State v. Jacques

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STATE OF CONNECTICUT v. JEAN JACQUES
(SC 19783)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of the crime of murder, the defendant appealed, claiming that
the trial court improperly denied his motion to suppress certain evidence
discovered during a warrantless search of his apartment. The defendant
had entered into a month-to-month lease for the apartment, paid the
first month’s rent, and moved in with all of his personal belongings.
Five days into that lease, the defendant was arrested on unrelated drug
charges and was unable to post bond. The defendant never returned to
the apartment, and did not pay the second month’s rent or ask the
landlord for an extension of his lease. The defendant also never con-
tacted his family or friends to ask them to pay his rent or to secure his
personal belongings, even though he had the ability to do so. Although
the landlord never commenced eviction proceedings, he entered into
the apartment and removed all of the defendant’s personal belongings
prior to the search in question. The police subsequently received a tip
indicating that the defendant had hidden the murder victim’s cell phone
inside of a bathroom wall in the apartment. Five days after the term of
the defendant’s lease expired, the police obtained written consent from
the landlord to enter the apartment, conducted a warrantless search,
and ultimately discovered the victim’s cell phone in a hole in the bath-
room wall. The defendant claimed in his motion to suppress that the
cell phone was inadmissible under the exclusionary rule because the
warrantless search of his apartment had violated his right to be free
from unreasonable search and seizures under the federal constitution.
At an evidentiary hearing on his motion, the defendant testified that the
apartment was his home, the landlord had never contacted him, and he
would have asked a friend to retrieve his belongings if he had been
instructed to vacate the apartment. The defendant testified that his
intention was to stay in the apartment for a long time, and that he never
gave anyone, including the landlord, permission to enter. In denying the
motion to suppress, the trial court concluded that the defendant did not
meet his burden of demonstrating that he had a subjective expectation
of privacy in the apartment at the time of the search. In reaching its
conclusion, the trial court relied on the expiration of the lease before
the search, the nonpayment of rent, and the fact that the defendant had
not asked his family or friends to maintain the apartment or his personal
belongings contained therein while he was incarcerated. On appeal from
the judgment of conviction, held that the trial court improperly denied
the defendant’s motion to suppress, and, accordingly, the judgment of
conviction was reversed and the case was remanded for a new trial:
this court’s scrupulous review of the record led it to conclude that the
trial court’s determination that the defendant did not have a subjective
expectation of privacy in the apartment at the time of the search was
not supported by the substantial evidence and, therefore, was clearly
erroneous, as the record was devoid of any evidence that the defendant
affirmatively had intended to relinquish his expectation of privacy in
the apartment, and the defendant’s incarceration and his failure to pay
rent five days past the due date, without more, were insufficient to
divest him of that expectation; moreover, the defendant’s subjective
expectation of privacy was objectively reasonable in light of, inter alia,
a statutory (§ 47a-15a) nine day grace period for the nonpayment of
rent that had not yet lapsed before the search in question, the lack of
formal eviction proceedings, and the fact that the defendant’s absence
was due solely to his incarceration; furthermore, because the state did
not advance any claim that the admission of the evidence discovered
during the challenged search was harmless, this court declined to
address whether the defendant’s conviction could be upheld on that
ground.
(Two justices concurring separately in one opinion)
Argued October 17, 2018—officially released July 16, 2019
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New London, where the court,
Jongbloed, J., denied the defendant’s motion to sup-
press certain evidence; thereafter, the case was tried
to the jury before Jongbloed, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Reversed; new trial.
S. Max Simmons, assigned counsel, for the appel-
lant (defendant).
David J. Smith, senior assistant state’s attorney, with
whom, on the brief, was Michael L. Regan, state’s attor-
ney, for the appellee (state).
Opinion
MULLINS, J. After a jury trial, the trial court convicted
the defendant, Jean Jacques, of murdering the victim,
Casey Chadwick, in violation of General Statutes § 53a-
54a. The defendant now appeals from that conviction.
The subject of this appeal is the trial court’s denial of
his motion to suppress incriminating evidence linking
him to the murder, which the police obtained from a
search of his apartment without a warrant. The defen-
dant had a month-to-month lease for the apartment and
had paid only the first month’s rent. Five days into
that lease, the defendant was arrested for certain drug
offenses and, shortly thereafter, the murder of the vic-
tim. The defendant never posted bond or made any
arrangements to pay for a second month of rent.
Five days after his rent was due for a second month,
the police searched his apartment without a warrant
and discovered the victim’s cell phone hidden in a bath-
room wall. The defendant moved to suppress that evi-
dence on the ground that the search violated his right
to be free from unreasonable searches and seizures
under the fourth amendment to the United States consti-
tution.1 In denying his motion to suppress, the trial court
explained that the defendant had failed to ‘‘maintain
the apartment as his own’’ because the lease had
expired, the defendant had not made any further rent
payments, and the defendant did not make arrange-
ments to secure his belongings in the apartment. Thus,
the court concluded that the defendant did not have a
subjective expectation of privacy in the apartment at
the time of the search.
The question before us is whether the trial court
properly denied the defendant’s motion to suppress on
the ground that he did not have a subjective expectation
of privacy in the apartment at the time of the search.
