State v. Curet ( 2020 )

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STATE OF CONNECTICUT v. SHAILA M. CURET
(AC 41372)
Prescott, Devlin and Bear, Js.*
Syllabus
Convicted, on a conditional plea of nolo contendere, of possession of narcot-
ics with intent to sell, the defendant appealed to this court. Z, a police
officer, responded to a 911 call of an attempted robbery and report of
gunshots made by C, a resident of the defendant’s apartment building.
C reported seeing two men enter the building and then heard loud
knocking on the door of the defendant’s apartment, followed by an
altercation that started in front of the defendant’s apartment and moved
to the laundry room, which was directly beneath C’s apartment. C
informed the 911 dispatcher that he believed someone had tried to break
into the defendant’s apartment and that the two men he had observed
enter the building had later fled in two separate vehicles. He also indi-
cated that he had discovered a knife. When Z arrived at the apartment
building, he spoke with C regarding the incident and then conducted
an investigation of the building. Z observed pry marks and fresh paint
chips on the floor near the defendant’s apartment and that the laundry
room was in disarray. In the laundry room, Z found a black and white
flip flop sandal that matched one he had seen outside the building, a
spent shell casing on the floor, and a bullet hole in the doorframe of
the laundry room exit door. He also found what appeared to be a small,
fresh blood like stain on the wall adjacent to the exit door of the laundry
room. On the basis of his observations and the fact that C had discovered
a knife, Z believed that someone may have been shot or stabbed. He
proceeded to interview the residents of the building and determined
that no one was injured. When he knocked on the door of the defendant’s
apartment, however, he received no response, discovered the door was
locked when he tried to open it, and he could not see into the apartment
because the blinds were closed. Z then called his superior officer, T,
and explained the evidence and his belief that someone may be injured
inside the defendant’s apartment. T, along with other officers, responded
to the scene and the decision was made to breach the defendant’s
apartment. A search revealed that no one was in the apartment but,
while searching, Z observed in plain view two scales covered in white
residue, clear plastic bags, and a safe in the closet. The officers then
stopped searching and obtained a search warrant for the items in plain
view. On appeal, the defendant claimed that the trial court improperly
denied her motion to suppress the evidence seized by the police follow-
ing the warrantless entry into her apartment because there were no
exigent or emergency circumstances that permitted the officers to enter
her apartment without a warrant. Held:
1. The trial court improperly concluded that the entry into the defendant’s
apartment was lawful under the exigent circumstances exception to the
warrant requirement and improperly denied the defendant’s motion to
suppress; the facts found by the court did not provide an objective basis
for the police to conclude that they had probable cause to enter the
defendant’s apartment as Z knew that the two men involved in the
altercation had exited the building without entering the defendant’s
apartment, there was no evidence that a third party had been involved
in the altercation, all the evidence of the altercation was found in the
laundry room, the door to the defendant’s apartment was locked and
there was limited evidence that directly pertained to the apartment, and,
in his 911 call, C stated that he did not believe that the residents of the
defendant’s apartment were home.
2. The trial court improperly concluded that the entry into the defendant’s
apartment was justified under the emergency doctrine and improperly
denied the motion to suppress; there was no objectively reasonable basis
for the police to believe that an emergency existed because, although
Z had been responding to a possible burglary, there was no evidence
to clearly demonstrate that a victim or bystander had been injured, as
there were no witnesses who observed either individual involved in
the altercation enter the defendant’s apartment nor was any individual
observed leaving the defendant’s apartment to engage in the altercation,
there was no evidence that anyone had actually gained access to the
defendant’s apartment, the apartment door was locked, the small blood
like stain found in the laundry room would not lead a reasonable police
officer to believe that a person in a locked apartment in a separate area
of the building was in need of immediate aid, especially when there was
no blood like stains on or outside the apartment door or any bullet
holes or shell casings, like those found in the laundry room, and, when
viewed under the totality of the circumstances, the lack of response to
Z’s knocking would lead a reasonable officer to infer that the apartment
was unoccupied, not that an emergency existed, and the fact that one
hour passed from the time Z arrived on the scene to the time when the
police entered the apartment made it more difficult to conclude that
a reasonable officer would believe that an emergency existed, when
considered under the totality of the circumstances, as, in that hour, Z
did not discover any evidence clearly demonstrating that someone in
the defendant’s apartment was at risk of losing life or limb, there being
no evidence regarding the defendant’s whereabouts or whether there
was any person inside the apartment.
(One judge dissenting)
Argued March 11—officially released September 8, 2020
Procedural History
Information charging the defendant with the crimes
of possession of narcotics with intent to sell by a person
who is not drug-dependent and operation of a drug
factory, brought to the Superior Court in the judicial
district of Waterbury, geographical area number four,
where the court, Cremins, J., denied the defendant’s
motion to suppress; thereafter, the state filed a substi-
tute information charging the defendant with the crime
of possession of narcotics with intent to sell; subse-
quently, the defendant was presented to the court,
Fasano, J., on a conditional plea of nolo contendere
to the charge of possession of narcotics with intent to
sell; judgment of guilty in accordance with the plea,
from which the defendant appealed to this court.
Reversed; judgment directed.
