Opinion
CR170211544T
10-01-2019
STATE of Connecticut v. Adam PHILLIPS
UNPUBLISHED OPINION
OPINION
Suarez, J.
The defendant, Adam Phillips, was arrested on a warrant issued by the court, Gold, J., on March 28, 2017. Pursuant to the warrant, the defendant was charged with the following offenses: sexual assault in the second degree in violation of General Statutes § 53a-71(a)(3), reckless endangerment in the second degree in violation of General Statutes § 53a-84, and the delivery of alcohol to a minor in violation of General Statutes § 30-86.
On August 31, 2018, the defendant filed a motion to suppress in accordance with Practice Book § 41-12 et seq., the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and article first, § 7, of the Connecticut constitution. Specifically, the defendant’s motion seeks to suppress any evidence and testimony seized by the Clinton Police Department from the defendant’s 2013 Chevrolet Cruze, and from his home located at 83-2 West Main Street, Clinton, Connecticut, on the grounds that such evidence was illegally obtained from a warrantless entry onto his property. Moreover, the defendant alleges that he did not voluntarily consent to the execution of those searches.
On September 10, 2018, the defendant filed a second motion to suppress, which sought to disqualify any written and oral statements made by the defendant to the Clinton Police Department during his interactions on October 6, 2016, and October 17, 2016. The defendant argues that any statements he made to the Clinton Police Department on October 6, 2016, and October 17, 2016, were not knowingly or voluntarily given, were made without the assistance of counsel, and were the product of an otherwise illegal detention and custody holding.
Additionally, on September 10, 2018, the defendant filed a third motion to suppress seeking to suppress any and all evidence obtained by officers from the defendant’s cell phone. The defendant claims that his cell phone was seized without a warrant and that he did not voluntarily consent to the Clinton Police Department’s search of the contents of his cell phone.
The court heard evidence on these consolidated motions on January 28 and 29, 2019, March 15, 2019, May 10, 2019, and June 7, 2019. After careful consideration of the credible evidence presented throughout these proceedings, the court finds the following facts.
The defendant is charged in two separate files. In docket number MMX-CR-17-0211543, the defendant is charged with an alleged sexual assault that occurred on or before July 2, 2016. In docket number MMX-CR-17-0211544, the defendant is charged with an alleged sexual assault that occurred on October 5, 2016, but with a different victim. The defendant has filed motions to suppress in both files. All pending motions to suppress were heard simultaneously by this court and some facts apply to both files. For purpose of clarity, the court will issue a separate memorandum of decision for each file.
FACTS
On October 6, 2016, the defendant drove to the Clinton Police Department on his own accord and asked to meet with Sergeant Flynn. Upon entering an interview room at the Clinton Police Department, Sergeant Flynn asked the defendant what brought him to the station that day. The defendant reported to Sergeant Flynn that a friend went to his apartment earlier that morning and threatened him with physical harm for having sex with his friend’s girlfriend. At that point, the defendant asked Sergeant Flynn if anyone was looking for him. Sergeant Flynn reported that he was not aware of any complaints levied against the defendant and inquired further as to the specific reasons for his concerns. The defendant then explained to Sergeant Flynn that his friend’s girlfriend, Rebecca, contacted him on Facebook and was looking to hangout that night. When the defendant picked Rebecca up, it appeared to him that she had been drinking. Before taking Rebecca to his apartment, the defendant stopped at a liquor store to buy more alcohol. Later that evening, Rebecca and the defendant consumed alcohol together at his apartment. Although the defendant originally denied having sex with Rebecca, he ultimately admitted that he engaged in what he described as a consensual sexual encounter.
In accordance with General Statutes § 54-86e, the court will identify the alleged victim by her first name only.
