Opinion
No. CR 04-0334185 T
June 20, 2007
DECISION RE DEFENDANT'S MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS
The defendant, Luis Williams, has moved, pursuant to Practice Book § 41-12, and the fourth and fourteenth amendments to the United States constitution and the state constitution, to suppress all tangible evidence obtained by the Waterbury police in the location of 636 Riverside Street, Waterbury, after they arrested him and his brother, Josue Williams, on September 3, 2004. The defendant also moves to suppress his statement given to the Waterbury police subsequent to the arrest.
The basis of the defendant's motion is the following:
1. that said search and seizure was illegal in that it was conducted without a warrant and without sufficient legal justification;
2. that said search and seizure was made not with a search warrant, but rather an arrest warrant;
3. that the property seized was not within the scope of a "protective sweep."
The court orally ruled on May 23, 2006, denying the defendant's motion and articulated the basis of that decision. The court expanded upon that decision on May 24, 2006. This is a written memorandum of that decision.
The defendant is charged in an Information with Possession of a Narcotic Substance with Intent to Sell by a Non-Drug Dependent Person, General Statutes § 21a-278(b); Possession of a Controlled Substance with Intent to Sell Within 1500 Feet of a Public or Private Elementary or Secondary School, General Statutes § 21a-278a(b); and Criminal Possession of a Firearm, General Statutes § 53a-217.
The court conducted an evidentiary hearing on May 18, 2006, where, in addition to documentary evidence, the court heard testimony from Waterbury Detective Mark Santopietro, Sergeant Harold Setzer, and Josue Williams.
The court finds the following facts.
On September 3, 2004, at approximately 10:30 A.M., members of the New Britain and Waterbury police departments, and the U.S. Marshals Service, in possession of two arrest warrants, went to 636 Riverside Street in Waterbury. The arrest warrants were for Luis Williams, charging him with assault in the second degree, robbery in the first degree, and failure to appear, and Josue Williams for violation of probation.
The police had received intelligence that the defendant was at this location. Upon arriving at the location, certain law enforcement personnel went to the rear of the residence, specifically Officers Iarardi, Rohen and Setzer, while the others were at the front door of the residence. The building is a three-floor apartment complex with decks overlooking the rear side. At some point, the police knocked at the front door and announced that they were in possession of arrest warrants. Officer Rohen indicated through radio transmission that the defendant was on the deck and then moved inside. With that information, the police forcibly entered the residence and observed the defendant sitting on a couch, and Josue lying on the floor.
The police then ordered the defendant to lay down on the floor. Police handcuffed the defendant. The defendant was located up against the couch. Josue Williams was lying on the floor near the defendant, but not secured.
The police removed the cushions from the couch and saw a pistol located in the couch, under the cushion. It was photographed and not touched. (State's Exhibit 1.)
Detective Santopietro indicated that he was aware of the nature of the charges in the warrant and the existence of the firearm. He immediately advised people that there was a handgun in the apartment. Josue Williams was not in custody at this time. Sergeant Setzer, one of the law enforcement personnel present, upon entry into the efficiency apartment, saw what he believed to be a box of spent shotgun cartridges and other ammunition. (State's Exhibit 2.) Sergeant Setzer testified that after hearing that a gun was present, and also seeing the box of ammunition, he was concerned that there was more "traffic" in this apartment. Sergeant Setzer moved to do what he called a "protective sweep" for fear of other persons coming out after them and shooting.
He moved first to the kitchen area, which was 6 feet to 8 feet from the living room, but an open area. At the kitchen, he approached the counter to look for weapons and saw styrofoam cups and numerous bags of a substance that, based on his training and experience, he recognized as heroin. Sergeant Setzer did a protective sweep of the bedroom. In the bedroom, he looked into a closet and saw narcotics packaging and a sifter. This closet was 3 feet to 4 feet from the kitchen. Again, based upon his training and experience, he believed that this was consistent with narcotic packaging material for sale. Sergeant Setzer didn't seize anything and instead left it in place for the forensic staff. The entire sweep by Sergeant Setzer took less than a minute.
