State v. Buie ( 2014 )

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STATE OF CONNECTICUT v. ROBERT S. BUIE
(SC 18887)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.*
Argued March 20—officially released July 22, 2014
Neal Cone, senior assistant public defender, for the
appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and John J. Davenport, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PER CURIAM. The United States Supreme Court has
recognized an apparent authority doctrine, under which
‘‘a warrantless entry is valid when based upon the con-
sent of a third party whom the police, at the time of the
entry, reasonably believe to possess common authority
over the premises, but who in fact does not do so.’’
Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S. Ct. 2793,
111 L. Ed. 2d 148 (1990). The sole issue in this certified
appeal is whether the Appellate Court properly deter-
mined that, in the context of a search of a private home,
the apparent authority doctrine does not violate article
first, § 7, of the constitution of Connecticut. State v.
Buie, 303 Conn. 903, 31 A.3d 1179 (2011). We agree with
the Appellate Court that application of this doctrine in
such circumstances does not offend the right of Con-
necticut citizens to be free from unreasonable searches
under article first, § 7. Accordingly, we affirm the Appel-
late Court’s judgment affirming the trial court’s judg-
ment of conviction of the defendant, Robert S. Buie,
rendered after a jury trial at which evidence obtained
from the defendant’s home was deemed admissible
under the apparent authority doctrine. State v. Buie,
129 Conn. App. 777, 807, 21 A.3d 550 (2011).
The defendant was convicted of two counts of aggra-
vated sexual assault in the first degree as an accessory
in violation of General Statutes §§ 53a-8 and 53a-70 (a)
(1), and one count each of attempt to commit aggra-
vated sexual assault in the first degree in violation of
General Statutes §§ 53a-49 (a) (2) and 53a-70a (a) (1),
conspiracy to commit aggravated sexual assault in the
first degree in violation of General Statutes §§ 53a-48
(a) and 53a-70a (a) (1), and burglary in the first degree
in violation of General Statutes § 53a-101 (a) (1). The
Appellate Court’s opinion sets forth the following facts,
which the jury reasonably could have found in support
of its verdict, and procedural history of the case, which
we set forth in abbreviated form. ‘‘In September, 2005,
LB1 moved into [a townhouse apartment building next
to a similar building where the defendant resided in
the same] residential complex (complex). Upon moving
into her new apartment, LB first encountered the defen-
dant, and, approximately one month later, LB also met
the defendant’s girlfriend, Beverly Martin. [The three
of them socialized occasionally.]
‘‘On [November 19, 2006, at approximately 1:30 a.m.]
. . . LB fell asleep on her living room couch, and, at
approximately 4:26 a.m., with her apartment completely
dark, she awoke to what she believed was a gun pressed
against her head.
‘‘The person holding the gun to her head ordered LB
to put her hands behind her back. LB recognized the
voice as that of the defendant. A man later identified
as the defendant then forced LB to put her arms behind
her back and put a piece of duct tape over her mouth
and also bound her hands together with duct tape. With
her pants removed, the defendant and Martin then took
turns inserting a dildo into LB’s vagina and rectum while
holding the gun to her head.2 When they were finished,
the defendant inserted his penis into LB’s vagina.
‘‘After the defendant and Martin left LB’s apartment,
LB went to a neighbor’s apartment [because she was
unable to find a working telephone in her apartment]
and had the neighbor call the police. [At approximately
5:30 a.m.] Officer Joseph Farina arrived at the complex
and spoke to LB. LB told Farina that the defendant and
Martin had raped her. After an ambulance transported
LB to the hospital, Farina and several officers [went to
the building next door to look for the defendant, with
Farina starting at the back of the building. When he
eventually arrived at the front of the building] Farina
found the defendant sitting in front of the [building],
speaking with [the other] officers.
‘‘Sergeant Michael Slavin arrived at the complex at
approximately 7 a.m. [at which time several police offi-
cers on the scene were separately questioning the defen-
dant and Martin in front of the defendant’s apartment].
Slavin learned that the defendant and Martin were will-
ing to go to the detective bureau for further questioning
about the incident involving LB. Prior to departing the
complex, Martin stated that she wanted to retrieve some
items from ‘her room.’ Without prompting, Martin stated
to Slavin, ‘I suppose you guys want to come with me
. . . .’ Slavin agreed, and Detective Richard Baxter and
another detective accompanied Martin into the apart-
ment. While in the apartment, Baxter observed some-
thing that he believed was connected to the sexual
assault. When he exited the apartment, he told Slavin
about what he had seen in the defendant’s apartment.
Officers secured the apartment, and the defendant and
Martin were transported to the detective bureau. Later,
after the police obtained a search warrant for the defen-
dant’s apartment, they recovered, among other things,
a flesh-colored dildo, a black dildo, two BB guns, a
container of BBs and a roll of duct tape. . . .
