State v. Rolon

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STATE OF CONNECTICUT v. RICHARD ROLON
(SC 20423)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.*
Syllabus
Convicted, on a conditional plea of nolo contendere, of the crime of posses-
sion of a controlled substance with intent to sell, the defendant appealed,
claiming that the trial court improperly denied his motion to suppress
certain evidence that was seized after the police detained him, without
a warrant, in the parking lot of the apartment building in which his
codefendant, E, lived. The police had obtained an arrest warrant for a
suspected drug trafficker, R, and a search warrant for R’s apartment,
which was in the same building as E’s apartment.. Prior to executing
the warrants, the police were surveilling the parking lot when they
observed an unknown male, later identified as the defendant, engage
in a brief conversation with R. The defendant and R then got into their
respective vehicles and departed. A short time later, R was arrested for
selling narcotics to an undercover officer, and the police prepared to
execute the search warrant for R’s apartment. At that time, however,
the defendant and E returned to the parking lot in the defendant’s
vehicle. Approximately four or five uniformed police officers, at least
one of whom had his gun drawn, immediately approached the defen-
dant’s parked vehicle. Upon reaching the driver’s door, one of the officers
opened the door and detected the odor of marijuana. The officer also
observed a marijuana cigarette and drug packaging inside the vehicle.
Both the defendant and E were removed from the vehicle and placed
into custody. The police subsequently obtained a search warrant for E’s
apartment, and that search yielded additional narcotics and other related
evidence. The defendant moved to suppress the evidence seized by the
police, claiming that the warrantless search and seizure of his person
and vehicle violated his constitutional rights. The trial court denied the
motion, concluding that the warrantless seizure fell within the exception
to the fourth amendment warrant requirement that authorizes law
enforcement officers executing a search warrant to detain the occupants
of the premises while a proper search is conducted. On appeal from
the judgment of conviction, the defendant claimed that the trial court
improperly denied his motion to suppress because he was not an occu-
pant or in the immediate vicinity of the premises to be searched within
the meaning of that exception. Held that the trial court improperly
denied the defendant’s motion to suppress, the state having failed to
satisfy its burden of establishing that the defendant was in the immediate
vicinity of R’s apartment when the defendant was detained by the police:
the record was devoid of any evidence concerning the spatial factors
used to ascertain whether the defendant was in the immediate vicinity
of the premises to be searched, including whether the defendant was
detained within the lawful limits of R’s apartment, whether he was
detained within the line of sight of R’s apartment, and whether his
location made it easy for him to enter or reenter R’s apartment; accord-
ingly, the warrantless search and seizure of the defendant and his vehicle
were not justified under the relevant exception to the warrant require-
ment.
Argued June 5—officially released November 13, 2020**
Procedural History
Substitute information charging the defendant with
the crimes of possession of a controlled substance with
intent to sell, possession of a controlled substance, and
operation of a drug factory, brought to the Superior
Court in the judicial district of Hartford, where the
court, Gold, J., denied the defendant’s motion to sup-
press certain evidence; thereafter, the defendant was
presented to the court, Baldini, J., on a conditional
plea of nolo contendere to the charge of possession of
a controlled substance with intent to sell; judgment of
guilty in accordance with the plea; subsequently, the
state entered a nolle prosequi as to the charges of pos-
session of a controlled substance and operation of a
drug factory, and the defendant appealed. Reversed;
further proceedings.
Ronald S. Johnson, with whom was Shawn Adams,
for the appellant (defendant).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
ECKER, J. The defendant, Richard Rolon, appeals
from the judgment of conviction rendered by the trial
court following his conditional plea of nolo contendere
to the charge of possession of a controlled substance
with intent to sell in violation of General Statutes § 21a-
277 (a). The defendant claims that the trial court
improperly denied his motion to suppress evidence
seized after his warrantless detention in the parking lot
of a multiunit apartment building, contending that he
was not an ‘‘occupant’’ within the ‘‘immediate vicinity’’
of the premises subject to a search warrant under the
exception to the fourth amendment’s warrant require-
ment established in Michigan v. Summers, 452 U.S.
692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), and
Bailey v. United States, 568 U.S. 186, 193, 133 S. Ct.
1031, 185 L. Ed. 2d 19 (2013) (Summers exception). We
agree and, therefore, reverse the judgment and remand
the case to the trial court with direction to grant the
defendant’s motion to suppress.
The controlling facts are those found by the trial
court following an evidentiary hearing on the defen-
dant’s motion to suppress. ‘‘Members of the Statewide
Narcotics Task Force conducted a six week long investi-
gation into the suspected narcotics trafficking of an
individual named Richard Rivera . . . . During the
course of that investigation, an undercover police offi-
cer made a number of controlled drug purchases from
Rivera at his home located at apartment C-1 of 12-14
South Street, Hartford.1 On the basis of that investiga-
tion, [the] police applied for and obtained a search
warrant for Rivera’s apartment, as well as arrest war-
rants for Rivera based on his prior sales of narcotics
to the undercover officer.
‘‘After securing these warrants, [the] police devel-
oped an operational plan for their coordinated execu-
tion. On the date the warrants would be served, the
plan contemplated that [the] police would conduct sur-
veillance of the driveway and parking area of 12-14
South Street, doing so by means of a city of Hartford
street camera that [the] police could remotely access
and direct toward the target location. This camera
allowed [the] police from an off-site location to view
via a live feed the events occurring in the targeted area.
The plan also anticipated that an additional controlled
purchase from Rivera would be arranged by the under-
cover officer, with that purchase to be conducted at a
location some distance away from Rivera’s South Street
apartment. [The] [p]olice would be prepared to arrest
Rivera when that sale was consummated and then to
immediately execute the search warrant at his apart-
ment. Between the officers assigned to surveillance,
those responsible for the arrest of Rivera, and the mem-
bers of the search warrant execution team, approxi-
mately twenty to thirty police officers were tasked with
carrying out the operational plan.
‘‘On January 31, 2017, the police put their plan into
effect. Consistent with that plan, officers established
their street camera surveillance of the driveway and
parking area of 12-14 South Street and monitored the
activities occurring there from approximately 10 a.m.
until noon.2 At approximately 11:13 a.m., [officers] on
the surveillance team saw a car enter the driveway of
the target address and back into a parking space against
a chain-link fence that separated 12-14 South Street
from a neighboring parcel. The car was recognized by
officers as one that Rivera or his criminal associates
had been seen operating during the course of the police
investigation.
