State v. MacNeil

• Decision Date: 25 September 1992
• Docket Number: No. 10570,10570
• Citation: 613 A.2d 296,28 Conn.App. 508
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Matthew MacNEIL

Page 296

613 A.2d 296

28 Conn.App. 508

STATE of Connecticut v. Matthew MacNEIL

No. 10570.

Appellate Court of Connecticut.

Argued June 2, 1992.

Decided Aug. 11, 1992.

Certification Denied Sept. 25, 1992.

Thomas P. Cody and Bonnie R. Vairo, Sp. Public Defenders, with whom, on the brief, was Sally S. King, Sp. Public Defender, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom, on the brief, were John T. Redway, State's Atty., and Timothy J. Liston, Senior Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

NORCOTT, Judge.

The defendant challenges the trial court's denial of his motion to suppress cocaine and drug related paraphernalia seized during a warrantless search of his sister's house. After the court denied the motion, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, ¹ to the charge of possession of cocaine with intent to sell in violation of General Statutes § 21a-277(a). ² He was sentenced to a term of fifteen years imprisonment, suspended after ten years, and five years probation.

The defendant claims that the trial court improperly denied the suppression motion because the police (1) entered his sister's house without her consent, (2) conducted an unconstitutional search of a shopping bag containing his clothes, and (3) improperly seized evidence pursuant to the plain view doctrine. We affirm the judgment of the trial court.

The trial court relied on the following facts. On the morning of July 30, 1989, state police received a report that someone was in a wooded area behind a house in Killingworth, calling out for help. Trooper William Logiodice investigated and learned that Andy Peoples, who lived in the residence, had given an individual he knew as Matt a ride to Haddam. Peoples said that during the ride Matt had stated that his "father would kill [him] if he saw [him] like this," and had asked to be driven to his sister's house.

Logiodice then discussed what he had learned with Troopers Thomas Murray and Joseph Delehanty. On the basis of this information and other factors known to Murray, he suspected that the person known as Matt was Matthew MacNeil, the defendant, whom he had known for about a year and who he suspected was a narcotics user. Thereafter, the three troopers went with Trooper David Brundage to an address in the Higganum section of Haddam, which they believed to be the residence of the defendant's sister, in order to investigate further.

When the troopers arrived, Murray knocked at the door and was met by the defendant's sister, Alanna Wheeler, an owner of the house. He told her there may be a problem with the defendant and asked to see him. Wheeler said she would check to see if he could do so and went back into the house while Murray waited at the door. While there, Wheeler's son came to the door and said that the defendant was lying on a couch inside. Wheeler then returned and led Murray into the living room, where the defendant was asleep on a couch, clad only in a tee shirt and underwear.

Shortly thereafter, when the defendant awoke, he began shaking. His arms and legs were thrashing about, and he looked sick, confused and frightened. Wheeler, who had never seen him in this condition before, agreed with Murray that an ambulance should be summoned. She then began discussing the defendant's clothes with Murray and handed him a shopping bag that contained them. When Murray reached in and pulled out the defendant's pants, a large packet of cocaine fell to the floor. Murray seized the shopping bag, along with the cocaine, some plastic bags and a brown paper bag. Thereafter, he obtained Wheeler's written consent to search the rest of the house. Other drug related items were found, including a scale used in the preparation of illicit narcotics.

The defendant filed a motion to suppress in which he claimed that the warrantless search and seizure of his personal belongings violated his rights under the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of our state constitution. ³ In its memorandum of decision, the trial court found that the troopers had entered the Wheeler house with the owner's consent, that no search of the shopping bag had occurred and that the subsequent search of the house had been conducted with the owner's consent. The defendant entered a plea of nolo contendere, conditioned on his right to take an appeal. ⁴

I

The defendant first claims that his suppression motion should have been granted because the police entered his sister's house without her consent. We disagree.

As a threshold matter, we must set forth the appropriate standards under which we review a trial court's denial of a suppression motion. The court's conclusions will not be disturbed " 'unless they are legally and logically inconsistent with the facts.' " State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). Its factual findings will be reversed only if they are clearly erroneous. State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984); State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984). This involves a two part procedure. First, where the court's legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, supra, 189 Conn. at 238, 456 A.2d 288. Second, if the factual basis of the court's decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id.

In our resolution of this matter, we remain ever mindful that "[o]ne of the most fundamental propositions of our criminal jurisprudence"; State v. Harris, 10 Conn.App. 217, 222, 522 A.2d 323 (1987); is that "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented. State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968); State v. Reagan, supra. Such consent may not be established by mere acquiescence to police authority. State v. Jones, supra, 193 Conn. at 79, 475 A.2d 1087.

Moreover, whether consent was freely and voluntarily given, or was the product of coercion, express or implied, is " 'a question of fact to be determined from the totality of all the circumstances.' " State v. Reagan, supra, 209 Conn. at 7-8, 546 A.2d 839, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). It is to be decided by the trial court on the basis of the evidence before it that it finds credible, along with the reasonable inferences that may be drawn from that evidence. State v. Reagan, supra, 209 Conn. at 8, 546 A.2d 839; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). The ultimate question "is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice." State v. Cobbs, 7 Conn.App. 656, 659, 510 A.2d 213 (1986).

In this case, the trial court credited the testimony of Murray in finding that Wheeler freely and voluntarily allowed the police into the residence, and that she was not coerced and did not acquiesce to Murray's authority as a state trooper. Although the defendant argues that the testimony of Wheeler and Michael MacNeil, the defendant's brother, supports his claim that no consent was given and that Wheeler felt intimidated by Murray, we are mindful, as we must be, that where there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses. State v. Blevins, 13 Conn.App. 413, 417, 536 A.2d 1002 (1988). After careful review of the record, we cannot conclude that it was clearly erroneous for the trial court to conclude that Wheeler consented to the police entry into her house.

II

The defendant next claims that the trial court should have found that the police conducted an unconstitutional search of the shopping bag that contained his clothes. We disagree.

At the outset, we note that, while it is not this court's function to find facts; State v. Reagan, supra; since the defendant challenges the trial court's factual and legal conclusions, we may look not only to the facts set forth in its memorandum of decision to see if they are legally and logically correct, but to the evidence in the whole record to see if those facts are clearly erroneous. State v. Zindros, supra, 189 Conn. at 238, 456 A.2d 288. We also may resort to the evidence produced in support of the court's ruling on a suppression motion when, as here, the court does not make detailed factual findings to support its decision. State v. Martin, 2 Conn.App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985).

Our review of the record discloses the following undisputed facts relative to this issue. At about 8 a.m., Logiodice was dispatched to investigate the complaint at the Peoples' residence. Later that morning, after discussing with Murray and Delehanty what he had learned from Andy Peoples, the three troopers, along with Brundage,...