We conclude that, under the specific facts of this case,
the defendant established that the apartment was his
home and that neither his incarceration nor his failure
to pay rent five days after it was due divested him of
his subjective expectation of privacy in his apartment.
Therefore, we further conclude that the trial court
improperly denied the defendant’s motion to suppress
and, accordingly, reverse the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our analysis. On January 16, 2015,
the defendant was released from incarceration to super-
vised parole.2 Upon being released, he lived with a friend
until June 10, 2015. On that date, the defendant secured
his own apartment in Norwich. He entered into a month-
to-month tenancy and paid the landlord $450 for the
first month of rent, which ran from June 10 to July
10, 2015. After securing the apartment, the defendant
moved all of his belongings into the apartment and
began living there.
On June 15, 2015, the defendant was arrested on drug
charges unrelated to this case. At the time of his arrest,
the police noticed blood on his sneakers. That same
day, police officers discovered the body of the victim
stuffed into a closet in her apartment. She had been
stabbed multiple times. Subsequent forensic testing
indicated that some of the blood on the defendant’s
shoes had come from the victim.3
The following day, on June 16, 2015, the police, accom-
panied by the defendant’s parole officer, searched the
defendant’s apartment. Inside, they discovered blood
on the walls and a mattress. Forensic testing indicated
that this blood came from the defendant, who had vari-
ous cuts on his hands. The defendant was subsequently
arrested for the murder of the victim while he was incar-
cerated on the drug charges.
While the defendant was in jail on the pending drug
and murder charges, the police received a tip from a
confidential informant that the defendant had hidden
the victim’s cell phone and some drugs in a hole in the
wall of the bathroom of his apartment. As a result, on
July 15, 2015, police officers conducted a second search
of the defendant’s apartment in order to investigate
whether there was a hole in the bathroom wall. This
time, the officers were not accompanied by the defen-
dant’s parole officer. Instead, the officers went to the
apartment alone and without a warrant. They obtained
written consent from the landlord to search the apart-
ment. After obtaining that consent, the officers entered
the defendant’s apartment and confirmed the presence
of a hole in the bathroom wall with a bag inside of it.
Inside the bag, the officers found the victim’s cell phone
and some drugs.4
Prior to trial, the defendant filed a motion to suppress
the victim’s cell phone and the drugs, asserting that this
evidence was inadmissible under the exclusionary rule
as the fruit of prior police illegality. An evidentiary
hearing on the motion was held during which both
parties presented evidence related to the defendant’s
lease of the apartment and the contested search.
In its memorandum of decision on that motion, the
trial court made the following explicit findings of fact.
The defendant had entered into a month-to-month lease
for the apartment and paid rent for the first month. Five
days into his lease, on June 15, 2015, he was arrested
on the drug charges. His bond was set at $100,000,
which he was not able to post. While incarcerated on
the drug charges, he was arrested for the murder of
the victim, and his bond was increased to $1 million.
He did not post that bond either. Thus, the defendant
was incarcerated and never returned to the apartment
following his arrest on June 15, 2015. The defendant
did not make any further rent payments for any period
beyond the first month. Nor did the defendant contact
the landlord or attempt to have his lease extended.
Despite having the ability to do so, the defendant also
did not contact his friends or family to ask them to pay
his rent. The trial court also found that the search at
issue occurred on July 15, 2015, five days after the date
of expiration of the lease term. Despite not receiving
rent for a second month, the landlord did not initiate
eviction proceedings. In fact, the court credited the
landlord’s testimony that, if the defendant had been
released from jail in July and had the money to pay his
rent, the landlord would have permitted him to continue
to stay in the apartment.
On the basis of these findings, the court determined
that the defendant did not show an interest in the apart-
ment and, thus, did not meet his burden of demonstra-
ting a subjective expectation of privacy in it at the time
of the second search. In making that determination, the
court considered that the lease had expired five days
before the second search occurred, the defendant nei-
ther made any further rent payment nor any arrange-
ments to have his rent paid, and the defendant made
no effort to ‘‘maintain the apartment as his own.’’ The
trial court further explained that, even though the defen-
dant had been incarcerated, he could have exhibited
some interest in the apartment by asking his family
or friends to maintain the apartment or the personal
belongings within it. The court acknowledged the defen-
dant’s testimony that he would have gone back to the
apartment if he had been released from jail. It deter-
mined, however, that his expressing this view many
months later did not rise to the level of exhibiting an
actual subjective expectation of privacy in the apart-
ment.
The trial court denied the defendant’s motion to sup-
press, and, following a nine day trial, the jury returned
a verdict of guilty on the charge of murder. The trial
court subsequently rendered judgment in accordance
with that verdict and sentenced the defendant to sixty
years incarceration. This appeal followed. Additional
facts will be set forth below as necessary.
On appeal, the defendant asserts that the trial court
improperly denied his motion to suppress the evidence
obtained during the second search of his apartment,
which occurred on July 15, 2015.5 Specifically, he claims
that he had a reasonable expectation of privacy in the
apartment because it was his home and he had never
been evicted from it or otherwise abandoned it. We
agree with the defendant.
We begin by setting forth the relevant principles of
law and the standard of review governing the defen-
dant’s claim. ‘‘The fourth amendment to the United
States constitution . . . provides that [t]he right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures
. . . .’’ (Internal quotation marks omitted.) State v.
