State v. Eady , 249 Conn. 431 ( 1999 )

Opinion

CALLAHAN, C. J.

The defendant, Patrick S. Eady, was charged in an information with illegal possession of narcotics in violation of General Statutes § 21a-279 (a),¹ illegal possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (b),² illegal possession of marijuana in violation of General Statutes § 2 la-279 (c)³ and illegal possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (a).⁴ Prior to trial, the defendant moved, pursuant to Practice Book § 820 et seq., now § 41-12 et seq., and General Statutes § 54-33f, to suppress illicit drugs seized during a search of his residence. The defendant maintained that the warrantless search and the subsequent seizure of the drugs violated his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. After a hearing, the trial court granted the defendant’s motion to suppress. Subsequently, pursuant to General Statutes § 54-56,⁵ the defendant moved to dismiss the charges against him for lack of sufficient evidence. The court granted the defendant’s motion to dismiss. The state, on the granting of permission by the trial court, appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). The appeal originally was argued before a five judge court. See State v. Eady, 245 Conn. 464, 733 A.2d 95 (1998). Thereafter, we granted the state’s motion for en banc reconsideration pursuant to Practice Book § 71-5. See, e.g., State v. Brown, 235 Conn. 502, 506, 668 A.2d 1288 (1995); State v. Chapman, 229 Conn. 529, 532, 643 A.2d 1213 (1994); State v. Medina, 228 Conn. 281, 284 n.4, 636 A.2d 351 (1994). We now reverse the judgment of the trial court.

The following facts are undisputed. At approximately 3 p.m. on August 12, 1995, the Windsor volunteer fire department responded to a reported fire in a single-family residence at 19 Songonosk Street in Windsor. Once the fire had been suppressed sufficiently to permit safe entry, Fire Captain Angel L. Marrero and other firefighters entered the residence to ventilate it and to search for possible victims. During the course of that procedure, Marrero came upon a closed door. The door, which was locked, led to the defendant’s bedroom. Marrero forced the door open in order to search for possible victims of the fire. Finding none, he opened a window to ventilate the room. While opening the window, Marrero observed two cigar boxes in plain view on a dresser in the bedroom. One box was open and contained, among other things, a small, clear plastic bag with a small quantity of a green, leafy substance. At the time Marrero noticed the substance in the cigar box, he was lawfully present in the bedroom and was acting within the scope of his authority.

Marrero informed William Lewis, the fire chief in charge at the scene, that he believed that he had found marijuana in the house. Thereafter, Lewis conveyed that information to Sergeant Thomas Lepore of the Windsor police department, who was outside the residence directing traffic. Lepore entered the defendant’s bedroom and observed in the cigar box a substance that he recognized as marijuana. Cocaine in rock and powder form was also found in the cigar box along with a shopping card with the defendant’s name on it and a photograph of the defendant. Lepore seized the cigar box and its contents without obtaining a warrant.

The sole issue in this appeal is whether Lepore’s seizure of the drugs from the defendant’s bedroom was the product of an illegal, warrantless search, in violation of the defendant’s right under the fourth amendment to the United States constitution to be free from unreasonable search and seizure.⁶ The state claims that Lepore’s entry into the defendant’s bedroom and subsequent seizure of the drugs were valid under the “plain view” exception to the fourth amendment warrant requirement. We agree.

As a threshold matter, we set forth the appropriate standard under which we review a challenge to a trial court’s granting of a suppression motion. “ ‘This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

The fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. Subject to a few well defined exceptions, a warrantless search and seizure is per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993); State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The state bears the burden of proving that an exception to the warrant requirement applied. Mincey v. Arizona, 437 U.S. 385, 390-91, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993).

In Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the United States Supreme Court articulated what has become known as the plain view exception to the warrant requirement. The warrantless seizure of contraband that is in plain view is reasonable under the fourth amendment if two requirements are met: “(1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods.”⁷ State v. Ruscoe, 212 Conn. 223, 237-38 n.8, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Reddick, 207 Conn. 323, 335, 541 A.2d 1209 (1988).

In Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), the United States Supreme Court concluded that the fourth amendment protection against unreasonable search and seizure applies to fire officials as well as other governmental agents. The court concluded, however, that “[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. . . . [Furthermore, fire] officials need no warrant to remain in the building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.” (Citations omitted.) Id. In Michigan v. Clifford, 464 U.S. 287, 293-94, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984), the court expressly concluded that evidence of criminal activity observed in plain view by firefighters may be seized without a warrant, if it is observed after a lawful entry. Although both Tyler and Clifford involved the seizure of evidence relating to arson, numerous state and lower federal courts, including our Appellate Court, have concluded that evidence of crimes other than arson, when observed in plain view by fire officials who are lawfully present on the premises, also may be seized without a warrant. United States v. Johnson, 524 F. Sup. 199, 204-205 (D. Del. 1981) (drugs and drug paraphernalia), rev’d on other grounds, 690 F.2d 60 (3d Cir. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1212, 75 L. Ed. 2d 450 (1983); State v. Wilson-Bey, 21 Conn. App. 162, 166-67, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990) (same);⁸ Commonwealth v. Person, 385 Pa. Super. 197, 204, 212-13, 560 A.2d 761 (1989) (Beck, J., concurring and dissenting) (same); State v. Bell, 108 Wash. 2d 193, 196 n.1, 737 P.2d 254 (1987) (same); annot., Admissibility, in Criminal Case, of Evidence Discovered by Warrantless Search in Connection with Fire Investigation — Post-Tyler Cases, 31 A.L.R.4th 194 (1984).

It is undisputed that at the time Marrero observed the open cigar box and its contents, he was lawfully present in the defendant’s bedroom and was acting within the scope of his authority as a firefighter. The open cigar box and its contents were, furthermore, in plain view. Consequently, the first element of the plain view exception to the warrant requirement, namely, that the initial entry be lawful, was satisfied.

The only questions that remain, therefore, are: (1) whether it was immediately apparent to Marrero that the cigar box contained contraband;⁹ and (2) whether Lepore’s subsequent entry and seizure were a lawful extension of Marrero’s presence and observation.

I

The “immediately apparent” requirement of the plain view exception is satisfied if, at the time of discovery of the contraband or evidence, there is “probable cause to associate the property in plain view with criminal activity without further investigation.” State v. Reddick, supra, 207 Conn. 335, citing Arizona v. Hicks, 480 U.S. 321, 324-27, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987). We consistently have held that “[t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992). “While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 237, 673 A.2d 1098 (1996). “Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause . . . .” (Internal quotation marks omitted.) State v. Marra, supra, 513; In re Keijam T., 221 Conn. 109, 115, 602 A.2d 967 (1992). Furthermore, we have concluded that “proof of probable cause requires less than proof by a preponderance of the evidence. In re Keijam T., [supra, 115]; see also State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).” State v. Munoz, 233 Conn. 106, 135-36, 659 A.2d 683 (1995).

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . The probable cause determination is, simply, an analysis of probabilities. . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act. . . . Probable cause is not readily, or even usefully, reduced to a neat set of legal rules. . . . Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause.” (Citations omitted; internal quotation marks omitted.) State v. Diaz, 226 Conn. 514, 541, 628 A.2d 567 (1993). It is axiomatic that “[t]he probable cause test then is an objective one.” (Internal quotation marks omitted.) State v. Trine, supra, 236 Conn. 237. The United States Supreme Court has endorsed an objective standard, noting that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton v. California, 496 U.S. 128, 138, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); see Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (“[s]ubjective intentions play no role in ordinary, probable-cause, Fourth Amendment analysis”); Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (probable cause based upon evaluation of “facts, viewed from the standpoint of an objectively reasonable police officer”); Maryland v. Macon, 472 U.S. 463, 470-71, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985) (“[w]hether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time’. . . and not on the officer’s actual state of mind at the time the challenged action was taken” [citation omitted]).

