State v. Spencer, 268 Conn. 575 (Conn. 4/27/2004)

• Citation: 268 Conn. 575
• Decision Date: 27 April 2004
• Docket Number: (SC 17045).
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT <I>v.</I> MICHAEL SPENCER.

Page 575

268 Conn. 575

STATE OF CONNECTICUT

v. MICHAEL SPENCER.

(SC 17045).

Supreme Court of Connecticut.

Argued January 9, 2004.

Officially released April 27, 2004.

Sullivan, C. J., and Borden, Katz, Vertefeuille and Zarella, Js.

Syllabus

Convicted of the crime of possession of narcotics, the defendant appealed, claiming that the warrantless search of his apartment by the police during which they observed in plain view in his bedroom some crack cocaine violated his constitutional rights to be free from unreasonable searches and seizures. The police went to the defendant's residence after they had been informed by a sheriff's office in Tennessee that it had intercepted a Federal Express parcel containing twenty-seven pounds of marijuana that was addressed to an individual at the defendant's residence. After taking possession of the parcel, the Stamford police department confirmed that it contained marijuana and the police subsequently conducted a controlled delivery of the parcel to the defendant's address, using a police officer dressed as a Federal Express employee to make the delivery. The officer approached the multifamily house, rang the doorbell for the first floor apartment and knocked on the front door. The defendant opened the door, and after identifying himself and indicating that he lived on the second floor, stated that he would accept the package. He signed the delivery invoice, took possession of the parcel and went inside and closed the door. As the officer who made the delivery walked away, the defendant came back outside without the package, at which time he was approached by four police officers in the front doorway of the residence. The police brought the defendant into the first floor common hallway, where they observed the parcel on a shelf, and arrested him. From the bottom of the stairway that led to the defendant's second floor apartment, the police noticed that the doorway to his apartment was ajar. The police asked the defendant if anyone else was in the apartment but he did not respond. Two officers then ascended the stairs and entered the defendant's apartment, where they observed the narcotics in plain view on the defendant's bed. At trial, the defendant filed a motion to suppress the evidence seized from his apartment on the ground that it had been obtained illegally as a result of a warrantless search without exigent circumstances in violation of the state and federal constitutions. The state argued that the warrantless search was justified because the defendant had accepted a substantial amount of marijuana and would not respond to police inquiries regarding the presence of anyone else in his apartment, thereby allowing for a protective search of the premises for the safety of the police and to prevent the destruction of evidence. The trial court, relying on Maryland v. Buie (494 U.S. 325), denied the defendant's motion to suppress, concluding that the warrantless search of the defendant's apartment was supported by "a reasonable belief based on specific and articulable facts that the area to be swept harbor[ed] an individual posing a danger to those on the arrest scene." The jury returned a verdict of guilty of possession of narcotics and the trial court rendered judgment in accordance with the verdict, from which the defendant appealed. Held:

1. The defendant could not prevail on his claim that the rule of Buie was intended for circumstances wherein a person has been arrested inside his home pursuant to an arrest warrant and, therefore, was inapplicable here because he was arrested outside his apartment; this court could not conclude that Buie was intended to preclude the police from conducting an otherwise reasonable protective search of a home simply because an arrest occurred just outside the home or without an arrest warrant.

2. The trial court improperly denied the defendant's motion to suppress the evidence seized from his apartment, the warrantless search of the apartment, under all the facts and the reasonable inferences drawn therefrom, not having been justified as a protective sweep under the rule of Buie, the generalized possibility that an unknown, armed person may be lurking nearby is not an articulable fact sufficient to justify a protective sweep, and the police here were unaware of whether the defendant had any accomplices, the police investigation revealed no persons living at the address who may have been armed or involved in the sale of drugs, and the police had no information that any person who posed a threat to them or to others may have been at the defendant's apartment at that time.

