State v. Kendrick ( 2014 )

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STATE v. KENDRICK—SECOND DISSENT
McDONALD, J., with whom PALMER, J., joins, dis-
senting. A fair reading of the evidence presented by the
state in this case plainly reveals two things. First, the
police exhibited a remarkable lack of inquisitiveness in
eliciting information that might have confirmed
whether Malik Singer, the New Jersey murder suspect
being sought, had been in the vicinity of the Stamford
apartment building where the warrantless search was
performed. Second, the state had evidence other than
that obtained by the so-called investigation that might
have shed some light on this subject, but evidently con-
cluded that it was unnecessary to produce that evidence
to the court to justify that search. As a result of these
omissions, it is clear that the state failed to meet its
burden of proving that exigent circumstances existed
to justify dispensing with the warrant requirements of
the fourth amendment.
As I explain in more detail later in this dissenting
opinion, at the time the police officers knocked on the
door of the third floor apartment at 239 Knickerbocker
Avenue, the sum of the evidence known to them con-
sisted of nothing more than: (1) global positioning sys-
tem (GPS) data linking a third party’s cell phone thought
to be in Singer’s possession1 to somewhere in the gen-
eral vicinity of this address for perhaps as little as an
instant in the preceding forty-one hours; and (2) infor-
mation that a resident of a third floor apartment at this
address had recently been keeping company with a man
who, like Singer, is black. Upon entering the apartment,
the police obtained no further information other than
the fact that there were not one but two black men
staying in a bedroom of that apartment.
The majority’s conclusion that the record in this case
supports a warrantless entry into a bedroom in the
middle of the night should concern us all. The most
likely, and profoundly sad, ramifications of today’s deci-
sion will fall disproportionately on members of our
minority communities, given that its import means that
it is enough to cast suspicion on someone simply
because he has the same skin color as a criminal sus-
pect. I am compelled, therefore, to dissent.
I agree with the majority that, in determining whether
exigent circumstances existed due to concerns regard-
ing the safety of the officers or others, the trial court
was required to examine the ‘‘totality of the circum-
stances’’ to determine whether the police had reason-
able grounds to believe that if an immediate entry was
not made, the accused might endanger the safety of the
officers or others. (Internal quotation marks omitted.)
State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963 (1983).
‘‘This is an objective test; its preeminent criterion is
what a reasonable, well-trained police officer would
believe, not what the . . . officer actually did believe.’’
(Emphasis omitted; internal quotation marks omit-
ted.) Id.In reviewing the trial court’s determination that such
reasonable grounds existed in the present case, I note
that, although unacknowledged, the majority decides
this case on a different basis than the one on which the
trial court relied. The majority concludes that exigent
circumstances arose once Blanca Valvo, the tenant of
the apartment, indicated to the police that there were
two black men in the bedroom with her daughter. It is
manifest from the trial court’s memorandum of deci-
sion, however, that it found that exigent circumstances
justifying the warrantless entry arose before the police
entered Valvo’s third floor apartment. Specifically, after
summarizing the testimony at the hearing on the motion
to suppress, the trial court commenced its ruling by
acknowledging that the testimony of the state and
defense witnesses was in conflict. The testimony
offered by the defense witnesses, Valvo and her daugh-
ter, related only to the events that transpired after the
police knocked on the apartment door. One such con-
flict accurately recounted in the trial court’s summary
was that Valvo testified that she did not consent to the
police entry into her apartment, whereas the police
witnesses for the state testified that Valvo had given
consent. The trial court found it unnecessary, however,
to make any credibility assessments or to make any
specific, or even implicit, findings on the issue of con-
sent or any other issues on which the testimony was
in conflict. Instead, in stating the basis of its decision,
the trial court relied exclusively on facts that occurred,
or the court mistakenly believed had occurred, before
the police knocked on Valvo’s apartment door. Indeed,
the trial court cited the safety of the apartment building
occupants as the exigency, with no mention of any risk
to the officers.