During the interview, Sergeant Flynn periodically interrupted the defendant in order to clarify his responses, but did not actively question the defendant. Rather, the defendant, on his own accord, explained to Sergeant Flynn his version of events from the previous night. Sergeant Flynn then asked the defendant for Rebecca and his friends’ telephone numbers. The defendant was unable to locate the telephone numbers on his cell phone as he believed he had erased them. Sergeant Flynn offered to have a technologically savvy police officer retrieve the phone numbers from the defendant’s phone, to which the defendant agreed. After this conversation, Officer Verone, of the Clinton Police Department, entered the interview room and provided the defendant with a form consenting to the search of his cell phone. While officer Verone did not read the consent form to the defendant, however, he did explain to the defendant that he was going to search the cell phone for the missing telephone numbers. Acting on this information, the defendant voluntarily signed the consent form. After Officer Verone exited the room, Sergeant Flynn continued to discuss the prior night’s events with the defendant. Sergeant Flynn continued to handwrite the defendant’s statement while reading it aloud to the defendant. Before leaving the interview room, Sergeant Flynn told the defendant to read his statement again, make any necessary corrections, and initial the changes. The defendant then read the statement to himself and made the necessary corrections. Approximately nine minutes later, Sergeant Flynn came back into the interview room and asked the defendant if he wanted to make any additional changes to the statement. When the defendant indicated that he did not, Sergeant Flynn took his oath and the defendant signed the statement. The October 6, 2016 statement is three pages long.
Officer Verone is trained in recovering data from cell phone.
During the October 6, 2016 interview, the defendant told Sergeant Flynn that Rebecca left her sweatshirt in his car. The defendant also told Sergeant Flynn that he discarded the empty bottles of alcohol into a drainage system behind his apartment. Sergeant Flynn then asked the defendant to sign a consent form that would allow officers to search his car for Rebecca’s sweatshirt. The defendant voluntarily signed this consent form without issue. Sergeant Flynn also presented the defendant with a consent to search form, which would allow officers to search the defendant’s apartment for the empty bottles of alcohol consumed the prior evening. Again, the defendant voluntarily signed this document.
On October 17, 2016, the defendant returned to the Clinton Police Department. This time, however, the defendant was required to turn over his DNA pursuant to a search warrant issued by the court. Sergeant Flynn explained to the defendant the process for collecting DNA with a buccal swab. Following Sergeant Flynn’s instructions, the defendant again voluntarily acquiesced to the officer’s request. Sergeant Flynn also explained to the defendant that his mother called the Clinton Police Department asking for information about the case. Sergeant Flynn asked the defendant for permission to speak with his mother, to which the defendant again consented. At that time, Sergeant Flynn started to ask the defendant for more details about the incident with Rebecca. The defendant responded with a consistent account of what happened with Rebecca on the night in question. Eight minutes into Sergeant Flynn’s interrogation, the defendant refused to answer any more questions without his attorney or mother present. In total, the October 17, 2016 interview lasted eleven minutes.
Sergeant Flynn never displayed any weapons or restraints, nor did he use, or threaten to use, any force against the defendant during either the October 6th or October 17th, 2016 interviews. Instead, Sergeant Flynn spoke in a conversational tone and never raised his voice or spoke in an aggressive manner. The defendant was fully cooperative and did not seem to be intimidated by Sergeant Flynn in any way. Based on his responses to Sergeant Flynn, the defendant was clearly alert and did not appear to have any cognitive or mental disability. Additionally, he did not appear tired or under the influence of any alcohol or drugs. Furthermore, the defendant did not indicate that he had any difficulty understanding Sergeant Flynn’s questions.
The defendant was twenty-four years old at the time of the October 6, 2016 and October 17, 2016 interviews. He is originally from Brazil, but English is his native language, as he was adopted as an infant and grew up in New Brunswick, New Jersey. At an early age, his adoptive parents noticed that he exhibited some signs of developmental delays. Due to these signs, his parents had him professionally evaluated, which determined that the defendant was functioning below the average levels for children his age. As a result, when he was three years old, the defendant was enrolled in a private school for children with delayed language skills. The private school ultimately recommended that the defendant postpone entering kindergarten for an additional year. When he was six, the defendant began attending local public schools, however, he was placed in a self-contained special unit with only six to eight students per class. By the fifth grade, the defendant began falling behind. The defendant was diagnosed with multiple disabilities, including specific learning disabilities, communication impairment, and attention deficit hyperactivity disorder (ADHD).
His parents became assertive advocates for their son’s educational needs. From the sixth grade through the eleventh grade, the defendant attended the New Range School in Hamilton, New Jersey, an out of district school for children with learning disabilities. At the New Range School, he participated in tutoring and specialized reading classes. Additionally, his parents also provided private tutoring for speech and language development.
The defendant’s academic progress was evaluated annually through an individualized educational program (IEP) facilitated by the Highland Park Public School system. The defendant, however, exhibited only minimal educational progress. As a result, individuals working on the defendant’s IEP recommended that the best educational plan would be to enroll him in a vocational program that would focus on teaching fundamental life skills for independent living. The vocational education program, however, was equally unsuccessful.
