State v. DeMarco

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STATE v. DEMARCO—DISSENT
PALMER, J., with whom ROGERS, C. J., and ZAREL-
LA, J., join, dissenting. Under the emergency exception
to the warrant requirement of the fourth amendment,
the police may enter a dwelling without a warrant if
they reasonably believe that an occupant is seriously
injured or otherwise in immediate danger.1 The present
case implicates the commonsense requirement that, to
meet this objective standard, before entering a dwelling
to save or rescue an occupant, the police must take all
reasonable measures, consistent with the exigencies of
the situation, to ascertain whether a true emergency
exists. Accordingly, if, in light of those exigencies, it is
feasible for the police to attempt to contact the person
whose safety is the subject of concern in order to deter-
mine whether that person actually is in the dwelling
and, if so, in need of immediate aid, the police must
make such an effort, and their failure to do so will
render the search unlawful as incompatible with the
reasonableness requirement of the fourth amendment
to the United States constitution.2 As the Appellate
Court correctly concluded, that is exactly what hap-
pened in the present case: the undisputed evidence
that the state itself adduced at the suppression hearing
conclusively established that the police, in particular,
Officer Tilford Cobb, had ready access to the cell phone
number of the defendant, Michael Angelo DeMarco,
which, as Cobb well knew, was contained in the defen-
dant’s file at the police department. See State v.
DeMarco, 124 Conn. App. 438, 447–48 and n.5, 5 A.3d
527 (2010). Furthermore, that uncontested evidence
demonstrated beyond a doubt that Cobb and his col-
leagues had more than ample opportunity to retrieve
and call that number during the nearly one hour period
that transpired from the time Cobb, followed by other
officers, arrived at the defendant’s home until the time
they ultimately entered it. See id., 449. Finally, it also
is undisputed that moments after the police concluded
their search of the defendant’s residence, they con-
tacted the defendant on his cell phone, and he returned
home immediately. Even though the state offered no
reason or justification for the failure of the police to call
the defendant in an effort to ascertain his whereabouts
before searching his home for him, the trial court denied
the defendant’s motion to suppress, concluding that the
state’s evidence supported the inference, first, that the
defendant’s cell phone number was ‘‘not available’’ to
the police—and, in particular, to Sergeant Thomas Bar-
cello, the officer at the scene who, in consultation with
Cobb and Patrol Officer Will Mercado, made the deci-
sion to enter the defendant’s home—and, second, that,
in any event, it was not necessary for the police to
attempt to contact the defendant due to ‘‘the immediacy
of the situation.’’
Because these findings are belied by the unchallenged
testimony of the state’s own witnesses, the Appellate
Court, after conducting a thorough analysis of the trial
court record in accord with well established principles
of appellate review, properly concluded that the find-
ings were clearly erroneous and, therefore, not sustain-
able on appeal. See State v. DeMarco, supra, 124 Conn.
App. 448–50. Consequently, contrary to the determina-
tion of the majority—which refuses to apply the collec-
tive knowledge doctrine3 and, instead, ignores the
undisputed fact that Cobb easily could have contacted
the defendant on his cell phone, thereby obviating any
possible need to enter the defendant’s home without a
warrant—the state’s claim under the emergency excep-
tion must be rejected because the police failed to take
the steps necessary to establish the existence of a true
emergency.4 I therefore dissent.
I
FACTS
The majority recites the limited facts found by the
trial court but omits most of the highly relevant, undis-
puted testimony, adduced by the state itself from the
responding officers, that this court must consider in
determining whether the trial court’s findings are sup-
ported by the evidence. That uncontroverted testimony
may be summarized as follows. On October 21, 2007,
Cobb and his partner, Officer Jean Louis, were on patrol
in the city of Stamford (city) when they decided to
conduct an impromptu inspection of the defendant’s
home. Ten days earlier, in response to complaints about
a horrible odor emanating from the defendant’s home,
Cobb had left a notice on the windshield of one of the
defendant’s vehicles asking him to contact the city’s
Animal Care and Control Shelter (animal control). Cobb
could not recall, however, whether he had indicated on
the form, by checking one of several boxes—licensing,
complaints, vaccinations, and the like—what his visit
had been about. Cobb also testified that the defendant’s
neighbors always were complaining about the horrible
smell coming from the defendant’s house. According
to Cobb, the defendant complied with animal control
on some matters but not on others, and ‘‘usually’’
responded to notices that were left at his house
requesting that he call animal control. Because the
defendant had not responded to the last notice, Cobb
decided to conduct an unannounced follow-up visit on
October 21, 2007. Unaware that Cobb would be visiting,
the defendant had left his house earlier that morning
to go to a local beach.
As the Appellate Court explained, ‘‘the record reveals
that considerable time passed between Cobb’s initial
arrival at the scene and the warrantless entry by the
fire department. Cobb testified that he had been at the
defendant’s home for several minutes when he decided
that something might be wrong inside the home and
called the police dispatch number. Notably, Cobb did
not call the emergency number. The dispatcher told
Cobb that he would contact the sergeant who was on
duty, and, within one-half hour, Barcello arrived at the
defendant’s residence. After Barcello spoke with Cobb,
he went to the front door, walked around the exterior
of the premises and attempted to look in the windows.
‘‘At some point during Barcello’s initial examination
of the premises, Officer Mercado arrived, after being
dispatched to assist Barcello. Mercado testified that he
checked the front and back of the house and attempted
to look in the windows. Mercado also testified that he
spoke with Barcello and that they decided to call the
[Stamford Fire Department (fire department)]. Bar-
cello, whose testimony the [trial] court specifically
credited, testified that between fifteen and twenty
minutes [had] elapsed [from the time he arrived at the
defendant’s residence until he summoned the fire
department]. When [the fire department arrived, the]
firefighters put on their breathing apparatus and
entered the dwelling.’’ State v. DeMarco, supra, 124
Conn. App. 449.
With respect to whether the defendant’s cell phone
number was available to Barcello during that time,
‘‘Cobb testified that animal control possessed the defen-
dant’s cell phone number . . . . He also testified that
he did not bring the number with him on the day of
the warrantless entry but that the number was at the
animal control office and that there were other animal
control employees in the office on the date in question.’’
(Footnote omitted.) Id., 447–48. When Cobb was asked
why he did not call the defendant if he had been con-
cerned about his welfare, he responded that he did
not call the defendant because he did not have the
defendant’s cell phone number with him and that his
primary concern was for the animals inside the defen-
dant’s home.5 Cobb further testified that, after calling
police dispatch, while waiting approximately thirty
minutes for Barcello to arrive, he called Laurie Holly-
wood, his supervisor at animal control, and asked her
to come to the scene to assist him in the seizure of
the defendant’s dogs, which she did. Cobb did not ask
Hollywood to call the defendant, however, nor did he
ask her to bring the defendant’s cell phone number with
her when she came.
When asked whether Barcello was aware prior to the
search of the defendant’s home that animal control had
the defendant’s contact information, Cobb responded
that he believed Barcello was aware of this fact. Bar-
cello’s testimony, however, was somewhat vague and
often conflicting as to when he actually obtained the
defendant’s cell phone number. Although he testified
that he may have obtained the number prior to entering
the defendant’s home, he also stated that he never asked
anyone for the defendant’s cell phone number prior to
entering the home, and that he did not know whether
anyone actually had tried to call the defendant. He con-
ceded, however, that, as soon as the search concluded,
one of the officers at the scene called the defendant
on his cell phone and asked him to return home. Mer-
cado, the officer who placed that call, testified that
Barcello handed him the number after the search and
told him to call the defendant. The defendant, who
was approximately ten minutes away when he received
Mercado’s call, returned home immediately and was
placed under arrest.
With respect to whether the immediacy of the situa-
tion prevented Barcello or any of the other officers
from calling the defendant prior to entry, none of the
officers testified that it would have been impracticable
or difficult to do so. According to Mercado, the issue
simply never was discussed. Indeed, although Barcello
was the supervising officer, he testified that he did not
know whether anyone had tried to call the defendant.