Contrary to the majority’s approach, I would begin
with the trial court’s essential finding in support of
exigent circumstances: ‘‘The cell phone ping indicated
that the fugitive had connections with a residence in
Stamford focusing on the third floor apartment at 239
Knickerbocker Avenue.’’ (Emphasis added.) As I explain
subsequently in this dissenting opinion, to the extent
that this finding assumes that the police had information
connecting the ping to the third floor apartment, it is
clearly erroneous. Indeed, contrary to the majority’s
conclusion, there was no evidence presented specifi-
cally connecting the ping to 239 Knickerbocker Avenue.
I begin with what the evidence does not reveal about
the ping information provided to the police, as certain
fundamental information clearly was available to, but
not produced by, the state. The state did not introduce
into evidence the subpoena issued to the cellular service
provider. It proffered no other evidence as to the spe-
cific request(s) therein, the time when the ping was
elicited, or the manner in which the information was
obtained.2 The New Jersey police officers testifying
regarding the ping did not indicate whether they had
played any direct role in obtaining that information from
the service provider. Except for an acknowledgment by
one officer that this procedure or technology ‘‘may be
beyond [his] expertise,’’ and a statement by a second
officer that he is ‘‘not an authority on cell phone ping-
ing,’’ neither officer indicated the extent, if any, of his
prior experience with this procedure.3
Thus, no evidence was proffered as to whether a
single ping or a series of pings was collected. Cf. Rey-
nolds v. Commonwealth, Docket No. 2179-12-4, 2014
WL 2187774, *3 (Va. App. May 27, 2014) (‘‘The March
order authorized AT&T to ‘ping’ [the] appellant’s phone
every fifteen minutes and provide its physical location
data to [an] [o]fficer. . . . Beginning at approximately
7:00 p.m., AT&T sent four electronic signals in fifteen-
minute increments to [the] appellant’s phone. The ping
signals registered with cell towers near [the] appellant’s
phone and provided the phone’s approximate GPS coor-
dinate location information to AT&T, which AT&T then
forwarded to [the] [o]fficer . . . via email.’’).
No evidence was proffered as to whether the ping
information revealed that the cell phone was stationary,
and, if so, for what period, or whether it was in transit.
Cf. People v. Barnes, 216 Cal. App. 4th 1508, 1511, 157
Cal. Rptr. 3d 853 (2013) (‘‘[The officer] . . . testified
that ‘I asked them to ping the cell phone; they . . .
advised me that it was . . . stationary at 16th and Mis-
sion Street.’ . . . Officers . . . were ‘updated’ with
the results of the continued pinging, i.e., that ‘the ping
was moving towards the north.’ ’’); Devega v. State, 286
Ga. 448, 453, 689 S.E.2d 293 (2010) (defendant’s cell
phone provider ‘‘complied [with a request to ping the
defendant’s phone] and informed the police that the
phone was moving north on Cobb Parkway’’); State v.
Taylor, Docket No. 25764, 2014 WL 2700846, *1 (Ohio
App. June 13, 2014) (‘‘Sprint provided ping information
for that phone, and police were able to trace its path
from Detroit to the pawn shop at the time of the shoot-
ing and then back to Detroit’’); see also United States
v. Skinner, 690 F.3d 772, 776 (6th Cir. 2012) (‘‘[b]y
continuously ‘pinging’ the . . . phone, authorities
learned that [the defendant] was traveling on Interstate
40 across Texas’’), cert. denied, U.S. , 133 S. Ct.
2851, 186 L. Ed. 2d 913 (2013). Accordingly, the cell
phone believed to be in Singer’s possession may have
been at the location ascertained for only an instant
while it was in transit.
In the absence of such basic evidence, we are left
with whatever reasonable inferences may be drawn
from the limited evidence proffered. First, as the major-
ity acknowledges, it is reasonable to infer that the ping
information was captured between the time that New
Jersey police officers discovered the victim’s body and
the time that they contacted the Stamford Police
Department with the information yielded from the ping.
That simply means that the ping was undertaken some-
time within an approximate forty-one hour period
before the officers arrived at Valvo’s apartment at
approximately midnight on the day after the murder.4
Second, the ping was described as yielding information
through GPS data that gave a latitude and longitude
corresponding to the ‘‘vicinity,’’ ‘‘general area,’’ or ‘‘gen-
eralized area’’ of a location around 239 Knicker-
bocker Avenue.