Saturno, 322 Conn. 80, 88, 139 A.3d 629 (2016). ‘‘The
capacity to claim the protection of the fourth amend-
ment does not depend upon a property interest, perma-
nency of residence, or payment of rent but upon
whether the person who claims fourth amendment pro-
tection has a reasonable expectation of privacy in the
invaded area.’’ State v. Reddick, 207 Conn. 323, 330, 541
A.2d 1209 (1988); see id., 329 (‘‘[a] person is entitled
to fourth amendment protection anywhere he resides
where he has a reasonable expectation of privacy’’);
see also Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct.
421, 58 L. Ed. 2d 387 (1978); Katz v. United States, 389
U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)
(Harlan, J., concurring).
‘‘To receive fourth amendment protection against
unreasonable searches and seizures, a defendant must
have a legitimate expectation of privacy in the [subject
of the search]. . . . Absent such an expectation, the
subsequent police action has no constitutional ramifica-
tions.’’ (Internal quotation marks omitted.) State v.
Pink, 274 Conn. 241, 258, 875 A.2d 447 (2005). To deter-
mine whether a defendant has a reasonable expectation
of privacy in an invaded place, we follow the test laid
out by the United States Supreme Court in Katz v.
United States, supra, 389 U.S. 347. ‘‘The Katz test has
both a subjective and an objective prong: (1) whether
the [person contesting the search] manifested a subjec-
tive expectation of privacy with respect to [the invaded
premises or seized property]; and (2) whether that
expectation [is] one that society would consider reason-
able. . . . This determination is made on a case-by-
case basis. . . . The burden of proving the existence
of a reasonable expectation of privacy rests [with] the
defendant.’’ (Internal quotation marks omitted.) State
v. Houghtaling, 326 Conn. 330, 341, 163 A.3d 563 (2017),
cert. denied, U.S. , 138 S. Ct. 1593, 200 L. Ed.
2d 776 (2018).
It is well settled that ‘‘[w]hen reviewing a trial court’s
denial of a motion to suppress, [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 out-
come of a particular legal determination that implicates
a defendant’s constitutional rights . . . and the credi-
bility of witnesses is not the primary issue, our custom-
ary deference to the trial court’s factual findings is
tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence. . . . [When] the
legal conclusions of the court are challenged, [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 [trial court’s]
memorandum of decision . . . .’’ (Internal quotation
marks omitted.) Id., 339–40.
‘‘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.
. . . We must defer to the trier of fact’s assessment of
the credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude.’’ (Internal quotation marks omitted.) State
v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014).
In the present case, the trial court’s factual finding
that the defendant had no subjective expectation of
privacy in the apartment at the time of the search impli-
cates the defendant’s constitutional rights. Thus, we
undertake a scrupulous review of the record to deter-
mine whether the trial court’s finding is supported by
substantial evidence in the record. See, e.g., id.
A review of the record reveals the following. At the
suppression hearing, the defendant testified that the
apartment was his ‘‘home.’’6 He explained that, after
verbally entering into a lease and paying his first month
of rent on June 10, 2015, he moved all of his personal
belongings into the apartment and began living there.
He was living there when he was arrested and incarcer-
ated five days later. When he missed his rent payment
for the next month, he did not make arrangements to
have his belongings removed from the apartment
because he did not think that his landlord would kick
him out for not paying rent.
He also expressed his uncertainty as to whether his
lease had expired at the time of the search on July 15,
2015.7 In the five days preceding the search in which
the defendant’s rent payment was overdue, the landlord
neither contacted him nor gave him any reason to
believe that he had to vacate the apartment. The defen-
dant testified that, if his landlord had told him that he
needed to leave the apartment, he would have contacted
a friend to remove his belongings from the premises,
but the landlord never did so. He stated that it was his
intention to stay in the apartment for a long time. He
also stated that he had a key to the apartment and did
not give permission for anyone, including the landlord,
to enter.
While the defendant acknowledged that he knew he
might be incarcerated for a long time and made no
attempt to contact his landlord when rent became due
for a second month, he testified that he thought he
could easily talk to the landlord and get his apartment
when he got out of jail. When testifying about his expec-
tations with regard to the apartment in the event that
he was released from jail, the defendant stated that ‘‘I
. . . think about when I get out, this is where I’m going
. . . where I’m going [to] go.’’8
The landlord also testified at the suppression hearing,
and his testimony supported the defendant’s contention
that he had a subjective expectation of privacy in the
apartment. The landlord testified that he never commu-
nicated to the defendant in any way that he had to leave
the apartment. He made no attempt to get the keys
back from the defendant prior to the time of the search.
Nor did he commence eviction proceedings. Although
he never notified the defendant, prior to the search, the
landlord took it upon himself to put all of the defen-
dant’s personal belongings in bags and remove them
from the apartment.
We are aware that the first prong of Katz focuses on
the defendant’s actions and beliefs as opposed to those
of the landlord. Nevertheless, we find it significant that
the landlord’s conduct supports the defendant’s testi-
mony that he actually believed he had a privacy right
in the apartment at the time of the search. The defendant
heard nothing from the landlord suggesting that he was
in danger of losing the apartment or his possessions
therein.9 Cf. United States v. Miller, 387 Fed. Appx.