In April 2011, his parents retained Dana Henning, an educational consultant who was hired to perform an evaluation on the defendant. The consultant determined that the defendant needed an IEP focused on a transitional plan that emphasized life skills and on-the-job training. The educational consultant identified Vista as the proper placement program for the defendant. Vista is a specialized hands-on educational program for individuals with disabilities located in Westbrook, Connecticut. The defendant enrolled in the Vista program in the fall of 2011, when he was nineteen years old. The Vista educational program was paid for by the Highland Park Public School system. Ultimately, the defendant remained in the Vista program for eighteen months. Finally, in spring 2013, the defendant graduated from high school and received a degree from the Highland Park Public Schools. The defendant currently lives independently, drives his own car, and is a certified nurse’s assistant (CNA). He now works as a manager at a fast food restaurant.
At the motions hearing, the defendant offered the credible testimony of a licensed clinical therapist, Madelon Visintainier Baranoski, Ph.D. Dr. Baranoski teaches forensic psychiatry at the Yale School of Medicine in the Department of Psychiatry Law and in the Psychiatry Division. Additionally, Dr. Baranoski also sees individual patients. In furtherance of these motions, Dr. Baranoski was asked to perform an evaluation on the defendant in order to provide her opinion of the defendant’s cognitive abilities. She reviewed the defendant’s educational records and performed tests to assess the defendant’s cognitive and reading levels. Dr. Baranoski performed the Wechsler I.Q. test, whereby the defendant scored in the low to average range for verbal reasoning and average for perceptional reasoning. Those results were consistent with his educational records. Dr. Baranoski determined that the defendant possessed average intelligence. Dr. Baranoski also performed the Woodcock Johnson test, which tests reading comprehension abilities. After scoring in the second percentile, Dr. Baranoski determined that the defendant suffered from significant reading comprehension deficits. Finally, Dr. Baranoski concluded that the defendant is of average intelligence, but is encumbered by significant learning disabilities. The defendant is able to understand normal conversations and is able to respond intelligently, but has difficulty gathering and understanding information. Although the defendant is able to understand verbal communication, he struggles to comprehend written language.
DISCUSSION
Consent to Search
The defendant moves to suppress any evidence seized by the Clinton Police Department from the defendant’s car, cell phone, and residence. The defendant claims that he did not voluntarily consent to those searches on October 6, 2016.
Under both the fourth amendment to the federal constitution and article first, § 7 of the state constitution, a warrantless search is presumptively unreasonable. State v. Brunetti, 279 Conn, 39, 69, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). Although "[a] warrantless search is not unreasonable under either the fourth amendment to the constitution of the Unites States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented to the search ... The state bears the burden of proving [by a preponderance of the evidence] that the consent was free and voluntary ... The state must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority is not enough to meet the state’s burden ... The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, expressed or implied is a question of fact to be determined from the totality of all the circumstances ..." State v. Jenkins, 298 Conn. 209, 249-50, 3 A.3d 806 (2010). "[A] consent to search does not have to be in writing to be valid." State v. Fields, 31 Conn.App. 312, 325, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).
Here, the defendant drove himself to the Clinton Police Department on October 6, 2016, to report that someone had threatened him with bodily harm. The defendant told Sergeant Flynn that his friend’s phone number was stored in his cell phone. At that point, the defendant voluntarily gave his cell phone to the police in order to retrieve the necessary contact information. The defendant also told officers that Rebecca’s sweatshirt was still in his car and later told Sergeant Flynn the location of the empty bottles of alcohol. During this time, officers did not brandish any weapons, nor did they make any inappropriate promises or threats aimed towards the defendant. Instead, the officers spoke to the defendant in a polite, calm manner, and the defendant voluntarily consented to each search. Moreover, the defendant signed consent forms to search his car, cell phone and home.
The defendant now claims that his learning disabilities prevented him from voluntarily providing consent to search. His learning disabilities, however, apply to his reading comprehension skills, not his ability to understand the spoken word. In this case, Sergeant Flynn and Officer Verone both verbally explained the consent forms provided to the defendant. There is no evidence to support the notion that the defendant did not voluntarily consent to the search of his vehicle, cell phone, or residence.
Voluntariness of Confession
The defendant next claims that his statements to the Clinton Police Department on October 6, 2016, and October 17, 2016, were involuntary. At closing arguments, however, the defendant conceded that he was not in custody at the time his statements were made to the interviewing officers. Therefore, the court need only address whether his statements were voluntarily given.