‘‘As the car was backing into the space, [the] police
observed a man walk from the area of the rear entrance
of 12-14 South Street toward the area in which Rivera’s
car had just parked. The man’s identity was unknown
to [the] police at the time, as he had not previously come
to their attention during the course of their investigation
into Rivera’s activities. The man, who was subsequently
identified as the defendant . . . walked past the driv-
er’s side door of Rivera’s car and then out of view of
the camera. As [the defendant] passed Rivera’s car, [the]
police saw the driver’s door of the car open and a man
emerge from the driver’s seat. Upon exiting his vehicle,
this man, who [the] police recognized and later con-
firmed was Rivera, stood just outside his car between
the open door and the car itself. [The] [p]olice then
observed Rivera begin to engage in a conversation with
someone who was out of the camera’s view. In order
to determine the identity of the party with whom Rivera
was conversing, [the] police slightly adjusted the direc-
tion of the camera. By doing so, [the] police were able
to observe that the other party to this conversation was
[the defendant], who was standing by the driver’s door
of a second car that was parked in the space next to
Rivera’s.3 [Because] the surveillance camera did not
have audio capability, [the] police were unable to over-
hear the content of the conversation.
‘‘The conversation lasted approximately thirty sec-
onds and appeared to end when Rivera, at approxi-
mately 11:14 a.m., sat back down in his driver’s seat
and closed his car door. As that occurred, a woman
was seen walking from the rear of 12-14 South Street
toward the area of Rivera’s and [the defendant’s] cars.
This woman had not previously come to the attention
of [the] police during their investigation into Rivera but
was later identified as the [defendant’s codefendant],
Yashira [A.] Espino. As Espino approached the cars,
[the] police observed [the defendant] reenter the cam-
era’s view, pass by Espino, and return to the rear
entrance area of 12-14 South Street.
‘‘Approximately [one] minute later, at 11:16 a.m., [the]
police saw [the defendant] again leave the rear of 12-
14 South Street and walk back toward his car. Within
seconds, [the] police observed [the defendant’s] car, a
dark Camry with New Jersey license plates, exit its
parking space and proceed down the driveway toward
South Street, passing the front of Rivera’s parked car
while doing so. As soon as [the defendant’s] car passed
Rivera’s, [the] police saw Rivera pull his car out of its
parking space and follow [the defendant’s] car down
the driveway. The positioning of the street camera did
not allow [the] police to see the cars actually entering
onto South Street.
‘‘Approximately forty-five minutes later, and in accor-
dance with the police operational plan, Rivera was
arrested on Franklin Avenue after selling an additional
quantity of narcotics to the undercover officer. Upon
learning of Rivera’s arrest, Detective [Sean] Mikeal, who
was assigned to the search warrant execution team,
drove immediately to the arrest location and retrieved
Rivera’s keys to apartment C-1 of 12-14 South Street
. . . . Mikeal then returned to South Street and
rejoined the other members of the search warrant exe-
cution team who were at that time staged in several
vehicles in close proximity to the target address prepar-
ing to execute the search warrant at Rivera’s apartment.
‘‘As Mikeal and the other members of his team were
about to drive their vehicles into the driveway of 12-14
South Street to commence the execution of the search
warrant, [the defendant’s] Camry was observed enter-
ing the driveway just ahead of them and then backing
into the same space it had occupied earlier. The car’s
reappearance on the scene, particularly in the moments
just before the warrant’s execution, was entirely unex-
pected by [the] police. Even before any occupants of
[the defendant’s] car had exited it, the search warrant
execution team members drove their vehicles into the
driveway of 12-14 South Street. Approximately four or
five officers, all of whom were wearing shirts or vests
clearly identifying themselves as police officers, imme-
diately exited their vehicle and approached [the defen-
dant’s] parked car—at least one of the officers doing
so with [a] gun drawn. . . . Mikeal, who may or may
not have had his gun drawn, went directly to the driver’s
side of [the defendant’s] car. Trooper Dawn Pagan
simultaneously approached the passenger side of the
vehicle. These officers determined that the car was
occupied by a male driver later identified as [the defen-
dant], a female front seat passenger later identified as
Espino, and a small child in the backseat.
‘‘Upon reaching the driver’s door, Mikeal opened the
door and immediately detected the odor of marijuana
coming from inside the vehicle. From his vantage point
outside the vehicle, Mikeal also observed a marijuana
cigarette in the car’s center console and a number of
white baggies in the area of the driver’s side door han-
dle—baggies he recognized to be of a type used for the
packaging of heroin. As Pagan reached the passenger’s
door, she, too, detected the odor of marijuana coming
from the vehicle and observed a marijuana cigarette in
the front center console area. Both [the defendant] and
Espino were then removed from [the] vehicle and
placed into custody. [They] later informed [the] police
that Espino was the tenant in apartment C-2 of 12-14
South Street and that [the defendant] frequently resided
with her at that address.’’ (Footnote altered; footnotes
in original; footnotes omitted.)
On the basis of the evidence obtained during the
search and seizure of the defendant, Espino, and the
defendant’s motor vehicle, the police obtained a search
warrant for Espino’s apartment at C-2 of 12-14 South
Street. During the execution of that search warrant, the
police discovered more than 5000 bags of powdered
heroin, approximately five ounces of marijuana, narcot-
ics packaging materials, and more than $20,000 in cash.
The defendant was arrested and charged with (1)
possession of a controlled substance with intent to sell
in violation of § 21a-277 (a), (2) possession of a con-
trolled substance or more than one-half ounce of mari-
juana in violation of General Statutes § 21a-279 (a) (1),
and (3) operation of a drug factory in violation of § 21a-
277 (c). The defendant and Espino both moved to sup-
press the evidence seized by the police, claiming that
the warrantless seizure in the parking lot of 12-14 South
Street violated their rights under the fourth amendment
to the United States constitution and article first, §§ 7
and 9, of the Connecticut constitution because the
police lacked a reasonable, articulable suspicion to
believe that they were engaged in criminal activity.4 The
state opposed the motions. The state initially did not
seek to justify the warrantless seizure under the Sum-
mers exception, which was the ground on which the
trial court ultimately denied the motions to suppress.
Instead, the state argued that the seizure was permissi-
ble under Terry v. Ohio, 392 U.S 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), because the police officers had
a reasonable, articulable suspicion to believe that the
defendant and Espino ‘‘may be returning to the scene
in order to interfere with the execution of the search
warrant [on apartment] C-1’’ in light of the defendant’s
brief conversation with Rivera in the parking lot of 12-
14 South Street on the morning of January 31, 2017,
and his return to the parking lot at the same ‘‘point [in]
time officers were about to search [apartment] C-1’’
following Rivera’s arrest.