949, 951–52 (11th Cir. 2010) (concluding that defendant
could not have subjective expectation of privacy where
defendant knew property manager would give him only
three weeks to remove belongings if he failed to pay
rent, and search occurred after three week period
elapsed).
A scrupulous examination of the record reveals that
the trial court’s determination that the defendant did
not have a subjective expectation of privacy in his apart-
ment at the time of the search is not supported by
substantial evidence. Instead, the evidence demon-
strates that the apartment was the defendant’s home
and that he, therefore, had an expectation of privacy
in the apartment. The record shows that, the defendant
entered into a month-to-month lease and paid for the
first month. He was given the keys to the apartment,
moved all of his possession into the place, and testified
that he never gave anyone, including the landlord, per-
mission to enter. See, e.g., State v. Reddick, supra, 207
Conn. 331–32 (holding that defendant had legitimate
expectation of privacy in mother’s apartment when
defendant had key). He also expressly testified that the
apartment was his home, and the landlord’s behavior
was consistent with that belief. Even though the defen-
dant was five days late on his second rent payment in
this month-to-month lease, the landlord did not initiate
any eviction proceedings.
Neither the fact that the defendant was overdue on
his rent nor the fact that he was incarcerated during his
tenancy is sufficient, without more, for the defendant
to have lost his subjective expectation of privacy in his
apartment. Indeed, the failure to pay rent, on its own,
does not result in the loss of one’s expectation of pri-
vacy. See United States v. Robinson, 430 F.2d 1141,
1143–44 (6th Cir. 1970); Browning v. State, 176 Ga. App.
420, 422, 336 S.E.2d 41 (1985); State v. Hodges, 287
N.W.2d 413, 415 (Minn. 1979); State v. Clark, 105 N.M.
10, 13, 727 P.2d 949 (App.), cert. denied, 104 N.M. 702,
726 P.2d 856 (1986). Similarly, the defendant’s incarcer-
ation and subsequent absence from the apartment did
not, without more, result in the loss of his expectation
of privacy. See United States v. Robinson, supra, 1143;
Browning v. State, supra, 422; State v. Hodges, supra,
415; State v. Clark, supra, 952.
The trial court faulted the defendant for not exhib-
iting any interest in the apartment and for failing to
‘‘maintain the apartment as his own.’’ We construe this
as an abandonment analysis. In such an analysis, how-
ever, the burden of proof is not placed on the defendant
to show that he maintained his privacy interest but,
rather, on the state to show ‘‘an element of conduct
manifesting [an] intent to relinquish an expectation of
privacy in the [item or area searched].’’ (Internal quota-
tion marks omitted.) State v. Jackson, 304 Conn. 383,
396, 40 A.3d 290 (2012); see also United States v. Brazel,
102 F.3d 1120, 1147–48 (11th Cir.) (explaining that
defendant bears burden of proving legitimate expecta-
tion of privacy in area searched, and government has
burden of proving abandonment), cert. denied, 522 U.S.
822, 118 S. Ct. 79, 139 L. Ed. 2d 37 (1997).
Moreover, abandonment ‘‘must be established by
clear and unequivocal evidence.’’ United States v. Har-
rison, 689 F.3d 301, 307 (3d Cir. 2012), cert. denied,
568 U.S. 1242, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013).
To show that the defendant abandoned his expectation
of privacy in his apartment, the law generally requires
affirmative conduct on the part of the defendant. See,
e.g., United States v. Stevenson, 396 F.3d 546, 544 (4th
Cir.) (defendant showed intent to relinquish his privacy
interest in apartment while he was incarcerated by writ-
ing letter to his girlfriend in which he gave her all of his
personal belongings and referred to himself as ‘‘former
renter’’), cert. denied, 544 U.S. 1067, 125 S. Ct. 2534,
161 L. Ed. 2d 1122 (2005); see also United States v.
Ruiz, 664 F.3d 833, 841 (10th Cir. 2012) (defendant sent
letter to his landlord stating he would no longer be
renting home and she could keep all of his furniture).
In the present case, the record is devoid of any evi-
dence demonstrating that the defendant affirmatively
intended to relinquish his expectation of privacy in his
apartment. He neither expressed to his landlord that
he no longer wanted the apartment nor expressed to
anyone else an intention to abandon his possessions.
Failure to make arrangements for the security of his
possessions a mere five days after his rent was due is
not evidence that he intended to relinquish his expecta-
tion of privacy in his apartment. Rather, the defendant’s
conduct was consistent with his stated belief that his
possessions were secure and that he was not in danger
of losing his apartment five days after the rent was due.
On the basis of the foregoing, we conclude that, under
the specific facts of this case, the trial court’s finding
that the defendant lacked a subjective expectation of
privacy in the apartment at the time of the search is not
supported by substantial evidence and, thus, is clearly
erroneous. Instead, we conclude that the defendant met
his burden of showing that he had a subjective expecta-
tion of privacy in the apartment at the time of the search.
Having concluded that the defendant satisfied his
burden of proving that he had a subjective expectation
of privacy in the apartment, we must now consider the
second prong of the Katz test, namely, whether that
expectation was reasonable, as measured by society’s
values, at the time of the search. See Katz v. United
States, supra, 389 U.S. 361 (Harlan, J., concurring). This
is a question of law over which our review is plenary.