In support of its conclusion that the ping ‘‘limited the
scope of the search to a very small area—the apartment
units within the building at 239 Knickerbocker Avenue,’’
the majority mischaracterizes the testimony. According
to the majority: ‘‘Based on the longitude and latitude,
the ping was identified as originating from 239 Knicker-
bocker Avenue . . . .’’ What Detective David Whipple
of the Somerset County Prosecutor’s Office actually
said was that the GPS data ‘‘would give you a general-
ized area around the location, within a certain amount
of degree of yards.’’5 Whipple never indicated whether
that amount was three yards or 300 yards. A review of
other cases in which courts have relied on cell phone
ping information reveals that a ping can correspond to
a fairly large area.6 See, e.g., People v. Barnes, supra,
216 Cal. App. 4th 1511 (officer testified that he had been
informed by telephone company that pinging would
‘‘find a general location within [fifteen] yards or [fifteen]
meters of where the phone was’’); People v. Henry,
Docket No. 3-10-0106, 2011 WL 10468068, *3 (Ill. App.
November 8, 2011) (‘‘ping identified a 698–meter range
in which the phone was located,’’ corresponding to
approximately 763 yards or 2290 feet); Stone v. State,
178 Md. App. 428, 437, 941 A.2d 1238 (2008) (‘‘[a]t [a
trooper’s] request, the service provider conducted a
‘ping’ of the appellant’s cell phone, which revealed that
the phone was ‘within a two mile radius of the Frederick
County Detention Center’ ’’); People v. Moorer, 39 Misc.
3d 603, 606, 959 N.Y.S.2d 868 (2013) (officer ‘‘was
advised by Sprint that it had an ‘[eleven] meter ping’
of the phone on Zimbrich Street, between Remington
Street and Joseph Avenue,’’ area that corresponds to
thirty-six feet); State v. Taylor, Docket No. 25764, 2014
WL 2700846, *1 n.2 (Ohio App. June 13, 2014) (‘‘[p]ings
are GPS locations that are [emitted] from phones that
will give a geographic location of the phone, and it
will range usually in meters’’ [internal quotation marks
omitted]); Commonwealth v. Rushing, 71 A.3d 939, 946
(Pa. Super. 2013) (‘‘[p]olice were able to fix the location
of [the] [a]ppellant’s phone within [ninety-eight] meters
or approximately 300 feet’’), appeal granted in part, 84
A.3d 699 (Pa.), appeal denied, 85 A.3d 483 (Pa. 2014);
see also In re Application of United States, 727 F. Supp.
2d 571, 580 (W.D. Tex. 2010) (‘‘[e]stimates from three
years ago were that over 90 [percent] of cell phones
then in use had GPS capabilities, through which the
target phone could be located to within as little as [fifty]
feet’’). Because the area in which 239 Knickerbocker
Avenue is located was described as ‘‘a residential area’’
in which ‘‘[h]omes are very close together,’’ the ‘‘degree
of yards’’ would have been essential to narrow down
the location of the cell phone when it was pinged.
Indeed, consistent with the testimony in the present
case, these decisions indicate that it is often through
the process of subsequent investigation that the area
identified is narrowed to a more particularized location.
See, e.g., People v. Henry, supra, 2011 WL 10468068, *3
(‘‘The ping identified a 698–meter range in which the
phone was located. A canvass of that area revealed it
to be in the neighborhood of the victim’s apartment
complex.’’); People v. Washington, Docket No. 11-255
(LMH), 2012 WL 2031345, *1 (N.Y. Co. June 4, 2012)
(‘‘One or more cell phones were stolen during the rob-
bery and by ‘pinging’ them, the officers were able to
trace the location of the phones to Newland Avenue in
Jamestown. They went to Jamestown and, assisted by
members of the Chautauqua County Sheriff’s Depart-
ment and Jamestown Police Department, attempted to
more precisely locate the phones.’’); Commonwealth v.
Rushing, supra, 71 A.3d 946 (after police fixed location
of appellant’s cell phone within approximately 300 feet
through ping, ‘‘[p]olice determined [the] [a]ppellant’s
precise location after observing [his former girlfriend’s]
stolen car outside of a residence and interviewing two
individuals who exited that home’’); State v. Harrison,
Docket No. 02-13-00255-CR, 2014 WL 2466369, *4 (Tex.
