Argued
April 24, 2018
Procedural
History
Information
charging the defendant with the crimes of possession of more
than four ounces of marijuana, conspiracy to possess more
than four ounces of marijuana, possession of a controlled
substance with intent to sell, conspiracy to possess a
controlled substance with intent to sell, possession of
narcotics, conspiracy to possess narcotics, possession of
narcotics with intent to sell by a person who is not
drug-dependent, conspiracy to possess narcotics with intent
to sell by a person who is not drug-dependent, operation of a
drug factory, and conspiracy to operate a drug factory,
brought to the Superior Court in the judicial district of
Stamford, geographical area number one, where the court,
Blawie, J., denied the defendant's motion to
suppress certain evidence; thereafter, the defendant was
presented to the court on a conditional plea of nolo
contendere to conspiracy to possess a controlled substance
with intent to sell, conspiracy to possess a controlled
substance with intent to sell by a person who is not
drug-dependent, and conspiracy to operate a drug factory;
judgment of guilty in accordance with the plea; thereafter,
the state entered a nolle prosequi as to the remaining
charges, and the defendant appealed to this court.
Affirmed.
Laila
M.G. Haswell, senior assistant public defender, with whom, on
the brief, was Lauren Weisfeld, chief of legal services, for
the appellant (defendant).
Michele C. Lukban, senior assistant state's attorney,
with whom, on the brief, were Richard J. Colangelo, Jr.,
state's attorney, and Susan M. Campbell, deputy assistant
state's attorney, for the appellee (state).
Alvord, Prescott and Beach, Js.
OPINION
ALVORD, J.
Following
a conditional plea of nolo contendere, entered pursuant to
General Statutes § 54-94a, [1]the defendant, Ricardo
Correa, appeals from the judgment of conviction of conspiracy
to possess a controlled substance with intent to sell in
violation of General Statutes §§ 53a-48 and 21a-277
(b), conspiracy to possess a controlled substance with intent
to sell by a person who is not drug-dependent in violation of
General Statutes §§ 53a-48 and 21a-278 (a), and
conspiracy to operate a drug factory in violation of General
Statutes §§ 53a-48 and 21a-277 (c). The defendant
entered his conditional plea following the court's denial
of his motion to suppress evidence seized from a motel room
he was renting. On appeal, the defendant claims that the
trial court erred in denying his motion to suppress because:
(1) a warrantless dog sniff outside the door of his motel
room violated his state constitutional rights, and (2) a
warrantless visual search of his motel room violated his
state and federal constitutional rights. We affirm the
judgment of the trial court.
The
trial court set forth the following findings of fact in its
memorandum of decision on the defendant's motion to
suppress. During the early morning hours of February 5, 2013,
Sergeant Christopher Broems of the Stamford Police Department
was parked on Home Court, a street immediately behind the
America's Best Value Inn motel (motel) on East Main
Street in Stamford. Sergeant Broems, a nineteen year veteran
of the Stamford Police Department who also spent three years
in the New York City Police Department, had made many prior
arrests at the motel for narcotics, prostitution, and other
criminal activity. From the street, Sergeant Broems was
surveilling the motel for evidence of possible illegal
activity. He was parked approximately fifty yards away from
the motel and had a clear, well illuminated view of the
motel, which included two floors of numbered motel room doors
that opened onto the back parking lot.
At
approximately 1:20 a.m., Sergeant Broems observed a silver
colored 2004 GMC Yukon pull into the motel parking lot. Only
the passenger in the Yukon, who was later determined to be
Eudy Taveras, exited the Yukon, while the operator remained
in the vehicle with the headlights on. Taveras approached and
entered room 118 of the motel, which was on the first floor,
where he remained for less than one minute. Taveras returned
to the vehicle, which then left the motel. Given the
location, time of night, and duration of the visit, Sergeant
Broems believed that he may have witnessed a narcotics
transaction out of room 118. Sergeant Broems radioed to a
nearby colleague, Officer Vincent Sheperis, that he intended
to stop the Yukon, and then drove in the direction of the
Yukon.