See, e.g., United States v. Stevenson, supra, 396 F.3d
545.
‘‘A reasonable expectation of privacy is one that is
legitimate.’’ (Internal quotation marks omitted.) State
v. Zindros, 189 Conn. 228, 239, 456 A.2d 288 (1983),
cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed.
2d 244 (1984). ‘‘The test of legitimacy is not whether
the individual chooses to conceal assertedly private
activity. Rather, the correct inquiry is whether the gov-
ernment’s intrusion infringes upon the personal and
societal values protected by the [f]ourth [a]mendment.’’
(Footnote omitted; internal quotation marks omitted.)
Oliver v. United States, 466 U.S. 170, 182–83, 104 S. Ct.
1735, 80 L. Ed. 2d 214 (1984).
‘‘Legitimate expectations of privacy derive from con-
cepts of real or personal property law or [from] under-
standings that are recognized and permitted by society.
One of the main rights attaching to property is the right
to exclude others . . . and one who owns or lawfully
possesses or controls property will in all likelihood
have a legitimate expectation of privacy by virtue of this
right to exclude.’’ (Citation omitted; internal quotation
marks omitted.) State v. Hill, 237 Conn. 81, 94 n.19, 675
A.2d 866 (1996); see also Rakas v. Illinois, supra, 439
U.S. 144 n.12. ‘‘Of course, one need not have an ‘untram-
meled power to admit and exclude’ in order to claim
the protection of the fourth amendment, so long as
the place involved is one affording an expectation of
privacy that society regards as reasonable.’’ State v.
Hill, supra, 94 n.19; see also State v. Mooney, 218 Conn.
85, 95–96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112
S. Ct. 330, 116 L. Ed. 2d 270 (1991).
Moreover, it is well established that ‘‘a home is a place
in which a subjective expectation of privacy virtually
always will be legitimate . . . .’’ California v. Ciraolo,
476 U.S. 207, 220, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986)
(Powell, J., dissenting); see also 1 W. LaFave, Search
and Seizure (5th Ed. 2012) § 2.3, p. 724 (‘‘one’s dwelling
has generally been viewed as the area most resolutely
protected by the [f]ourth [a]mendment’’). Thus, ‘‘even
under the Katz [justified expectation of privacy]
approach, it is . . . useful to view residential premises
as a place especially protected against unreasonable
police intrusion.’’ 1 W. LaFave, supra, § 2.3, p. 725; see
Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371,
63 L. Ed. 2d 639 (1980) (‘‘[i]t is a basic principle of
[f]ourth [a]mendment law that searches and seizures
inside a home without a warrant are presumptively
unreasonable’’ [internal quotation marks omitted]); see
also State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455
(2010).
Because the trial court determined that the defendant
did not have a subjective expectation of privacy in the
apartment at the time of the search, it did not reach
the issue of whether the expectation was reasonable.
It noted, however, that it would have concluded that
the expectation was not one that society would consider
reasonable. The court reasoned that the defendant’s
tenancy had expired prior to the search and that the
defendant failed to comply with General Statutes § 47a-
16a, which requires a tenant to notify his landlord of
any anticipated absence from the leased premises.10
The defendant contends, however, that the trial court
failed to consider other portions of Connecticut’s land-
lord tenant statutes, such as those concerning summary
process, that are equally relevant to the issue of rea-
sonableness. In particular, the defendant directs our
attention to several specific statutory provisions. See
General Statutes § 47a-11b (a) (providing that abandon-
ment of premises by occupant means occupant has left
premises without notice to landlord as evidenced by
removal of all personal belongings from premises and
either nonpayment of more than two months of rent or
express statements by occupant of intention to leave);
General Statutes § 47a-15a (providing nine day grace
period before landlord may terminate month-to-month
lease for nonpayment of rent); General Statutes § 47a-
23 (providing requisite steps for landlord to follow to
formally initiate eviction proceedings).
We recognize that property law concepts do not nec-
essarily control our fourth amendment inquiry. They
are, however, ‘‘clearly a factor to be considered.’’
United States v. Salvucci, 448 U.S. 83, 91, 100 S. Ct.
2547, 65 L. Ed. 2d 619 (1980); see also United States v.
Fields, 113 F.3d 313, 320 (2d Cir.) (‘‘a defendant’s prop-
erty or possessory interest in the place searched is a
factor generally considered in determining the reason-
ableness of a defendant’s expectation of privacy’’), cert.
denied, 522 U.S. 976, 118 S. Ct. 434, 139 L. Ed. 2d 334
(1997); State v. Houghtaling, supra, 326 Conn. 346 n.10,
348–49 (considering defendant’s property interest in
fourth amendment analysis and explaining that ‘‘prop-
erty rights may be the beginning and the end of a fourth
amendment analysis when the police have physically
intruded on a person’s residence’’).