Emily H. Wagner, assistant public defender, for the
appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Amy Sedensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Shaila M. Curet, appeals
from the judgment of conviction rendered by the trial
court following her conditional plea of nolo contendere1
to the charge of possession of narcotics with intent to
sell in violation of General Statutes § 21a-277 (a) (1)
(A). On appeal, the defendant claims that the court
improperly denied her motion to suppress evidence
seized by the police following a warrantless entry into
her apartment because, under the totality of the circum-
stances, it was unreasonable for the police officers to
believe that an emergency existed or exigent circum-
stances permitted warrantless entry into her apartment.
We agree with the defendant and, accordingly, reverse
the judgment of the court.
The court found the following facts in its ruling on
the defendant’s motion to suppress. On June 22, 2015,
at approximately 3:55 p.m., Officer Raim Zulali of the
Waterbury Police Department was dispatched to an
apartment building at 130 Woodglen Drive (building)
in Waterbury, in response to a complaint of burglary
made by Anthony Cruz, a resident of the building. Cruz
had called 911 and stated that he thought he heard two
gunshots after he observed two men enter the building.
Cruz indicated that one of the men was wearing a
hooded sweatshirt and a baseball cap that he had pulled
down over his face. He further stated to the operator
that he believed that there was an altercation between
the two men in the laundry room directly below his
apartment. Cruz also stated that he believed someone
tried to break into the defendant’s apartment on the
first floor because he found a knife in the laundry room
and paint chips near the door of the defendant’s apart-
ment.2 Lastly, Cruz informed the operator that the two
individuals he originally observed had fled from the
building in separate vehicles.
After receiving the dispatch, Zulali proceeded to the
building. While en route, the display in his police cruiser
indicated that someone had attempted to break into an
apartment and that there had been significant noise
coming from the laundry room, with the possibility of
an altercation. The display also indicated that the 911
caller, Cruz, had discovered a knife. Zulali arrived at
the building at 4 p.m. After arriving, Zulali called dis-
patch and requested that it contact Cruz because the
door to the building was locked. After a few minutes,
Cruz let Zulali into the building.
After entering the building, Zulali spoke with Cruz
regarding his 911 call. Cruz stated that, from his win-
dow, he had observed a white vehicle parked along
Woodglen Drive in front of the building. He then
observed a male wearing a hooded sweatshirt and a
baseball hat exit the driver’s side of the vehicle and
approach the front door to the building. As the male
approached the door, he pulled his baseball cap down
and pulled the hood of his sweatshirt over his head.
Cruz stated that this made him suspicious of the male
because, in doing this, it appeared that the male was
trying to conceal his identity. Cruz stated that he did
not recognize the male.
Cruz further stated to Zulali that he believed the male
might have used a knife to gain access to the building
because it was locked. After the male gained entry to
the building, Cruz said that he heard someone knocking
very hard on the door of the defendant’s apartment. He
then heard an altercation that started in front of the
hallway of the defendant’s apartment and moved into
the laundry room. The laundry room is located directly
below Cruz’ apartment and is just a few feet away from
the defendant’s apartment. Cruz stated that during the
altercation in the laundry room, he heard what he
believed to be two gunshots. He also stated that, after
he heard the two gunshots, he saw one of the males
run out of the front door of the building and enter the
front passenger seat of the vehicle he had exited earlier
and then the vehicle drove away, after which he saw
the other male come out the back door and leave in a
different car.
Cruz further informed Zulali that he had found a knife
in the laundry room and had picked it up because he
did not want one of the children in the building to get
hurt. Cruz thought that the knife might have been used
to get into the building and he stated that he thought
one of the residents of the defendant’s apartment was
involved in the altercation.
During their discussion, Cruz informed Zulali that a
male and a female resided in the defendant’s apartment
and that their vehicle was parked outside in the parking
lot. Zulali checked the vehicle and did not see anyone
in it. Also while outside, Zulali observed a black and
white flip flop sandal.
Zulali then went back inside to investigate the hallway
where the defendant’s apartment is located. He
observed pry marks and fresh paint chips on the floor
near the defendant’s apartment. He also observed fresh
footprints on the wall of the hallway. Zulali then went
into the laundry room to investigate, where he made
several observations. First, the laundry room was in
disarray and the washing and drying machines appeared
to have been moved. Further, he saw a flip flop sandal
in the laundry room that matched the black and white
one he had seen outside of the building. Zulali also
found a spent shell casing on the floor and observed a
bullet hole in the doorframe of the laundry room exit
door. He also found what appeared to be a fresh, blood
like stain on a wall adjacent to the laundry room exit
door that measured approximately one-half centimeter
in diameter. Zulali also observed a fresh mark on the
floor and a hole in the wall, which, through his training
and experience, he believed may have been from a
ricocheted bullet from a firearm.
Under the totality of the circumstances and the infor-
mation he gathered, Zulali believed that someone may
have been shot or stabbed. Zulali then went door to
door and interviewed the residents of the building who
were home. After speaking with those residents and
determining that no one was injured, he knocked on the
door of the defendant’s apartment. He did not receive
a response after knocking several times, so he
attempted to open the door to the defendant’s apart-
ment but it was locked. Zulali also attempted to look
into the windows of the defendant’s apartment, but the
blinds were closed.
Zulali then called his superior officer, Sergeant Gae-
tano Tiso, and explained to him the evidence he found
and his belief that someone might be in the defendant’s
apartment. Tiso and Officer Michael Garrity responded
to the scene. Once they arrived at the scene, Zulali again
relayed all of his findings to Tiso, along with his concern
that someone injured may be in the defendant’s apart-
ment. The officers then requested that a dispatcher
place calls to local hospitals to determine whether any
gunshot or stabbing victims had been admitted for treat-
ment. Shortly thereafter, approximately four other
police officers arrived on the scene. The police officers
did not wait for a response to their requested hospital
check before the decision was made that an emergency
existed that required the breach of the door to the
defendant’s apartment. Tiso retrieved a battering ram
from his police vehicle and it was used to break down
the door, at which point six officers, including Zulali
and Tiso, entered the apartment. The time that had
passed from when Zulali arrived at the building to the
entry into the defendant’s apartment totaled approxi-
mately one hour.
