State v. Zindros

Decision Date15 February 1983
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Georgios ZINDROS.

Paul E. Murray, Asst. State's Atty., with whom, on the brief, was Francis M. McDonald, State's Atty., for appellant (state).

Edward G. Fitzpatrick, Naugatuck, with whom was Raymond J. Shepack, Naugatuck, for appellee (defendant).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and SPADA, JJ.

ARTHUR H. HEALEY, Associate Justice.

On February 12, 1977, a fire broke out in a building located on Highland Avenue in Waterbury. The building was owned by Louis Cipriano and was under a lease to the defendant for his exclusive use as a pizza restaurant. The premises suffered extensive damages rendering them unfit for occupancy. In an information filed in April, 1977, the defendant was accused of starting this fire and was charged with arson in the second degree in violation of General Statutes § 53a-112. 1

On June 21, 1977, the defendant filed a motion to suppress all evidence, and related testimony, obtained in a search of the premises by police and fire officers on February 23, 1977. As the basis for his motion, the defendant claimed that the search was conducted without a warrant and without his consent. After an evidentiary hearing on the matter, the court, Maiocco, J., granted the defendant's motion. Thereafter, the defendant filed a motion to dismiss the information against him with prejudice which was granted by the court, Henebry, J., on November 12, 1980. On the same day, the state filed a request, pursuant to General Statutes § 54-96, for permission to appeal the judgment, which was granted by the court.

To assess the parties' claims properly, it is necessary to delineate certain events that led to the search of the leased premises on February 23, 1977, and to examine the business relationship between the defendant and his landlord, Cipriano, as that relationship was affected by the events occurring between the time of the fire and the search. The defendant was assigned the lease for the premises on April 15, 1976, with a term that ran until October 31, 1978. The defendant was current in his rent through the month of February, 1977. Furthermore, the court found that the lease had not been terminated at the time the officers conducted the warrantless search.

There are four clauses in the lease that are relevant to this appeal. The third clause provides, in part, that "if the leased premises shall be deserted or vacated, the Landlord or its agents shall have the right to and may enter the said premises as the agent of the Tenant." The tenth clause gives the landlord the right to enter the premises at reasonable hours to inspect and to make any necessary repairs on the premises. The eleventh clause deals with the parties' rights in the event the premises were destroyed by fire, explosion or otherwise. It provides as follows: "In the event of the destruction of the demised premises or the building containing the said premises by fire, explosion, the elements or otherwise during the term hereby created, or previous thereto, or such partial destruction thereof as to render the premises wholly untenantable or unfit for occupancy, or should the demised premises be so badly injured that the same cannot be repaired within ninety days from the happening of such injury, then and in such case the term hereby created shall, at the option of the Landlord, cease and become null and void from the date of such damage or destruction and the Tenant shall immediately surrender said premises and all the Tenant's interest therein to the Landlord, and shall pay rent only to the time of such surrender, in which event the Landlord may re-enter and re-possess the premises thus discharged from this lease and may remove all parties therefrom. Should the demised premises be rendered untenantable and unfit for occupancy, but yet be repairable within ninety days from the happening of said injury, the Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after said repairs shall be completed. But if the premises shall be so slightly injured as not to be rendered untenantable and unfit for occupancy, then the Landlord agrees to repair the same with reasonable promptness and in that case the rent accrued and accruing shall not cease or determine. The Tenant shall immediately notify the Landlord in case of fire or other damage to the premises." Finally, the twenty-fourth clause provides that "[t]he foregoing rights and remedies are not intended to be exclusive but as additional to all the rights and remedies the Landlord would otherwise have by law." The significance of these clauses will be addressed while examining the substantive issues raised by this appeal.

As previously noted, the fire occurred on February 12, 1977. The defendant testified at the hearing on the motion to suppress that he first found out about the fire on Sunday, February 13, 1977, from both the landlord and his own daughter. He did not go into the restaurant on that day, but he did call the fire marshal to make an appointment for the marshal to inspect the premises the following day. Meanwhile, on Sunday, Cipriano had someone secure the building by boarding it up. 2 He also testified that he had a new door put on the side of the building. 3 In response to a question asking him why he hadn't replaced the door, the defendant stated: "I didn't know that he had put the door and I didn't know whether he wanted to throw me out."

On Monday, February 14, two members of the Waterbury fire marshal's office inspected the premises. There was conflicting testimony as to who let them in; 4 however, it was the defendant who showed them around. Nothing was removed on that day, but the marshals were able to determine the place of origin of the fire. 5 The defendant resecured the premises when they left. The defendant at one point testified that he did not tell them they could not reenter the building because "I can't stop anyone."

The defendant visited the premises on at least two other occasions. Between February 16 and February 18, he met a representative of his insurance company, and on February 22, he met an inspector from the Waterbury health department. The defendant was concerned with the restaurant goods and equipment 6 that remained in the premises. After each visit, the defendant resecured the premises.

The defendant and Cipriano were in the building together on two or three occasions. One of the occasions was when the defendant was with his insurance representative. The defendant asked Cipriano to leave because he was making too much noise. Cipriano thereupon left. On no other occasion did either the defendant or Cipriano ask the other to leave. 7

No formal action was taken on the part of the defendant or Cipriano to terminate the lease in accordance with its terms in the event of a fire. While the defendant testified that he did not really understand the lease, he felt that the lease was broken by the fire but that he was entitled to stay in the premises until the end of February because his rent was paid. Cipriano, on the other hand, requested that the defendant pay the rent for March. 8 Both Cipriano and the defendant cleaned out the premises. The defendant testified that although he felt that the lease was broken, it was also his responsibility to "repair" the place. He did not, however, take any action to make any substantial repairs because he was waiting for his insurance claim to be settled.

The search which was the basis for the defendant's motion to suppress occurred on February 23, 1977, eleven days after the fire. Officers of the Waterbury police department, the Waterbury fire department, and the state police department were granted access to the premises by Cipriano. Neither a search warrant for the premises nor the permission of the defendant was sought by the officers. The police knew the defendant operated the restaurant and considered him to be a suspect. The sole purpose of the entry was to search for and obtain evidence of the arson. Upon gaining entry, the officers checked the air for hydrocarbons and removed a small piece of charred carpeting for testing. The rug was installed by Cipriano. In his motion, the defendant sought to suppress the test results on both pieces of evidence, as well as all evidence based upon the search of the premises and seizure of the evidence.

As a result of the fire Cipriano collected $21,000 from his insurance company for damage to the building. At the hearing in January, 1979, the defendant said that he had not collected any money on his insurance claim. 9 Subsequent to the fire, the defendant never reoccupied the premises or reopened the premises. After remaining vacant for seven months, the building was sold by Cipriano.

In making its claim that the trial court erred in granting the motion to suppress, the state essentially argues (1) that the defendant had no reasonable expectation of privacy in the premises searched that was fatally offended by the search, and (2) that the landlord Cipriano clearly had the authority to consent to the entry and the search by the officers whether such authority be denominated actual authority or apparent authority, thus requiring the conclusion that the search was "reasonable" under the fourth amendment. 10

The issue of whether a "search" comes within the protection of the fourth amendment involves a two-fold requirement under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The first is whether the person who is the focus of the inquiry has "exhibited an actual (subjective) expectation of privacy and, second ... [whether] the expectation be one that society is prepared to recognize as 'reasonable.' " Katz v. United States, supra,...

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