In the present case, the trial court made a finding
that the landlord did not initiate formal eviction pro-
ceedings as required by statute. See General Statutes
§§ 47a-23 through 47a-23b.11 Moreover, the search
occurred before the nine day statutory grace period
for payment of rent had elapsed. See General Statutes
§ 47a-15a.12 Thus, at the time of the search, the defen-
dant had a legal right to occupy the premises and
exclude others, notwithstanding his failure to pay rent.13
See, e.g., State v. Johnson, 110 Idaho 516, 523, 716 P.2d
1288 (1986) (concluding that defendant had legitimate
and reasonable expectation of privacy in premises and
that defendant was ‘‘entirely justified in expecting his
landlord to resort to the eviction procedures required
by law rather than resorting to self-help in seeking rent
payment if he was in fact behind in his rent’’); State v.
Dennis, 182 Ohio App. 3d 674, 683–84, 914 N.E.2d 1071
(2009) (holding that defendant had reasonable expecta-
tion of privacy in apartment where defendant received
multiple eviction notices, but legal procedures for evic-
tion had not yet been completed); see also United States
v. Botelho, 360 F. Supp. 620, 626 (D. Haw. 1973) (con-
cluding that court was ‘‘not prepared to hold that a
defendant with a perfectly legal right to possession or
occupancy of leased premises can be found to have an
‘unreasonable’ expectation of privacy’’).
The very existence of the statutory landlord tenant
scheme in Connecticut is significant in our analysis for
objective standards in this context. ‘‘[S]tatutes may
. . . help to define the contours of constitutional rights
. . . . Because [l]egislative enactments are expres-
sions of this state’s public policy . . . they may be
relevant to the resolution of whether the defendant’s
expectation of privacy is one that Connecticut citizens
would recognize as reasonable.’’ (Citations omitted;
internal quotation marks omitted.) State v. Bernier, 246
Conn. 63, 72–73, 717 A.2d 652 (1998). Indeed, this court
previously has ‘‘considered the presence of state reg-
ulation in determining whether a defendant’s expecta-
tion [of privacy] was one that Connecticut citizens
would consider reasonable . . . .’’ Id., 73; see also id.,
73–74 (looking to statutory scheme regarding fire inves-
tigations in order to determine reasonableness of defen-
dant’s privacy expectations in flooring samples taken
from his home); State v. DeFusco, 224 Conn. 627, 636–38,
620 A.2d 746 (1993) (considering existence of statutes
regulating garbage collection, recycling, and disposal
informative to issue of reasonableness of defendant’s
expectation of privacy in garbage).
This state, as well as every other state in the nation,
has a comprehensive statutory scheme in place detail-
ing the process through which a landlord may retake
possession of leased property from a tenant. See 2
Restatement (Second), Property, Landlord and Tenant
§ 14.1, note 1, p. 3 (1977). The existence of these statutes
demonstrate that society expects landlords to follow
the mandatory legal processes in order to lawfully
retake possession of a premises, which, in turn, indi-
cates to us that a tenant’s expectation of privacy is
valid, or at least reasonable, until the time that the
landlord complies with the statutory procedure and
regains the right of possession. In this case, the defen-
dant’s landlord did not even begin to pursue the legal
statutory process. Thus, we conclude that it was reason-
able for the defendant to have believed that he had the
right to privacy in his apartment a mere five days after
rent was due.
The state contends that the defendant’s failure to pay
or arrange for the payment of rent demonstrates his
lack of any reasonable expectation of privacy. As we
explained previously, the nonpayment of rent, by itself,
does not divest a tenant of his expectation of privacy
in the premises. See 79 C.J.S., Searches and Seizures
§ 32 (2019) (‘‘the tenant of leased premises may main-
tain an expectation of privacy . . . after the termina-
tion of the tenancy, and this is so even if the tenant
falls behind in [his] obligation to pay rent’’ [footnote
omitted]); see also United States v. Washington, 573
F.3d 279, 284–85 (6th Cir. 2009) (reasoning that, ‘‘[i]f a
landlord’s unexercised authority over a lodging with
overdue rent alone divested any occupant of a reason-
able expectation of privacy, millions of tenants . . .
would be deprived of [f]ourth [a]mendment protection,’’
and concluding that ‘‘paying late is a common occur-
rence . . . and [thus, there is no merit to] the notion
that the [c]onstitution ceases to apply in these circum-
stances’’); United States v. Botelho, supra, 360 F. Supp.
625 (concluding that nonpayment of rent alone is insuf-
ficient to deem defendant’s expectation of privacy in
home unreasonable because ‘‘[t]o hold otherwise would
abolish the protections of the [f]ourth [a]mendment for
a potentially large group of persons renting homes and
apartments’’ [internal quotation marks omitted]); State
v. Taggart, 7 Or. App. 479, 482–84, 491 P.2d 1187 (1971)
(concluding that defendant had reasonable expectation
of privacy in premises where he failed to pay rent,
search occurred before five day grace period expired,
and landlord had not initiated eviction proceedings).
To be clear, a tenant may, under certain circum-
stances, lose an expectation of privacy in his leasehold
even before he loses his legal right of possession under
applicable law, and nonpayment of rent may be one
factor in arriving at that determination. See United
States v. Stevenson, supra, 396 F.3d 547 (any expecta-
tion defendant had in apartment was unreasonable
where defendant fell behind on rent payments prior to
becoming incarcerated, disposed of all of his belong-
ings, and referred to himself as ‘‘former renter’’ of apart-
ment); United States v. Hoey, 983 F.2d 890, 891–93 (8th
Cir. 1993) (holding that defendant had no reasonable
expectation of privacy in apartment where defendant
was six weeks late on rent, defendant told landlord she
was leaving and held moving sale, and neighbor saw
defendant leave).