After a search of the defendant’s apartment, it was
determined that no one was in the one bedroom apart-
ment. While searching the apartment, Zulali observed
in plain view two scales covered in white residue, clear
plastic bags, and a safe in the closet. At this point, the
search stopped and a search warrant was sought for
the items that were in plain view.
When the police executed the search warrant, they
seized a total of approximately 186 small plastic bags
containing cocaine weighing 123.5 grams, 2 plastic bags
containing cocaine weighing 43.8 grams, and $41,720
in cash. The defendant was arrested and charged with
possession of more than one-half ounce of cocaine in
violation of General Statutes § 21a-278 (a) and opera-
tion of a drug factory in violation of § 21a-277 (c).
On June 30, 2017, the defendant filed a motion to
suppress ‘‘any and all evidence seized and derived from
the warrantless search of the defendant’s apartment on
June 22, 2015.’’ In her memorandum of law in support
of the motion to suppress, the defendant argued that
the exigent circumstances, emergency, or protective
sweep exceptions to the warrant requirement did not
apply under the facts and circumstances of the case.
Specifically, the defendant contended that the exigent
circumstances doctrine was not applicable because the
Waterbury police did not have probable cause to enter
her apartment, that the exigent circumstances doctrine
did not control because it was not objectively reason-
able for an officer to believe immediate action was
necessary to prevent an exigent circumstance, that the
protective sweep doctrine did not permit the war-
rantless entry into the defendant’s home because no
reasonable police officer would have believed that there
was a dangerous individual inside, and that the emer-
gency doctrine was inapplicable because no reasonable
police officer would believe that there was an emer-
gency requiring warrantless entry into her apartment.
The court held a hearing on the motion to suppress
on July 14, 17, and 31, 2017. The state presented the
testimony of Zulali and the defendant presented the
testimony of Cruz. At the conclusion of the suppression
hearing on July 31, 2017, the state argued that the emer-
gency doctrine, the exigent circumstances doctrine, and
the protective sweep doctrine justified the warrantless
entry into the defendant’s apartment. Specifically, the
state argued that because probable cause existed, the
police officers could enter the apartment under the
exigent circumstance doctrine. Further, the state
argued that because a reasonable officer could believe
that someone’s life was in danger, the officers were
permitted to enter and search the apartment pursuant
to the emergency and protective sweep doctrines.
On August 29, 2017, the court denied the defendant’s
motion to suppress in an oral decision. The court con-
cluded that the officers’ warrantless search in order to
render immediate medical aid to someone that may
have been involved in a shooting or stabbing was proper
under the emergency and exigent circumstances doc-
trines. The court reasoned that, ‘‘[b]ased on the totality
of the circumstances . . . a reasonable officer would
have believed that an emergency existed, that an injured
party might have been involved, [possibly] due to a
shooting or stabbing and would be in need of immediate
. . . medical attention’’ and, thus, warrantless entry
was reasonable under the emergency and the exigent
circumstances doctrines—two of the exceptions to the
warrant requirement.3 In reaching its decision, the court
noted that it had relied on the testimony of Zulali and
Cruz, including: Zulali’s testimony that he received a
burglary dispatch for an alleged altercation at the build-
ing; Cruz’ testimony that he thought he heard two gun-
shots and observed two suspicious individuals enter
the building; Zulali’s testimony that he found two match-
ing flip flop sandals, one outside the building and one
in the laundry room; Zulali’s testimony that he located
a knife and paint chips near the door to the defendant’s
apartment, spent shell casings in the laundry room,
bullet markings on the wall and floor of the laundry
room, and a blood like stain on the wall of the laundry
room; Zulali’s testimony that he spoke with all the resi-
dents of the building, other than those residing in the
defendant’s apartment; Zulali’s testimony that he
knocked on the door of the defendant’s apartment and
looked in the windows of that apartment but did not
receive a response; Zulali’s testimony that he observed
fresh footprints on the wall of the hallway where the
defendant’s apartment was located; Zulali’s testimony
that the defendant’s vehicle was parked in the parking
lot; and Zulali’s testimony that he believed someone in
the defendant’s apartment might be injured and in need
of medical assistance.
On October 2, 2017, the defendant entered a condi-
tional plea of nolo contendere to one count of posses-
sion of narcotics with intent to sell in violation of § 21a-
277 (a) (1) (A). See General Statutes § 54-94a. The defen-
dant’s plea was entered conditionally with the reserva-
tion of her right to take an appeal from the court’s
ruling on the motion to suppress and the court, Fasano,
J., made a finding that the motion to suppress was
dispositive of the case. Thereafter, the court, Fasano, J.,
rendered a judgment of conviction. The court sentenced
the defendant to a term of incarceration of three years,
followed by eight years of special parole. This appeal
followed.