‘‘[At trial following his arrest] the defendant filed a
motion to suppress all evidence seized from his apart-
ment. Specifically, the defendant claimed that because
Martin did not live with him in his apartment, the ‘police
were without authority to enter into the apartment with-
out [his] consent in the course of conducting [their]
investigation,’ and, therefore, they violated his state and
federal constitutional rights. . . . [At] a hearing on the
defendant’s motion . . . [t]he defendant testified that
Martin only had access to his apartment when he also
was present in the apartment, that Martin’s name was
not on the lease and that only he and his former wife
had keys to the apartment. He also claimed that he and
Martin were not in a romantic relationship and were
nothing more than friends. [He conceded, however, that
he and Martin occasionally had sex.] Finally, the defen-
dant argued that because he was present at the scene,
the police were obligated to obtain his permission
before entering the apartment.
‘‘Slavin also testified at the hearing and stated that
on November 19, 2006, the police did not know who held
the lease for the defendant’s apartment. He claimed,
however, that ‘I feel that [Martin] said she was living
there. She obviously had personal belongings there. We
felt she established residency there. Therefore . . .
she was able to give consent for the officers to go in
with her.’ When asked whether the defendant told him
that Martin lived in the apartment, Slavin responded
that ‘Ms. Martin told us she lived there.’
‘‘[The trial] court denied the defendant’s motion to
suppress in an oral decision. Before issuing its decision,
the court made several findings of fact. The court first
concluded that Slavin was in charge of the police inves-
tigation of the sexual assault and that when he arrived
at the complex, he met with the defendant and Martin,
who were not under arrest at the time. The court then
concluded that Martin had indicated that before she
was willing to go to the police station, she needed to
obtain some personal belongings that were in the apart-
ment, specifically, keys and a cellular telephone. She
stated to the officers, ‘I suppose you guys want to come
in with me.’ The court found that the police agreed to
follow Martin because ‘the police at the time knew
details of the alleged sexual assault, and they knew that
a handgun had been involved in the sexual assault and
they were concerned for officer safety because they
had reason to believe that the handgun might be in the
apartment . . . that . . . Martin was entering to
retrieve her belongings. That the police did not go into
the apartment with any intent to search the apartment
for evidence or any intent to seize any items. Their
intent was solely to accompany . . . Martin for offi-
cer safety.’
‘‘After making these factual findings, the court, citing
Illinois v. Rodriguez, [supra, 497 U.S. 177], stated that
‘a warrantless search is valid when it is based on the
consent of a third party whom the police, at the time
of the search, reasonably believe possesses common
authority over the premises but who in fact does not
have such authority.’ The court concluded that Martin
voluntarily provided the police with permission to enter
the apartment and that it was reasonable for the police
to have believed that Martin possessed common author-
ity over the apartment. The court based this determina-
tion on its findings that Martin told the police that
both she and the defendant lived in the apartment, that
Martin had personal items in the apartment, that the
defendant was present outside the apartment and did
not object when the police entered the apartment with
Martin and [that] the police knew that Martin was the
defendant’s girlfriend. . . . Finally, citing Georgia v.
Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d
208 (2006), the court concluded that the police were
not obligated to ask the defendant for his consent prior
to entering the apartment even though he was nearby.
‘‘On November 5, 2008, after a jury trial, the defendant
was found guilty on all counts. On January 9, 2009, the
court sentenced the defendant to a total effective term
of forty years imprisonment and fifteen years of special
parole.’’ (Citation omitted; footnotes altered.) State v.
Buie, supra, 129 Conn. App. 780–86.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, challenging the trial court’s
denial of his motion to suppress on the basis of Martin’s
apparent authority to consent to the entry of the police
into his home. The defendant contended for the first
time that, although the apparent authority doctrine is
recognized as an exception to the warrant requirement
under the federal constitution, the doctrine is inconsis-
tent with article first, § 7, of the Connecticut constitu-
tion. Id., 780, 786. The Appellate Court determined that
the defendant’s unpreserved constitutional claim could
be reviewed under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), but that it failed on the
merits. State v. Buie, supra, 129 Conn. App. 787.
In reaching that conclusion, the Appellate Court
examined each of the six factors that this court identi-
fied in State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992), to be considered in determining whether
our state constitution confers more expansive protec-
tion than the federal constitution: (1) persuasive rele-
vant federal precedents; (2) the text of the operative
constitutional provisions; (3) historical insights into the
intent of our constitutional forebears; (4) related Con-
necticut precedents; (5) persuasive precedents of other
state courts; and (6) contemporary understandings of
applicable economic and sociological norms, or as oth-
erwise described, relevant public policies. State v. Buie,
supra, 129 Conn. App. 788–806. It determined that none
of these factors weighed in favor of the defendant’s
claim. Id. Ultimately, the Appellate Court held: ‘‘[A]
warrantless entry by the police pursuant to the apparent
authority doctrine is valid only when it is based on the
consent of a third party who the police, at the time of the
entry, reasonably believe possesses common authority
over the premises, but, in reality, does not. The reason-
ableness of the belief must be measured by an objective
standard. . . . Additionally, this conclusion must be
made after an appropriate inquiry given the factual cir-
cumstances facing the police as to the third party’s
common authority over the premises.3 Each case, of
course, must be judged in light of its own facts and
circumstances.’’ (Citation omitted; footnotes altered.)