In light of this objective standard we need only look to the evidence presented relating to Marrero’s knowledge and to determine whether, on the basis of that knowledge, a reasonable person would have had probable cause to believe that the green, leafy substance contained in the clear plastic bag in the cigar box in the defendant’s locked bedroom was marijuana. Consequently, we must determine whether a firefighter of ordinary prudence could believe that a green, leafy substance in aplastic bag in a cigar box in a locked bedroom in a single-family residence was probably marijuana. One needs no expertise in drug identification to conclude that such a green, leafy substance is marijuana. Cf. State v. Delossantos, 211 Conn. 258, 281, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989) (“[i]t is by now common knowledge that cocaine is often packaged as a white powder in small plastic bags” [internal quotation marks omitted]). In fact, most people who observe a green, leafy substance under the same conditions as those Marrero encountered would believe that it is marijuana. What other green, leafy substance would one keep in aplastic bag in a cigar box in a locked bedroom? To be sure, it is possible that the bag could have contained some other substance such as oregano, and, it is even possible that an individual might, for some extraordinary reason, keep kitchen spices in his bedroom. We are not concerned here with mere possibilities, however, but with probabilities. Moreover, had the packet been found on the spice rack in the defendant’s kitchen, the probability that the green, leafy substance was marijuana would have been substantially decreased. The fact remains, however, that the bag was found in plain view in the defendant’s bedroom. We conclude, therefore, that a reasonable and prudent person in Marrero’s situation could have believed that the green, leafy substance inside the clear plastic bag located in plain view in the open cigar box in the defendant’s locked bedroom was probably marijuana. See State v. Bell, supra, 108 Wash. 2d 197-98 (firefighters capable of recognizing substance as marijuana to meet “immediately apparent” requirement). Consequently, Marrero’s observation of the marijuana satisfies the “immediately apparent” requirement of the plain view exception to the warrant requirement.¹⁰

II

Having determined that Marrero’s observation of the marijuana satisfied both elements of the plain view exception, we next address the question of whether the subsequent entry and seizure of the contraband by Lepore without a warrant were constitutionally permissible as an extension of Marrero’s lawful entry and observation of the contraband. We concluded in State v. Magnano, 204 Conn. 259, 267, 528 A.2d 760 (1987), that “when a law enforcement officer enters private premises in response to a call for help, and during the course of responding to the emergency observes but does not take into custody evidence in plain view, a subsequent entry shortly thereafter, by detectives whose duty it is to process evidence, constitutes a mere continuation of the original entry.” Our reasoning in Magnano was based in large part on the fact that such a rule enhances sound policy with respect to police investigation techniques. Id., 271. We noted that “[i]t is a reasonable and logical procedure for experienced law enforcement personnel to process evidence at crime scenes. The purpose is to promote careful preservation of evidence and to permit a complication-free chain of custody. The promotion of more accurate evidence gathering serves the legitimate interests of all parties. Our conclusion in this case serves to further this reasonable practice.” Id. In addition, we concluded in Magnano that such a rule comports with the purpose of the plain view doctrine. Id. We noted that “ ‘[w]here, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it.’ ... [T]he defendant cannot be heard to complain that the second entry into the premises by the detectives affected her privacy interests. As the United States Supreme Court stated in Illinois v. Andreas, 463 U.S. 765, 772, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983), ‘[t]he plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.’ ” State v. Magnano, supra, 271.

Our decision in Magnano involved the issue of an initial entry by a patrol officer and a subsequent entry by a detective. As yet, we have not had the opportunity to address the specific situation presented here, where the initial entry is by a firefighter and the subsequent entry is by a police officer. For purposes of plain view doctrine analysis, however, there is no meaningful distinction between the two scenarios. As in Magnano, the initial lawful entry by a government agent, who was entitled to seize contraband observed in plain view; State v. Wilson-Bey, supra, 21 Conn. App. 166-67; Commonwealth v. Person, supra, 385 Pa. Super. 213; eliminated the defendant’s reasonable expectation of privacy in the contraband and thereby permitted the subsequent entry by a second government agent to do that which the first could have done. See United States v. Jacobson, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (“[o]nce frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information”). The fact that the government agent who made the initial entry was a firefighter rather than a police officer is of no legal significance to a fourth amendment analysis. The subsequent limited entry by Lepore constituted no greater intrusion upon the defendant’s privacy or possessory interest than did Marrero’s entry and observation. Thus, the application of the rule adopted in Magnano to situations in which the initial entiy is by a firefighter comports with the premise that underlies the plain view doctrine.