The trial court conducted a joint evidentiary hearing
on the motions to suppress, at which the state conceded
that the defendant and Espino ‘‘were seized . . . when
the police officers en masse approach[ed] [the defen-
dant’s] vehicle’’ because the ‘‘liberty [of their] move-
ments’’ had been restricted. Thus, the sole question for
the trial court was whether the warrantless seizure and
subsequent search of the defendant, Espino, and the
defendant’s motor vehicle fell within an applicable
exception to the fourth amendment’s warrant require-
ment. The state’s argument was limited to two excep-
tions: Terry v. Ohio, supra, 392 U.S 21–22,5 and the
plain view doctrine. Specifically, the state argued that
the initial investigatory detention of the defendant and
Espino fell within the Terry exception because the
police had a reasonable, articulable suspicion to believe
that they were engaged in criminal activity. The subse-
quent search of the defendant, Espino, and the defen-
dant’s motor vehicle, the state argued, was justified by
the plain view doctrine because the police observed
drugs in plain view during the course of the investiga-
tory detention.
During closing argument following the evidentiary
hearing, the trial court asked the state whether the
warrantless seizure fell within a third exception to the
warrant requirement, namely, the Summers exception,
‘‘because that’s not something [the state had] addressed.’’
In response, the prosecutor explained that he ‘‘just [did
not] think’’ that Bailey and Summers ‘‘appl[ied] to these
facts.’’ The trial court replied by observing that ‘‘Bailey
and Summers would advantage the state because [the
Summers exception] would allow a detention to take
place even in the absence of [a] reasonable and articula-
ble suspicion. So, if you’re not pursuing that, then the
only argument that would be for me to decide is whether
. . . [a] reasonable and articulable suspicion existed.’’
The prosecutor then stated that, ‘‘[c]ertainly, if the court
feels that . . . that exception could apply to these facts
then, you know, I’d be a fool not to ask the court to
entertain it.’’
The trial court subsequently issued a written memo-
randum of decision in which it denied the motions to
suppress. The trial court rejected the state’s claim that
the initial seizure was justified under the Terry doctrine,
reasoning that neither the defendant nor Espino ‘‘had
come to the attention of [the] police during any aspect
of the Rivera investigation,’’ and the ‘‘police observa-
tions of [their] activities’’ on January 31, 2017, alone,
although sufficient to ‘‘[raise] investigative concerns in
the minds of police officers,’’ were insufficient to give
the ‘‘police [a] reasonable and articulable suspicion spe-
cifically to believe that the [defendant and Espino] were
engaged in or had been engaged in criminal activity.’’
The trial court, however, did not stop there; it pro-
ceeded to decide that the warrantless seizure of the
defendant and Espino was justified pursuant to the
Summers exception—the legal theory belatedly raised
by the trial court following the evidentiary hearing. In
arriving at this conclusion, the trial court determined
that the parking lot where the seizure occurred ‘‘fell
within the ‘immediate vicinity’ of the premises that were
to be searched [pursuant to the warrant], as that term
was employed by the court in Bailey v. [United States],
supra, 568 U.S. 186.’’ The trial court further determined
that the defendant and Espino were ‘‘ ‘occupants’ of
the premises to be searched’’ because the police had
‘‘an articulable basis to connect [them] to the premises
to be searched, or to the [resident] of [the] premises.’’
In the trial court’s view, the intrusion on the defendant’s
liberty was reasonable when weighed against the state’s
interest in promoting officer safety because the defen-
dant’s detention ‘‘was exceedingly brief in duration and
no more intrusive than was necessary for [the] police
to take command of the situation, to safely approach
the [defendant’s] vehicle, and then to confirm or dispel
the validity of their suspicions.’’ During the course of
the seizure, ‘‘the officers detected the odor of marijuana
emanating from the car and drugs in the car within
plain view,’’ which at that point provided them with
‘‘reasonable suspicion’’ under the Terry doctrine—if
‘‘not probable cause—to believe that the [defendant
and Espino] were engaged in criminal activity . . . .’’
Accordingly, the trial court determined that no fourth
amendment violation occurred in connection with
either the warrantless seizure of the defendant and
Espino or the subsequent, warrantless search of their
persons and motor vehicle.
After the denial of his motion to suppress, the defen-
dant entered a conditional plea of nolo contendere to
the charge of possession of a controlled substance with
intent to sell in violation of § 21a-277 (a), which was
‘‘conditional on the right to take an appeal from the
court’s denial of the defendant’s motion to suppress
. . . .’’ General Statutes § 54-94a.6 The state entered a
nolle prosequi as to each of the two remaining charges.
The trial court sentenced the defendant to fifteen years
of imprisonment, execution suspended after eight
years, followed by three years of probation. This appeal
followed.7
On appeal, the defendant claims that the trial court
improperly denied his motion to suppress because nei-
ther the defendant nor Espino was an ‘‘occupant’’ in
the ‘‘immediate vicinity’’ of the premises to be searched
under the Summers exception to the fourth amend-
ment’s warrant requirement.8 Our standard of review
for a motion to suppress is well settled. ‘‘A finding of
fact will not be disturbed unless it is clearly erroneous
in view of the evidence and pleadings in the whole
record . . . . [W]hen a question of fact is essential to
the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, [how-
ever] and the credibility of witnesses is not the primary
issue, our customary deference to the trial court’s fac-
tual findings is tempered by a scrupulous examination
of the record to ascertain that the trial court’s factual
findings are supported by substantial evidence. . . .
[W]here the legal conclusions of the court are chal-
lenged, [our review is plenary, and] we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision . . . .’’ (Internal quotation
marks omitted.) State v. Kendrick, 314 Conn. 212, 222,
100 A.3d 821 (2014). We exercise plenary review here
because the defendant challenges the trial court’s legal
conclusion that its factual findings permit application
of the Summers exception. See id.The fourth amendment to the United States constitu-
tion, which applies to the states through the due process
clause of the fourteenth amendment, prohibits unrea-
sonable searches and seizures by government agents.9
‘‘Subject to a few well defined exceptions, a warrantless
search and seizure is per se unreasonable.’’ State v.
Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied,
528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999);
accord Katz v. United States, 389 U.S. 347, 357, 88 S.
Ct. 507, 19 L. Ed. 2d 576 (1967); see also State v. Clark,
255 Conn. 268, 291, 764 A.2d 1251 (2001). ‘‘The state
bears the burden of proving that an exception to the
warrant requirement applies when a warrantless search
[and seizure have] been conducted.’’ State v. Clark,
supra, 291; accord Mincey v. Arizona, 437 U.S. 385,
390–91, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978).
We begin our analysis with Michigan v. Summers,
supra, 452 U.S. 692, because the state relies solely on
the fourth amendment exception created by that case
to justify the initial warrantless seizure of the defen-
dant.10 In Summers, police officers encountered the
defendant, George Summers, descending the front steps
of his residence when they arrived at his house to exe-
cute a search warrant for narcotics. Id., 693. The officers
detained Summers and requested his assistance in gain-
ing entry to the residence. Id. ‘‘After finding narcotics
in the basement and ascertaining that [Summers] owned
the house, the police arrested him, searched his person,
and found in his coat pocket an envelope containing
8.5 grams of heroin.’’ Id. Summers ‘‘moved to suppress
the heroin as the product of an illegal search in violation
of the [f]ourth [a]mendment . . . .’’ (Footnote omit-
ted.) Id., 694.