Id., 806.
In his certified appeal to this court, the defendant
claims that only actual legal authority to consent satis-
fies the requirement under article first, § 7, of the Con-
necticut constitution that ‘‘[t]he people shall be secure
in their . . . houses . . . from unreasonable searches
. . . .’’ Our examination of the record and briefs and
our consideration of the arguments of the parties per-
suade us that the judgment of the Appellate Court
should be affirmed. The Appellate Court’s thorough and
well reasoned decision properly resolved the certified
issue. We conclude that it would serve no useful pur-
pose for us to restate the basis of that court’s decision.
Accordingly, we adopt the Appellate Court’s opinion as
a proper statement of the applicable law on this issue,
but note one minor clarification.
Specifically, in considering authority from other state
courts, the Appellate Court stated: ‘‘Courts in Hawaii,
Montana and Washington have rejected the apparent
authority doctrine, relying on provisions within their
respective state constitutions which provide their citi-
zens with a right to privacy against invasion by the
state. . . . These cases are distinguishable because the
constitution of Connecticut, including article first, § 7,
does not provide for a broad right of privacy but rather
protects against unreasonable searches.’’ (Citations
omitted; footnote omitted.) State v. Buie, supra, 129
Conn. App. 801. We construe the latter comment simply
as referring to the lack of an express textual reference
to privacy in our constitution that might provide an
independent substantive right warranting heightened
protection. We do not construe the Appellate Court’s
statement to express a broader proposition as to
whether our constitution implicitly protects privacy
rights through other express provisions. Indeed, our
cases have made clear that certain privacy rights are
protected under both the state and federal constitution.
See State v. Davis, 283 Conn. 280, 320, 929 A.2d 278
(2007) (We noted that, under article first, § 7, ‘‘this court
has been willing to recognize a broader right to privacy
under the state constitution. See, e.g., State v. Miller,
[227 Conn. 363, 377, 630 A.2d 1315 (1993) (article first,
§ 7, requires police to obtain warrant to search
impounded automobile)]; State v. Geisler, supra, 222
Conn. 691–92 [(emergency exception to warrant
requirement is narrower under article first, § 7, than
under federal constitution)]; State v. Marsala, [216
Conn. 150, 171, 579 A.2d 58 (1990) (good faith exception
to warrant requirement does not exist under article
first, § 7, of state constitution)]; State v. Dukes, [209
Conn. 98, 120–21, 547 A.2d 10 (1988) (search incident
to arrest exception to warrant requirement is narrower
under article first, § 7, than under federal constitu-
tion)].’’); In re Michaela Lee R., 253 Conn. 570, 598–99,
756 A.2d 214 (2000) (‘‘While there is no right of privacy
found in any specific guarantee of the [federal] [c]onsti-
tution, the [United States Supreme] Court has recog-
nized that zones of privacy may be created by more
specific constitutional guarantees and thereby impose
limits upon government power. . . . [T]he [court] has
recognized a right to privacy in the penumbra of the
Bill of Rights, specifically in the protections of the first,
third, fourth and fifth amendments.’’ [Citation omitted;
internal quotation marks omitted.]).
The judgment of the Appellate Court is affirmed.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, McDon-
ald, Espinosa, Robinson and Vertefeuille. Although Justice Palmer was not
present when the case was argued before the court, he has read the record
and briefs and listened to a recording of the oral argument prior to participat-
ing in this decision.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identify may be ascertained. See General Statutes § 54-86e.
2
LB identified Martin as the second assailant based on recognizing Martin’s
voice when she said something to LB during the assault. Martin was arrested
in connection with this incident and later entered a plea of nolo contendere
to one count of aggravated sexual assault in the first degree.
3
The Appellate Court also referred to the obligation of the police to
conduct a ‘‘diligent inquiry’’; State v. Buie, supra, 129 Conn. App. 805; a
standard also adopted by our sister state of Massachusetts under its constitu-
tion. See Commonwealth v. Porter P., 456 Mass. 254, 271, 923 N.E.2d 36
(2010) (‘‘[w]hile we conclude that a search of a home does not violate [article
fourteen of the Massachusetts Declaration of Rights] if the police officer
has the voluntary consent of an individual with the apparent authority to
give such consent, we do so only if the reasonable mistake of fact occurs
despite diligent inquiry by the police as to the consenting individual’s com-
mon authority over the home’’).