When
the operator of the Yukon, who was later determined to be
Charles Brickman, observed Sergeant Broems approaching the
Yukon in his marked Stamford Police SUV, he turned off the
Yukon's headlights. A short distance from the motel,
Sergeant Broems stopped the vehicle. Officer Sheperis joined
Sergeant Broems, acting as backup. When Sergeant Broems and
Officer Sheperis approached the vehicle, they both smelled a
strong odor of marijuana emanating from inside the Yukon.
Sergeant Broems and Officer Sheperis removed Taveras from the
vehicle, and Taveras admitted to possessing
‘‘weed.'' A search of Taveras revealed
two glass jars with yellow tops containing marijuana, along
with three other similar, but empty, yellow topped glass
jars, as well as a knotted corner of a plastic sandwich bag
containing heroin. On the basis of this evidence, Sergeant
Broems requested a sweep of the Yukon by a canine officer
trained in the detection of narcotics.
A
canine officer, Cooper, and his Stamford Police Department
handler, Sergeant Seth O'Brien, arrived on the scene
shortly after Sergeant Broems' request. Cooper alerted to
the center console of the vehicle, but the officers found no
additional drugs. Brickman was found to have no drugs on his
person. Brickman was issued an infraction ticket for
operating a motor vehicle without headlights, and allowed to
drive off in the Yukon. The officers detained Taveras.
Taveras
informed Sergeant O'Brien that he lived with his
grandmother nearby on Charles Street in Stamford. At that
point, Sergeant Broems, Officer Sheperis, and Sergeant
O'Brien went to the grandmother's home on Charles
Street, where they spoke with Taveras' brother.
Taveras' grandmother signed a consent form allowing the
officers to search Taveras' bedroom. In Taveras'
bedroom, the officers found numerous plastic bags with the
corners cut off, consistent with narcotics packaging, along
with other bags containing an off white powder residue.
The
officers then returned to the motel. They spoke with the
manager of the motel, who advised them that several days
earlier, the defendant had rented room 118 for the week,
until February 8, 2013, paying $430 in cash.[2] The manager
provided the officers with documentation concerning room 118,
including a photocopy of the defendant's driver's
license. The guest registration card for room 118 also
included the name of a second individual, Victor Taveras.
Although the officers were not certain who Victor Taveras
was, Sergeant O'Brien testified that they believed that
he most likely was Eudy Taveras.
After
speaking with the manager, the officers went together to
knock on the door of room 118. The officers observed a light
on in the room, but no one answered the door. Sergeant
O'Brien then retrieved Cooper and conducted a narcotics
sweep, which included several passes along the first floor
walkway where room 118 is located. On each pass, Cooper
consistently alerted to the presence of narcotics at the door
to room 118.
It was
then approximately 3 a.m. on February 5, 2013, a little over
ninety minutes since Sergeant Broems first observed Taveras
enter and exit room 118. At this point, on the basis of all
that had transpired since observing Taveras enter and exit
room 118, Sergeant Broems decided to apply for a warrant to
search room 118. The officers decided that Sergeant Broems
and Officer Sheperis would return to Stamford Police
headquarters to prepare the search warrant and to process
Taveras for his drug charges, and Sergeant O'Brien would
remain behind on Home Court, in the same area where Sergeant
Broems was parked earlier, to surveil room 118 for any
possible activity. Very shortly after the officers split up,
however, just as Sergeant O'Brien was getting into
position to surveil room 118, he observed the defendant on
foot near the motel at the corner of Home Court and East Main
Street, walking away from the motel. Sergeant O'Brien,
who recognized the defendant, immediately radioed for
Sergeant Broems and Officer Sheperis to return to the motel
to stop the defendant.