We note that, ‘‘[a]s a general matter, the standard of
review for a motion to suppress is well settled. A finding
of fact will not be disturbed unless it is clearly erroneous
in view of the evidence and pleadings in the whole
record. . . . [W]hen a question of fact is essential to
the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, [how-
ever] and the credibility of witnesses is not the primary
issue, our customary deference to the trial court’s fac-
tual findings is tempered by a scrupulous examination
of the record to ascertain that the trial court’s factual
findings are supported by substantial evidence. . . .
[W]here the legal conclusions of the court are chal-
lenged, [our review is plenary, and] 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 . . . .
‘‘Notwithstanding our responsibility to examine the
record scrupulously, it is well established that we may
not substitute our judgment for that of the trial court
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony. . . . Questions of whether to
believe or to disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . We
must defer to the trier of fact’s assessment of the credi-
bility of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) State v. Kendrick, 314 Conn.
212, 222–23, 100 A.3d 821 (2014).
I
The defendant claims first that Zulali’s warrantless
entry into her apartment was unlawful under the fourth
and fourteenth amendments to the United States consti-
tution and article first, § 7, of the constitution of Con-
necticut.4 Specifically, she argues that the warrantless
search was not justified by the exigent circumstances
doctrine because there was no probable cause. The
state counters that the search was justified by exigent
circumstances because an objectively reasonable offi-
cer would have probable cause to believe that criminal
activity occurred in the defendant’s apartment and it
was the location where an individual may be injured
as a result of such criminal activity. We are not per-
suaded by the state’s argument.
‘‘Ordinarily, police may not conduct a search unless
they first obtain a search warrant from a neutral magis-
trate after establishing probable cause. [A] search con-
ducted without a warrant issued upon probable cause
is per se unreasonable . . . subject only to a few spe-
cifically established and well-delineated exceptions.
. . . These exceptions have been jealously and care-
fully drawn . . . and the burden is on the state to estab-
lish the exception. . . . Our law recognizes that there
will be occasions when, given probable cause to search,
resort to the judicial process will not be required of
law enforcement officers. [For example], where exigent
circumstances exist that make the procurement of a
search warrant unreasonable in light of the dangers
involved . . . a warrant will not be required. . . .
‘‘The term, exigent circumstances, does not lend itself
to a precise definition but generally refers to those
situations in which law enforcement agents will be
unable or unlikely to effectuate an arrest, search or
seizure, for which probable cause exists, unless they
act swiftly and, without seeking prior judicial authoriza-
tion. . . . The test for determining whether exigent cir-
cumstances justify a warrantless search or seizure is
whether, under the totality of the circumstances, the
police had reasonable grounds to believe that if an
immediate arrest [or entry] were not made, the accused
would be able to destroy evidence, flee or otherwise
avoid capture, or might, during the time necessary to
procure a warrant, endanger the safety or property of
others. . . .
‘‘[N]o single factor, such as a strong or reasonable
belief that the suspect is present on the premises, will
be determinative in evaluating the reasonableness of a
police officer’s belief that a warrantless entry or arrest
was necessary. Rather than evaluating the significance
of any single factor in isolation, courts must consider
all of the relevant circumstances in evaluating the rea-
sonableness of the officer’s belief that immediate action
was necessary. . . .
‘‘It is well established in Connecticut . . . that the
test for the application of the doctrine is objective, not
subjective, and looks to the totality of the circum-
stances. . . . This is an objective test; its preeminent
criterion is what a reasonable, well-trained police offi-
cer would believe, not what the arresting officer actu-
ally did believe. . . . The reasonableness of a police
officer’s determination that an emergency exists is eval-
uated on the basis of facts known at the time of entry.
. . . [T]he trial court’s legal conclusion regarding the
applicability of the exigent circumstances doctrine is
subject to plenary review.’’ (Citations omitted; empha-
sis added; internal quotation marks omitted.) State v.
Correa, 185 Conn. App. 308, 332–34, 197 A.3d 393 (2018),
cert. granted on other grounds, 330 Conn. 959, 199 A.3d
19 (2019).
Before we reach our analysis of whether the exigent
circumstances doctrine exception applied to the pres-
ent facts, we must first determine whether, at the time
of the Waterbury police’s warrantless entry, probable
cause5 existed to search the defendant’s apartment pur-
suant to the exigent circumstances exception. See State
v. Spencer, 268 Conn. 575, 585–86, 848 A.2d 1183, cert.
denied, 543 U.S. 957, 125 S. Ct. 409, 160 L. Ed. 2d 320(2004); State v. Owen, 126 Conn. App. 358, 366, 10 A.3d
1100, cert. denied, 300 Conn. 921, 14 A.3d 1008 (2011).
We conclude that it did not.
‘‘Whether the trial court properly found that the facts
submitted were enough to support a finding of probable
cause is a question of law. . . . The trial court’s deter-
mination on [that] issue, therefore, is subject to plenary
review on appeal. . . . Probable cause to search exists
if: (1) there is probable cause to believe that the particu-
lar items sought to be seized are connected with crimi-
nal activity or will assist in a particular apprehension
or conviction . . . and (2) there is probable cause to
believe that the items sought to be seized will be found
in the place to be searched. . . . Probable cause,
broadly defined, [comprises] such facts as would rea-
sonably persuade an impartial and reasonable mind not
merely to suspect or conjecture, but to believe that
criminal activity has occurred. . . . Reasonable minds
may disagree as to whether a particular affidavit estab-
lishes probable cause. . . .
‘‘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. . . . The existence of probable
cause does not turn on whether the defendant could
have been convicted on the same available evidence.