Furthermore, it would appear that no useful or beneficial purpose would be served by excluding evidence seized by a police officer who has stepped into the shoes of a firefighter. The entry and seizure by Lepore was limited to what Marrero had observed during his initial lawful entry.¹¹ Lepore’s conduct was not a flagrant abuse of his presence as evidenced by the fact that he did not engage in a general search beyond the scope of Marrero’s observation.¹² Suppressing this evidence will not encourage obtaining warrants, but will serve only to encourage the police to direct fire officials to seize the evidence the'mselves. A firefighter’s lack of skill in evidence gathering and the resulting broken chain of custody, however, will undermine the legitimate police policies that we applauded in Magnano. State v. Magnano, supra, 204 Conn. 271. Even if the police do obtain a warrant, it will serve no beneficial purpose because the privacy that the warrant requirement protects already has been frustrated, by the firefighter’s plain view observation.¹³

Finally, we note that, although we previously have not addressed the specific issue of an initial exigent entry by firefighters who observe contraband followed by a subsequent entry and seizure of the contraband by police, other jurisdictions have addressed this precise factual situation. The overwhelming majority of courts that have done so have concluded that the police may step into the shoes of the firefighter to seize the contraband without first obtaining a warrant. See United States v. Green, 474 F.2d 1385 (5th Cir.), cert. denied, 414 U.S. 829, 94 S. Ct. 55, 38 L. Ed. 2d 63 (1973); United States v. Johnson, supra, 524 F. Sup. 203-204; Mazen v. State, 940 P.2d 923 (Ariz. 1997); People v. Harper, 902 P.2d 842 (Colo. 1995); State v. Loh, 275 Mont. 460, 914 P.2d 592 (1996); Commonwealth v. Person, supra, 385 Pa. Super. 197; Commonwealth v. Thornton, 24 Va. App. 478, 483 S.E.2d 487 (1997); State v. Bell, supra, 108 Wash. 2d 193.¹⁴ Other courts have found no fourth amendment violations in analogous situations where one government agent has observed evidence of contraband and members of a different agency have taken possession of the contraband without a warrant. See United States v. Brand, 556 F.2d 1312 (5th Cir. 1977), cert. denied, 434 U.S. 1063, 98 S. Ct. 1237, 55 L. Ed. 2d 763 (1978) (no warrant required when second group of police officers enter house to assist officer who entered to render emergency aid and second officers observe evidence in plain view); Steigler v. Anderson, 496 F.2d 793 (3d Cir.), cert. denied, 419 U.S. 1002, 95 S. Ct. 320, 42 L. Ed. 2d 277 (1974) (no warrant required when police officer seized evidence of arson found by state fire marshal during warrantless investigation after fire was controlled); United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973) (no warrant required when Internal Revenue Service obtained evidence of gambling activity that previously had been seized in arson investigation by investigator and police officer).