App. May 30, 2014) (‘‘police officer found [the] appellee
after officers did a ping on his phone that [they] knew
he was using and it put him in a location and area, and
phone records came back and gave [the officer] an
address directly to that area’’ [internal quotation
marks omitted]).
I next turn, therefore, to the evidence presented
regarding the information gleaned as a result of the
subsequent investigation at the area identified by the
ping. Sergeant Paul Guzda of the Stamford Police
Department, who conducted that investigation, was
operating under the misimpression that the cell phone
ping had been connected specifically to 239 Knicker-
bocker Avenue. He acknowledged that the only thing
he knew about Singer’s appearance at this time was
that Singer was black. After arriving at this location,
Guzda was approached by a ‘‘concerned citizen’’—the
landlord of 239 Knickerbocker Avenue. Guzda indicated
that he had provided this person with ‘‘limited informa-
tion as to why we were there.’’ Guzda further indicated
that, in response to whatever he had conveyed, the
landlord volunteered that the daughter of the Hispanic
woman living in the third floor apartment recently had
been ‘‘keeping company with’’ a black man. It is clear
from Guzda’s testimony, however, that he did not recite
the landlord’s comments verbatim. For example, Guzda
initially reported the landlord’s statement as conveying
that this man ‘‘basically’’ matched Singer’s ‘‘descrip-
tion.’’ Subsequent repeated questioning clarified that
the only physical characteristic reported by the landlord
was the man’s skin color—black.7 Although Singer has
a facial tattoo, a unique and obvious identifying feature,
the landlord made no reference to that feature, and
nothing indicates that Guzda asked for any further
descriptive information.
In addition, to the extent that the landlord indicated
that this man ‘‘recently’’ had been keeping company
with his tenant’s daughter, nothing indicates that Guzda
sought to ascertain the period to which the landlord
referred. Recently could mean the past six months, the
past few weeks, or the past few days.8 Guzda apparently
did not determine whether the man observed by the
landlord had been seen in Stamford at the same time
that Singer was allegedly committing the murder in New
Jersey, a fact that would have made clear that this man
was not Singer. Moreover, neither Guzda nor any other
officer showed the landlord a photograph of Singer
after the New Jersey police arrived with one because
they ‘‘didn’t feel comfortable sharing too much with
this party.’’ Thus, at the time the police knocked on
Valvo’s apartment door, all they reasonably believed
was that Singer possibly was in possession of a cell
phone, that this cell phone had been in the vicinity
of 239 Knickerbocker Avenue at some moment in the
preceding forty-one hours, and that a man who has the
same skin color as Singer had been staying in the third
floor apartment of 239 Knickerbocker Avenue for an
unspecified period of time. Any fair application of the
law to the facts should inexorably lead to the conclusion
that these facts are insufficient to support the trial
court’s finding that exigent circumstances existed on
the basis of information known to the police before
they entered the apartment.
Nevertheless, for reasons that are not apparent, the
defendant implicitly has conceded on appeal that Valvo
consented to the police entry into her apartment. There-
fore, I agree with the majority that it is appropriate for
us to consider whether there is a reasonable view of
the evidence that demonstrates that such exigency
arose after the police entered. The only fact that this
evidence reveals, however, is that Valvo indicated in
response to police questioning that there was not one
undifferentiated black man in the apartment, but two!
This fact does nothing to elevate the ambiguous infor-
mation known before the police knocked on the door
to a reasonable basis to believe that either black man
might be Singer.
Each officer testifying as to the exchange with Valvo
provided slightly different versions of that exchange.
The officers testified, however, in a generally consistent
manner to a sequence of events under which Valvo
acknowledged the presence of the two black men in the
bedroom in response to a series of specific innocuous
questions, and pointed to the bedroom simply to indi-
cate where her daughter and these two black men were
located. One of the officers testified that Valvo specifi-
cally stated in response to statements or questions by
the officers that she did not know anyone named Malik
Singer, although it undoubtedly is possible that Singer
might have been known to Valvo by another name.