The state has not presented an inventory of what was seized. The defendant has not presented what statement they are seeking to be suppressed. Since the defendant is asking the statement to be suppressed, an inference can be drawn that the defendant gave a statement, written or oral, to the Waterbury Police Department.
The defendant has indicated that he is not contesting the legality of his arrest, nor the lawful presence of the police in the apartment, but rather the actions of the police in obtaining the firearm and other items.
Issue I
The state seeks to justify the actions of the police as a search incident to an arrest and a protective sweep.
As with any search and seizure, a reasonable expectation of privacy, or standing to attack an unlawful search, must be presented. The defendant's argument is predicated on his establishing that he had a reasonable expectation of privacy in the apartment and in the bag located in the closet. "Unless the defendant is able to establish that he had a reasonable expectation of privacy in the apartment, he lacks standing to claim any fourth amendment violations. The defendant has the burden of proving that he had a reasonable expectation of privacy in the premises." State v. Mitchell, 56 Conn.App. 561, 566, cert. denied, 253 Conn. 910 (2000).
Since this has not been established, the court questions the motion. However, since the court is working with sparse information, the court will continue to review the issues under a theory of an agreement between the state and defense, or the view that the defendant may be proceeding under a theory that warrantless searches and seizures inside a home are presumptively unreasonable, and that this presumption directly applies to the circumstances of the case.
Search and Seizure of the Firearm
The defendant moves this court to suppress the firearm seized under a cushion in the couch. The defendant's argument is based upon the search exceeding the scope of a valid search incident to an arrest.
When the police entered the apartment, they observed the defendant sitting on the couch. He was arrested and handcuffed very near the couch. It is well established that when an individual is placed under arrest in a dwelling, police may search not only the defendant's person incident to that arrest, but any area into which that person may reach to grab a weapon, or to conceal or destroy a piece of evidence. State v. Clark, 255 Conn. 268, 292 (2001); State v. Reddick, 15 Conn.App. 342, 345, cert. denied, 209 Conn. 819 (1988). Even had the defendant already been handcuffed, it is not inconceivable that he may have grabbed for a gun. State v. Fletcher, 63 Conn.App. 476, 482, cert. denied, 257 Conn. 902 (2001); State v. Reddick, supra, 346. Moreover, the police were aware that another person was unsecured in the apartment, and that there may have been others in that apartment.
The police were justified in lifting the cushion in the couch in an attempt to find the gun that they knew could exist in the defendant's location based on the nature of the arrest warrants.
The Materials Located On the Counter
The defendant moves this court to suppress the contraband located on the kitchen counter, presumably what's depicted in State's Exhibit #4. The court must take into consideration when reviewing this issue the nature of the efficiency apartment described. The dimensions of the apartment have not been clearly delineated. However, evidence was presented that the distance from the living room to the kitchen was 6 feet to 8 feet and from the kitchen to the closet area 3 feet to 4 feet. Further, there was testimony that the apartment was an efficiency apartment, with the areas open to each other. Sergeant Setzer testified that when he went into the kitchen, he was searching for persons and weapons when he saw the narcotics. Although Sergeant Setzer titled his search of the kitchen as a protective sweep for persons and weapons, it still falls within the purview of a search incident to an arrest.