A review of those cases supports a conclusion that the fourth amendment does not require suppression of the illicit drugs seized by Lepore. In Commonwealth v. Person, supra, 385 Pa. Super. 199, firefighters observed drug paraphernalia “and a bag containing green matter” during the course of their lawful entry into the defendant’s bedroom. The firefighters summoned the police from outside the apartment, and the police seized the contraband and drug paraphernalia. Id. The court concluded that “a fire [fighter] or fire marshall, who is properly inside premises in the course of his firefighting duties and responsibilities, may seize contraband or evidence of criminal activity other than arson which he inadvertently observes in plain view. Further, when contraband is observed in plain view by a fire marshall who is properly on the premises, he may summon a police officer who may observe and seize the contraband without a warrant.” Id., 213. The court reasoned that “[i]t is only where a defendant’s constitutional right to be free of unreasonable searches and seizures has been violated that suppression is required. There is no such violation where evidence of crime is inadvertently observed in plain view by a representative of the government who is lawfully in a position from which to make such observation.” Id., 214-15; see also People v. Harper, supra, 902 P.2d 844-46 (no warrant required when police entered defendant’s bedroom and seized marijuana and cocaine observed in plain view by firefighters dining search for cause of fire);¹⁵ State v. Bell, supra, 108 Wash. 2d 193 (no warrant required when sheriffs deputy entered defendant’s attic and seized marijuana plants observed by firefighters in course of ventilating premises).

As the court noted in United States v. Green, supra, 474 F.2d 1390,¹⁶ “[t]he purpose of a search warrant is to ensure judicial authorization, in advance, of intrusions into constitutionally protected privacy. Where a lawful intrusion has already occurred and a seizure by a State officer has validly taken place as a result of that intrusion, the invasion of privacy is not increased by [allowing] an additional officer, albeit a federal officer, who is expert in identifying the type of contraband discovered, to enter the premises to confirm the belief of the State officer and to take custody of the evidence. Once the privacy of a dwelling has been lawfully invaded, to require a second officer from another law enforcement agency arriving on the scene of a valid seizure to secure a warrant before he enters the premises to confirm that the seized evidence is contraband and to take custody of it is just as senseless as requiring an officer to interrupt a lawful search to stop and procure a warrant for evidence he has already inadvertently found and seized. . . . The apparent conflict between the Constitution and common sense which the plain view doctrine has reconciled is the same misconception which we here seek to dispel.” (Citations omitted.)

Marrero, an agent of the state, was lawfully present in the defendant’s bedroom when he observed the substance that a reasonably prudent firefighter would have believed to be marijuana. He could have seized the contraband without first obtaining a warrant. People v. Harper, supra, 902 P.2d 842; Commonwealth v. Person, supra, 385 Pa. Super. 197; Commonwealth v. Thornton, supra, 24 Va. App. 478; State v. Bell, supra, 108 Wash. 2d 193; see State v. Wilson-Bey, supra, 21 Conn. App. 166-67. Instead, he called a police officer to confirm his belief rather than unnecessarily intruding upon the defendant’s possessory interest. The defendant cannot reasonably argue that he retained an expectation of privacy after Marrero observed the marijuana. The suppression of such evidence would elevate form over substance and would undermine three decades of state and federal precedent that has sought to infuse logic and common sense into the exclusionary rule since its pronouncement by the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

We conclude, therefore, that the rule that we adopted in Magnano applies in this case. Because Lepore’s subsequent entry and seizure was merely an extension of Marrero’s lawful presence in the defendant’s bedroom and plain view observation of the marijuana in the cigar box, Lepore was not constitutionally required to obtain a warrant before seizing the cigar box. Consequently, the trial court improperly granted the defendant’s motion to suppress the marijuana and cocaine seized by Lepore.

The judgment is reversed and the case is remanded to the trial court with direction to deny the motion to suppress, and for further proceedings according to law.

In this opinion BORDEN, NORCOTT, PALMER and MCDONALD, Js., concurred.

1 General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

2 General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to anotherperson any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

3 General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollar's or be imprisoned not more than five years, or be both fined and imprisoned.”

4 General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

5 General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

6 The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant s shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Although the defendant refers to a violation of his rights under article first, § 7, of the Connecticut constitution, he has failed to provide an independent analysis of the state constitutional issues. See State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (setting forth appropriate factors to be addressed when raising state constitutional claim). “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless Ihe defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . . State v. Robinson, 227 Conn. 711, 721-22, 681 A.2d 288 (1993); see also State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994); State v. Joyner, 225 Conn. 450, 458 n.4, 625 A.2d 791 (1993); State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991).” (Internal quotation marks omitted.) State v. Ellis, 232 Conn. 691, 692 n.1, 657 A.2d 1099 (1995).