The United States Supreme Court held that Summers’
limited detention for the duration of the execution of
the search warrant was justified by the operative ‘‘law
enforcement interest[s]’’ viewed in light of ‘‘the nature
of the ‘articulable facts’ supporting the detention
. . . .’’ Id., 702. The court explained that a limited deten-
tion attendant to the execution of a search warrant
served the legitimate interests of ‘‘preventing flight in
the event that incriminating evidence is found,’’ ‘‘min-
imizing the risk of harm’’ to both ‘‘the police and the
occupants’’ of the premises, and facilitating ‘‘the orderly
completion of the search’’ by ensuring that the occu-
pants of the premises are available to ‘‘open locked
doors or locked containers to avoid the use of force
that is not only damaging to property but may also delay
the completion of the task at hand.’’ Id., 702–703. As
for ‘‘the nature of the ‘articulable facts’ supporting the
detention’’; id., 702; the court determined that the exis-
tence of a search warrant obtained from a ‘‘neutral and
detached magistrate [who] had found probable cause
to believe that the law was being violated in [the occu-
pant’s own] house’’; id., 701; connects the occupant of
the premises to criminal activity, thereby giving police
officers ‘‘an easily identifiable and certain basis for
determining that suspicion of criminal activity justifies
a detention of that occupant.’’ Id., 704. Furthermore,
the detention, ‘‘although admittedly a significant
restraint on . . . liberty,’’ is ‘‘less intrusive than the
search itself,’’ partly because it is in the occupant’s ‘‘own
residence’’ and does not involve the ‘‘inconvenience
[or] the indignity’’ of a public arrest or ‘‘a compelled
visit to the police station.’’ Id., 701–702. Accordingly,
‘‘for [f]ourth [a]mendment purposes . . . a warrant to
search for contraband founded on probable cause
implicitly carries with it the limited authority to detain
the occupants of the premises while a proper search
is conducted.’’ (Footnote omitted.) Id., 705.
The United States Supreme Court imposed limits on
the Summers exception in Bailey v. United States,
supra, 568 U.S. 186, and explained that such limits were
necessary particularly inasmuch as ‘‘[t]he rule in Sum-
mers extends further than some earlier exceptions [to
the fourth amendment’s warrant requirement] because
it does not require law enforcement to have particular
suspicion that an individual is involved in criminal activ-
ity or poses a specific danger to the officers. . . . An
officer’s authority to detain incident to a search is cate-
gorical; it does not depend on the quantum of proof
justifying detention or the extent of the intrusion to
be imposed by the seizure.’’ (Citation omitted; internal
quotation marks omitted.) Id., 193; see also id., 200(‘‘[b]ecause this exception grants substantial authority
to police officers to detain outside of the traditional
rules of the [f]ourth [a]mendment, it must be circum-
scribed’’). Bailey addressed whether the Summers
exception applies to an occupant who is stopped and
detained approximately one mile ‘‘away from the prem-
ises to be searched when the only justification for the
detention [is] to ensure the safety and efficacy of the
search.’’ Id., 189–90. The court noted that, as a categori-
cal and far-reaching ‘‘exception to the [f]ourth [a]mend-
ment rule prohibiting detention absent probable cause,’’
the scope of the Summers exception ‘‘must not diverge
from its purpose and rationale.’’ Id., 194. To determine
the scope of the Summers exception, the court
addressed whether ‘‘the reasons for the rule’’ support
extending the Summers exception to a detention one
mile away from the premises to be searched. Id.The court in Bailey held that a detention incident to
the execution of a search warrant is not constitutionally
permissible under such circumstances because none of
the ‘‘three important law enforcement interests that,
taken together justify’’ the Summers exception—
namely, ‘‘officer safety, facilitating the completion of
the search, and preventing flight’’—weighed in favor
of ‘‘extending the power to detain persons stopped or
apprehended away from the premises where the search
is being conducted.’’ Id., 194–95. First, with respect to
officer safety, persons who are not in the immediate
vicinity of the premises to be searched ‘‘[pose] little
risk to the officers at the scene.’’ Id., 196. Although
there is a ‘‘risk that a departing occupant might notice
the police surveillance and alert others still inside the
residence,’’ this risk is ‘‘an insufficient safety rationale
to justify expanding the existing categorical authority
to detain so that it extends beyond the immediate vicin-
ity of the premises to be searched.’’ Id., 197. The court
explained that, if the Summers rule extended to persons
beyond the immediate vicinity of the premises to be
searched, ‘‘the [safety] rationale would justify detaining
anyone in the neighborhood who could alert occupants
that the police are outside, all without individualized
suspicion of criminal activity or connection to the resi-
dence to be searched. This possibility demonstrates
why it is necessary to confine the Summers rule to
those who are present when and where the search is
being conducted.’’ Id.Second, the court in Bailey stated that the law
enforcement interest in the orderly completion of the
search ‘‘must be confined to those persons who are on
site and so in a position, when detained, to at once
observe the progression of the search’’; otherwise, the
Summers exception ‘‘would have no limiting principle
. . . .’’ Id., 198. An individual who is not in the immedi-
ate vicinity of the premises at the time of the execution
of the search warrant can ‘‘[serve] no purpose in ensur-
ing the efficient completion of the search.’’ Id.Third, Bailey held that law enforcement’s interest in
preventing flight ‘‘does not independently justify deten-
tion of an occupant beyond the immediate vicinity of
the premises to be searched’’ because this interest is
limited to ‘‘the damage that potential flight can cause
to the integrity of the search.’’ Id., 199. ‘‘The need to
prevent flight, if unbounded, might be used to argue
for detention, while a search is underway, of any regular
occupant regardless of his or her location at the time
of the search. . . . The interest in preventing escape
from [the] police cannot extend this far without
undermining the usual rules for arrest based on proba-
ble cause or a brief stop for questioning under [the]
standards derived from Terry. Even if the detention
of a former occupant away from the premises could
facilitate a later arrest should incriminating evidence
be discovered, ‘the mere fact that law enforcement may
be made more efficient can never by itself justify disre-
gard of the [f]ourth [a]mendment.’ ’’ Id., quoting Mincey
v. Arizona, supra, 437 U.S. 393.
