that the defendant has demonstrated that his subjective expectation of privacy in the basement garage of 57 Freeman Avenue was reasonable and was an expectation that society would also recognize as reasonable. In an analogous case, our Supreme Court in State v. Reddick, supra, at 331, 541 A.2d 1209, concluded that an adult son or daughter has a reasonable expectation of privacy in his or her parent's home when living temporarily or permanently with a parent in the parental home. The court further concluded that the defendant had a reasonable expectation of privacy in the common basement of this two-family house. Id., at 332, 541 A.2d 1209. In the present case, the defendant also had a reasonable expectation of privacy in the basement garage since he is the grandson of the owner, who had lived at the searched residence for more than one year, who had cared for his invalid grandfather, and who had made repairs around the house.

The Supreme Court in Reddick further concluded that the expectation of privacy in the common basement of the two-family house was an expectation that society would recognize as reasonable, where evidence was presented that the basement was secured from the outside and readily accessible only from the two apartments within the dwelling. See id., at 333, 541 A.2d 1209. In the present case, the defendant's expectation of privacy in the basement garage is also one that society would recognize as reasonable because he secured...