Procedural History

Information charging the defendant with the crimes of possession of marijuana with intent to sell and possession of narcotics, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number one, where the court, Hickey, J., denied the defendant's motion to suppress certain evidence; thereafter, the matter was tried to the jury before Hickey, J.; verdict and judgment of guilty of possession of narcotics, from which the defendant appealed. Reversed; further proceedings.

Howard Ehring, senior assistant public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Mitchell Rubin, senior assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant, Michael Spencer, appeals¹ from the judgment of conviction, following a jury trial, of possession of a narcotic substance in violation of General Statutes § 21a-279 (a).² The sole issue on appeal is whether the warrantless search of the defendant's apartment violated his constitutional right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution³ and article first, § 7, of the Connecticut constitution.⁴ We conclude that the search violated the defendant's rights under the federal constitution and, accordingly, we reverse the judgment of the trial court.⁵

The record reveals the following facts and procedural history. On April 12, 2000, the sheriff's office of Shelby County, Tennessee notified the Stamford police department that it had intercepted a Federal Express parcel containing approximately twenty-seven pounds of marijuana, and that the parcel was addressed to a "Sylvia Sloan"⁶ at 16 Lipton Place in Stamford. On the basis of this information, the Stamford police surveilled the designated residence and observed that it appeared to be a multifamily house.⁷ Police department records revealed that in February, 2000, officers had responded to a call at that address concerning a domestic disturbance involving the defendant and his wife.

The following morning, the police took possession of the parcel from the Stamford Federal Express office, and a field test revealed that its contents were, in fact, marijuana. They then replaced approximately five pounds of the marijuana in the box and resealed it for delivery. Later that morning, working with the statewide narcotics task force, the police conducted a "controlled delivery" of the parcel to 16 Lipton Place. Police officers surveilled the residence from vantage points approximately fifty to sixty feet away while a task force member, Detective Frederick Caruso, delivered the parcel. Caruso, dressed in a Federal Express coat and carrying the parcel and a pad of delivery invoices, rang the doorbell for the first floor apartment and knocked on the front door. The defendant opened the door. In response to Caruso's questions, the defendant verified the address and told him that his name was Michael Spencer and that he lived on the second floor. When Caruso told him that the delivery was for "Sylvia Sloan" the defendant repeated the name to himself, and then told Caruso that he would accept the package. The defendant signed the delivery invoice, took possession of the parcel and went inside and closed the front door. As Caruso walked away, the defendant came back outside, without the parcel, and looked up and down the street.

At this point, police sergeant Eugene Dohmann, and police officers Larry Eisenstein, Douglas Robinson and Wayne Scutari, approached the residence and encountered the defendant in the front doorway. They identified themselves as police officers and brought the defendant into the first floor common hallway, where they observed that the Federal Express parcel had been placed on a shelf. The officers then read the defendant his Miranda⁸ rights and placed him under arrest. The defendant denied knowledge of the contents of the parcel or of anybody named Sylvia Sloan, and he claimed that he innocently had accepted the package.

From the bottom of a stairway of approximately twelve to fourteen steps leading up to the second floor, the officers could see that the door to the defendant's apartment was ajar. Eisenstein asked the defendant if anybody else was inside the apartment, and received no response. Eisenstein and Robinson subsequently ascended the stairs and entered the defendant's apartment. In the defendant's bedroom, they observed, in plain view on top of the defendant's bed, a homemade "crack" pipe and a dinner plate containing crack cocaine residue, as well as a rolled up $1 bill containing crack cocaine.

The defendant subsequently was charged with possession of one kilogram or more of a cannabis-type substance with intent to sell in violation of General Statutes § 21a-278 (b),⁹ and possession of narcotics in violation of § 21a-279 (a). See footnote 2 of this opinion. At trial, the defendant filed a motion to suppress the evidence of crack cocaine seized from his apartment on the ground that the evidence had been obtained illegally as the result of an unconstitutional warrantless search.¹⁰ The trial court conducted a full evidentiary hearing on the motion to suppress, during which Dohmann, Eisenstein, Robinson and...