Bailey also expressed concern about the extent of
the constitutional deprivation that would occur if the
Summers exception to the warrant requirement were
to be extended beyond the immediate proximity of the
search location. Not only are law enforcement’s inter-
ests insufficient to justify ‘‘the detention of recent occu-
pants beyond the immediate vicinity of the premises to
be searched,’’ the court explained, but the detention
of an occupant ‘‘away from his home’’ introduces ‘‘an
additional level of intrusiveness.’’ Bailey v. United
States, supra, 568 U.S. 199–200. ‘‘A public detention,
even if merely incident to a search, will resemble a full-
fledged arrest’’ and will expose the occupant to ‘‘the
additional indignity of a compelled transfer back to the
premises, giving all the appearances of an arrest.’’ Id.,
200. Such detentions are, therefore, ‘‘more severe’’; id.,
201; than a detention that ‘‘occurs in the individual’s
own home . . . .’’ Id., 200.
In light of these considerations, the court in Bailey
concluded that ‘‘[a] spatial constraint defined by the
immediate vicinity of the premises to be searched is
therefore required for detentions incident to the execu-
tion of a search warrant.’’ Id., 201. A warrantless deten-
tion one mile away from the premises is ‘‘beyond any
reasonable understanding of the immediate vicinity of
the premises in question,’’ and the court therefore found
no ‘‘necessity [or] . . . occasion to further define the
meaning of immediate vicinity. In closer cases courts
can consider a number of factors to determine whether
an occupant was detained within the immediate vicinity
of the premises to be searched, including the lawful
limits of the premises, whether the occupant was within
the line of sight of his dwelling, the ease of reentry from
the occupant’s location, and other relevant factors.’’ Id.
The present case is one of those ‘‘closer cases’’ that
necessitates an examination of the Bailey factors—
including whether the detention occurred within the
lawful limits of the premises, in the line of sight of
Rivera’s apartment, and in a location that would facili-
tate the ease of reentry—to determine whether the
defendant was within the ‘‘immediate vicinity’’ of the
premises to be searched under the Summers exception.
At the outset, we address the defendant’s argument
that the Summers exception is inapplicable because he
was not an ‘‘occupant’’ of the premises to be searched
within the meaning of Summers and its progeny. The
defendant argues that the use of the term ‘‘occupant’’
in Summers serves as a doctrinal limitation separate
and distinct from the ‘‘immediate vicinity’’ requirement.
According to the defendant, the state must prove not
only that he was a person in the immediate vicinity of
Rivera’s apartment, but that he also was a resident
of that apartment. The defendant’s legal argument, if
correct, would be dispositive because it is undisputed
that the defendant was not a resident, lessee or owner
of Rivera’s apartment; nor did he have a known connec-
tion to Rivera’s apartment. For example, the police
never observed the defendant entering or exiting the
apartment; nor did they have any reason to believe that
the defendant was a visitor—frequent or otherwise—
to Rivera’s apartment. The record reflects that, during
the state’s six week investigation into Rivera’s sus-
pected narcotics trafficking enterprise, neither the
defendant nor Espino had ever come to the attention
of the police. In support of his legal claim, the defendant
relies on the literal language of Summers, which repeat-
edly uses the term ‘‘occupant’’ to describe those persons
subject to the exception, as well as other sources of
authority favoring a restrictive definition of ‘‘occupant,’’
including the views of Professor Wayne R. LaFave11 and
this court’s decision in State v. Torres, 197 Conn. 620,
625, 500 A.2d 1299 (1985), in which we questioned the
applicability of the Summers exception.12 The defen-
dant’s position is that Summers does not apply under
these circumstances, regardless of his geographic loca-
tion at the time of his detention.
The state takes a diametrically opposed view regard-
ing the legal significance of the defendant’s status as
an occupant. The state argues that physical presence
in the immediate vicinity of the premises to be searched,
combined with a connection to a resident of the prem-
ises, is enough to satisfy the Summers occupancy
requirement. According to the state, the defendant was
an occupant of Rivera’s apartment because he was in
the immediate vicinity of the apartment and ‘‘the police
possessed articulable facts connecting the defendant’’
to Rivera, which ‘‘necessarily also connected him to
the premises subject to the search warrant.’’ More
broadly, the state contends that reasonableness is the
touchstone of the fourth amendment and that reason-
ableness, rather than the artificial categories of occu-
pancy or residency, must define the scope of the Sum-
mers exception. Thus, in the state’s view, if a person
in the immediate vicinity of the search poses a potential
risk to an officer or public safety, or the orderly execu-
tion of the search warrant, then Summers permits the
person to be detained for the purpose of safeguarding
those interests.
The definition of the term ‘‘occupant’’ under Sum-
mers is a sharply contested legal issue of substantial
interest,13 but it is not one that we must resolve in this
case because we conclude that the state failed to satisfy
its unquestioned burden of establishing that the
defendant—‘‘occupant’’ or otherwise—was in the
immediate vicinity of the premises to be searched at
the time of his detention.
As we previously discussed, Bailey identifies three
specific factors that will help determine whether the
defendant was in the ‘‘immediate vicinity’’ of the prem-
ises to be searched for purposes of ascertaining the
applicability of the Summers exception: (1) whether
the defendant was within the lawful limits of the prem-
ises; (2) whether the defendant was within the line of
sight of the premises; and (3) whether the defendant’s
location was conducive to ease of reentry to the prem-
ises. Bailey v. United States, supra, 568 U.S. 201. We
emphasize that these factors are neither talismanic nor
exclusive in nature, and they should not be understood
as anything more than a useful means to ascertain the
answer to the underlying ‘‘immediate vicinity’’ question.
Ultimately, the ‘‘immediate vicinity’’ inquiry asks
whether the defendant’s geographic proximity to the
premises to be searched places him in a location where,
absent detention, he poses a genuine danger to the safe
and efficient execution of the search warrant.
There is no evidence in the record with respect to
the first Bailey factor, namely, whether the defendant
was detained within the ‘‘lawful limits of the premises
. . . .’’ Id. The premises to be searched was a single
apartment in a multiunit building comprised of approxi-
mately ten to twelve apartments. Even if we assume,
without deciding, that the ‘‘lawful limits’’ of an apart-
ment may include the interior and exterior common
areas to which occupants of a multiunit building have
legal access—a hallway, staircase, or even parking lot
or other outside area in close proximity to the premises
to be searched—the state failed in the present case
to adduce sufficient evidence to support a reasonable
inference that the parking lot of 12-14 South Street was
an exterior common area for the use and benefit of the
building’s tenants. See, e.g., United States v. Murray,
659 Fed. Appx. 1023, 1027 (11th Cir. 2016) (driveway
of property adjacent to premises to be searched was
‘‘beyond ‘the lawful limits’ ’’), cert. denied, U.S. ,
137 S. Ct. 699, 196 L. Ed. 2d 575 (2017); United States
v. Jones, 311 F. Supp. 3d 761, 767 (E.D. Va. 2018) (con-
cluding that parking lot was within lawful limits of
premises to be searched because ‘‘[t]he evidence . . .
showed that the parking area [was] shared by all of the
businesses in the office building’’); United States v.
