State v. Terzian

• Decision Date: 23 June 2017
• Docket Number: No. 2009–46–C.A. (P2/07–4007AG ),2009–46–C.A. (P2/07–4007AG )
• Citation: 162 A.3d 1230
• Parties: STATE v. Boghos TERZIAN.
• Court: Rhode Island Supreme Court

162 A.3d 1230

STATE

v.Boghos TERZIAN.

No. 2009–46–C.A. (P2/07–4007AG )

Supreme Court of Rhode Island.

June 23, 2017

Jane M. McSoley, Department of Attorney General, for State

Matthew S. Dawson, Esq., for Defendant

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Goldberg, for the Court.

This case came before the Supreme Court on February 8, 2017, on appeal by the defendant, Boghos Terzian (defendant or Terzian), from judgments of conviction entered in the Superior Court following a jury trial. The defendant was convicted on three counts of assault with a dangerous weapon and one count of carrying a pistol without a license. Before this Court, the defendant contends that the Superior Court justice erred in denying his motion to suppress evidence seized by police during a warrantless search of his home. For the reasons set forth herein, we vacate the judgments of conviction.

Facts and Travel

This case turns on whether a warrantless entry into defendant's home, after he was placed in the custody of the Providence police, followed by a search and warrantless seizure of a firearm and a can of pepper spray, pass constitutional scrutiny. In considering whether the search exceeded the bounds of reasonableness, we confine our analysis to the evidence presented at the pretrial suppression hearing in Superior Court, upon which the Superior Court justice based his decision denying the motion to suppress.

In the late evening hours of July 31, 2007—nearly ten years ago—the Providence police received a 9–1–1 call indicating that gunshots had been fired in the Pumgansett Street area of the city.¹ Patrolman Scott Zambarano (Patrolman Zambarano) responded to the call and was dispatched to the parking lot of a Walgreens located approximately one-half mile from Pumgansett Street. Upon his arrival, Patrolman Zambarano was approached by a man who identified himself as Vito.² Vito informed Patrolman Zambarano that defendant, who "lived on Pumgansett Street," had "shot his back window out and beat up his girlfriend." Patrolman Zambarano, accompanied by his supervisor, Sgt. Roger Aspinall (Sgt. Aspinall), and numerous police officers, in several marked cruisers, responded to defendant's home—a single-family dwelling located at 19 Pumgansett Street. According to the officers, when they arrived at the scene, the smell of gunpowder was still in the air and the officers noticed shards of broken glass scattered around the street. The officers mistakenly went to the house next door. Patrolman Zambarano subsequently knocked on the front door of 19 Pumgansett and was met by defendant, who exited the house to speak to the officers. He appeared to the officers to be "highly intoxicated." The defendant stated that there had been a "rift" in front of the house caused by "Spanish kids from the project[s]." The patrolman stated that, at some point during the conversation, defendant became "uncooperative" and "belligerent." The defendant was seated in a police cruiser until he was identified by Vito as the person with the firearm; he was then placed in handcuffs and returned to the cruiser.

Patrolman Zambarano testified that Stephanie Kruwell (Stephanie), who identified herself as defendant's fiancée, and her daughter, Samantha Kruwell (Samantha),³ emerged from the house. Samantha informed Patrolman Zambarano that she had been in a fight with her boyfriend and that someone had been pepper-sprayed during the altercation. Patrolman Zambarano testified that he asked the women whether there were any guns inside the house, and Stephanie initially responded in the negative; but she then volunteered that "there were guns in the house" and that the officers could go inside and search. Patrolman Zambarano did not inquire of defendant or Stephanie as to who lived in the house. The officer testified that he assumed that Stephanie and Samantha lived in the house and did not ask her for permission to enter the home, nor did he ask Samantha where she lived. Significantly, when the Superior Court justice pointedly asked Patrolman Zambarano to state the factors that led him to conclude that Stephanie lived in the house, before he entered, he responded, "Just assumption, I guess, your Honor."