Nevertheless, according to Barcello, he and the other
officers at the scene conducted an investigation into
the defendant’s whereabouts prior to searching the
defendant’s home. With the exception of asking one
of the defendant’s neighbors whether he had seen the
defendant ‘‘recently,’’ however, Barcello could not iden-
tify any investigative efforts that he or the other officers
had undertaken to ascertain the whereabouts of the
defendant.6 For example, it does not appear that he
asked the defendant’s neighbors how many cars the
defendant owned and whether any of them were miss-
ing, whether they had seen the defendant in the ten
days since Cobb had left the last notice, whether the
defendant’s house smelled any different than it usually
smelled, or whether the accumulation of mail in the
defendant’s mailbox was unusual. In fact, while Cobb,
Barcello and Mercado all cited the overflowing mailbox
as one of the reasons why they thought the defendant
might be in peril, there is nothing in the record to indi-
cate that any of them examined the mail to determine
how long it had been there.7
Finally, the undisputed evidence established that the
conditions that the officers encountered at the defen-
dant’s home—barking dogs, horrible odor, multiple
vehicles and unkempt premises—were not at all
unusual for the defendant’s residence, and the officers
knew it. As the Appellate Court explained, ‘‘the uncon-
troverted evidence established that the police were
aware on the day of their warrantless entry that the
defendant’s home was consistently in a state of disre-
pair and always had multiple cars parked on the prem-
ises, both in the driveway and on the front lawn.’’ State
v. DeMarco, supra, 124 Conn. App. 456–57 n.11. Further-
more, both Cobb and Hollywood testified that they were
aware that the defendant owned several vehicles, and,
according to Mercado and Barcello, there were only
two vehicles parked in front of the house when they
arrived. As for the odor and the barking dogs, Cobb
testified that the defendant’s neighbors ‘‘were always
complaining’’ about ‘‘a horrible smell coming from
the house.’’
II
APPELLATE COURT DECISION
The Appellate Court concluded that the trial court’s
finding that the defendant’s cell phone number was not
available to Barcello was clearly erroneous in light of
Cobb’s uncontested testimony that animal control,
which is a division of the Stamford Police Department,
had the defendant’s cell phone number. See State v.
DeMarco, supra, 124 Conn. App. 447 and n.5. The Appel-
late Court reasoned that, although Barcello did not
physically possess the defendant’s number when he
arrived at the defendant’s residence, the only reason-
able inference was ‘‘that Cobb could have readily
obtained [it] by calling the animal control office.’’8 Id.,
448. In reaching its determination, the Appellate Court
relied on the collective knowledge doctrine, pursuant
to which a court considers the knowledge of all of
the investigating officers, and not merely the personal
knowledge of any single officer, in assessing the reason-
ableness of a warrantless search or seizure, if it is rea-
sonable to do so. See id. In the view of the Appellate
Court, therefore, because Cobb would have been
expected either to obtain the defendant’s cell phone
number and to call the defendant himself, or to provide
Barcello with that number, the police did not act reason-
ably in entering the defendant’s residence without first
trying to contact him. See id., 448–50.
The Appellate Court further concluded that the trial
court’s finding that the immediacy of the situation pre-
vented Barcello from obtaining the number ‘‘was also
clearly erroneous and [was] contradicted by the uncon-
tested police testimony relating to the length of time
that was spent at the [defendant’s] residence before
any authorities entered the dwelling.’’ Id., 448. Specifi-
cally, the Appellate Court stated: ‘‘[T]he record clearly
demonstrates that the authorities were at the defen-
dant’s home for nearly one hour prior to entering the
dwelling. . . . [The events that took place during that
time belie] any claim of emergency or imminent danger
and the attendant implication that the police did not
have adequate time to attempt to contact the defendant
. . . before their warrantless entry of his home.’’ Id.,
453–54. The Appellate Court also observed that there
were additional, uncontested facts in the record that
bolstered the conclusion that an objectively reasonable
officer would not have believed that the defendant’s
life was in immediate danger. Specifically, the Appellate
Court concluded that ‘‘[t]he [trial] court’s memorandum
of decision properly sets forth many of the facts that
were available to the police [when] they were deciding
to make a warrantless entry into the defendant’s home.
. . . [T]hey include the terrible odor, the overflowing
mailbox and so forth. The [trial] court, however, only
[set] forth the facts that tend[ed] to support the conclu-
sion that an emergency situation [had] existed. There
was, however, additional uncontroverted and unchal-
lenged evidence presented at the suppression hearing
that the court wholly disregarded in its findings.’’ Id.,
455.
The Appellate Court then summarized that evidence,
which included that ‘‘Cobb and [Hollywood, Cobb’s]
supervisor . . . both testified without challenge that,
over a period of years, the defendant’s neighbors had
often complained of the ‘horrible smell coming from
the house,’ as well as dogs barking and roaming.’’ Id.,
455–56. The Appellate Court further observed that,
although the trial court had relied on the number of
vehicles in the defendant’s front yard in concluding that
it was reasonable for the officers to believe that the
defendant was home, ‘‘the uncontroverted evidence
[adduced at the suppression hearing] established that
the police were aware on the day of their warrantless
entry that the defendant’s home was consistently in a
state of disrepair and always had multiple cars parked
on the premises, both in the driveway and on the front
lawn.’’ Id., 456–57 n.11. Specifically, the Appellate Court
observed that Hollywood had testified, ‘‘without chal-
lenge, that she had been to the defendant’s home three
or four times, that she knew that he lived alone, that
he owned three motor vehicles and a boat and that the
property was generally in a state of disrepair.’’ Id., 456.
III
MAJORITY OPINION
The majority commences its analysis by setting forth
the proper standard of review ‘‘for deciding whether
[a] trial court properly denied a defendant’s motion to
suppress on the ground that the search violated the
fourth amendment to the United States constitution.’’
As the majority states, when a defendant seeking to
suppress evidence does not dispute the credibility or
accuracy of the testimony of the state’s witnesses, such
that there is only one version of the relevant events
on which the parties agree, the reviewing court must
consider that uncontroverted evidence in evaluating a
claim that the trial court’s findings are clearly errone-
ous.9 Because, as the majority concedes, the present
case implicates this standard of review, this court, in
reviewing the defendant’s claim, must consider all of
the evidence adduced by the state in determining
whether the record supports the trial court’s findings
that the defendant’s cell phone number was not avail-
able to the police and that the immediacy of the situa-
tion relieved them of any obligation that they otherwise
might have had to contact the defendant.
The majority then addresses the merits of the state’s
claim that the Appellate Court incorrectly concluded
that these two findings by the trial court were clearly
erroneous. With respect to the finding that the defen-
dant’s cell phone number was not available to the
police, the majority merely block quotes three pages
of Barcello’s vague and equivocal testimony, which was
elicited on cross-examination, about what he recalled
he may possibly have done on the day in question. Then,
without any analysis or discussion of that testimony,
and without any acknowledgment of the undisputed
facts that undeniably support the contrary conclusion
of the Appellate Court, the majority summarily asserts
that, ‘‘[o]n the basis of the foregoing testimony, making
every reasonable presumption in favor of the trial
court’s ruling as we are required to do, we conclude
that there was sufficient evidence in the record to sup-
port the trial court’s finding that the defendant’s cell
phone number was unavailable to Barcello at the
scene.’’ At no point does the majority even attempt to
explain why Cobb, who concededly knew how to con-
tact the defendant, was not under a duty to do so, or
why, at the very least, Cobb was not obligated to inform
Barcello that he could contact the defendant by calling
his cell phone.
The majority determines that the evidence also justi-
fied the trial court’s finding that the ‘‘immediacy of
the situation’’ prevented Barcello from obtaining the
defendant’s cell phone number. In support of this con-
clusion, the majority refers to the evidence that the trial
court relied on in concluding that the officers reason-
ably believed that an emergency existed, namely, the
overflowing mail, the putrid smell, the dog feces on the
floor, and the fact that, according to Barcello, he and
his fellow officers conducted some sort of ‘‘preliminary
investigation’’—Barcello did not elaborate on the nature
or extent of that investigation—to ascertain the defen-
dant’s whereabouts prior to entering his home. The
majority, however, makes no mention of the fact that
the officers were on the scene for nearly one hour
before they entered the defendant’s home, or that they
were aware that the deplorable conditions were not
unusual for the defendant’s residence. Nevertheless,
the majority states, without further explanation, that
‘‘[it] cannot conclude that the delays caused by the
officers in investigating and then seeking backup and
assistance from the [fire department] . . . negate the
trial court’s finding that the immediacy of the situation
prevented Barcello from obtaining the defendant’s cell
phone number.’’