. . . [P]roof of probable cause requires less than proof
by a preponderance of the evidence. . . . The probable
cause determination is, simply, an analysis of probabili-
ties. . . . The determination is not a technical one, but
is informed by the factual and practical considerations
of everyday life on which reasonable and prudent [per-
sons], not legal technicians, act. . . . Probable cause
is not readily, or even usefully, reduced to a neat set
of legal rules. . . .
‘‘The determination of whether probable cause exists
under the fourth amendment to the federal constitution
. . . is made pursuant to a totality of circumstances
test. . . . The probable cause test then is an objective
one. . . . This court must not attempt a de novo review
where there has already been a determination at a sup-
pression hearing that probable cause exists.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Correa, supra, 185 Conn. App. 334–35.
In the present case, the defendant asserts that no
reasonable officer would believe that probable cause
existed to enter her apartment. Specifically, she asserts
that ‘‘the trial court found that the officers knew there
had been an altercation between two men and also
knew that both parties fled the apartment complex,’’
thus, there was no basis on which a reasonable officer
would believe that probable cause justified entry in
pursuit of a suspect pursuant to the exigent circum-
stances doctrine. Because we agree with the defendant,
and for the reasons discussed below, we conclude that
the police lacked probable cause to enter the defen-
dant’s apartment.
The facts found by the court do not provide an objec-
tive basis for the police to have concluded that they
had probable cause to enter the defendant’s apartment.
First, as previously stated, Zulali knew that two men
entered the building, that an altercation ensued, and
that the two men who entered the building had subse-
quently exited it without entering the defendant’s apart-
ment. No evidence existed that a third party had been
involved in the alleged altercation. Second, the alterca-
tion occurred in the laundry room. Additionally, evi-
dence of the altercation, including the knife, the flip
flop sandal, shell casings, bullet holes, and the blood
like stain, all were found in the laundry room. Third,
during Cruz’ 911 call, he stated to the operator that he
did not believe the residents of the defendant’s apart-
ment were inside the apartment at that time. Fourth,
there was limited evidence that directly pertained to
the defendant’s apartment, including pry marks and
paint chips near the defendant’s apartment door and
Zulali’s admission that the door to the defendant’s apart-
ment was locked. Thus, there was no reasonable basis
to conclude that any activity deriving from the alterca-
tion between the two men had occurred in the defen-
dant’s apartment. Accepting these facts, it is unlikely
that an objectively reasonable officer would conclude
that he or she had probable cause to enter the defen-
dant’s apartment.
II
The defendant claims next that the court improperly
concluded that Zulali’s warrantless entry into her apart-
ment was justified under the emergency doctrine. Spe-
cifically, she argues that, on the basis of the facts, a
reasonable officer could not conclude that entry was
necessary to alleviate an emergency. The state counters
that it was objectively reasonable for an officer to
believe that a person within the defendant’s apartment
was injured and required immediate assistance pursu-
ant to the emergency doctrine. We are not persuaded
by the state’s argument.
‘‘It is axiomatic that the police may not enter the
home without a warrant or consent, unless one of the
established exceptions to the warrant requirement is
met. Indeed, [p]hysical entry of the home is the chief
evil against which the wording of the fourth amendment
is directed. . . .
‘‘Searches conducted pursuant to emergency circum-
stances are one of the recognized exceptions to the
warrant requirement under both the federal and state
constitutions. . . . [T]he fourth amendment does not
bar police officers, when responding to emergencies,
from making warrantless entries into premises and war-
rantless searches when they reasonably believe that a
person within is in need of immediate aid. . . . The
extent of the search is limited, involving a prompt war-
rantless search of the area to see if there are other
victims . . . still on the premises. . . . The police may
seize any evidence that is in plain view during the course
of the search pursuant to the legitimate emergency
activities. . . . Such a search is strictly circumscribed
by the emergency which serves to justify it . . . and
cannot be used to support a general exploratory
search. . . .
‘‘It is well established in Connecticut that the test for
the application of the doctrine is objective, not subjec-
tive, and looks to the totality of the circumstances. . . .
Specifically, the state actors making the search must
have reason to believe that life or limb is in immediate
jeopardy and that the intrusion is reasonably neces-
sary to alleviate the threat. . . . The police, in order
to avail themselves of this exception, must have valid
reasons for the belief that an emergency exists, a belief
that must be grounded in empirical facts rather than
subjective feelings. . . . The test is not whether the
officers actually believed that an emergency existed,
but whether a reasonable officer would have believed
that such an emergency existed. . . . The reasonable-
ness of a police officer’s determination that an emer-
gency exists is evaluated on the basis of facts known
at the time of entry. . . . [T]he emergency doctrine
relies on an objective test wherein the reasonableness
of the officer’s belief is assessed on a case-by-case basis.
. . . The three general categories that the courts have
identified as justifying the application of the doctrine
are danger to human life, destruction of evidence and
flight of a suspect. . . .
‘‘Direct evidence of an emergency is not required
because the emergency exception to the warrant
requirement arises out of the caretaking function of
the police. It has been observed that [t]he police have
complex and multiple tasks to perform in addition to
identifying and apprehending persons committing seri-
ous criminal offenses; by design or default, the police
are also expected to reduce the opportunities for the
commission of some crimes through preventive patrol
and other measures, aid individuals who are in danger
of physical harm, assist those who cannot care for them-
selves, resolve conflict, create and maintain a feeling
of security in the community, and provide other services
on an emergency basis. . . . As [our Supreme Court]
previously has noted, the emergency doctrine is rooted
in the community caretaking function of the police
rather than its criminal investigatory function. We
acknowledge that the community caretaking function
of the police is a necessary one in our society. [I]t must
be recognized that the emergency doctrine serves an
exceedingly useful purpose. Without it, the police would
be helpless to save life and property, and could lose
valuable time especially during the initial phase of a
criminal investigation. . . . Constitutional guarantees
of privacy and sanctions against their transgression do
not exist in a vacuum but must yield to paramount
concerns for human life and the legitimate need of
society to protect and preserve life.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
State v. DeMarco, 311 Conn. 510, 534–37, 88 A.3d 491(2014).