Ruiz, Docket No. EP-14-CR-868-PRM, 2014 WL 10183873,
*8 (W.D. Tex. August 25, 2014) (defendant’s stop less
than 130 yards from his apartment was not within lawful
limits of premises). For example, there was no evidence
that the tenants of 12-14 South Street had parking privi-
leges in the lot in which the defendant was detained
under the terms of a lease agreement or otherwise.
Given the complete dearth of evidence on this particular
issue, a reasonable fact finder could not conclude that
the parking lot was within the lawful limits of the prem-
ises to be searched.
Likewise, there is no evidence in the record with
respect to the second Bailey factor, which asks whether
the defendant was within the line of sight of the prem-
ises to be searched at the time of his warrantless seizure.
No testimony or other evidence adduced at the suppres-
sion hearing indicated where or on what floor Rivera’s
apartment was located at 12-14 South Street, whether
the apartment faced the parking lot, the actual distance
between the parking lot and the exterior entrance to
the building, or whether the defendant could observe
Rivera’s apartment and/or the exterior entrance to the
building from the location where he was seized.14 As a
result, we conclude that the second Bailey factor also
cannot justify application of the Summers exception.
See United States v. Moore, Docket No. 15-116(1)&(2)
(DWF/JSM), 2015 WL 8779926, *6 (D. Minn. December
15, 2015) (police officer ‘‘could not recall the location
of the car [in which the defendant was detained] with
precision,’’ and, therefore, evidence was insufficient to
find defendant was in line of sight of premises to be
searched), aff’d sub nom. United States v. Claybron,
716 Fed. Appx. 564 (8th Cir. 2017); Widi v. McNeil,
Docket No. 2:12-cv-00188-JAW, 2015 WL 8334962, *2 n.1
(D. Me. December 8, 2015) (declining to decide whether
defendant’s ‘‘presence at a gas station 300 yards away
from the searched residence would be deemed in the
‘immediate vicinity’ ’’ but noting that ‘‘[t]here [was] no
evidence in [the] record for some of the Bailey factors,
including line of sight’’), appeal dismissed sub nom.
Widi v. United States Attorneys Office, Docket Nos.
17-1948 and 17-2001, 2018 WL 11199004 (1st Cir. Septem-
ber 21, 2018); Cabral v. New York, Docket No. 12 Civ.
4659 (LGS), 2014 WL 4636433, *4 (S.D.N.Y. September
17, 2014) (‘‘[N]othing in the record suggests—and [the]
[d]efendants do not claim—that [the] [p]laintiff was an
occupant of the searched apartment at any relevant
time, had any intention of entering it or otherwise had
any connection to it. Moreover, [the] [p]laintiff was
inside a vehicle that was ‘[a]round the block’ from the
apartment according to [the detective], not within the
line of sight, and access to the apartment presumably
would have required passage through at least one if
not two doors. These facts are far from satisfying the
Summers standard, and could not have justified [the]
[p]laintiff’s initial detention as effected incident to the
search of the apartment.’’ (Footnote omitted.)), aff’d,
662 Fed. Appx. 11 (2d Cir. 2016).
The third and final Bailey factor—the ease with
which the defendant could have reentered the premises
to be searched—also suffers from a deficiency of proof.
As we previously explained, there is no evidence in the
record regarding the spatial proximity between the site
at which the defendant was seized and Rivera’s apart-
ment or the presence or absence of physical impedi-
ments (such as locked exterior doors) that may have
affected the defendant’s ease of access. Compare
Cabral v. New York, supra, 2014 WL 4636433, *4 (finding
no ease of reentry because ‘‘access to the apartment
presumably would have required passage through at
least one if not two doors’’), with United States v. Ruiz,
supra, 2014 WL 10183873, *8 (third Bailey factor sup-
ported finding that defendant was in immediate vicinity
of premises because government’s testimony and exhib-
its established that ‘‘reentry to [the] [d]efendant’s resi-
dence from the location of the stop could have been
easily achieved given the proximity of the two locations
and the absence of physical impediments between
them’’). Indeed, there is no basis on this record to
believe that the defendant had any ability to enter, much
less reenter, Rivera’s apartment. In the absence of such
evidence, this factor, like the other Bailey factors, fails
to support a conclusion that the defendant was within
the immediate vicinity of Rivera’s apartment and
‘‘pose[d] a real threat to the safe and efficient execution
of [the] search warrant . . . .’’ Bailey v. United States,
supra, 568 U.S. 201.
The lack of pertinent evidence in this case is not
surprising: the state did not undertake or intend to
prove at the evidentiary hearing on the motions to sup-
press that the defendant was an ‘‘occupant’’ within the
‘‘immediate vicinity’’ of the premises to be searched
under Summers and Bailey. Instead, the state sought
to prove that the warrantless search and seizure of the
defendant and his motor vehicle were justified by the
Terry and plain view doctrines. When the trial court
first brought up the Summers exception after the close
of evidence, the prosecutor unequivocally expressed
his view that, with respect ‘‘to Summers and Bailey, I
just don’t think that they apply to these facts.’’ It was
only after the trial court pointed out that ‘‘Bailey and
Summers would advantage the state because [they]
would allow a detention to take place even in the
absence of [a] reasonable and articulable suspicion’’
under the Terry doctrine that the prosecutor said that
he would be ‘‘a fool not to ask the court to entertain
it.’’ Although the state belatedly raised a Summers argu-
ment in response to the trial court’s posthearing obser-
vations, it failed to meet its burden of providing the
trial court with the factual predicate necessary to estab-
lish the applicability of the exception.
The state points out that numerous courts have
applied the Summers exception under factual circum-
stances similar to the present case and urges this court
to follow out-of-state precedent such as United States
v. Jennings, 544 F.3d 815 (7th Cir. 2008), and Burchett
v. Kiefer, 310 F.3d 937 (6th Cir. 2002). See United States
v. Jennings, supra, 818 (defendant’s detention was justi-
fied under Summers because ‘‘he entered the security
perimeter surrounding the apartment where the narcot-
ics search was underway’’); Burchett v. Kiefer, supra,
939, 943–44 (holding that defendant’s fourth amend-
ment rights were not violated under 42 U.S.C. § 1983,
even though he ‘‘neither was a resident of the searched
premises nor arrived at the searched premises,’’
because police have authority under Summers to
‘‘detain an individual who approaches a property being
searched pursuant to a warrant, pauses at the property
line, and flees when the officers instruct him to get
down’’). These cases cannot guide our inquiry, however,
because they predate Bailey and consequently fail to
consider whether the defendant was in the immediate
vicinity of the premises to be searched using the spatial
analysis that Bailey requires.15 In the absence of a spa-
tial analysis under the Bailey factors, it is unclear
whether the police had ‘‘the power to detain persons
stopped or apprehended away from the premises where
the search is being conducted.’’ Bailey v. United States,
supra, 568 U.S. 195.
