State v. Bernier

BERDON, J.,

dissenting. I disagree with the majority opinion because, in my view, General Statutes § 29-311¹ must be interpreted as authorizing warrantless searches and seizures only under exigent circumstances. I believe that such an interpretation of § 29-311 is mandated by article first, § 7, of the Connecticut constitution and by this court’s decisions in State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993), and State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), cases from which I find this case to be indistinguishable. In this case, as in Miller and Joyce, the circumstances that justified the initial search and seizure of the defendant’s home — the fire in his home — had long since ceased to exist when the search at issue was executed. Because I believe that the defendant had an objectively reasonable expectation of privacy in the floorboards of his home and the warrantless search of those floorboards by the state at the chromatography laboratory did not occur under exigent circumstances, I would affirm the judgment of the Appellate Court.

Article first, § 7, of the Connecticut constitution grants to the citizens of Connecticut protection from unreasonable warrantless searches of their persons and their private property. It is well established that “searches and seizures inside ahorne without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). “¡Ajbsent consent to entry or exigent circumstances, a judicial determination of probable cause must stand in between the police and the door of a person’s home, whether the object of an entry is to search and seize or to arrest.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92 n.17, 675 A.2d 866 (1996); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980). When a search occurs without a warrant, the state bears the burden of demonstrating that the circumstances surrounding the warrantless search fit within one of the limited exceptions to the warrant requirement so as to justify the failure to obtain a warrant. State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993). In determining whether the circumstances fit within an exception to the warrant requirement, the exceptions themselves are narrowly construed. State v. Badgett, 200 Conn. 412, 428-29, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The majority concludes that the defendant was not entitled to the protections afforded by article first, § 7, with respect to the floorboards removed from his home because, in its estimation, the defendant’s subjective expectation of privacy in the floorboards was unreasonable. I disagree. “Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.” (Internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 92. Upon review, this court must accept the trial court’s factual conclusions unless those factual findings are legally or logically inconsistent with the facts found or involve an erroneous interpretation of the law. Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993). In this case, the trial court determined that the defendant’s expectation of privacy in the floorboards removed from his home was a reasonable one, and the Appellate Court affirmed that decision.

The conclusion reached by the trial court and the Appellate Court, that the defendant’s expectation of privacy in the floorboards removed from his home was reasonable, is entirely consistent with our jurisprudence in this area. Previously, we have concluded that important factors to be considered in deciding whether an expectation of privacy was reasonable include: (1) the place from which the item searched was removed; (2) ownership of the item searched; and (3) the degree of deference that society affords to expectations of privacy with respect to the item searched in light of its ownership and the place from which it was removed. State v. Mooney, 218 Conn. 85, 94-96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). In this case, the floorboards were removed from the defendant’s home, and the defendant was the owner of the floorboards. Society customarily affords a very high degree of deference to expectations of privacy within the home. See State v. DeFusco, 224 Conn. 627, 634, 620 A.2d 746 (1993) (state constitution affords highest protection against state invasion into home); State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983) (violation of right to privacy in home is “chief evil” against which fourth amendment is directed). Although the majority concludes that floorboards are unlikely repositories for private information, the fact is that the chemical analysis of the floorboards was capable of revealing a significant amount of private information about the defendant and other occupants of his home, in that it could reveal the presence of substances such as pharmaceuticals, alcohol and bodily fluids. In addition, other factors that might have affected the reasonableness of the defendant’s expectation of privacy in the floorboards, such as evidence that the floorboards had been discarded or abandoned, were not present in this case. Indeed, in that regard, the expectation of privacy is even stronger in this case than it was in State v. Joyce, supra, 229 Conn. 21, wherein we found that a warrant was required by the state constitution with respect to the defendant’s clothing that had been removed from his person and left by the roadside. It is, therefore, unquestionable, in my view, that the defendant’s expectation of privacy in the floorboards of his home was entirely reasonable.

Once it has been determined that a legitimate privacy interest exists with respect to property that has been subjected to a warrantless search, it is incumbent upon the state to demonstrate that the warrantless search was justified because it fit within one of the exceptions to the warrant requirement. In this case, the state argued that the warrantless search of the defendant’s property was justified in light of § 29-311. That section authorizes fire and police personnel to enter private property and investigate the causes and origins of a fire without a warrant, on the basis of the exigent circumstances presented by the fire and in the interest of public safety. Pursuant to that section, the fire investigators in this case were properly authorized to investigate the fire scene without a warrant and, further, I will assume for the purposes of this case, were properly authorized to seize the defendant’s floorboards on the basis of the urgent need to preserve that evidence from damage, or from being tampered with, lost or stolen. In determining whether any further warrantless search or seizure was constitutional, however, it is critical to bear in mind that § 29-311 is based upon the exigent circumstances exception to the warrant requirement and, therefore, the contours of that exception are controlling.