Application of these principles leads us to conclude
that the entry of the six Waterbury police officers into
the defendant’s apartment was not justified by the emer-
gency doctrine because a reasonable officer would not
have believed that an emergency involving danger to
human life existed in the apartment. The state argues
that in the court’s oral decision on the defendant’s
motion to suppress, it found that there were specific
factors that led Zulali to conclude that there was an
emergency in the defendant’s apartment requiring a
warrantless entry. We will examine each of these fac-
tors in turn. We note, however, that no single factor is
determinative and, after examining these factors, we
will consider all of them under the totality of the circum-
stances to evaluate the reasonableness of Zulali’s belief
that immediate action was necessary. See State v. Ken-
drick, supra, 314 Conn. 229.
The first factor that the state claims supports the
police’s warrantless entry was that Zulali was
responding to a possible burglary and an altercation
between two males. The state claims that because ‘‘bur-
glary is a crime of violence and bystanders are likely
to be injured by the perpetrator,’’ it was reasonable for
the police to believe that someone in the defendant’s
apartment was injured. In its brief, the state cites State
v. Fausel, 295 Conn. 785, 798, 993 A.2d 445 (2010) in
support of this claim.
In Fausel, a police officer observed a vehicle with a
license plate attached to the rear bumper with what
appeared to be plastic ties and ran its plate number.
Id., 788. The plate number, which came back as expired,
was also tied to a different vehicle. The owner of the
plate had prior arrests for narcotics and weapons. Id.
The officer attempted to approach the vehicle but the
operator of the vehicle fled at a high rate of speed. Id.,
788–89. The officer then radioed a description of the
vehicle and operator to the police dispatcher. Id., 789.
The police later discovered that the vehicle had stopped
at a residential property. Id., 789. Witnesses told police
officers that they had observed the operator of the
vehicle enter the residence. Id. The police then knocked
on the door but did not receive a response. Id. Eventu-
ally, the operator of the vehicle appeared and surrend-
ered to the police. Id. The police entered the residence
without a warrant to determine if anyone else was pres-
ent, injured or if there were any remaining threats. Id.
During their sweep, the police identified bags of crack
cocaine for which the police later obtained a warrant
and seized. Id. The defendant, the owner of the resi-
dence, thereafter filed a motion to suppress, claiming
that the police improperly entered the residence with-
out a warrant. Id., 790. The trial court denied the motion,
which the defendant appealed to this court and, there-
after, upon certification, to our Supreme Court. Id.,
791–92. Our Supreme Court concluded that the police
were justified in entering the residence under the emer-
gency doctrine because a reasonable police officer
could conclude that, on the basis of the individual’s
‘‘criminal history with weapons and drugs, his extreme
attempt to avoid arrest, his reluctance to surrender,
and his lack of any apparent connection with the house
and its residents,’’ it was necessary to enter the resi-
dence immediately to ensure that no one was injured.
Id., 798.
The facts of the present case are distinguishable from
those in Fausel. In the present case, the police did not
have knowledge of the identities of the individuals who
entered the building. Thus, Zulali was unaware of any
prior criminal history involving these individuals. Fur-
ther, although Cruz observed these individuals enter
the building, there was no witness in the present case
who observed either individual enter the defendant’s
apartment, nor did a witness observe anyone emerge
from the defendant’s apartment to engage in the alterca-
tion. Additionally, there was no evidence demonstrating
that someone had breached the door to the defendant’s
apartment. The pry marks and paint chips that Zulali
observed demonstrate that someone had attempted to
enter the defendant’s apartment but was unsuccessful.
Also, Zulali tried but could not open the door to the
defendant’s apartment. Moreover, Zulali received infor-
mation that two individuals had entered the building,
engaged in an altercation, and then fled from the build-
ing in separate vehicles. Zulali was unaware of any
evidence that a third party was involved in the alterca-
tion and remained in the building or was located in the
defendant’s apartment. Although crimes like burglary
are ‘‘likely to involve danger to life in the event of
resistance by the victim’’; State v. Fausel, supra, 295
Conn. 798; the evidence in the present case does not
clearly demonstrate that there was a victim or bystander
that was injured. Further, there was no evidence that
the door to the defendant’s apartment was breached and
that a burglary occurred therein. Instead, the evidence
suggests that the attempted entry into the defendant’s
apartment was unsuccessful and the door was not
breached.
The second factor that the state claims supports the
police’s warrantless entry was the fact that Zulali
observed a blood like stain and bullet holes in the laun-
dry room. The state, citing to State v. Blades, 225 Conn.
609, 621, 626 A.2d 273 (1993), claims that this blood
like stain ‘‘ ‘further heightened’ [the] belief that a person
might be in need of immediate aid.’’
