State v. Spencer, (SC 17045).

CourtSupreme Court of Connecticut
Writing for the CourtSullivan, C. J., and Borden, Katz, Vertefeuille and Zarella, Js
Citation268 Conn. 575,848 A.2d 1183
Docket Number(SC 17045).
Decision Date27 April 2004

268 Conn. 575
848 A.2d 1183


(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.

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).



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 Scutari testified for the state.

Dohmann testified that the defendant was "kind of reluctant" to tell the officers whether anybody else was in his apartment. According to Dohmann, the defendant "was a bit nervous," and the officers feared that he may have been "hiding something" from them. Therefore, the officers decided to enter the apartment "to make sure no further evidence was being destroyed or possibly other people involved that may be escaping." They also were concerned for their safety. Dohmann explained that weapons often are involved "in that type of business . . . to prevent being detained or being arrested," and that "it's not unusual for narcotics and weapons to be found in the same building and we wanted to make sure there were no weapons and more importantly nobody up there to use those weapons." He further testified: "I didn't think it was just a coincidence that this package was being delivered there. So, it was our belief that there was somebody in that apartment and we didn't really expect the package to come back to the name on the package because it's not typically done that way for obvious reasons. So, we expected somebody was in that apartment that was expecting a large amount of marijuana and with that we're feeling there's a drug dealer in that apartment. And, if there's a drug dealer in that apartment, we don't know who he is and he could very well be armed." In addition, Dohmann testified that he had, in "many" situations involving arrests outside of apartments, entered those apartments without warrants to search for weapons or to prevent destruction of evidence. According to Dohmann, this practice was "standard procedure" because "the safety of the officers is paramount and there's times when you just can't wait. You have to do what you have to do."

On cross-examination, Dohmann acknowledged that the investigation prior to the controlled delivery had not revealed that anybody named Sloan was living at 16 Lipton Place. He also acknowledged that his investigation had not revealed any indication that any individual living at that address might be armed or involved in the drug trade. Finally, defense counsel questioned Dohmann concerning the officers' decision to enter the defendant's apartment:

"Q. There came a time when you went up the stairs to go into the defendant's home—

"A. Uh-huh.

"Q. — and again, you had a suspicion that there were — you had a suspicion that there could be somebody armed upstairs?

"A. A suspicion? I wouldn't say a suspicion but we had to know.

"Q. A hunch?

"A. Our suspic — not a hunch. Just, you don't even think about it. You just have to eliminate — we have to eliminate the possibility so we went up there with the possibility of that being there and we didn't want to be surprised."

Eisenstein testified that he had observed that the defendant's door was approximately six inches ajar. He asked the defendant "several times" whether anybody was in the apartment, and received no response. Therefore, he and Robinson performed a "protective search" of the defendant's apartment. According to Eisenstein, they did not look in any drawers, and their search was limited to places "where you might find people, human beings." Finally, he testified that he had performed protective sweeps "on numerous occasions under similar circumstances." On cross-examination, Eisenstein acknowledged that the investigation leading up to the controlled delivery of the package had not indicated that there were any armed and dangerous people living at 16 Lipton Place. He also stated that, at that time, he had not been aware of anybody in the "immediate area" of that residence who might have been "that magnitude of a marijuana dealer." In addition, Eisenstein stated: "I felt that ... the only apartment under question here was the second floor apartment belonging to the defendant and that the other apartments didn't really come into play in the investigation. And, it appeared from... the house, there was no other noise. Nobody came out of their doors to see what was going on or anything else. So, my assumption was that he was the only one at home at that time."

Finally, Robinson testified for the state that he personally had conducted "hundreds" of protective sweeps, and "numerous" protective sweeps in situations wherein an individual had been arrested outside of an apartment. Scutari testified that the area surrounding 16 Lipton Place was known for a high level of drug activity.

In oral argument before the trial court on the defendant's motion to suppress, the state argued that the warrantless search was justified because the defendant had accepted a substantial amount of marijuana, the door to his apartment was ajar and he would not answer the officers' questions concerning whether anybody else was in his apartment. According to the state, "the law allows for a protective sweep ... where you have a...

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  • State v. Kimble, No. 26992.
    • United States
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    • 25 Marzo 2008 in some sense the product of illegal government activity." (Citations omitted; internal quotation marks omitted.) State v. Spencer, 268 Conn. 575, 599-600, 848 A.2d 1183, cert. denied, 543 U.S. 957, 125 S.Ct. 409, 160 L.Ed.2d 320 10. In contrast, "[a] person is seized by the police and t......
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