Another officer indicated that he had showed Valvo a
photograph of Singer, a fact that was either unobserved
or contradicted by the testimony of all three of the
other officers present, but that officer’s testimony did
not indicate that Valvo pointed toward the bedroom in
response to, or immediately after being shown, that pho-
tograph.9
Thus, the exchange with Valvo added nothing of sub-
stance to the information known to the police before
they entered her apartment except that there were in
fact black men in the apartment. I concede that it is
entirely possible that the state had other evidence that
it did not present that could have demonstrated the
reasonableness of the belief of the officers at the scene
that Singer, or one of his associates, was in the third
floor apartment of 239 Knickerbocker Avenue. After
all, it would have been an enormous stroke of luck
to have located such an associate on the basis of the
evidence proffered at the hearing on the motion to
suppress.10 Moreover, I appreciate that, because the
police officers were searching for a presumably armed
and dangerous murder suspect, they must be afforded
some latitude in securing premises in which such a
suspect may be hiding. Nonetheless, it is the state’s
obligation to come forward with evidence to demon-
strate that there was an objectively reasonable basis to
believe that such a danger existed. The majority has
failed to hold the state to that burden.
1
As the majority explains, the cell phone was registered to a third party
who had no known connection to Singer when the search was performed,
and the information linking the cell phone to Singer came from a girlfriend
of an alleged accomplice of Singer.
2
Although no evidence regarding this technology was introduced in the
present case, it appears that a cell phone may be ‘‘pinged’’ in one of two
ways. According to technical sources cited in one law review article: ‘‘To
‘ping’ a device, the carrier essentially sends a signal to the phone, similar
to a call. The phone responds by sending a signal to the closest towers,
resulting in the phone’s location using triangulation. This entire process is
done without the knowledge of the user. . . . Alternatively, most modern
cellular phones are equipped with internal software and hardware to receive
information from global positioning satellites in orbit around the globe, and
the phone can use this information to determine its own location. . . . The
phone can then pass on this location data to any program or application
which requests it.’’ (Citations omitted.) Note, ‘‘Keeping Track of the Joneses:
Redefining the Privacy Boundaries of the Digital Age,’’ 87 S. Cal. L. Rev.
Postscript 1, 5 n.7 (2014), available at http://lawreview.usc.edu/wp-content/
uploads/Kroll-87-PS-Final-PDF.pdf.
3
Some courts have concluded that expert testimony is required when
such evidence is presented to a jury. See, e.g., Coleman-Fuller v. State, 192
Md. App. 577, 615–19, 995 A.2d 985 (2010). In the present case, the defendant
did not challenge the qualifications of the officers presenting testimony on
this subject.
4
The evidence reveals that the victim’s body was discovered around 7
a.m. on May 11, 2008, and the New Jersey officers contacted the Stamford
Police Department with the location yielded from the ping sometime around
9:30 p.m. on May 12, 2008. This means that the ping was elicited some time
within an approximate thirty-eight and one-half hour period, and approxi-
mately two and one-half hours later, at approximately midnight, the police
arrived at Valvo’s apartment door.
5
The following exchange occurred during Whipple’s cross-examination
at the hearing on the motion to suppress:
‘‘Q. With regard to the GPS, you said that you had a generalized area.
‘‘A. Correct.
‘‘Q. And that generalized area was Knickerbocker Avenue?
‘‘A. In the vicinity of 239 Knickerbocker Avenue.
‘‘Q. How was it that it’s the vicinity of 239 Knickerbocker?
‘‘A. Well, it may be beyond my expertise, but the GPS—what they’ll do
is, the cell phone company will ping a cell phone. And that would give you
a generalized area around the location, within a certain amount of degree
of yards.
‘‘Q. Okay.
‘‘A. That’s the information of longitude and latitude which the cell phone
company provided us.
‘‘Q. Okay. So, if I’m not mistaken, didn’t you say in direct [examination]
that it was the Stamford Police Department’s investigation that actually led
to 239 Knickerbocker Avenue?
‘‘A. Yes.
‘‘Q. Okay. So, before that, you didn’t know it was 239.
‘‘A. Specifically, no.’’
6
The wide range of areas yielded in these cases seems to suggest that
various factors may affect the size of the area corresponding to the ping,
including the type of cell phone and the technology used by the service
provider. See, e.g., In re United States for an Order Authorizing the Use
of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202, 208
(E.D.N.Y. 2008) (indicating that ‘‘the information revealed by triangulation
or by more advanced communications devices like the iPhone, which contain
[g]lobal [p]ositioning [s]ystem devices, is . . . precise enough to enable
tracking of a telephone’s movements within a home’’); see also F. Arcila,
Jr., ‘‘GPS Tracking Out of Fourth Amendment Dead Ends: United States v.