We also consider the length of time that elapsed after
rent was due and before the contested search took
place. The defendant’s rent was due on July 10, 2015,
and the search took place on July 15, 2015. Importantly,
the defendant was only five days overdue on his rent
at the time of the search. While we recognize that there
are limits as to how far in arrears in the payment of rent
a defendant may become before his privacy expectation
becomes unreasonable, we do not need to define what
those limits are under the facts of the present case.
Instead, we conclude that, given the record before us,
the fact that the defendant’s rent was five days overdue
is not sufficient to render his expectation of privacy in
the apartment unreasonable. See, e.g., People v. Sedrel,
184 Ill. App. 3d 1078, 1081, 540 N.E.2d 792 (acknowledg-
ing that defendant’s rent was only three days overdue
at time of search, which was insufficient time for land-
lord to believe that defendant had abandoned apart-
ment), appeal denied, 127 Ill. 2d 636, 545 N.E.2d 126
(1989).
Indeed, in the present case, the landlord testified that,
had the defendant shown up at the apartment on the
day of the search and been able to pay rent, the landlord
would have let him stay. Moreover, as we explained
previously, § 47a-15a provides tenants with a nine day
grace period in which to pay overdue rent, thus sug-
gesting that five days is within the amount of time that
society would consider reasonable for a defendant to
believe that he has an expectation of privacy in his home
notwithstanding the failure to pay the next month’s
rent. See footnote 12 of this opinion.
Aside from property law concepts, other factors aid
our analysis of whether the defendant’s privacy expec-
tation was reasonable. ‘‘Absence due to arrest and incar-
ceration while awaiting trial is not of itself a sufficient
basis upon which to conclude that the accused has
abandoned any reasonable expectation of privacy in
his home. To hold otherwise would make permissible
warrantless searches of the homes of those awaiting
trial and unable to post bond.’’ Commonwealth v.
Strickland, 457 Pa. 631, 637, 326 A.2d 379 (1974); see
also United States v. Robinson, supra, 430 F.2d 1143
(rejecting government’s argument that defendant’s
absence from apartment indicates relinquishment of
privacy rights when absence was due to incarceration);
Browning v. State, supra, 176 Ga. App. 422 (concluding
defendant maintained reasonable expectation of pri-
vacy in apartment despite being in jail and failing to
pay rent). In the present case, the defendant was living
at the apartment at the time he was arrested. His
absence from the apartment was solely a result of his
incarceration. Further, the defendant’s rent, which was
only five days late at the time of the search, came due
only after he became incarcerated. On the basis of the
foregoing, we cannot conclude that, under the facts of
the present case, the defendant did not have a reason-
able expectation of privacy in the apartment at the time
of the search.14
Because we conclude that the defendant had a rea-
sonable expectation of privacy in the apartment at the
time of the search, we conclude that the trial court
improperly denied the defendant’s motion to suppress.
On appeal, the state does not claim that, in the event
this court determines that the trial court improperly
denied the defendant’s motion to suppress, any error
was harmless. Thus, we have no occasion to address
whether the error here was harmless. See, e.g., State
v. Kirby, 280 Conn. 361, 387, 908 A.2d 506 (2006)
(acknowledging that state did not argue that violation
of defendant’s confrontation rights was harmless error
and reversing judgment of trial court).
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
1
The fourth amendment’s protections against unreasonable searches and
seizures are made applicable to the states through the due process clause
of the fourteenth amendment to the United States constitution. See Mapp
v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
2
The defendant had been incarcerated following a judgment of conviction
in 1997 on the charges of attempted murder and carrying a pistol without
a permit.
3
The state also presented testimonial evidence placing the defendant in
the victim’s apartment on the night of the murder. Additionally, forensic
testing indicated that the victim’s blood was on certain articles of defendant’s
clothing found inside of his gym bag, and that the defendant’s blood was
in the victim’s living room and kitchen.
4
After the officers confirmed the existence of the hole in the wall, they
secured the apartment and obtained a warrant to search the inside of the bag.
5
The defendant also filed a motion to suppress evidence obtained as a
result of the first search that occurred on June 16, 2015, which was denied
by the trial court. The court reasoned that, because the defendant was on
parole at the time of that search, his parole officer, who was present during
the search, had authority to conduct the search. The defendant does not
challenge the trial court’s decision regarding the first search on appeal.
Significantly, the state does not make the same argument on appeal regard-
ing the second search. The state explained that it did not attempt to justify
the second search on the basis of the defendant’s status as a parolee because
the state could not definitively determine what the defendant’s parole status
was at the time of the second search. Because of that uncertainty, the state
represented to this court at oral argument that it was not attempting to
justify the second search on the basis that the defendant had a reduced
expectation of privacy as a parolee. Because the state has made no such
claim, and in fact expressly disclaimed any reliance on the notion that this
search could be justified on the basis of the defendant’s status as a parolee,
we have no occasion to address that issue as an alternative basis upon
which the second search could be justified.
6
The state asserts in its brief that the defendant never expressly indicated
that the apartment was his home. The following exchange belies that
assertion:
‘‘[The Prosecutor]: Was [the apartment], was that your home?