Lastly, the state claims that the warrantless seizure
of the defendant was justified under the Summers
exception because the important law enforcement
interests in officer safety, orderly completion of the
search, and prevention of flight outweighed the brief
and limited intrusion on the defendant’s liberty. We
reject the state’s claim because it contravenes the very
premise of Summers and its progeny, which rejects a
reliance on generic principles of reasonableness under
an amorphous balancing test in this context. Indeed,
the United States Supreme Court has emphasized that
the Summers exception is categorical in nature and
does not require us to evaluate ‘‘the quantum of proof
justifying [the] detention or the extent of the intrusion
. . . imposed by the seizure.’’ (Internal quotation marks
omitted.) Bailey v. United States, supra, 568 U.S. 193;
see also Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct.
1465, 161 L. Ed. 2d 299 (2005) (‘‘[a]n officer’s authority
to detain incident to a search is categorical’’); Croom
v. Balkwill, 645 F.3d 1240, 1247–48 (11th Cir. 2011)
(‘‘[i]mportantly, [although] its decision in Summers was
driven by a careful balancing of factors and facts, the
[c]ourt clarified that [its] rule thus established did not
call for a repetition of that balancing in each of its
applications’’). If an occupant is ‘‘present when and
where the search is being conducted’’; Bailey v. United
States, supra, 197; a warrantless detention, ‘‘under Sum-
mers, [is] plainly permissible.’’ Muehler v. Mena, supra,
98. ‘‘Once an individual has left the immediate vicinity
of a premises to be searched, however, detentions must
be justified by some other rationale.’’ Bailey v. United
States, supra, 202. We acknowledge that this case, like
Bailey itself, illustrates that some amount of line draw-
ing is inevitable even in the Summers context, as courts
demarcate the boundaries within which the bright-line
rule operates, but we nonetheless adhere to the United
States Supreme Court’s expressed preference to
eschew case-by-case interest balancing when applying
the Summers exception. We hold that the Summers
exception did not justify the defendant’s warrantless
seizure in the present case because the state failed to
meet its burden of establishing that the defendant was
within the immediate vicinity of the premises to be
searched. We therefore conclude that the defendant’s
fourth amendment rights were violated and his motion
to suppress should have been granted.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion to sup-
press.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** November 13, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
‘‘[T]he address of 12-14 South Street is a multiunit apartment building’’
that ‘‘consists of ten to twelve separate residences.’’
2
‘‘The images captured by the surveillance camera were preserved and
were introduced as evidence at the hearing on the motions to suppress.’’
3
‘‘The two cars were positioned in such a way that Rivera and [the defen-
dant] conducted their conversation over and across the roof of [the defen-
dant’s] vehicle.’’
4
The defendant claimed that the evidence seized from Espino’s apartment
was the ‘‘fruit of the poisonous tree’’ of the earlier warrantless seizure. See
State v. Jevarjian, 307 Conn. 559, 565 n.5, 58 A.3d 243 (2012) (describing
‘‘fruit of the poisonous tree’’ doctrine as ‘‘an extension of the general exclu-
sionary rule that specifically applies to evidence derived indirectly from
an unlawful search rather than all evidence unlawfully seized’’ (internal
quotation marks omitted)). In the trial court proceedings, the parties ‘‘agreed
that the court’s ruling on the constitutionality of the warrantless search
[and seizure] will also resolve the suppression issues relating to the later
search of [Espino’s] home.’’ Likewise, on appeal, the parties do not dispute
that the constitutionality of the initial warrantless seizure in the parking lot
of 12-14 South Street is dispositive of the constitutionality of the later search
of Espino’s apartment.
5
‘‘In Terry, the United States Supreme Court held that police may detain
an individual when the following three conditions are met: ‘(1) the officer
must have a reasonable suspicion that a crime has occurred, is occurring,
or is about to occur; (2) the purpose of the stop must be reasonable; and
(3) the scope and character of the detention must be reasonable when
considered in light of its purpose.’ ’’ State v. Kelly, 313 Conn. 1, 9 n.6, 95
A.3d 1081 (2014).
6
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
7
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
8
The defendant has not raised or briefed a separate claim under our state
constitution or challenged the trial court’s determination that the subsequent
search of the defendant’s person and motor vehicle was justified by the
plain view doctrine. We therefore limit our analysis to the constitutionality
of the initial warrantless seizure of the defendant under the Summers excep-
tion to the fourth amendment’s warrant requirement. See, e.g., State v. Boyd,
323 Conn. 816, 818–19 n.2, 151 A.3d 355 (2016) (limiting analysis to federal
constitution in absence of appellate claim that state constitution affords
greater rights than federal constitution).
9
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’ U.S. Const., amend. IV. The fourth amendment’s
protection against unreasonable searches and seizures is made applicable
to the states through the due process clause of the fourteenth amendment.
See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d
1081 (1961).
10
The state has abandoned its claim that the initial warrantless seizure
of the defendant was supported by a reasonable, articulable suspicion under
the Terry doctrine. See, e.g., Traylor v. State, 332 Conn. 789, 804, 213
A.3d 467 (2019) (‘‘[a party’s] failure to brief a challenge to the trial court’s
conclusions in its memorand[um] of decision abandons any such challenge
to those conclusions’’).
11
See 2 W. LaFave, Search and Seizure (5th Ed. 2012) § 4.9 (e), pp. 924–26
(‘‘[e]specially because the [c]ourt [in Summers] elsewhere refers to the
category of persons covered as ‘residents’ who would ordinarily ‘remain in
order to observe the search of their possessions,’ it would seem that the
word ‘occupants’ is not to be loosely construed as covering anyone present,
but instead is to be interpreted literally (though many cases have interpreted
Summers otherwise)’’ (footnotes omitted)).
12
In Torres, the defendant, Confessor Torres, entered the apartment that
he was visiting, accompanied by the tenant and another individual, approxi-
mately one hour after the police had conducted a search of the premises
pursuant to a valid warrant. State v. Torres, supra, 197 Conn. 622–23. Torres
was detained at the scene, and cocaine was discovered on his person. Id.,
623. The trial court concluded that Torres’ warrantless detention was lawful
under Summers. Id., 625. We affirmed, but on the alternative ground that
Torres’ detention was justified under Terry v. Ohio, supra, 392 U.S. 29–30.