The majority further asserts that the Appellate Court
improperly applied the collective knowledge doctrine,
pursuant to which the knowledge of one investigating
officer is imputed to the other investigating officers
when it is reasonable to do so,10 in concluding that the
trial court’s finding that Barcello did not have access
to the defendant’s cell phone number was clearly erro-
neous. In reaching its determination, the majority
asserts that it would be inappropriate to apply the col-
lective knowledge doctrine in cases, like the present
one, involving the emergency exception to the warrant
requirement, because ‘‘[i]mposing [on] law enforcement
officers who are responding to an emergency situation
the obligation to contact the police station and [to]
obtain information that may be contained in a police
file . . . is not consistent with the purpose of the emer-
gency exception.’’ Text accompanying footnote 7 of the
majority opinion; see also footnote 7 of the majority
opinion (‘‘[t]he legitimate reason not to apply the collec-
tive knowledge doctrine to a search like the one in the
present case is that it takes away the ability of the police
to act quickly in an emergency situation’’). Finally, the
majority concludes that the evidence, viewed in the
light most favorable to sustaining the trial court’s find-
ings, was sufficient to support that court’s determina-
tion that the police harbored an objectively reasonable
belief that the defendant was inside his home and in
need of emergency aid.
The majority’s analysis is fundamentally flawed in a
number of crucial respects. First, the majority refuses
to apply the collective knowledge doctrine—specifi-
cally, it refuses to consider the fact that Cobb knew
full well how to reach the defendant—without any legiti-
mate reason for doing so. The majority’s second, and
most critical, impropriety, stems, in part, from its
unwarranted failure to treat Cobb as an active partici-
pant in the events that culminated in the search. Nota-
bly, the majority cherry-picks evidence from the record
and ignores certain other undisputed and highly rele-
vant evidence, in particular, the fact that Cobb had easy
access to the defendant’s cell phone number and ample
time to call the defendant’s cell phone. As a result of
these improprieties, the majority’s evaluation of the
evidence is hopelessly skewed. Finally, to buttress its
ultimate determination that the police lawfully entered
the defendant’s home under the emergency doctrine,
the majority relies on cases that have no bearing on
the proper resolution of this case and disregards
adverse case law that is squarely on point. I address
each of these defects in turn.
A
I turn first to the majority’s refusal to recognize the
applicability of the collective knowledge doctrine
because its refusal to do so renders invalid its conclu-
sion that the defendant’s cell phone number was not
available to the police. Because Cobb was a sworn
police officer who arrived at the scene first and
remained there until the police entered the defendant’s
home approximately one hour later, the evidence estab-
lishing that he readily could have retrieved the defen-
dant’s cell phone number and called him must be
considered for purposes of determining whether the
conduct of the police was reasonable under the circum-
stances. Common sense dictates this conclusion.
This court routinely applies the doctrine to analogous
searches and seizures; e.g. State v. Butler, 296 Conn.
62, 72–73, 993 A.2d 970 (2010) (applying doctrine to
reasonable suspicion determination); State v. Batts, 281
Conn. 682, 698, 916 A.2d 788 (applying doctrine to prob-
able cause determination and review of trial court’s
denial of hearing under Franks v. Delaware, 438 U.S.
154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 [1978]), cert. denied,
552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007);
and other jurisdictions have applied it to emergency
searches. See, e.g., United States v. Huffman, 461 F.3d
777, 784–85 (6th Cir. 2006) (applying collective knowl-
edge doctrine in assessing reasonableness of officers’
belief that emergency existed inside home), cert.
denied, 549 U.S. 1299, 127 S. Ct. 1863, 167 L. Ed. 2d 353
(2007); United States v. Russell, 436 F.3d 1086, 1094–95
(9th Cir. 2006) (Thomas, J., concurring in part and dis-
senting in part) (‘‘[w]e analyze the ‘reasonable grounds
to believe that there is an emergency at hand,’ on an
objective basis, taking into consideration the collective
knowledge of the officers at the time’’); Mitchell v. State,
294 Ark. 264, 270, 742 S.W.2d 895 (1988) (‘‘[r]egardless
of what [the officer] personally knew, he is charged
with the collective knowledge of the police department
at the time [of the emergency search]’’); Oliver v. United
States, 656 A.2d 1159, 1166 and n.14 (D.C. 1995)
(applying collective knowledge doctrine in assessing
reasonableness of emergency search); State v. Lem-
ieux, 726 N.W.2d 783, 789 (Minn. 2007) (‘‘[w]hen
assessing the reasonableness of an emergency-aid
search, the officer who conducts the search is imputed
with knowledge of all facts known by other officers
involved in the investigation, as long as the officers
have some degree of communication between them’’).
There simply is no legitimate reason not to apply the
doctrine to warrantless searches, like the one in the
present case, based on a purported emergency, because
it is reasonable to expect investigating officers who are
working together to share important information about
their investigation, provided, of course, that it is feasible
to do so under the circumstances. There is nothing in
the record of the present case to suggest that it would
not have been feasible either for Cobb to tell Barcello
that he could obtain the defendant’s cell phone number,
or for Barcello to inquire of Cobb and his fellow officers
whether they knew how to contact the defendant.
Although Barcello might be excused for failing to ask
Cobb whether Cobb knew how to reach the defendant—
because Barcello reasonably would have expected
Cobb, or any of the other officers on the scene, to alert
him to the fact that the defendant’s cell phone number
was readily available—Cobb himself was required to
take the exceedingly simple investigative step of calling
the defendant. Because Cobb was required to do so but
did not, his failure to act necessarily is attributable to
the police. The majority’s contrary conclusion is sim-
ply indefensible.
The majority contends that the collective knowledge
doctrine applies only to uphold emergency searches
but not to invalidate them. In support of this assertion,
the majority states: ‘‘It makes sense that we would want
to support the community caretaking function of [the]
police by allowing officers to communicate information
that may alert one officer responding to a situation that
there may be other factors that constitute an emergency
that may not be apparent to the officer who responds.
On the other hand, it would frustrate the purpose of
the emergency doctrine to require officers who are first
responders to a scene that reasonably appears to
[involve] an emergency to contact the police depart-
ment to see if there are facts known to other officers
or in the department’s files that negate what they see
in person at the scene. Doing so may cause officers to
lose valuable time.’’ Footnote 7 of the majority opinion.
In a similar vein, the majority states that ‘‘[i]mposing
[on] law enforcement officers who are responding to
an emergency situation the obligation to contact the
police station and [to] obtain information that may be
contained in a police file . . . is not consistent with
the purpose of the emergency exception.’’ Text accom-
panying footnote 7 of the majority opinion. The obvious
defect in the majority’s argument is that it begs the
question: the argument assumes that an emergency
exists. Of course, if the police confront a situation that
causes them to reasonably believe that it is necessary
to enter a dwelling or other property immediately to
save life or limb, they have every right—in fact, they
have an obligation—to do so, without conducting any
additional investigation. In the present case, however,
the police did not enter the defendant’s residence imme-
diately because, as they knew, they needed to ascertain
additional facts to determine whether a true emergency
existed. In such circumstances, if the police have ready
access to the cell phone number of the person who is
the object of their concern, attempting to contact that
person would be among the very first things, if not the
very first thing, that a reasonable police officer would
do. That is especially true when, as in the present case,
the police previously have contacted that person via
cell phone in the past.
Although the collective knowledge doctrine typically
has been applied for the benefit of the state,11 there is,
of course, no reason why it should not apply to the
state’s detriment when, as in the present case, an officer
involved in an investigation possesses highly relevant
information that bears directly on the necessity for a
warrantless search but fails to share that information
with his fellow officers. As one court has explained,
when one officer has information concerning the propri-
ety of a warrantless search and ‘‘could have conveyed
it to the searching officer in time . . . [that officer] has
a duty to convey it . . . just as he would if he were
seeking a warrant. Nor does that duty evaporate . . .
if the search has already begun, though whether it has
begun will often affect the feasibility of communicating
the information in time to stop the search.’’ (Citation
omitted; emphasis omitted.) United States v. West, 321
F.3d 649, 651 (7th Cir.), cert. denied, 540 U.S. 946, 124
S. Ct. 385, 157 L. Ed. 2d 275 (2003); see also United
States v. Santa, 180 F.3d 20, 28 (2d Cir.) (when facts
known to some officers exonerated defendant, ‘‘the
issue is whether the failure to communicate [the] facts
to the arresting officer rendered the mistaken arrest
unreasonable’’ [internal quotation marks omitted]),
cert. denied, 528 U.S. 943, 120 S. Ct. 356, 145 L. Ed. 2d
278 (1999); United States v. Valez, 796 F.2d 24, 28 (2d
Cir. 1986) (same), cert. denied, 479 U.S. 1067, 107 S.
Ct. 957, 93 L. Ed. 2d 1005 (1987). The majority’s contrary
conclusion is predicated on the false premise that the
police need not communicate with each other even
when doing so is the only reasonable course of conduct.
I know of no other legal rule or principle of general
applicability that is so one-sided and so result driven.