Jones and the Katz Conundrum,’’ 91 N.C. L. Rev. 1, 7 n.16 (2012) (‘‘[c]ellular
tracking is less precise than GPS tracking’’).
7
The following exchange took place during Guzda’s direct examination
at the hearing on the motion to suppress:
‘‘Q. Where—let me ask that differently. Did you—what did you do, with
respect to the area of Knickerbocker Avenue. Did you do any kind of investi-
gation about that area?
‘‘A. Yes, we did.
‘‘Q. And what did you do?
‘‘A. Knowing that we were looking for somebody who was wanted for a
homicide, and was probably armed and dangerous, we made sure that
we carefully checked the area. Specifically the area of 239 Knickerbocker
Avenue. During that time, we spoke with a concerned citizen who lived in
that area, who had direct knowledge of 239 Knickerbocker Avenue, and
the residence.
‘‘And we took this person into our confidence, giving them limited informa-
tion as to why we were there. And they explained to us, on the top floor
of that building, there was a Hispanic female, who lived there with her
daughter. And most recently, she was keeping company with a black male
who fit the description of Singer.’’
The following exchange later ensued at the hearing during Guzda’s
cross-examination:
‘‘Q. . . . [W]hen were you contacted by the New Jersey authorities with
regard to the . . . Singer matter?
‘‘A. Sometime that evening—earlier that evening.
‘‘Q. Okay. Did they fax you over a photo of him?
‘‘A. I do not recall.
‘‘Q. Was it requested by you?
‘‘A. No. . . .
‘‘Q. Was it requested by anyone in your unit?
‘‘A. Not that I know of.
‘‘Q. So all you had [was] a description of . . . a black male.
‘‘A. Yes.
‘‘Q. That could have been any black male in the city of Stamford?
‘‘A. Yes.
‘‘Q. Okay. So you went to 239 Knickerbocker Avenue. And this concerned
party, all they told you was, there’s a black male on the third floor?
‘‘A. Who told me that?
‘‘Q. The concerned citizen that you spoke with.
‘‘A. When we shared information with this concerned citizen, he in turn,
confirmed who lived on that third floor—that top floor. And told us that
the young lady who lived there, was recently keeping company with a black
male that basically fit the description of . . . Singer.
‘‘Q. Okay. But again, you indicated that could have been almost any black
male in the city of Stamford?
‘‘A. The description was that they—sure, it could have fit the description
of numerous other black males.
‘‘Q. Did you ask this concerned citizen, whether or not it was . . . Singer
[that] was on the third floor?
‘‘A. No.
‘‘Q. So, at that moment all you have is; there’s on the third floor, a
black male?
‘‘A. Yes.’’
According to Whipple’s testimony at trial, the New Jersey officers had
been informed that all that the landlord conveyed was that the man with
his tenant’s daughter was black. The following exchange occurred during
Whipple’s cross-examination:
‘‘Q. When you arrived at 239 Knickerbocker—I apologize. I withdraw that.
The Stamford police officers, when they went there, asked the landlord of
that building whether or not they knew of an African-American male?
‘‘A. I wasn’t present when they were talking to him, but they reported
that to me.
‘‘Q. Okay. And that person—that landlord said, on the third floor?
‘‘A. They said that there were—there was supposedly an African-American
gentleman that resided somewhere, or was located somewhere on the
third floor.
‘‘Q. Okay. And I think you testified to the fact that you also knocked on
other doors—a second floor apartment—first floor apartment.
‘‘A. I didn’t. Other officers did.
‘‘Q. Okay. Because you weren’t sure as to which apartment . . . Singer
may have been in?
‘‘A. Specifically; no.
‘‘Q. Okay. When you arrived at the scene with the photo of . . . Singer,
did you show the landlord that picture?
‘‘A. I didn’t speak with the landlord.
‘‘Q. Okay. Did you provide it to the Stamford Police Department?
‘‘A. I had showed it to them earlier that night.