The exigent circumstances exception obviates the need for a warrant only in those limited “situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978). “[W]hen there are reasonable alternatives to a warrantless search, the state has not satisfied its burden of proving exigent circumstances.” (Internal quotation marks omitted.) State v. Gant, supra, 231 Conn. 68. Furthermore, when a warrantless search is justified by exigent circumstances, it “must be strictly circumscribed by the exigencies which justify its initiation.”² (Internal quotation marks omitted.) Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998); State v. Miller, 29 Conn. App. 207, 229, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).

In Miller, on appeal to this court, we considered whether the automobile exception to the warrant requirement should be extended to allow a warrantless search of an automobile that had been removed from the highway and securely impounded at the police station. This court concluded that such an extension of the automobile exception would be violative of article first, § 7, of the state constitution. The basis for our decision was the fact that once the automobile was impounded in a secure area, the exigencies inherent in a roadside search would have evaporated, and there no longer would exist any justification for not seeking authorization for the search from a neutral and detached magistrate. This court further articulated the basis for its decision as follows: “We tolerate the warrantless on-the-scene automobile search only because obtaining a warrant would be impracticable in light of the inherent mobility of automobiles and the latent exigency that that mobility creates. ... If the impracticability of obtaining a warrant no longer exists, however, our state constitutional preference for warrants regains its dominant place in that balance, and a warrant is required.” (Citation omitted; emphasis in original.) State v. Miller, supra, 227 Conn. 384-85.

Similarly, in State v. Joyce, supra, 229 Conn. 27, we concluded that a warrant was required in order to perform the same gas chromatography analysis that was performed in this case on the defendant’s clothing that had been removed from his person by paramedics and left by the roadside near the scene of a fire at his parent’s home. The defendant in Joyce initially was not suspected of having been responsible for causing the fire, and his clothes were placed into police custody merely for safekeeping. Id., 13-14. When the defendant later became a suspect, the police sent his clothing to the state forensic laboratory for chemical testing without first obtaining a warrant to perform that search. Id., 14. We concluded that the search was violative of our state constitution because the circumstances did not fall within the exigency exception or any other exception to the warrant requirement. Id., 27.

Likewise, in this case, the subsequent search of the floorboards through chromatographic analysis required that a warrant first be obtained. By the time the subsequent search was performed, the floorboards had been removed and placed securely into police custody, and were no longer in any danger of being lost, stolen, tampered with or destroyed. There was, therefore, no longer any justification for the failure to obtain a warrant prior to searching them. As we previously have stated, when a warrantless search is justified by exigent circumstances, that search “must be strictly circumscribed by the exigencies which justify its initiation” (internal quotation marks omitted); Tierney v. Davidson, supra, 133 F.3d 197; State v. Miller, supra, 29 Conn. App. 229; and if reasonable alternatives to the warrantless search existed, the state will not have satisfied its burden of proving exigent circumstances. State v. Gant, supra, 231 Conn. 68. The fact that no exigency existed in this case and the evidence was secure in the custody of police negated any possibility that the warrantless search could be justified.

Moreover, § 29-311 offers no cure for the lack of exigent circumstances in this case. Although that statute authorizes fire and police personnel to investigate, without a warrant, the causes and origins of a fire and to act to prevent the destruction of evidence for a reasonable amount of time following the suppression of a fire, the statute cannot be interpreted in such a way as to render it violative of rights guaranteed by the state constitution. Consequently, the section must be interpreted as a codification of the exigent circumstances exception to the warrant requirement. Because that exception clearly is bounded by the exigencies upon which it is based, so too is § 29-311.

Chief Justice Callahan, in his concurring opinion, intimates that this case is indistinguishable from Joyce and I agree. I disagree, however, with the Chief Justice’s suggestion that, in effect, we overrule Joyce by adopting a “bright line” rule that whenever law enforcement personnel lawfully seize evidence from a fire scene, that evidence may be tested subsequently for the presence of an accelerant without first obtaining a search warrant. One factor that distinguishes a democracy from a police state is respect for the fundamental right to privacy. That respect requires that we place the warrant requirement between the police and the privacy of each citizen when circumstances do not fit within any established exception. “Our [state] constitutional preference for warrants reflects a goal of protecting citizens from unjustified police intrusions by interposing a neutral decisionmaker between the police and the object of the proposed search.” State v. Miller, supra, 227 Conn. 382.

In my view, Miller and Joyce require the same outcome in this case as was reached in those cases. Simply put, a warrant was required because “[there] was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.” Walter v. United States, 447 U.S. 649, 654, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980).

Accordingly, I dissent.

2 The same rule applies with respect to warrantless searches and seizures justified under the emergency exception — a specific type of exigent circumstance. When “the police act without a warrant under the emergency exception, once that emergency ceases to exist, the police must terminate their intrusive conduct.” State v. Joyce, supra, 229 Conn. 27; State v. Geisler, 222 Conn. 672, 695-96, 610 A.2d 1225 (1992).