"[T]he use of an involuntary confession in a criminal trial is a violation of due process ... State v. Andrews, 313 Conn. 266, 321, 96 A.3d 1199 (2014). "[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined. The ultimate test remains ... [i]s the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self determination critically impaired, the use of his confession offends due process ... The determination, by the trial court, whether a confession is voluntary must be grounded [in] a consideration of the circumstances surrounding it ..." Id.
The court may consider several factors in order to determine whether a defendant’s statements were voluntary. including: "the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep ... Under the federal constitution, however, coercive police activity is a necessary predicate to the finding that a confession is not voluntary ..." State v. Andrews, supra, 313 Conn. 321-22. In examining an inquiry into the voluntariness of a defendant’s statement, the court must look at the conduct employed by law enforcement officials that imposed pressures on the defendant, as well as his capacity to resist such pressure. See State v. LaPointe, 237 Conn. 694, 731, 678 A.2d 942, cert denied, LaPointe v. Connecticut, 519 U.S. 994, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996). "[W]hile mental condition is surely relevant to an individual’s susceptibility to police coercion, mere examination of the confessant’s state of mind can never conclude the due process inquiry." (Internal quotation marks omitted.) Id., 729, citing, Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
The mere existence of the defendant’s learning disability does not, in and of itself, make his statements involuntary. Our appellate courts have held on multiple occasions that: "the fact that the defendant was somewhat deficient in mental ability, had a psychiatric disorder, and was upset emotionally [does not] render his statements inadmissible." State v. Pinder, 250 Conn. 385, 425, 736 A.2d 857 (1999); accord State v. Jones, 193 Conn. 70, 84-85, 475 A.2d 1089 (1984); see also State v. LaPointe, supra, 237 Conn. 730; State v. Wright, 76 Conn.App. 91, 110, 818 A.2d 824 (2003), cert denied, 267 Conn. 911, 840 A.2d 1175 (2004).
The defendant argues that he was susceptible to coercive police tactics due to his learning disability. Although the court does not question the sincerity of the defendant’s learning disability, the court cannot find any supporting evidence in the record which tends to show that the defendant’s learning disability prevented him from understanding or comprehending police questioning. The defendant has completed his high school education, obtained his CNA license, and has been gainfully employed as a CNA and as a manager at a fast food restaurant. The defendant’s expert, Dr. Baranoski, testified that he possesses normal intelligence, but has low to average verbal reasoning skills. Dr. Baranoski also found that the defendant is able to understand conversational language and can respond intelligently to such communication. Instead, the defendant suffers from an extreme disability to comprehend and understand written language, but is of otherwise average intelligence.
A review of the defendant’s interactions with the police during both questioning sessions shows that he is able to engage in appropriate and rational conversation with others. During both interviews at the Clinton Police Department, the defendant answered questions directly, coherently, and free of duress. At no point during either session did the defendant express that he did not understand the officers’ line of questioning, or that he needed any special accommodations or assistance to further his understanding of the questions.
Moreover, Sergeant Flynn read the defendant’s statement aloud as it was transcribed. While Sergeant Flynn took down the defendant’s statement, the defendant was given ample opportunity to correct any discrepancies or misstatements. After making some corrections to the document, Sergeant Flynn orally read the October 6, 2016 statement to the defendant. At this point, the defendant was again given the opportunity to review the document on his own and make any additional alterations. After reading the document, the defendant made some supplemental changes to the handwritten statement.
Lastly, the defendant voluntarily came to the Clinton Police Department to report a threat made against him on the morning of October 6, 2016. The defendant alone voluntarily described his contact with Rebecca and the events of the previous night. The October 6, 2016 interview lasted for only three hours, while the October 17, 2016 interview lasted for only eleven minutes.
The court finds by a preponderance of the evidence that the defendant’s statements pertaining to his contact with Rebecca, made to the Clinton Police Department on October 6, 2016, and October 17, 2016, were voluntarily procured.
CONCLUSION
For the foregoing reasons, the defendant’s motions to suppress any evidence and testimony obtained by the Clinton Police Department from the defendant’s 2013 Chevrolet Cruze, his cell phone, and his home located at 83-2 West Main Street, Clinton, Connecticut, are hereby denied.
In addition, the defendant’s motion to suppress any written and oral statements made to the Clinton Police Department on October 6, 2016, and October 17, 2016, is hereby denied.