Not surprisingly, the majority’s determination that
the collective knowledge doctrine may be applied only
to uphold a warrantless emergency search and never
to invalidate one will have truly bizarre and untenable
consequences. For example, if one of several investiga-
tive officers actually knew or strongly suspected that
the subject of the investigation was not in the dwelling
to be searched, the entry into that dwelling nevertheless
could be upheld under the emergency doctrine if that
officer did not reveal that information to the officer
responsible for making the decision to search the dwell-
ing for the subject. In other words, under the majority’s
view, an emergency search of a residence would be
deemed lawful even when one of the officers involved
in the search was aware or reasonably believed, prior to
the search, that the premises actually were unoccupied,
but the officer simply opted not to share that knowledge
or belief with the other officers. This cannot possibly
be the law because such a patently absurd result cannot
be countenanced. It also cannot be the law that Cobb’s
failure to alert his colleagues of the ready availability
of the defendant’s cell phone number somehow relieved
the police of their duty to attempt to contact the defen-
dant by calling his cell phone.
The majority also suggests that it is inappropriate to
apply the collective knowledge doctrine in the present
case because it would set a bad precedent for future
cases. In support of this argument, the majority accuses
the dissent of advocating a rule pursuant to which the
police will be required to cull through department files
and to poll all police personnel to determine whether
those sources might shed some light on the issue of
whether an emergency exists. See footnote 7 of the
majority opinion (asserting that it would be inconsistent
with purpose of emergency doctrine to require police
‘‘to contact the police department to see if there are
facts known to other officers or in the department’s
files that negate what they see in person at the scene’’
and that ‘‘[d]oing so may cause officers to lose valuable
time’’). In making this argument, the majority sets up
the proverbial straw man. As the majority well knows,
I do not contend that police officers responding to an
emergency must contact the police department to see
if there are facts known to other officers, or information
contained in the department’s files, that might contra-
dict what they themselves observe at the scene. Of
course, the collective knowledge doctrine imposes no
such general or blanket obligation on the police.
Whether an officer would be required to contact the
police department—or to take any other action to rule
out the possibility that there is no emergency—always
will turn on whether an objectively reasonable officer
would have taken such action in light of the facts known
at the time of the perceived emergency. Obviously, no
such communication can be expected if the need for
swift action renders such communication impracticable
or imprudent. But when they do have time to communi-
cate the relevant information, there is no excuse for
not doing so if the officer reasonably should know that
sharing that information is necessary to the determina-
tion of whether a true emergency exists. That is pre-
cisely the scenario in the present case: a simple call to
the defendant on his cell phone was an integral and
necessary part of the investigation that the police under-
took and deemed necessary to determine whether there
was an emergency that would have justified the war-
rantless entry into the defendant’s home.
Finally, it seems evident that the principles underly-
ing the collective knowledge doctrine are inherent in
the reasonableness requirement that governs the
assessment of the constitutionality of any warrantless
search, including a search under the emergency doc-
trine. The legality of any such search turns on a determi-
nation of whether an objectively reasonable, well
trained officer would have believed that an emergency
existed. See State v. Fausel, 295 Conn. 785, 795, 993
A.2d 455 (2010) (‘‘[t]he test is not whether the officers
[at the scene] actually believed that an emergency
existed . . . but whether a reasonable officer would
have believed that such an emergency existed’’ [internal
quotation marks omitted]). Reasonableness in this con-
text is assessed in light of the facts that were known
to or reasonably discoverable by all of the officers
involved in the search at the time of the perceived
emergency. See, e.g., United States v. Tibolt, 72 F.3d
965, 969 (1st Cir. 1995) (‘‘[t]he ‘exigent circumstances’
inquiry is limited to the objective facts reasonably
known to, or discoverable by, the officers at the time
of the search’’ [emphasis added]), cert. denied, 518 U.S.
1020, 116 S. Ct. 2554, 135 L. Ed. 2d 1073 (1996). In the
present case, there is no question that Cobb knew that
the defendant’s cell phone number was readily avail-
able, and, as I have explained, any reasonable officer in
his position either would have contacted the defendant
himself or informed Barcello that the defendant easily
could be contacted.
B
Having determined that the majority improperly
treats Cobb as if he were not a participant in the events
that culminated in the warrantless search of the defen-
dant’s home, I next turn to the principal defect in the
majority opinion, namely, the refusal of the majority to
examine the trial court’s key findings in light of certain
uncontroverted and highly relevant facts. Specifically,
the majority improperly upholds the trial court’s find-
ings that the defendant’s cell phone number was
unavailable to the police and, in any event, that there
was insufficient time for the police to attempt to call the
defendant, even though the undisputed facts inarguably
contradict those findings.
With respect to the first such finding, it is undisputed,
as I previously discussed, that Cobb, an animal control
officer, readily could have retrieved the defendant’s cell
phone number because, as Cobb well knew, the number
was on file at animal control. Because Cobb had access
to the defendant’s cell phone number, it is legally irrele-
vant that Barcello personally may have been unaware
that the defendant could be reached by phone. Under
the circumstances, Cobb himself was required to call
the defendant. Thus, because Cobb knew how to reach
the defendant, the state cannot claim that the police
somehow were ignorant of that fact.
Contrary to the conclusion of the majority, the trial
court’s second critical finding, namely, that the immedi-
acy of the situation prevented the officers from calling
the defendant prior to the search, also was clearly erro-
neous. As the Appellate Court observed, and the state
does not dispute, officers were at the defendant’s home
for almost one hour prior to entering it. See State v.
DeMarco, supra, 124 Conn. App. 449. According to the
testimony of those officers, Cobb spent the first thirty
minutes making cell phone calls and waiting for Bar-
cello to arrive. Cobb also called and spoke to animal
control during this time frame, and he certainly could
have obtained the defendant’s cell phone number at
that time. Thereafter, Barcello spent at least twenty
minutes at the premises before the search commenced.
In light of these undisputed facts, it defies credulity
to conclude that there was inadequate time for Cobb,
Barcello or Mercado to place a call to the defendant.
To the contrary, there was plenty of time for them to
do so; as Cobb testified, they simply neglected to do it.
Although the majority contends that the trial court’s
factual findings are supported by the record, what it
really seems to be arguing is that the trial court’s judg-
ment can be sustained on the alternative ground that
the officers’ belief was objectively reasonable despite
their failure to call the defendant. Thus, the majority
states that it ‘‘decline[s] to apply the collective knowl-
edge doctrine [in order] to conclude that the officers
were required to obtain the defendant’s cell phone num-
ber from animal control and [to] attempt to contact
him prior to entering the home.’’ Text accompanying
footnote 9 of the majority opinion. The majority also
argues that, ‘‘[a]lthough the dissent may not approve
of the steps taken by the officers in the present case,
it is not our role as an appellate court to dictate the
appropriate steps and questions that police should use
while investigating.’’ Footnote 5 of the majority opinion.
Although I agree, of course, that it is not our role to
dictate the steps that the police must take in conducting
an investigation, it most certainly is our role to evaluate
the steps that were taken so that we may determine
whether they gave rise to an objectively reasonable
belief that an emergency existed. See, e.g., Nelms v.
Wellington Way Apartments, LLC, 513 Fed. Appx. 541,
546 (6th Cir. 2013) (‘‘each time [the] court has upheld
a warrantless entry based [on] the emergency aid excep-
tion, credible and reliable evidence established the
potential for injury to the officers or others and the need
for swift action’’ [internal quotation marks omitted]);
LaLonde v. Riverside, 204 F.3d 947, 957 (9th Cir. 2000)
(‘‘police [officers] can meet [their heavy] burden only
by demonstrating specific and articulable facts [that]
justify the finding of exigent circumstances’’ [internal
quotation marks omitted]).
Although the majority asserts that the officers in the
present case otherwise took appropriate steps and
asked appropriate questions in the course of their inves-
tigation, it does not identify a single investigative step
that would either excuse the officers’ failure to call the
defendant prior to entering his home or support an
objectively reasonable belief that the defendant was
inside his home in need of emergency assistance. Even
if it is assumed that the police were actively investigat-
ing the defendant’s whereabouts in the hour that tran-
spired from the time Cobb arrived at the scene until
the officers entered the defendant’s home, an obvious
first step in that investigation would have been to
attempt to contact the defendant on his cell phone.