7 Under Coolidge, it was unclear when and whether a third requirement, that the police must have discovered the evidence or contraband inadvertently, applied. We have concluded that “ ‘inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.’ ” State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see Horton v. California, 496 U.S. 128, 137-38, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Because marijuana, the possession of which is illegal pursuant to § 21a.-279 (c), is contraband, we need not address the issue of inadvertence. See, e.g., State v. Sailor, 33 Conn. App. 409, 414, 635 A.2d 1237 (1994).

8 In Wilson-Bey, the Appellate Court concluded that there was no fourth amendment violation where arson investigators who were lawfully on the premises observed and seized evidence of drug activity without a warrant. State v. Wilson-Bey, supra, 21 Conn. App. 165. The evidence seized included drug manufacturing equipment, crack cocaine vials, a propane torch and a packet of white powder found in the refrigerator. Id. The court concluded that the seizure of those items by fire investigators did not violate the fourth amendment because the requirements of the plain view exception were met. Id., 166-67.

9 In determining whether the seizure of contraband was supported by probable cause, several courts from other jurisdictions have also considered the knowledge of the police officer who actually seized the evidence. See, e.g., United States v. Green, 474 F.2d 1385, 1390 (5th Cir.), cert. denied, 414 U.S. 829, 94 S. Ct. 55, 38 L. Ed. 2d 63 (1973); People v. Harper, 902 P.2d 842, 846 (Colo. 1995); State v. Loh, 275 Mont. 460, 474, 914 P.2d 592 (1996); Commonwealth v. Person, supra, 385 Pa. Super. 197. These courts have concluded that, because police officers who are present in the emergency situation may step into the shoes of the firefighters who are conducting the “search,” it is permissible to include the knowledge of the firefighter and the police officer in determining if there is probable cause to believe that the substance observed by both was contraband, thus making the seizure lawful. Id. Consequently, there need not be proof of an independent determination of probable cause by the fire official prior to the police officer’s entry. Because we conclude that a reasonably prudent firefighter who observed the contraband under the same circumstances as Marrero would be reasonably confident that the green, leafy substance in the open cigar box was marijuana, we do not consider the question of whether the nature of the contraband was immediately apparent to Lepore as well.

10 The defendant asserts that because Marrero testified at the suppression hearing that “[he] hadaquestionin [his] mind if it happened to be marijuana,” his actions were not supported by probable cause. Because the test for probable cause is objective, however, Marrero’s subjective state of mind does not control. See, e.g., Whren v. United States, supra, 517 U.S. 813; Ornelas v. United States, supra, 517 U.S. 696; Horton v. California, supra, 496 U.S. 138; Maryland v. Macon, supra, 472 U.S. 470-71; see also Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997) (subjective beliefs of police officers irrelevant to probable cause analysis); United States v. Roy, 869 F.2d 1427, 1433 (11th Cir. 1989) (rejecting notion feat probable cause turns on subjective beliei's of law enforcement officers and holding feat “[cjourts determine fee existence of probable cause”); United States v. Clark, 559 F.2d 420, 425 (5th Cir.), cert. denied, 434 U.S. 969, 98 S. Ct. 516, 54 L. Ed. 2d 457 (1977) (“even though a police officer believed that probable cause was lacking, fee Court still had a duty to objectively determine if probable cause was present”); United States v. Resnick, 455 F.2d 1127 (5th Cir.), cert. denied sub nom. Carlton v. United States, 409 U.S. 875, 93 S. Ct. 121, 34 L. Ed. 2d 127 (1972), cert. denied, 414 U.S. 1008, 94 S. Ct. 370, 38 L. Ed. 2d 246 (1973) (same). Therefore, at best, fee “question” in Marrero’s mind is relevant only to the extent feat his subjective state of mind reflects that of a reasonable person. Moreover, when further asked at fee suppression hearing' wha,t he thought he had seen, Marrero responded unequivocally, “[mjarijuana.” Taken together, these statements clearly demonstrate that Marrero had a firm, but not absolute, belief feat the substance in the cigar box was marijuana. All that is required for probable cause is a reasonable belief, not absolute certainty. See, e.g., State v. Trine, supra, 236 Conn. 237; State v. Marra, supra, 222 Conn. 513; In re Keijam T., supra, 221 Conn. 115. Therefore, Marrero’s testimony at the suppression hearing buttresses, rather than undercuts, fee conclusion feat his actions were supported by probable cause.