‘‘Q. Did you provide—did you ask the Stamford Police Department to
show the landlord, to make sure it was the right person?
‘‘A. No.
‘‘Q. Okay. You identified [the defendant, Said Kendrick]. Does [the defen-
dant] have teardrop tattoos on his face?
‘‘A. Nope.
‘‘Q. So, the only thing tying him to . . . Singer, is that he’s an African-
American male.
‘‘A. I’m not sure I understand the question.
‘‘Q. The only physical—the only comparable physical qualities that [the
defendant] has with . . . Singer is that he’s an African-American male?
‘‘A. Physical description-wise?
‘‘Q. Yes.
‘‘A. Yes.’’
8
Testimony from Valvo and her daughter indicated that the defendant
had been living at Valvo’s apartment for as long as two years. Therefore, it
is unclear whether the defendant was the person who the landlord had
observed recently keeping company with the daughter or whether it was
the defendant’s cousin, who was the other ‘‘black’’ man in the daughter’s
bedroom.
9
Whipple initially gave the following testimony during direct examination
at the suppression hearing:
‘‘Q. When—what happened when . . . Valvo invited you into the
apartment?
‘‘A. Myself, as well as a few of my colleagues were invited into the living
room. I—obviously we identified ourselves as police. I had my badge dis-
played. We explained we were there searching for an individual known as
Malik Singer, and asked if in fact, that individual was present.
‘‘Q. And did she tell you anything specific about . . . Singer?
‘‘A. Not about . . . Singer. She indicated that her daughter was in a
bedroom with two African-American males.
‘‘Q. And did she show you where that bedroom was?
‘‘A. Yes.’’
On cross-examination, Whipple provided the only testimony that Valvo
had been shown a photograph of Singer, but the following exchange clearly
indicates that Valvo pointed toward the bedroom in connection with her
response that there were two black men with her daughter, not in response
to being shown Singer’s photograph:
‘‘Q. . . . Who knocked—you said—you indicated you knocked on the
door?
‘‘A. I was one of them, yes.
‘‘Q. And you spoke to . . . Valvo?
‘‘A. Yes.
‘‘Q. Okay. And you showed her a picture of . . . Singer; correct?
‘‘A. I did.
‘‘Q. Okay. And then, she told you she didn’t know who he was?
‘‘A. Basically, the conversation I had with . . . Valvo, she indicated that
two African-American males were in the bedroom currently, with her daugh-
ter. Then she pointed to it, once I explained what we were there for.
‘‘Q. Okay. But you showed her a picture?
‘‘A. Yeah.
‘‘Q. And that picture was of . . . Singer?
‘‘A. Correct.
‘‘Q. Which wasn’t one of the persons in that bedroom?
‘‘A. Correct.
‘‘Q. Okay. And she told you, she didn’t know who that person was?
‘‘A. I don’t recall that specifically.’’
Even if we were to assume that Whipple’s testimony is ambiguous as to
whether Valvo pointed toward the bedroom in response to something he
said or did rather than in connection with her exchange with the Stamford
officers, the appropriate recourse would be for this court to remand the
case to the trial court for another hearing on the motion to suppress to
allow a trier of fact to make the requisite findings, not for this court to do
so. ‘‘[W]e may uphold the court’s ruling [of exigency to excuse the warrant
requirements] if there is any reasonable view of the evidence to support
it.’’ (Internal quotation marks omitted.) United States v. Creighton, 639 F.3d
1281, 1290 (10th Cir. 2011). In the present case, the trial court did not
determine that exigency arose after the police entered Valvo’s apartment,
and reading Whipple’s testimony to mean that Valvo pointed to the bedroom
in response to being shown Singer’s photograph places it in conflict with
the other officers’ testimony.
10
Although our inquiry focuses on what the officers reasonably believed
before entering, I note that the police did not recover the cell phone that
had been pinged at the Stamford apartment. The information connecting
the cell phone to Singer was tenuous. See footnote 1 of this dissenting
opinion. Moreover, according to a statement purportedly made by the defen-
dant, Said Kendrick, to the police after being taken into custody, the defen-
dant obtained the gun from Singer in New Jersey. Singer was arrested
in New Jersey. Thus, there is nothing to indicate that Singer ever was
in Stamford.