Requiring evidence of such a call, or of some equivalent
measure, is not Monday morning quarterbacking; it is,
rather, an essential part of our responsibility as a
reviewing court to ensure that the state has met its
heavy burden of demonstrating that the warrantless
search of the defendant’s dwelling was constitutionally
justified. See, e.g., Hopkins v. Bonvicino, 573 F.3d 752,
763 (9th Cir. 2009) (emergency exception to warrant
requirement is ‘‘narrow’’ and its boundaries must be
‘‘rigorously guarded’’ by courts ‘‘to prevent any expan-
sion that would unduly interfere with the sanctity of
the home’’ [internal quotation marks omitted]), cert.
denied, 559 U.S. 1048, 130 S. Ct. 2342, 176 L. Ed. 2d 561
(2010). Notably, as I discuss more fully hereinafter; see
part III C of this opinion; in contrast to other emergency
doctrine cases, in the present case, there were no rap-
idly developing or emerging events occurring within
the relevant time frame that made it impracticable for
the police to place such a call to the defendant. To the
contrary, for most of that time, the officers were waiting
around for other officers and rescue personnel to arrive.
Finally, as the Appellate Court aptly noted, the
unjustified failure of the police to attempt to contact
the defendant before entering his home is compounded
by the fact that virtually all of the conditions that the
officers encountered there on the day in question—
conditions that, according to the trial court, supported
a reasonable belief that the defendant’s life was in
immediate danger inside the house, including barking
dogs, multiple vehicles, a horrible odor, and unkempt
premises—were not the least bit unusual for the defen-
dant’s property, and the officers were well aware of
this fact when they made the decision to enter the
defendant’s home without a warrant. See State v.
DeMarco, supra, 124 Conn. App. 455–56. It is axiomatic
that when an officer knows or has reason to know that
a particular condition is normal for a home, even if that
condition would be extremely unusual for any other
home, it never will be objectively reasonable for the
officer to believe that the condition itself is indicative
of an emergency inside the home.
In sum, the undisputed facts belie the state’s claim,
and the majority’s conclusion, that it was not reasonably
feasible, and therefore unnecessary, for the police to
attempt to contact the defendant on his cell phone
prior to entering his home. Because the defendant’s cell
phone number was readily available to the police and
they had ample time to retrieve that number and call
him, they were required to take that most modest and
obvious investigative step. Moreover, there is nothing
in the record to suggest that it would have been futile
for the police to attempt to contact the defendant; on
the contrary, they reached him on his cell phone imme-
diately after concluding the warrantless search.12 Con-
sequently, their failure to call him rendered the war-
rantless search of the defendant’s home unreasonable.
C
Finally, the sparse precedent on which the majority
relies in support of its conclusion is inapposite to the
issue presented. In particular, the majority identifies
three cases that, it claims, buttress the conclusion that,
as a matter of law, the officers in the present case
were not obligated to secure the defendant’s cell phone
number and to attempt to contact him prior to searching
his home. None of these cases, however, bears any
factual similarity to the present case, which likely
explains why the majority does not discuss the facts
of any of them. Indeed, one such case, State v. Myers,
601 P.2d 239 (Alaska 1979), does not even involve a
search conducted pursuant to the emergency doctrine,13
and another, United States v. Wayne, 318 F.2d 205, 207,
211 (D.C. Cir. 1963), cert. denied, 375 U.S. 860, 84 S.
Ct. 125, 11 L. Ed. 2d 86 (1963), involved a paradigmatic
emergency: the police forcibly entered and searched a
locked apartment without a warrant after receiving a
report that a dying or unconscious woman was being
held inside. With respect to the third case, Hunsberger
v. Wood, 570 F.3d 546 (4th Cir. 2009), cert. denied, 559
U.S. 938, 130 S. Ct. 1523, 176 L. Ed. 2d 113 (2010), the
majority asserts that the ‘‘the Fourth Circuit Court of
Appeals [in that case] rejected a similar claim,’’ namely,
that an officer should have obtained a homeowner’s
telephone number ‘‘and attempted to call him before
entering [his home].’’14 Although one of the issues in
Hunsberger was whether an emergency search of a
residence was objectively reasonable in light of the
failure of the police to call the homeowner prior to the
search, that is the only similarity between that case and
this case.
In Hunsberger, the police were called to the plaintiffs’
residence by a neighbor who had observed strangers
entering the residence at a time when she believed the
plaintiffs were on vacation. See Hunsberger v. Wood,
supra, 570 F.3d 549–50. When the police initially arrived,
there were lights on inside the home and two cars
parked in front of the home. Id., 549. Seeing nothing
suspicious, the officers left. Id. Later in the evening,
the police were summoned again to the plaintiffs’ home
by the same neighbor, who reported possible vandals
or burglars inside the home. Id., 550. This time, when
the police arrived, there were three cars parked in front
of the residence, all of which were partially blocking
the road. Id. The police also observed a young man
enter the house through the garage. Id. ‘‘The officers
decided to ask the occupants of the . . . home to move
their cars and [to] avoid disturbing the neighbors. They
each pulled their cars into the . . . home’s driveway,
at which point [the officers] noticed the lights inside
the house turn off. [The officers] exited their vehicles,
approached the house, and rang the . . . doorbell
twenty-five or thirty times. No one came to the door.’’
Id. ‘‘Walking back to their cars, the . . . officers
noticed that the previously closed side door to the
garage . . . . was now open.’’ Id.
At this point, the officers’ investigation began in ear-
nest. As the Fourth Circuit explained: ‘‘It struck [the
officers] as suspicious that the occupants of the home
had turned off the lights when the officers approached,
had refused to answer the door, and had apparently
fled the home. Given [the next-door neighbor’s] claim
that the [plaintiffs] might be out of town, [the officers]
became concerned about the possibility of vandalism.
[They] also took into consideration the fact that two
weeks earlier a vacant house nearby had burned down
as the apparent result of unauthorized use.’’ Id. The
officers therefore ‘‘decided to contact the [police] dis-
patcher to identify the owners of the vehicles in front
of the house using the . . . license plate information.
The dispatcher routed calls to each of the car owners
[from the] cell phone [of one of the officers, who then]
spoke to several parents including William Blessard
. . . . Each agreed to pick up his or her respective
vehicle.’’ Id. ‘‘Blessard was the first parent to arrive.
Blessard told [the officers] that [his stepdaughter, who
had been driving his vehicle] was supposed to be sleep-
ing over at a friend’s house, and that he did not know
why [his] car was at the home of the [plaintiffs], whom
he did not know. Blessard called [his stepdaughter’s
cell phone] several times, but she did not answer. He
became worried for the welfare of his stepdaughter.’’
Id., 550–51.
‘‘[The officers] suggested to Blessard that they see if
anyone would come to the [plaintiffs’ front] door if they
rang the doorbell. Walking [toward] the front door, [the
officers] passed the garage . . . [and] . . . heard
something being knocked over. [The officers] stepped
inside the garage and then heard the door that con-
nected the garage to the house’s basement shut and
lock. Blessard followed [the officers] into the garage,
walked down the steps to the basement door, knocked
repeatedly, and shouted [his stepdaughter’s] name. No
one came to the door, and Blessard’s apprehensions
rose.’’ Id., 551. One of the officers ‘‘then approached
the door inside the garage that opened into the first
floor of the home. He discovered it was unlocked. The
series of strange happenings had increased [his] fears
of vandalism as well as his concern for the welfare of
Blessard’s stepdaughter. At that point, [the officers]
decided to enter the home.’’ Id.
As the foregoing facts demonstrate, Hunsberger is
readily distinguishable from the present case. In Huns-
berger, the reasonableness of the warrantless search
could be established on the basis of the investigative
steps that the officers took, prior to entering the plain-
tiffs’ home, to determine whether an emergency existed
inside the home. These steps included, among other
things, contacting the owners of all of the vehicles in
front of the home to determine whether the vehicles
were there for a reason. See id., 550. Moreover, unlike
in the present case, the police in Hunsberger were
responding to a neighbor’s reports of suspicious activity
inside or around the home, activity that the officers
themselves had observed over the course of the eve-
ning, when the homeowners supposedly were out of
town. See id., 549–51. The officers also were responding
to a stepfather’s concerns about his missing stepdaugh-
ter, whom they had reason to believe was inside the
plaintiffs’ home but not responding to her cell phone.
See id., 550–51.
In stark contrast to Hunsberger, the police in the
present case had little or no cause to believe that the
defendant was missing or otherwise in harm’s way.
Equally important, they made no effort to rule out the
possibility that he was not seriously injured or in immi-
nent danger, even though they had ample time and
opportunity to do so. Although courts have upheld
emergency searches in cases involving similar delays
preceding a search, they have done so only when the
evidence established that the officers used the time to
actively investigate the surrounding circumstances to
ascertain whether their concerns were well founded.
See, e.g., United States v. Jones, 635 F.2d 1357, 1362
(8th Cir. 1980) (‘‘[w]hen the police have a reasonable
suspicion that someone is injured or that the public
safety is in jeopardy, but refrain from taking immediate
action in an effort to confirm or deny the suspicion,
and then act once they have received no indication that
the danger has been dissipated, the waiting period does
not defeat the applicable exception to the warrant
rule’’); United States v. Brandwein, United States Dis-
trict Court, Docket No. 2:11-CR-04015-01/02-BCW (W.D.
