State v. Santiago, 9582

• Decision Date: 28 January 1992
• Docket Number: No. 9582,9582
• Citation: 602 A.2d 40,26 Conn.App. 481
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John SANTIAGO.

Page 40

602 A.2d 40

26 Conn.App. 481

STATE of Connecticut v. John SANTIAGO.

No. 9582.

Appellate Court of Connecticut.

Argued Sept. 19, 1991.

Decided Jan. 28, 1992.

William T. Koch, Jr., Sp. Public Defender, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom, on the brief, were C. Robert Satti, State's Atty., Peter McShane, Deputy Asst. State's Atty., and Kathryn St. Amand, Law Student Intern, for appellee (State).

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

DUPONT, Chief Judge.

The sole issue of this appeal is whether the defendant's warrantless arrest, for the misdemeanor of threatening in violation of General Statutes § 53a-62, was prohibited by the fourth amendment to the United States constitution. ¹ The resolution of this issue requires an analysis of whether the arrest occurred in or out of the defendant's home. ²

The charge of threatening, which was the subject of the warrantless arrest, was not prosecuted. The trial court found that the warrantless arrest was legal because it was based on speedy information ³ and there was probable cause for the arrest. The court, therefore, denied the defendant's motion to suppress the evidence of a pipe containing narcotics residue found in a search of the defendant's person shortly after the arrest. ⁴ The defendant then pleaded nolo contendere to the crimes of possession of drug paraphernalia and possession of narcotics conditional on the right to appeal from the denial of his motion. ⁵

The facts as found by the trial court, and as stated by the parties, are not in dispute. The police were sent to the defendant's home in March, 1989, in response to a report that he had threatened a neighbor with a handgun. After interviewing the neighbor and another person, an officer went onto a concrete covered porch, measuring approximately ten feet by four feet, leading directly to the doorway of the defendant's basement apartment. The porch does not lead to any other apartment and the first floor apartment forms its roof. In response to the officer's knock on the door, the defendant, bare chested and shoeless, opened the door and spoke to the officer, denying that he had threatened the neighbor. He refused to allow the officer to enter his apartment to search for a handgun without a search warrant. The officer ordered the defendant to remain in the doorway and then left the porch to speak with another officer. Subsequently, the officer returned to the porch and arrested the defendant, who was still standing in the doorway, for threatening the complainant. The officer stretched his arm beyond the plane of the threshold to seize the defendant, who had begun to retreat into his apartment, and effectuated the arrest. The officer's feet were never inside the defendant's apartment.

United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), are the two cases relied on in decisions that discuss the prohibitions of the fourth amendment when there has been a warrantless arrest in a home or an "almost-home" location.

In United States v. Santana, supra, the Supreme Court of the United States upheld a warrantless entry by the police that passed beyond the threshold of the defendant's home. The entry was made to effectuate a warrantless arrest for a felony drug charge. The defendant's exact position when she was first seen by the police was described in precise detail in footnote one of the decision. If she had taken one step forward, she would have been outside her home and with one step backward, she would have been in the vestibule of her residence. When she saw the officers approach, she retreated into her home and was seized and arrested within its vestibule. The court concluded that the threshold of her dwelling was a public place in which she had no privacy interest and that her retreat into her dwelling could not thwart an otherwise proper arrest. Id., 427 U.S. at 42, 96 S.Ct. at 2409. The trial court, in its oral decision, alluded to the Santana case when it determined that "the issue of the threshold is a bogus one".

In Payton v. New York, supra, the court held that even where there is probable cause to arrest a suspect for a felony, an officer may not enter a suspect's home to effectuate that arrest absent exigent circumstances. The court stated that "[t]he Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined then when bounded by the unambiguous physical dimensions of an individual's home.... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id., 445 U.S. at 589-90, 100 S.Ct. at 1381-82. (Citations omitted; internal quotation marks omitted.)

A warrantless arrest, whether for a misdemeanor or a felony, requires that the arrest be supported by probable cause. State v. Kaplan, 20 Conn.App. 183, 186, 565 A.2d 11 (1989). Even where there is probable cause for a warrantless arrest, however, a warrantless entry into the home to arrest for a felony must survive the test of exigent circumstances. State v. Guertin, 190 Conn. 440, 446-455, 461 A.2d 963 (1983). The trial court in the present case did not determine whether exigent circumstances as such existed. The court, however, concluded that the warrantless arrest was permissible under General Statutes § 54-1f(a) because it was based on the "speedy information of others" and implicitly concluded that the arrest occurred in a public place. ⁶

The defendant contends that whether exigent circumstances existed is irrelevant because his home could not be invaded to effect an arrest for a misdemeanor without violating the fourth amendment to the United States constitution. The state concedes that there were no exigent circumstances, but argues that Santana permits a warrantless arrest for a misdemeanor when the location of the arrest is the doorway of the defendant's home. Thus, this case depends on whether the definition of home includes the porch leading to the defendant's apartment. We must decide whether the defendant was arrested without a warrant in a public place or in an area that intruded the privacy of his home. Neither the Connecticut Supreme Court or the Supreme Court of the United States has yet decided if fourth amendment protection should be accorded to an area such as a porch, attached to a home, in which a suspect has exclusive possession. This case, then, provides another example of the continuing problem of reconciling a warrantless arrest with the constitution. See note, "Warrantless Doorway Arrests--Preemption of Payton v. New York," 6 Hamline L.Rev. 585 (1983).

Exigent circumstances form an exception to the general rule that a warrantless entry into a dwelling may not be made for the purpose of making an arrest for the commission of a felony. "[C]ourts have permitted warrantless home arrests for major felonies if identifiable exigencies, independent of the gravity of the offense, existed at the time of the arrest.... But of those courts addressing the issue, most have refused to permit warrantless home arrests for nonfelonious crimes. See, e.g., State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963, 970 (1983)." Welsh v. Wisconsin, 466 U.S. 740, 752, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). "The exception [of exigent circumstances for the making of an arrest without a warrant] is limited to the investigation of serious crimes; misdemeanors are excluded." State v. Guertin, supra, 190 Conn. at 453, 461 A.2d 963. Although a violation of General Statutes § 53a-62 is a misdemeanor, its investigation may have been considered by the police as an investigation of a serious crime because of the alleged use of a gun. Because the state conceded a lack of exigent circumstances, we need not determine if the police were investigating a crime in the category of a misdemeanor or a felony, or if the concession itself was correct. We need only determine if the defendant had a legitimate expectation of privacy that society should protect in the location of his arrest.

Ever since the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the " 'capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the [Fourth] Amendment has a legitimate expectation of privacy in the invaded place.' " Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990), quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A legitimate, subjective expectation of privacy is "one that society is prepared to recognize as reasonable." Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

United States v. Santana, supra, concerned a suspect's expectation of privacy while standing on the threshold of a doorway leading into her home, and concluded that there was no such expectation that society was prepared to recognize. A number of cases have discussed variations of the Santana theme, such as "on," "over," "in," "upon" or "at" the threshold. See People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980); People v. Schreiber, 104 Ill.App.3d 618, 60 Ill.Dec. 417, 432 N.E.2d 1316 (1982); State v. Patricelli, 324 N.W.2d 351 (Minn.1982)S State v. George, 210 Neb. 786, 317 N.W.2d 76 (1982); see also W. LaFave, Search and Seizure (2d Ed.) 6.1(e), pp. 587-93. We need not join them because we hold that the defendant was standing in an area in which he had an expectation of privacy, as opposed to the public threshold of his home, at the time of his arrest. ⁷

The United States Supreme Court has recognized that the home deserves scrupulous protection from government invasion. Payton v. New York, supra....