State v. Moore

• Decision Date: 20 April 2010
• Docket Number: No. 30315.,30315.
• Citation: 992 A.2d 357,120 Conn.App. 512
• Parties: STATE of Connecticut v. Jerome F. MOORE.
• Court: Connecticut Court of Appeals

992 A.2d 357
120 Conn.App. 512

STATE of Connecticut
v.
Jerome F. MOORE.

No. 30315.

Appellate Court of Connecticut.

Argued January 20, 2010.

Decided April 20, 2010.

992 A.2d 358

Mary Anne Royle, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Jason Germain, assistant state's attorney, for the appellee (state).

DiPENTIMA, BEACH and STOUGHTON, Js.^*

STOUGHTON, J.

The defendant, Jerome F. Moore, appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and one count of possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims (1) that the trial court improperly denied his motion to suppress evidence seized as the result of a warrantless entry of his apartment and (2) that the warrantless entry by the police violated his rights under article first, § 7, of the Connecticut constitution. We affirm the judgment of the trial court.

The defendant moved pursuant to both the federal and state constitutions to suppress evidence obtained by the police after

992 A.2d 359

they had arrested him and entered his apartment. On November 29, 2007, the court conducted an evidentiary hearing on the defendant's motion to suppress. At the conclusion of the hearing, the court denied the defendant's motion; thereafter, the matter was tried to the jury, and the defendant was convicted as charged on both counts, from which he appealed to this court. The defendant claims that his rights under the fourth amendment to the federal constitution were violated when the police entered his apartment without a warrant and that the court improperly determined that both he and his wife had consented to entry by the police. He claims further that even though the court determined that their consent had been implied, article first, § 7, of the state constitution requires express consent

The court, in its oral ruling on the defendant's motion to suppress, found the following facts. At approximately 7:45 a.m. on September 29, 2006, three officers from the Waterbury police department entered the common hallway of an apartment building located at 417 East Main Street in that city with valid warrants for the arrest of the defendant. The officers saw the defendant standing in the common hallway outside of the door to a common bathroom, dressed only in a T-shirt and boxer shorts. The officers indicated to the defendant that they had warrants for his arrest and placed him under arrest. After being placed in handcuffs, the defendant indicated to the officers that he wanted additional clothing before going to the police station. The officers acceded to his request and asked the defendant where his clothing was located. The defendant nodded toward his apartment, the door to which was ajar. One of the officers then knocked on the partially open door, which swung open as a consequence. The defendant's one room apartment contained a bed in which the officer saw the defendant's wife, Ebony Moore. Ebony Moore did not indicate to the officers in any way that they could not enter. Furthermore, upon entering, the officers did not intend to search the apartment; instead their sole intent was to retrieve the defendant's clothes. This intent was expressed to Ebony Moore when the officers indicated to her that they were entering to get clothing for the defendant; neither threats nor use of force were issued to gain entry. After entering the apartment for that purpose, one of the officers noticed crack cocaine on top of a dresser and seized it.¹ The defendant subsequently moved to suppress the seizure of those narcotics.

The court found, on basis of the totality of the circumstances, that the defendant voluntarily consented to entry by the officers and that he had the authority to grant such consent. It also found that Ebony Moore, by way of her conduct, impliedly consented to the officers' entry. Accordingly, the court denied the defendant's motion to suppress the seized evidence. This appeal followed.

I

Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well

992 A.2d 360

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. ... Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out by the trial court." (Internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008)

On appeal, the defendant claims that his conduct and the circumstances surrounding his arrest were too ambiguous for the police reasonably to assume that he consented to their entry. We find nothing ambiguous either in his conduct or in the circumstances, which were as follows. The police arrived at the defendant's last known address with outstanding warrants to arrest him for selling narcotics. They entered the apartment building and observed the defendant outside a common bathroom wearing only boxer underpants and a sleeveless undershirt. When they arrested him, the defendant inquired of the officers "if he could get some clothes on" so that he did not have "to go downtown" in his underwear.

It is true that, as appellate counsel suggested to us at oral argument, the police could have taken the defendant to...