Mo. March 28, 2013) (‘‘Both defendants have also
asserted that there was not a true emergency . . .
because there was a delay of approximately . . .
[forty-five] minutes before the officers made the deci-
sion to unlock the door and search the home. The
[c]ourt does not believe this is a persuasive argument.
The record is clear that it took this amount of time
for both [officers] . . . to conduct their preliminary
investigation. The officers needed the time to assess
the seriousness of the situation and [to] arrive at their
determination that there was a very reasonable possibil-
ity that one or both of the residents of the home were
likely inside and in need of assistance.’’); Common-
wealth v. Purnell, Virginia Court of Appeals, Docket
No. 1761-02-1 (Va. App. December 23, 2002) (‘‘During
the approximate two hour period before [the officers]
entered the home, [they] were consistently and busily
attempting to investigate the matter further and [to]
determine a resolution to the problem. Neither the lapse
of time . . . nor the investigation dissipated the poten-
tial urgency of the situation.’’). In marked contrast to
these cases, the officers in the present case did virtually
nothing that they reasonably would have been expected
to do to determine whether the defendant was, in fact,
at home and in need of emergency assistance. Most
important, the officers failed to call the defendant—
because they did not think to call him—even though
they had access to his cell phone number and even
though calling him would have been the most logical,
investigative first step for the officers to have taken.
Moreover, as I previously noted, the fact that the
officers called and reached the defendant on his cell
phone immediately after the search makes it perfectly
clear that they did not believe—because they had no
reason to believe—that calling the defendant would
be futile. Their failure to call him renders the search
unreasonable because, in order to justify a search under
the emergency doctrine, an officer ‘‘must have valid
reasons for the belief that an emergency exists, a belief
that must be grounded in empirical facts rather than
subjective feelings . . . .’’ (Emphasis added; internal
quotation marks omitted.) State v. Fausel, supra, 295
Conn. 795. Implicit in this standard is the requirement
that the police take objectively reasonable steps under
the circumstances to eliminate the likelihood that, in
fact, there is no emergency. Cf. Commonwealth v. Pur-
nell, supra, Virginia Court of Appeals, Docket No. 1761-
02-1 (upholding emergency search of residence when,
prior to entry, officers unsuccessfully tried to contact
defendant by calling his home telephone and cell phone
numbers). Thus, the Appellate Court correctly observed
that the facts of the present case bear no likeness to
the facts of those cases in which this and other courts
have found warrantless searches to be justified under
the emergency doctrine. See State v. DeMarco, supra,
124 Conn. App. 452–53. ‘‘The police did not respond to
the defendant’s home as a result of an alarm, there was
no evidence that a violent criminal offender might be
hiding in the house, no evidence of a break-in and no
signs of a struggle or blood or any other indication of
a potentially dangerous situation.’’15 Id.; see also United
States v. Brandwein, supra, United States District
Court, Docket No. 2:11-CR-04015-01/02-BCW (‘‘It is
worth noting that all cases [in which] a court has found
that an exigent circumstance existed appear to share
two common factors. First, in all of the cases in which
courts found exigency, officers observed events obvi-
ously occurring within the residence or building . . .
[f]or example, cries for help, screams, loud noises, or
an observation of a struggle or fight within the structure
[that was visible] through a window. Second, courts
have found exigent circumstances exist when officers
observed events or evidence leading directly to a struc-
ture . . . [f]or example, a blood trail leading to a
closed door.’’).
The trial court in the present case nevertheless con-
cluded that an objectively reasonable officer would
have believed that an emergency existed on the basis
of the odor emanating from the house, the dilapidated
condition of the premises, the accumulation of mail, the
multiple vehicles on the front lawn, and the defendant’s
failure to respond to a note that Cobb had left ten
days earlier. As the Appellate Court explained, however,
none of these facts, either alone or in combination,
justified an immediate search of the defendant’s home
because, as strange or abhorrent as these conditions
otherwise may have seemed, they were not unusual for
the defendant’s home. See State v. DeMarco, supra, 124
Conn. App. 455–56. Cobb and Hollywood both testified
that animal control had been dealing with the odor
problem for years, the house had been in a state of
disrepair for years, the defendant had left multiple vehi-
cles on his front lawn for years, and the defendant’s
dogs had been neglected for years. Cf. United States
v. Martinez, 643 F.3d 1292, 1297 (10th Cir. 2011) (‘‘Some
households are tidy, others are not. A person’s failure
to keep an orderly home should not subject him or her
to a warrantless search by police.’’); see also State v.
Geisler, 222 Conn. 672, 687, 610 A.2d 1225 (1992) (‘‘The
poorest man may in his cottage bid defiance to all the
forces of the crown. It may be frail; its roof may shake;
the wind may blow through it; the storm may enter; the
rain may enter; but the King of England cannot enter—
all his force dares not cross the threshold of the ruined
tenement!’’ [Internal quotation marks omitted.]).
Rather, the present case bears a striking resemblance
to State v. Vargas, 213 N.J. 301, 63 A.3d 175 (2013), in
which the New Jersey Supreme Court recently con-
cluded on very similar facts that a search was not justi-
fied under the emergency exception to the warrant
requirement. In that case, ‘‘a landlord called the police
because he had not seen or been able to contact a
tenant for two weeks. During the two-week period,
the tenant’s garbage was not placed curbside, his mail
accumulated, his car remained unmoved, and his
monthly rent went unpaid. The landlord expressed con-
cern for the tenant’s well-being, and the police entered
the [tenant’s residence] without a warrant and con-
ducted a ‘welfare check.’ The tenant was not at home,
but the search uncovered evidence that led to the ten-
ant’s indictment.’’ Id., 305. ‘‘The trial court suppressed
the evidence because the warrantless entry and search
were not prompted by an objectively reasonable emer-
gency. The Appellate Division [of the New Jersey Supe-
rior Court] reversed, concluding that the community-
caretaking doctrine did not require an exigency to con-
duct a warrantless search; it only required that the
police act reasonably.’’ Id.
In reversing the judgment of the Appellate Division;
id., 329; the New Jersey Supreme Court noted that the
essential facts of the case were ‘‘basically undisputed.’’
Id., 327. The tenant, who was generally reliable, had
not responded to several cell phone voicemail messages
regarding nonpayment of rent, his car had not been
moved in several weeks, his mailbox was full and he
had not taken out his trash. See id., 305, 307, 327. On
the basis of this information, several officers entered
the tenant’s home to conduct a welfare check, without
first attempting to contact him by phone. See id., 308,
327. In concluding that the conditions that the officers
observed did not justify the warrantless search under
the emergency exception to the warrant requirement,16
the New Jersey Supreme Court stated: ‘‘Whatever legiti-
mate worries [the landlord] had about [his tenant’s]
welfare before dialing 9-1-1, he did not attempt to call
[the tenant’s] emergency contact number or place of
business . . . [nor did he provide the police with the
tenant’s contact information so they could call him].
Indeed, [the landlord] did not know any of the personal
details of the rhythms of [the tenant’s] life, including
whether and for how long he either vacationed, took
business trips, or traveled to meet with family.
‘‘In that regard, this is unlike the case of a close family
member whose housebound elderly relative is not
responding to telephone calls and knocks on the door.
Nor is this like the case of a diabetic or infirm neighbor
who is not seen carrying out routine daily activities and
who is not answering the door or the telephone. We
need not describe the myriad circumstances that might
give rise to an objectively reasonable basis to believe
that an emergency requires immediate action for the
safety or welfare of another. Suffice it to say, those
objectively reasonable circumstances were not found
to be present here.’’17 Id., 327.
The court in Vargas also emphasized that the person
who had requested the police to check on the tenant,
namely, the defendant’s landlord, ‘‘did not live in the
building where [the tenant] resided. The police officers
who responded to his call learned only that [the tenant]
had not been seen for two weeks and, during that time,
[the tenant] had not picked up his mail, moved his car,
or paid his rent and utility bills. [The landlord, however]
could not convey anything about [the tenant’s] routines,
habits, or vulnerabilities. With this limited information,
[the landlord] unlocked the apartment door, and the
officers conducted a ‘welfare check.’ Although the
police officers entered [the tenant’s] residence without
a warrant out of their expressed concern for the tenant’s
safety, the [s]tate concedes that neither the emergency-
aid nor the exigent-circumstances exception to the war-
rant requirement justified the entry or search.’’ Id.,
327–28.