11 Particularly of note, neither Marrero nor Lepore opened the second, closed cigar box that was adjacent to the open cigar box containing the drugs, because that box was not within the scope of Marrero’s plain view observation.

12 If Lepore had exceeded the scope of his lawful presence by, for example, opening the second cigar box, that would have been an unlawful search. The fact that he restrained himself from doing so demonstrates the lack of a flagrant abuse of his power. See United States v. Green, 474 F.2d 1385, 1390 (5th Cir.), cert. denied, 414 U.S. 829, 94 S. Ct. 55, 38 L. Ed. 2d 63 (1973).

13 The defendant asserts that if we fail to suppress the evidence seized by Lepore, we would be creating a new exception to the warrant requirement. He argues that “subsequent warrantless entries are only permitted when they are purposefully related to the emergency that authorized the initial warrantless entry.” This clearly overstates the limitations of the plain view exception. The patrol officers who entered the defendant’s home in Magnano did so to search for a burglar who was reported to be in the house. State v. Magnano, supra, 204 Conn. 262. We acknowledged that it was “undisputed that by the time the defendant had left the premises, the emergency had terminated” and that the detectives arrived after the defendant had been removed from the scene. Id. The detectives entered not to aid in the search for a burglar or to render aid to the victim, but for the express purpose of gathering evidence. Consequently, there is absolutely no merit in the defendant’s contention that the subsequent entry must be limited only to the emergency purpose that permitted the initial entry. See Michigan v. Tyler, supra, 436 U.S. 508 (permitting firefighters to remain on premises for reasonable time to complete duties after fire suppressed, and upholding seizures made during that time); State v. Bell, supra, 108 Wash. 2d 198 (dismissing contention that exigency must last throughout duration of search and seizure). As did the patrol officers in Magnano, Marrero entered for an emergency purpose, namely, to search for victims and ventilate the room. Lepore’s subsequent entry, while firefighters were still lawfully on the premises, was solely to gather the evidence found in plain view by Marrero during his lawful presence.

14 In fact, our research reveals that only one court has concluded that a defendant retains a reasonable expectation of privacy after fire officials lawfully have entered the premises and discovered evidence in plain view. The Ninth Circuit Court of Appeals in United States v. Hoffman, 607 F.2d 280 (9th Cir. 1979), required a warrant prior to entry and seizure by the police of the shotgun found by firefighters while suppressing a fire in the defendant’s residence. Hoffman is decidedly a minority approach and we do not find its rationale persuasive.

15 Notably, the court concluded that the requirement that the evidentiary nature of the substance seized must be immediately apparent was satisfied by the police officer’s determination of probable cause. People v. Harper, supra, 902 P.2d 846; see footnote 10 of this opinion. The court made no analysis of the independent probable cause of the firefighter who initially observed the marijuana.

16 In Green, the court concluded that no warrant was necessary when a fire marshal observed counterfeiting templates during his lawful presence in the residence, and subsequently contacted a Secret Service agent to make a positive identification and seize the plates. United States v. Green, supra, 474 F.2d 1390. Eather, the court noted that “[t]he facts of the case sub judice present a classic situation for application of the well established plain view doctrine.” Id., 1389. The court reasoned that the fire marshal “surely could have removed the plates and carried them to the Secret Service’s headquarters, or have handed them to [the Secret Service agent] outside of the apartment. Thus, [the Secret Service agent] cannot be constitutionally tripped up at the threshold that he stepped across to make his confirmation and to take custody of the plates from [the fire marshal].” Id., 1390.