Patrolman Zambarano testified that the officers "responded inside the house, and Stephanie pointed out where the gun was in the house." He stated that Stephanie "pointed out a bureau," with clothes "stacked on top of the bureau and [she said that] the gun would be under the clothes on the bureau." Patrolman Zambarano testified that he proceeded to look where she pointed and "found a gun placed in a holster on top of the bureau underneath the clothing." The witness also testified that the officers searched the area where the gun was found and discovered .38–caliber bullets "on a bureau or in a bureau next to the gun" in defendant's bedroom. However, the police did not seize the firearm at this time. Rather, the Bureau of Criminal Identification (BCI) was summoned to 19 Pumgansett Street to photograph the evidence; additional detectives entered the home and took photographs of both the firearm in defendant's bedroom and a can of pepper spray that had been discovered in the trash bin.

Sergeant Aspinall also testified at the suppression hearing; he said that he was the officer in charge that evening and participated in the search. This witness testified that his first encounter with Stephanie was at the house after defendant had been handcuffed and placed in the cruiser. He testified that, as he approached the house, he encountered a white male subject, later identified as Nathan Spardello, in the front doorway. Because Sgt. Aspinall "didn't like the way [Nathan] was standing above" him on the step, he had Nathan come down the stairs and "passed him on to a patrol officer," who was nearby, to be patted down. According to Sgt. Aspinall, Stephanie then "responded to the doorway." She stood inside the doorway, while he was "talking to her from the outside." Although the witness recalled that there may have been some pit bulls in the home, this was not "an issue since I was outside of the house." He testified that he "asked [Stephanie] specifically what had gone on this evening in front of her house." Stephanie told the sergeant that white girls were in a fight in front of her house, at which point, the sergeant returned to the cruiser where defendant was situated, to try to clarify what had transpired. At that point, he learned from a radio call that pepper spray may have been used in the incident. According to the sergeant's testimony, he wanted to talk to Stephanie again, so he returned to the doorway and "[o]pen [ed] the screen door to get her attention." According to the sergeant, Stephanie invited him in. The sergeant admitted that he did not ask Stephanie if she lived in the house, but he "assumed" that she lived there. He testified that, during their conversation, Stephanie was taking care of a young child who was "running around the house, and she was trying to take care of that while talking to me." Although he did not have much contact with Samantha, he recalled that she was also watching the child, who was "going in and out of the house."

Sergeant Aspinall indicated that, when he asked Stephanie if there was pepper spray in the house, her response was no, but that "we could look around." According to the sergeant, at that point in the investigation, they were looking for pepper spray. Sergeant Aspinall testified that he immediately went to the trash bin, opened the lid, and discovered the can of pepper spray on top of the trash. He then confronted Stephanie, stating, "I know there's a firearm in this house. Could you tell me where the gun is?" According to the witness, Stephanie responded, "Yes. I'll go get it for you." Sergeant Aspinall stopped her and told her that "she could point it out to [Patrolman Zambarano] so that he could grab it." Patrolman Zambarano accompanied Stephanie into the bedroom and notified Sgt. Aspinall that there was a firearm in defendant's bedroom. Sergeant Aspinall called in BCI detectives to take photographs. After the BCI detectives entered the home and took photographs of the weapon, it was seized. There was no warrant. Throughout this period of time, defendant—who was the owner of the house and in whose bedroom the gun had been found—was in the back seat of a police cruiser; at no point did the officers ask defendant for consent to enter his home and to search the dwelling; nor did the officers consider utilizing a consent to search form. When Sgt. Aspinall was asked whether he sought permission to search the house or whether Stephanie offered, Sgt. Aspinall responded, "I believe she offered."

Stephanie testified at the suppression hearing and disputed this sequence of events. She testified that she does not live at 19 Pumgansett Street, but rather is a resident of North Providence. However, on July 31, 2007, at approximately 9 p.m., she was with defendant at his home when suddenly she heard a "ruckus going on in front of the house" and noticed a large light being shined into the windows of the home. The defendant went outside to investigate and, after he did not return for a period of time, Stephanie went outside and found him handcuffed in the back seat of a police cruiser. Stephanie testified that the officers never asked her what happened, nor did they ask her whether there were any firearms in the house, or whether they could enter the home; rather, the officers "tried to walk right in the house." Stephanie testified that she informed the officers that they could not go into the home because there were dogs on the premises and "[t]he dogs bite," and one of the officers responded, "[p]ut the dogs away before I shoot them." The officers entered the home and began to look around. According to Stephanie, one of the officers looked through the kitchen area, including the trash bin, and found the pepper spray; he then...