As in Vargas, whatever concerns Cobb or any of
the other officers may have had about the defendant’s
welfare, they made no effort to contact him before
entering his home, even though they had his contact
information. According to Barcello, the search was con-
ducted entirely on the basis of the information provided
by Cobb. Like the landlord in Vargas, however, Cobb
knew nothing about the details of the defendant’s life.
For example, he did not know whether the defendant
was employed or unemployed, or whether he lived
alone. He also did not know whether the defendant
attended church, which could have explained where
the defendant was when Cobb arrived unannounced at
11 a.m. on the Sunday morning in question. Apart from
the fact that the defendant had more dogs than he could
care for and his house always smelled terrible as a
result, the only other thing that Cobb believed he knew
about the defendant was that he had not responded to
a notice that Cobb had left ten days earlier on the
windshield of one of the multiple vehicles that were
typically parked on the defendant’s front lawn.18 Like
Vargas, the present case lacks facts that would have led
an objectively reasonable officer to deem it necessary to
conduct an immediate search of the defendant’s resi-
dence, at least without first trying to call the defendant
and attempting to obtain relevant information about
him from people who actually knew him and were famil-
iar with his daily routine. Indeed, the majority has not
identified a single case, and my research has not uncov-
ered one, in which an emergency search was upheld
under similar facts.
Instead, the majority relies on a handful of readily
distinguishable cases in which a foul odor was found
to have justified an emergency search of a residence.
United States v. Presler, 610 F.2d 1206, 1209, 1211 (4th
Cir. 1979); People v. McGee, 140 Ill. App. 3d 677, 678–79,
682, 489 N.E.2d 439 (1986); People v. Molnar, 288 Ohio App.
Div. 2d 911, 911–12, 732 N.Y.S.2d 788 (2001), aff’d, 98
N.Y.2d 328, 774 N.E.2d 738, 746 N.Y.S.2d 673 (2002);
Rauscher v. State, 129 S.W.3d 714, 717, 722 (Tex. App.
2004); State v. York, 159 Wis. 2d 215, 217–18, 223, 464
N.W.2d 36 (App. 1990), review denied, 465 N.W.2d 656
(Wis. 1991). In most of these cases, however, persons
familiar with the residence or the landlord or owner
had reported the odor as something entirely out of the
ordinary and of grave concern because the resident had
not been seen in several days. See, e.g., United States
v. Presler, supra, 1209; State v. York, supra, 217–18. In
one of these cases, the investigating officer smelled
what he believed to be a dead body. People v. McGee,
supra, 679. In the present case, by contrast, no one had
reported the defendant missing, and the odor emanating
from his home was not at all out of the ordinary. In
fact, on the day in question, Cobb was following up on
a prior foul odor complaint, one of many that his office
had received over the years. Thus, the result that the
majority reaches finds no support in the case law involv-
ing the emergency exception to the warrant require-
ment. On the contrary, that precedent dictates the
opposite result.
IV
CONCLUSION
It is a ‘‘basic principle of [f]ourth [a]mendment law
that searches and seizures inside a home without a
warrant are presumptively unreasonable . . . .’’ (Inter-
nal quotation marks omitted.) Groh v. Ramirez, 540
U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004).
Moreover, ‘‘[t]he [f]ourth [a]mendment’s requirements
regarding search warrants are not formalities. . . . By
requiring police officers first to obtain a warrant before
they search a person’s home, unless some exception
applies that permits a warrantless search, the [f]ourth
[a]mendment has interposed a magistrate between the
citizen and the police, not to shield criminals nor to
make the home a safe haven for illegal activities, but
rather to ensure that an objective mind might weigh
the need to invade that privacy in order to enforce
the law.’’ (Citation omitted; internal quotation marks
omitted.) United States v. Voustianiouk, 685 F.3d 206,
210–11 (2d Cir. 2012), quoting McDonald v. United
States, 335 U.S. 451, 455, 69 S. Ct. 191, 93 L. Ed. 153
(1948). Indeed, ‘‘physical entry of the home is the chief
evil against which the wording of the [f]ourth [a]mend-
ment is directed.’’ (Internal quotation marks omitted.)
Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371,
63 L. Ed. 2d 639 (1980). ‘‘Searches conducted pursuant
to emergency circumstances are one of the recognized
exceptions to the warrant requirement under both the
federal and state constitutions.’’ (Internal quotation
marks omitted.) State v. Fausel, supra, 295 Conn. 794.
‘‘The emergency exception to the warrant requirement
allows police to enter a home without a warrant when
they have an objectively reasonable basis for believing
that an occupant is seriously injured or imminently
threatened with such injury. . . . Nevertheless, the
emergency doctrine does not give the state an unre-
stricted invitation to enter the home. [G]iven the ratio-
nale for this very limited exception, 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 necessary to alleviate the threat. . . .
The police, in order to avail themselves of this excep-
tion, must have valid reasons for the belief that an
emergency exists, a belief that must be grounded in
empirical facts rather than subjective feelings . . . . It
is an objective and not a subjective test. The test is not
whether the officers actually believed that an emer-
gency existed . . . but whether a reasonable officer
would have believed that such an emergency existed.
. . . The state bears the burden of demonstrating that
a warrantless entry falls within the emergency excep-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 794–95.
In the present case, the state has failed to meet its
burden of demonstrating that the warrantless search
of the defendant’s home was objectively reasonable in
light of the facts that were known to or readily dis-
coverable by the officers who conducted the search.
In particular, the state has made no effort to justify the
officers’ failure to attempt to call the defendant even
though they knew that the smell, the vehicles on the
front lawn and the otherwise unkempt condition of the
premises were hardly unusual. It therefore requires no
second guessing of the trial court or the officers on the
ground to conclude that the warrantless search in the
present case was objectively unreasonable in view of
the officers’ failure to make any effort to reach the
defendant on his cell phone, a call that would have
obviated any possible concern about the perceived need
for the warrantless intrusion into the defendant’s home.
On the contrary, even the most deferential review of
the trial court’s fact-finding leads inexorably to this
conclusion. I therefore dissent.
1
Of course, ‘‘the emergency doctrine does not give the state an
unrestricted invitation to enter the home. [G]iven the rationale for this very
limited exception, 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 necessary 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 . . . . It is an objective and not a subjective
test. 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.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Geisler, 222 Conn. 672, 691–92, 610 A.2d
1225 (1992).
2
In a given case, the state might be able to establish that it would have
been futile, and therefore unnecessary, for the police to have tried to contact
the person who is feared to be in danger inside the dwelling, even if they
had time to do so. That, however, is not the case here, and the state makes
no such claim. Indeed, it is undisputed that the police did, in fact, reach
the defendant via cell phone immediately after completing the search of his
home, at which time the defendant promptly returned home.
3
Under the collective knowledge doctrine applicable to police investiga-
tions, the knowledge of any one investigative officer is imputed to the other
officers involved in the investigation. Although we sometimes have described
the doctrine in somewhat broader terms; see, e.g., State v. Butler, 296 Conn.
62, 72, 993 A.2d 970 (2010) (‘‘in testing the amount of evidence that supports
probable cause, it is not the personal knowledge of the arresting officer
. . . but the collective knowledge of the law enforcement organization at
the time of the arrest that must be considered’’ [internal quotation marks
omitted]); for present purposes, its applicability may be limited to circum-
stances such as those in the present case, in which there is active communica-
tion between the officers involved in the investigation.
4
For the reasons set forth in this opinion, I also agree with the Appellate
Court that the factual scenario with which the police were confronted in
the present case simply does not rise to the level of an emergency that
would justify a warrantless entry into the defendant’s home. See State v.
DeMarco, supra, 124 Conn. App. 450–51. Indeed, on the present record, I
do not believe that the state has established that the police would have
been justified in entering the defendant’s home without a warrant when
they did, even if they had tried and failed to contact the defendant. The
failure of the police to take that threshold investigative step, however, clearly
is fatal to the state’s claim under the emergency doctrine. I therefore focus
on that issue.
5
Cobb testified that, as he approached the house on foot, he smelled a
horrible odor that he thought was from dog feces. When he knocked on the
door, the door opened, and he could see feces all over the floor. He also
smelled the strong stench of ammonia. When the door opened, one dog ran
toward him, so he closed the door quickly. He also could hear other dogs
barking inside the house.
6
One neighbor responded that he had not seen him recently.
7
The record reveals that the mailbox in question was approximately five
by fifteen inches and was attached to the house. According to Cobb, although
he did not actually examine any of the mail, some of it ‘‘looked like it had
been there several days. . . . [There] was like a grocery store flyer, some-
thing like that, and there were other items in the mailbox at that time.’’