‘‘[The Defendant]: Yes.’’
7
The following colloquy took place during the state’s cross-examination
of the defendant:
‘‘[The Prosecutor]: In July of 2015, your lease had run, correct? Your
rental agreement was over, correct?
‘‘[The Defendant]: I don’t know. I don’t know . . . that.’’
After an objection by defense counsel on the ground that the question
was a legal one, which was overruled by the court, the following
exchange occurred:
‘‘[The Prosecutor]: Had it run?
‘‘[The Defendant]: I don’t know about that.’’
8
We note that, in its memorandum of decision, the trial court does not
expressly discredit any portion of the defendant’s testimony. It does, how-
ever, state that, ‘‘[a]lthough the defendant testified that he would have gone
back to [the apartment] if he were released [from jail] in July, 2015, [t]he
subjective test does not rest on the absolute subjective perception of the
individual defendant. . . . Expressing a view, many months later, that he
would have gone back if he could, does not rise to the level of exhibiting
an actual subjective expectation of privacy in a location.’’ (Citations omitted;
internal quotation marks omitted.) Because the trial court did not expressly
discredit the defendant’s testimony, we consider it in our analysis. See State
v. Edmonds, 323 Conn. 34, 39, 145 A.3d 861 (2016) (under a more probing
review of constitutional issue, this court takes into account testimony that
was not expressly discredited by trial court); see also State v. DeMarco,
supra, 311 Conn. 520.
9
This court recently had occasion to address the first prong of the Katz test
and clarified that, when determining whether a defendant has a subjective
expectation of privacy in property that is not his residence, it is appropriate
to examine the record for conduct demonstrating an intent to preserve
something as private and free from knowing exposure to the view of others.
See State v. Houghtaling, supra, 326 Conn. 348. In that case, this court
concluded that the owner of property who did not reside there, but instead
rented it to a tenant, did not have a subjective expectation of privacy in the
property because he failed to adduce evidence sufficient to establish his
intent to keep the property private. Id. Because the evidence in the present
case established that the apartment was the defendant’s residence, we find
Houghtaling to be distinguishable from the present case.
10
General Statutes § 47a-16a provides in relevant part: ‘‘[T]he tenant shall
be required to notify the landlord of any anticipated extended absence from
the premises . . . .’’
11
General Statutes §§ 47a-23 through 47a-23b require, inter alia, that land-
lords first provide each lessee or occupant of the premises with advance
written notice to quit, which then provides proper basis for a summary
process action upon service.
12
General Statutes § 47a-15a provides in relevant part: ‘‘If rent is unpaid
when due and the tenant fails to pay rent within nine days thereafter . . .
the landlord may terminate the rental agreement in accordance with the
[summary process provisions].’’ (Emphasis added.)
13
We note that the landlord could not have initiated eviction proceedings
on the basis of nonpayment of rent until the statutory grace period had
lapsed. See General Statutes § 47a-23 (a) (‘‘[w]hen the owner . . . desires to
obtain possession or occupancy of . . . any apartment . . . and (1) when
a rental agreement or lease of such property . . . terminates [due to] . . .
(D) nonpayment of rent within the grace period . . . such owner . . . shall
give notice to each lessee or occupant to quit possession or occupancy of
such . . . apartment’’); see also Kligerman v. Robinson, 140 Conn. 219,
222, 99 A.2d 186 (1953) (‘‘While the tenant’s nonpayment of rent did not
automatically terminate the lease, his failure to make a tender for the months
of September and October entitled the landlord to end the tenancy by some
unequivocal act. . . . That act . . . was the service of the notice to quit.’’
[Citation omitted.]). Thus, the defendant’s right of possession could not
have ended until a notice to quit was served.
14
Although the argument in its brief is not entirely clear, the state raises
the claim that the police had consent to search the apartment. With respect
to this issue, in its memorandum of decision, the trial court stated that, ‘‘[i]n
this case, not only did the defendant lack any actual subjective expectation
of privacy in the apartment, but also the police entered the apartment after
the expiration of the month-to-month tenancy, with permission from the
landlord, who signed a formal consent to search and who opened the door
for them.’’ We do not conclude—and more importantly, the state has not
argued—that this determination by the trial court amounted to a finding
that the warrantless search was justified because the police had obtained
the consent of the landlord. Indeed, the state does not argue that any
exception to the warrant requirement applies here. Rather, the state appears
to argue that, because the defendant had no expectation of privacy, the
landlord was the proper authority to consent to a search of the now vacant
apartment. Similarly, we read the trial court’s decision on consent the
same way.
To be sure, because the trial court’s determination that the landlord had
authority to consent to the search was premised on its conclusion that,
because the defendant did not have an expectation of privacy in the apart-
ment, there was no violation of fourth amendment rights that the defendant
would have had standing to assert. In light of our conclusions to the contrary,
the landlord’s authority to consent to the search was restricted by the general
rule of law prohibiting such consent. Chapman v. United States, 365 U.S.
610, 616–17, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961) (landlord does not retain
right to enter rented premises for purpose of conducting search during term
of tenancy, even when tenant may be temporarily absent, or have authority
to grant consent to police to enter and to search). Therefore, the landlord’s
consent in the present case was not a valid justification for the warrantless
search of the defendant’s home.