Under article first, Section 7 of the constitution of Connecticut, our Supreme Court has recognized that the police may make a search without a warrant incidental to a lawful custodial arrest. State v. Delossantos, 211 Conn. 258, 266, cert. denied, 493 U.S. 866 (1989); State v. Aylward, 88 Conn.App. 90, 98, cert. denied, 273 Conn. 935 (2005); State v. Fletcher, supra, 63 Conn.App. 481. Whether a fourth amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time and not on the officer's actual state of mind at the time the challenged action was taken. State v. Early, 249 Conn. 431, 441, cert. denied, 528 U.S. 1030 (1999). The counter area was 6 feet to 8 feet from the living room where the defendant and his brother were. It is conceivable that a person who knew that guns were located near the kitchen counter area could have grabbed the gun from that area. That area was within the defendant's immediate control incident to a lawful arrest, and therefore accessible. There was also an ability for the unsecured brother, or anyone else in the room, to obtain a gun. The court finds that the items on the kitchen counter area are allowed pursuant to the theory of the search being incident to a lawful arrest. Sergeant Setzer recognized the items as being bags of heroin based on his training and experience. Additionally, since Sergeant Setzer was lawfully there, the items on the counter were also in plain view.
Items Seized From the Closet
The defendant moves this court to suppress the items seized from the closet on the basis that this was not a legitimate protective sweep.
The state claims that what was located in the closet was appropriate under a protective sweep scenario.
Our Supreme Court discussed the U.S. Supreme Court ruling of Mayland v. Buie, 494 U.S. 325 (1990), in State v. Spencer, 268 Conn. 575, 588-89, cert. denied, 543 U.S. 957 (2004):
Recognizing the often competing interests of the individual's expectation of privacy and the officers' safety, the court therefore determined that there were two levels of protective sweeps. Concerning the first tier of protective sweeps, the court concluded that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched . . . Concerning the second tier of protective sweeps, the court concluded: Beyond that . . . we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene . . . The court further emphasized that a protective sweep may extend only to a cursory inspection of those spaces where a person may be found . . . and lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
(Citations omitted; internal quotation marks omitted.)
Within the first tier of protective sweeps, arresting officers can, as a precautionary matter, and without probable cause, or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack can be immediately launched.
In the present case, the kitchen area and the bedroom area with the closet are all part of a small efficiency apartment. The closet area could be considered immediately adjoining the place of arrest. The court has discussed this issue when it discussed items located on the kitchen counter. If it is not a first-tier ( Buie) search, the court considers whether this is a second-tier protective sweep. That is, whether the searching officer possessed a reasonable belief based on specific articulable facts that the area to be swept harbored an individual posing a danger to those on the arrest scene.
To satisfy the fourth amendment, a second-tier protective sweep must be supported by articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbored an individual posing a danger to those on the arrest scene.
In reviewing the testimony of Sergeant Setzer, he was aware of the nature of the charges in the arrest warrant. Upon entering the apartment, he saw a large carton with gun ammunition and heard someone yell out the presence of a gun. There appear to be sufficient articulable facts to warrant the sweep. Sergeant Setzer's conduct of the sweep was to look in areas for persons and it did not last very long. Therefore, the protective sweep of the closet was lawful.
The court also denies the defendant's request to suppress the grinders and a red sifter that was found within the nylon bag in the closet.
The credible testimony presented at the motion to suppress was, that while conducting the protective sweep, Sergeant Setzer opened the closet where the red nylon bag was found. He observed the sifter protruding from the bag. From his training and experience, he testified that sifters are used in the production and sale of illegal narcotics. Although the testimony indicated that this was a partially closed bag, there is case law that supports the position that once a contraband item is visible, protruding from a bag, there is a corresponding diminishing of the expectation of privacy, and the contents of the bag becomes "plain view." In this case, the sifter was protruding from the nylon bag and, thereafter, may be considered as in "plain view." See, State v. Callari, 194 Conn. 18, 24 (1984), cert. denied, 469 U.S. 1210 (1988).
Defendant's Statement
Because the defendant does not challenge the arrest, and because the search was valid and proper, the defendant's related argument that his subsequent statement to the police was the fruit of an illegal search necessarily fails.
Conclusion
For all the foregoing reasons, the motion to suppress is denied. However, since the parties have not articulated the specific items or statements that were the subject of the motion, the court's decision only addresses the actions of the police. The specific items and statements will be determined individually to address if they are within the scope of this decision and whether they are admissible evidence at trial.