In the present case, Zulali testified that he observed
what he believed to be a blood like stain in the laundry
room, approximately one-half centimeter, or less than
one-quarter inch, in size. Furthermore, Zulali observed
bullet holes, a shell casing, a flip flop sandal and a knife
in the laundry room. The state claims that the blood
like stain in the present case would lead a reasonable
officer to conclude that someone may be in immedi-
ate need.
During the hearing on the defendant’s motion to sup-
press, the court found that the blood like stain that
Zulali observed in the laundry room measured one-half
centimeter. Also during the hearing, Zulali testified that,
aside from the one-half centimeter blood like stain he
observed on the wall of the laundry room, he did not
observe any other blood like marks in the building.
Furthermore, Zulali testified that, as a police officer
and first responder, he had responded to many medical
calls, and that his training and experience contributed
to his decision in determining that someone may have
been in need of immediate medical attention. We dis-
agree with the state that this one-half centimeter blood
like stain would lead a reasonable officer to believe
that a person in a locked apartment in a separate area
of the building might be in need of immediate aid. There
were neither blood like stains on or outside of the door
to the defendant’s apartment or leading into the hall
toward the direction of the defendant’s apartment, nor
were there any bullet holes or shells near the door to
the defendant’s apartment. Thus, a reasonable officer
with first responder training commensurate to that of
Zulali might likely conclude that there was an alterca-
tion in the laundry room and someone might have been
injured in the laundry room as a result of the altercation
but not that someone in the defendant’s apartment
required emergency medical assistance. The court did
not find any facts supporting a theory or conclusion
that an injured person in the laundry room retreated
to the defendant’s apartment or that the one-half centi-
meter blood like stain and other evidence in the laundry
room supported the theory that an individual in the
defendant’s apartment was in need of emergency medi-
cal assistance.
The third factor that the state claims supports the
police’s warrantless entry was the lack of response that
Zulali received when knocking on the defendant’s apart-
ment and his inability to observe conditions inside the
apartment, in conjunction with the fact that there was
an unoccupied car parked in the building’s parking lot
that allegedly belonged to the defendant. The state
argues that these elements ‘‘increased the chances that
there was a person inside the apartment who was unre-
sponsive as the result of an injury . . . .’’ The state
relies on our Supreme Court’s decision in State v.
DeMarco, supra, 311 Conn. 510, to support its argument
that a warrantless entry is reasonable on the basis of
vehicles on the premises and an inability to look through
windows to observe the interior of the residence.
In DeMarco, an animal control officer from the Stam-
ford Police Department responded to complaints relat-
ing to the defendant’s keeping of animals in his resi-
dence. Id., 513. The officer left a notice on the front
door and a notice on the windshield of an automobile
that the defendant typically drove. Id., 539. During that
visit, a neighbor informed the officer that the neighbor
had not seen the defendant in several days. Id. There-
after, the officer attempted to reach the defendant by
phone but was unsuccessful. Id. The officer returned
the next week and observed that the notice was still
on the vehicle’s windshield and the notice on the door
was now lying on the floor of the porch. Id. He also
observed that the defendant’s mailbox was overflowing
with current and dated mail. Id. The officer could hear
dogs barking from within the residence and smelled a
terrible odor emanating therein. Id. The officer called
for backup and attempted to look through the windows
but was unsuccessful because the windows were too
dirty. Id., 539–40. Firefighters also arrived and deter-
mined that the smell could be life threatening and
entered the residence. Id., 540.
Our Supreme Court concluded that, on the basis of
the notices, the mail that had piled up, ‘‘the putrid,
overwhelming odor’’ and the same unmoved vehicle on
the premises, a reasonable police officer would believe
that an emergency existed inside the defendant’s home.
Id. Thus, in DeMarco, the fact that the defendant’s vehi-
cle had remained unmoved for more than one week
was a relevant factor of many when viewed through
the lens of the totality of the circumstances that justified
the warrantless entry of the defendant’s residence.
In the present case, when viewed under the totality of
the circumstances, the fact that the defendant’s alleged
vehicle was in the parking lot does not support the
conclusion that it was reasonable to believe that an
emergency existed in the defendant’s apartment. Fur-
thermore, when viewed in conjunction with the fact
that no one answered when Zulali knocked on the door
to the defendant’s apartment, the fact that there was
an unoccupied vehicle in the parking lot allegedly
belonging to the defendant does not support the infer-
ence that there was an emergency in the defendant’s
apartment. Rather, on the basis of these facts and those
discussed previously, a reasonable officer might infer
that the defendant’s apartment was unoccupied. See
State v. Ryder, 301 Conn. 810, 830–31, 23 A.3d 694(2011); State v. Geisler, 222 Conn. 672, 695, 610 A.2d
1225 (1992).
Lastly, the court, in its ruling on the defendant’s
motion to suppress, found that one hour had elapsed
from the time when Zulali arrived at the building to
when the six police officers entered the defendant’s
apartment. We note that the amount of time elapsed is
not a dispositive factor in determining the existence of
an emergency but one that, when viewed in the totality
of the circumstances, makes it more difficult to con-
clude that a reasonable officer could believe that after
the lapse of one hour, an emergency existed in the
defendant’s apartment in circumstances in which there
was no evidence of activity in the apartment. Our
Supreme Court’s decision in State v. Blades, supra, 225
Conn. 609, is helpful to our analysis of this factor.