State v. Torres, supra, 625. In doing so, we expressed doubt about the
applicability of the Summers exception, stating that, ‘‘[i]n this case, [Torres]
was a visitor to [the tenant’s] apartment and not an ‘occupant’ as it appears
that term may have been used in Summers.’’ Id.
13
In both Summers and Bailey, the defendants were residents of the
premises to be searched. In the absence of such definitive facts, ‘‘the [United
States] Supreme Court has not directly resolved the issue of who qualifies
as an ‘occupant’ for the purposes of the Summers rule.’’ State v. Wilson,
371 N.C. 920, 925, 821 S.E.2d 811 (2018). There is a split of authority whether
the ‘‘occupant and immediate vicinity questions are separate requirements
. . . .’’ United States v. Freeman, 964 F.3d 774, 781 (8th Cir. 2020). Some
courts have defined the term ‘‘occupant’’ broadly to include persons on the
premises or in the immediate vicinity of the premises to be searched. See,
e.g., Bailey v. United States, supra, 568 U.S. 203 (Scalia, J., concurring)
(‘‘[O]ccupants’’ means ‘‘persons within the immediate vicinity of the prem-
ises to be searched. . . . It really is that simple.’’ (Citation omitted; internal
quotation marks omitted.)); United States v. Sanchez, 555 F.3d 910, 918
(10th Cir.) (‘‘occupant’’ includes ‘‘all persons present on the premises’’
regardless of residency), cert. denied, 556 U.S. 1145, 129 S. Ct. 1657, 173 L.
Ed. 2d 1027 (2009); Burchett v. Kiefer, 310 F.3d 937, 943 (6th Cir. 2002)
(noting that ‘‘the Supreme Court’s discussion of ‘occupants’ in Summers
included nonresidents who are present at the scene of a search when [the]
police arrive’’ and those ‘‘who arrive at the scene of a search, even if they
were not inside the residence or present when [the] police first arrived’’).
Under such a broad construction, ‘‘an occupant is defined by his or her
location—i.e., an occupant is a ‘[person] within the immediate vicinity of
the premises to be searched.’ ’’ (Emphasis in original.) United States v.
Freeman, supra, 780–81, quoting Bailey v. United States, supra, 586 U.S.
203 (Scalia, J., concurring).
Other courts have construed the term ‘‘occupant’’ narrowly to include
only those persons who reside at the premises. See, e.g., United States v.
Reid, 997 F.2d 1576, 1579 (D.C. Cir. 1993) (‘‘unlike Summers, [the defendant]
was not a resident of the apartment which was to be searched under the
warrant, and the trial did not disclose that he had any proprietary or residen-
tial interest in the suspect premises’’ (emphasis omitted)), cert. denied, 510
U.S. 1132, 114 S. Ct. 1105, 127 L. Ed. 2d 417 (1994); State v. Kaul, 891 N.W.2d
352, 356 (N.D. 2017) (declining ‘‘to expand the meaning of ‘occupants’ under
Summers to a person approaching the premises as a visitor’’); Lippert v.
State, 664 S.W.2d 712, 720 (Tex. Crim. App. 1984) (holding that Summers
exception cannot ‘‘be extended to a [nonoccupant]’’ who was not target of
warrant and entered premises after commencement of search). Under a
narrow construction, the ‘‘occupant’’ and ‘‘immediate vicinity’’ questions are
separate and distinct inquiries.
Still other courts view the occupancy requirement as a separate doctrinal
limitation on the Summers exception, but one that is inextricably intertwined
with the immediate vicinity inquiry. Under this hybrid approach, an ‘‘occu-
pant’’ is someone present on the premises or in the immediate vicinity of
the premises who also has a demonstrable connection to the premises, a
resident of the premises, or the criminal activity conducted at the premises.
See, e.g., United States v. Freeman, supra, 964 F.3d 781 (‘‘a passenger of a
car parked on a street in front of a premises subject to a search warrant
who was connected to the [premises’] occupant . . . was also an ‘occupant’
under Summers’’); Stanford v. State, 353 Md. 527, 536, 727 A.2d 938 (1999)
(recognizing that some jurisdictions permit visitors to be detained under
Summers exception ‘‘if the police can point to reasonably articulable facts
that associate the visitor with the residence or the criminal activity being
investigated in the search warrant’’).
14
We have reviewed the surveillance video that was introduced into evi-
dence at the suppression hearing. See footnote 2 of this opinion. The video
does not depict the exterior entrance to 12-14 South Street, so it is impossible
to determine the distance between the exterior entrance and the location
where the defendant was seized. Even if the approximate distance to the
building entrance could be estimated, there is no basis for determining lines
of sight because the record does not reveal the location of Rivera’s apartment
in relation to either the parking lot generally or the particular location where
the defendant was seized.
15
In its brief, the state cites two cases that were decided after Bailey:
State v. Wilson, 371 N.C. 920, 821 S.E.2d 811 (2018), and State v. Davis, 158
Idaho 857, 353 P.3d 1091 (App. 2015). Both cases are readily distinguishable.
In Wilson, the nonresident defendant, Terry Jerome Wilson, was detained
in the driveway of a house in which the police were executing a search
warrant. State v. Wilson, supra, 921. The Supreme Court of North Carolina
held that Wilson’s warrantless seizure was justified by the Summers excep-
tion because Wilson was ‘‘within the immediate vicinity of the premises
being searched.’’ Id., 924. Applying the Bailey factors, the court reasoned
that Wilson ‘‘was well within the lawful limits of the property containing
the house being searched. And, had he not been stopped by police, [he]
could easily have accessed the house. Thus the spatial requirements of the
Summers rule were met here.’’ Id., 924–25. In contrast to Wilson, there was
no evidence in the present case to establish that the defendant was within
the lawful limits or line of sight of the premises to be searched or that he
easily could have entered the premises as required by Summers and Bailey.
Davis is distinguishable for similar reasons. The defendant, Russell Glenn
Davis, was a nonresident detained ‘‘on a communal sidewalk that led to the
common entry area of only four apartments.’’ State v. Davis, supra, 158
Idaho 862. Davis was walking toward the stairs of the only entrance to the
second floor apartment being searched, and he was ‘‘perhaps [eight] to [ten]
feet, at the most, from the bottom of the stairs’’ when he was detained. Id.The Court of Appeals of Idaho held that Davis was ‘‘in the immediate vicinity
of the premises being searched’’ in light of the layout of the property, Davis’
presence in a communal area, and his close proximity to the entry of the
apartment being searched. Id. Not incidentally, the court cautioned that its
holding was limited to the facts presented and that, ‘‘[i]n context of the
important interests outlined by the [United States] Supreme Court in Sum-
mers, officers would not be justified in detaining an individual who walks
past a [fifty story] apartment building while a search occurs in one of the
apartments because the individual usually would not be within the immediate
vicinity of the premises being searched.’’ Id.