State v. Bernier, No. Cr. 18-71493 (Feb. 15, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON STATE'S REQUEST FOR PERMISSION TO APPEALDECISION OF THIS COURT. CT Page 1323-JJJJ In deciding whether to grant the State's request pursuant to Conn. Gen. Stat. § 54-96, for permission to appeal the court's decision to grant the defendant's Motion to Dismiss, the court must consider the circumstances of the case and make a determination after weighing the respective considerations.

The court denies the State's request for the following reasons:

1. The court granted the defendant's Motion to Dismiss based upon the legal principle that even if an object is lawfully seized without a warrant under the emergency exception, once that emergency has ended, the intrusive action of a search cannot take place without a warrant.

This principal has been frequently and recently enunciated by the Conn. Supreme Court. See State v. Joyce, 229 Conn. 10, 21, 27 (1994); State v. Mooney, 218 Conn. 85, 100, 103 (1991); State v.Miller, 227 Conn. 363, 384 (1993); and State v. Geisler, 222 Conn. 672,695-696 (1992).

2. The court made a fact-specific determination as required by the Joyce case, supra, page 20, that the defendant manifested a subjective expectation of privacy (in his living room floor), and that such expectation was one that society would consider reasonable.

Therefore, since the court's decision from which the State seeks permission to appeal was based on factual findings and recent and frequent Conn. Supreme Court decisions applied to those facts, this court concludes that the discretion it is required to exercise under Section 54-96, calls for a denial of the State's request.

RICHARD A. WALSH CT Page 1323-KKKK