In Blades, the wife of the defendant had been missing
for a period of time. Id., 613. Family members of the
defendant’s wife called the New London Police Depart-
ment expressing their concern. Id. During those phone
calls, the police were made aware of the tempestuous
relationship between the defendant and his wife. Id.,
620. To investigate, the officer called various parties,
including the employer of the defendant’s wife, and
learned that her daughter had also called the employer
looking for her. Id., 615. After two hours had passed
and the officer had determined that the defendant’s wife
was missing or may be in danger, the officer traveled
to the defendant’s apartment, where he gained entry
into the apartment and entered the apartment without
a warrant. Id., 613. Inside the apartment the officer
discovered the defendant’s wife, who had been mur-
dered by the defendant. Id.
In that two hour time period in Blades, the officer
knocked on the defendant’s apartment door and identi-
fied himself, to which the defendant responded ‘‘[m]y
wife is in New York’’; there were several concerned
relatives that called the police and reported that the
defendant likely provided a false narrative for his wife’s
disappearance; the officer contacted the employer of
the defendant’s wife and learned that she was not there
and others had called looking for her; there was a long
history of domestic abuse between the defendant and
his wife; and the officer observed blood on the interior
side of the back door to the building where the defen-
dant’s apartment was located. Id., 613–17. Thus, on the
basis of this information, the officer concluded that
‘‘there was reason to believe that someone was injured
or in danger in the apartment and that it would be
necessary to enter to protect or preserve life.’’ Id., 616.
Our Supreme Court concluded that on the basis of these
facts, the police’s entry into the defendant’s apartment
under the emergency doctrine was valid. Id., 624.
In contrast to Blades, Zulali did not discover any
evidence in the present case that clearly demonstrated
that someone in the defendant’s apartment was at risk
of losing life or limb. In the one hour that elapsed from
the time he arrived to the time that the door of the
defendant’s apartment was breached, he found no evi-
dence relating to the whereabouts of the defendant
or whether there was any person in the apartment.
Although in that time period Zulali had interviewed
all of the residents in the building, the residents were
reluctant to provide Zulali with information but con-
firmed that they were fine. Zulali did not learn anything
new from interviewing the residents of the building.
Thus, unlike in Blades, where the officer had discovered
substantial evidence during his investigation clearly
demonstrating that someone was in danger of losing
life or limb, Zulali did not glean from his investigation
evidence that demonstrated that a warrantless entry
was necessary.
While the emergency exception does not require
direct evidence of an emergency situation, it does
‘‘require, however, that officers know some facts at
the time of entry that would lead them to reasonably
conclude that they could dispense with the necessity
of obtaining a warrant supported by probable cause in
accordance with the dictates of the fourth amendment.’’
(Emphasis in original.) State v. Ryder, supra, 301 Conn.
830. Further, the emergency exception requires that
the police have ‘‘an objectively reasonable basis for
believing that an occupant is seriously injured’’; (inter-
nal quotation marks omitted) State v. Fausel, supra,295 Conn. 794; or reason to believe ‘‘that life or limb
is in immediate jeopardy and that the intrusion is rea-
sonably necessary to alleviate the threat.’’ (Internal quo-
tation marks omitted.) Id., 795. In the present case,
there was no objectively reasonable basis for the police
to believe that someone in the defendant’s apartment
was seriously injured or that life or limb was in immedi-
ate jeopardy.6 Thus, taking all the circumstances into
consideration, we conclude that the court’s conclusion
that it was objectively reasonable for the police to
believe that an emergency existed in the defendant’s
apartment, thus justifying the warrantless entry, was
not supported by substantial evidence. The warrantless
entry into the defendant’s apartment when there was
no objectively reasonable basis for believing that an
emergency existed violated her rights under the fourth
amendment to the United States constitution.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion to sup-
press and to render judgment dismissing the charge of
possession of narcotics with intent to sell.
In this opinion DEVLIN, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
2
In its ruling on the defendant’s motion to suppress, the court relied on
Cruz’ 911 call. During that phone call, Cruz stated to the operator that he
did not believe that anyone presently was in the defendant’s apartment.
3
In its decision on the defendant’s motion to suppress, the court stated
that, in its opinion, ‘‘the emergency doctrine and the doctrine of exigent
circumstances are the key concepts relevant in this particular case.’’ Thus,
the court denied the defendant’s motion to suppress on the basis of the
exigent circumstances and emergency doctrines. Accordingly, we do not
review whether the protective sweep doctrine was applicable in the present
case as the state has not offered it as an alternative basis on which to sustain
the court’s denial of the motion to suppress.
4
Although the defendant claims a due process violation under our state
constitution, she does not provide a separate analysis thereunder or argue
that the Connecticut constitution provides greater protection than the fed-
eral constitution. Accordingly, review of her claims is limited to the federal
constitution. See State v. Johnson, 288 Conn. 236, 244 n.14, 951 A.2d 1257(2008).
5
We note that the court did not address the issue of whether the police
had probable cause to enter the defendant’s apartment. Instead, the court
concluded that exigent circumstances permitted the warrantless entry to the
defendant’s apartment. On appeal, however, we may apply the undisputed
factual findings of the court’s ruling on the defendant’s motion to suppress
‘‘because whether a set of facts is sufficient to satisfy the probable cause
standard is subject to plenary review . . . .’’ State v. Jones, 320 Conn. 22,
70 n.26, 128 A.3d 431 (2015). Thus, the court’s factual findings are sufficient
for our determination of whether probable cause existed to allow the war-
rantless entry under the exigent circumstances doctrine.
6
The most reasonable interpretation of the facts is that two men, after
entering the building, unsuccessfully attempted to enter the defendant’s
apartment.