8
The Appellate Court explained: ‘‘Cobb knew about the number, [animal
control] was in possession of the number, and, accordingly, [the court]
conclude[s] that the finding by the court that Barcello did not have the
defendant’s cell phone number available to him while he was at the defen-
dant’s residence and before he decided to order the warrantless entry was
clearly erroneous.’’ State v. DeMarco, supra, 124 Conn. App. 448.
9
More specifically, the majority states: ‘‘[I]f, upon examination of the
testimonial record, the reviewing court discovers but one version of the
relevant events [on] which both the state and the defendant agree, and such
agreement exists both at trial and on appeal, the reviewing court may rely
on that version of events in evaluating the propriety of the trial court’s
determinations and [in] determining whether the trial court’s factual findings
are supported by substantial evidence. In a case [in which] the trial court
has concluded that the police action at issue was justified and the undisputed
version of events reflected in the transcript was adduced by the state through
[the] testimony of the police officers who were involved, a reviewing court’s
reliance on that version of [the] events is particularly appropriate. If the
officers’ own testimony as to what occurred is internally consistent and
uncontested by the defendant but, in fact, undercuts the trial court’s ruling
in favor of the state, a reviewing court would be remiss in failing to consider
it.’’ Text accompanying footnote 4 of the majority opinion. The majority
acknowledges that these requirements are satisfied in the present case.
10
See footnote 3 of this opinion.
11
Ordinarily, the collective knowledge doctrine is applied to defeat a
challenge to the legality of an arrest or detention on the ground that the
individual police officer responsible for arresting or detaining the defendant
personally did not have probable cause or reasonable suspicion to do so.
Under the doctrine, an arrest or detention is not unlawful, even if the
arresting or detaining officer himself lacked probable cause or reasonable
suspicion, as long as other participating officers were aware of facts suffi-
cient to satisfy the requisite standard.
12
The majority criticizes me for observing that the police reached the
defendant on his cell phone immediately after completing their search of
his home. See footnote 11 of the majority opinion (‘‘We note that the dissent
bolsters its argument with reference to the amount of time it took to notify
the defendant that the police were looking for him, and, thereafter, how
long it took [for] him to appear at his house. We evaluate the situation, as
the trial court did, at the time the police entered the house, based [on] the
totality of the circumstances at that time in order to make a determination [of
whether] a police officer reasonably would have believed that an emergency
existed. A resort to circumstances that occurred subsequent to that time
would not be prudent and would distort the analysis.’’); see also State v.
DeMarco, supra, 124 Conn. App. 471 (Beach, J., dissenting) (‘‘[alt]hough the
defendant perhaps could have been called prior to the entry, he was not
called, and we ought not speculate about the result of a call not made’’). It
cannot reasonably be argued that the police can fail to take a required
investigative step—a step that is necessary to safeguard the defendant’s
constitutional rights—and then be relieved of responsibility for failing to
take that required action on the ground that we cannot know for certain
that the action would have been successful. In such circumstances, the
burden should be on the state to demonstrate why the required action likely
would not have achieved its intended result. In any event, in the present
case, the police called the defendant on his cell phone promptly after they
searched his home, and he answered that call. Because there is no reason
to believe that the defendant would not have answered his cell phone if the
police had called him a few minutes earlier, before they searched his home,
the record establishes beyond any reasonable doubt that a timely call to
the defendant would not have gone unheeded. Moreover, in view of the fact
that the police themselves bear responsibility for failing to call the defendant
when they should have called him, the majority cannot reasonably preclude
consideration of the only evidence on that issue and then maintain that
there is nothing in the record to indicate that the defendant would have
answered the call if it had been made.
13
In Myers, the police entered and briefly searched a commercial establish-
ment upon finding a door wide open in the middle of the night. State v.
Myers, supra, 601 P.2d 240. After observing that ‘‘the fourth amendment
neither compels us to ignore the profound differences distinguishing one’s
home from one’s business, nor compels us to presume that people desire
or expect the police to conduct themselves in identical fashion with respect
to each’’; id., 242–43; the Alaska Supreme Court concluded that a routine
business security check such as the one that occurred in that case was per
se reasonable under the United States and Alaska constitutions. See id.,
241–42, 244.
14
Hunsberger is a civil case in which the plaintiffs were seeking damages
for the allegedly unlawful search of their home. See Hunsberger v. Wood,
supra, 570 F.3d 549.
15
The majority takes issue with the Appellate Court’s observation that
the present case bears none of the features of a typical emergency exception
case; State v. DeMarco, supra, 124 Conn. App. 452; stating that ‘‘this court
has repeatedly recognized that [d]irect evidence of an emergency is not
required because the emergency exception to the warrant requirement arises
out of the caretaking function of the police.’’ (Internal quotation marks
omitted.) Footnote 10 of the majority opinion, quoting State v. Fausel, supra,
295 Conn. 800. The majority’s assertion misses the point. In explaining that
the present case bears no resemblance to the typical emergency exception
case, which normally involves cries for help, gunshots, fire, threats to human
life, or reports of a missing person, the Appellate Court was simply and
correctly pointing out that the state, in order to meet its burden in the
present case, was required to demonstrate that, during the hour leading up
to the warrantless entry, the police took appropriate steps to determine
whether a true emergency existed.
16
In Vargas, the New Jersey Supreme Court rejected the conclusion of
the Appellate Division that a warrantless search under the community-
caretaking doctrine did not require exigent or emergency circumstances;
see State v. Vargas, supra, 213 N.J. 328; and addressed the issue of whether
there were sufficiently exigent circumstances in that case to justify the
warrantless entry into the tenant’s residence. See id., 327, 329. In Vargas,
the state of New Jersey actually conceded that the facts did not support an
emergency search; id., 328; and the Supreme Court of New Jersey agreed
with that concession. See id., 329.
17
Notwithstanding marked similarities between Vargas and the present
case, the majority argues that my reliance on Vargas is misplaced because,
in that case, the state of New Jersey conceded that the facts did not support
the application of the emergency exception. See footnote 10 of the majority
opinion; see also State v. Vargas, supra, 213 N.J. 328. The majority asserts
that, ‘‘[o]n the basis of the state’s concession in Vargas, the New Jersey
Supreme Court’s analysis in that case is of little use in the present case [in
which] the precise issue is whether . . . the facts permit the invocation of
the exigent circumstances exception to the warrant requirement.’’ Footnote
10 of the majority opinion. The majority, however, fails to explain why
Vargas is of ‘‘little use . . . .’’ Id. Certainly, it is of little use to the majority
because, on virtually identical facts, the Supreme Court of New Jersey
reached a conclusion that is diametrically opposed to the conclusion that the
majority reaches in the present case. Contrary to the majority’s assertions,
however, the court in Vargas did not simply reject the state’s claim that
the community-caretaking doctrine did not require proof that the officers
had an objectively reasonable belief that an emergency existed. Indeed, in
marked contrast to the analysis of the majority in the present case, the
court in Vargas painstakingly applied the correct legal standard to the
operative facts, explaining in detail why those facts did not support an
objectively reasonable belief that an emergency existed. See State v. Vargas,
supra, 213 N.J. 328–29. The state’s concession in Vargas that the court was
correct in its analysis of the facts in no way detracts from that analysis.
18
The majority underscores Cobb’s testimony that the defendant was
usually pretty prompt about responding to such notices as supporting an
objectively reasonable belief that an emergency existed inside the defen-
dant’s home. Specifically, the majority asserts: ‘‘Under the facts of the present
case . . . although entry was not possible immediately, it is clear that ani-
mal control had a history with the defendant and that typically the defendant
responded to notices left by animal control. The fact that the defendant
called animal control, unbeknownst to Cobb, the day after the first notice
was left, demonstrates that Cobb’s view of the defendant’s conduct was
correct. Therefore, the fact that the notices, which were left approximately
ten days before, were still outside and seemingly ignored made it more
likely that an emergency existed inside the home.’’ Footnote 8 of the majority
opinion. Although the defendant’s seeming failure to respond to Cobb’s
notice may have been grounds to commence an investigation, it hardly
supported an objectively reasonable belief that it was necessary to conduct
an immediate search of the defendant’s home without a warrant. Indeed,
Cobb testified that he could not recall whether he even had indicated on
the notice form, by checking a designated box, what his visit had been about
or why the defendant needed to contact animal control. I note, moreover,
that, if Cobb and his fellow officers had taken even the most basic investiga-
tive steps to determine whether an emergency existed, they likely would
have learned, as the majority itself notes, that the defendant had in fact
been in touch with animal control shortly after Cobb’s prior visit. Of course,
this knowledge alone would have obviated any possible rationale for a
search under the emergency exception to the warrant requirement.