While
walking on Home Court, the defendant made eye contact with
Sergeant O'Brien, who was in a marked police SUV. After
the defendant made eye contact with Sergeant O'Brien, the
defendant changed his direction and began walking east on
East Main Street. About 100 yards from the motel, Sergeant
O'Brien approached the defendant, stepped out of his
police vehicle, and, addressing the defendant as
‘‘Ricky, '' told the defendant that he
needed to speak with him. Initially, the defendant was
cooperative. Sergeant Broems arrived on the scene, and the
defendant was searched. The officers found that the defendant
was carrying a large wad of cash, amounting to over $3600, in
his pocket, along with a key to a room at the motel. Sergeant
O'Brien informed the defendant that Taveras was taken
into custody, and that ‘‘the jig is up.''
The defendant responded, ‘‘nothing in the room is
mine.'' The defendant agreed to open the door to room
118 for the officers. When the officers and the defendant
reached the threshold of room 118, however, the defendant
changed his mind and refused to grant them entry. The
officers informed the defendant that if he did not consent to
a search of the room, they were going to obtain a search
warrant.
The
defendant informed Sergeant Broems that there was no one in
the room. To ensure that there was no one else inside the
room that might destroy evidence before the officers could
obtain a search warrant, however, Sergeant Broems used the
defendant's room key to open the door. After opening the
door, Sergeant
Broems
announced ‘‘Police!'' and looked inside
the room for approximately fifteen to thirty
seconds.[3] Once he was satisfied that the room
contained no occupants, Sergeant Broems closed the door.
While the door was open, neither Sergeant Broems, nor any
other officer or Cooper, set foot in or otherwise physically
entered room 118. When he did not observe anyone in the room,
Sergeant Broems ‘‘cleared'' room 118.
Although he did not enter the room, or take any steps to
seize any evidence located inside the room, Sergeant Broems
did observe a large black digital scale on a table, as well
as a plastic sandwich bag lying on the floor nearby. The
officers advised the defendant that he was free to leave the
motel, and the defendant left.
Following
the defendant's departure, other officers of the Stamford
Police Department arrived at the motel. Those officers were
assigned to watch room 118 while the investigating officers
prepared an application for a search warrant, with Sergeant
O'Brien and Officer Sheperis acting as affiants. Several
hours later, at 9:20 a.m., the court, Hon. Richard F.
Comerford, Jr., judge trial referee, signed the search
warrant for room 118.
When
the police executed the search warrant, they discovereda
total of approximately 200 grams of heroin, with a street
value of approximately $85, 000. The heroin was broken down
into dozens of smaller baggies or glassine folds for
individual sale. The officers also discovered a large
quantity of U.S. currency, a laptop computer, and paper
documents pertaining to a street gang, the Latin Kings. The
police also discovered over four ounces of marijuana and a
quantity of packaging materials, along with a vacuum sealing
machine, two sifters, and two digital scales. These items
were consistent with the operation of a drug factory by the
defendant in the motel room. After the search warrant was
executed, the police arrested the defendant at Taveras'
grandmother's house on Charles Street. The defendant was
charged with a variety of felony drug offenses.[4] On October 28,
2015, the defendant filed a motion to suppress
‘‘all items seized by police on February 5, 2013
from America's Best Value Inn Room #118.'' In his
memorandum of law in support of the motion to suppress, the
defendant argued that because Sergeant Broems' visual
sweep of the room was performed without obtaining a valid
search warrant, it was ‘‘per se
unreasonable.'' The defendant further argued that,
because the search did not fall within any recognized
exceptions to the warrant requirement, as no exigent
circumstances existed at the time and the conduct fell short
of a protective sweep, ‘‘any evidence found as a
result of the prior police illegality must be
suppressed.''
The
court held a hearing on the motion to suppress on February
29, 2016. The state presented the testimony of Sergeant
Broems, Officer Sheperis, and Sergeant O'Brien. At the
conclusion of the suppression hearing, the state did not
contest that Sergeant Broems' visual sweep of the room
constituted a warrantless search within the meaning of the
fourth amendment to the United States constitution and
article first, § 7, of the Connecticut constitution.
Rather, the state argued that because Officer Broems'
visual sweep of room 118 was undertaken ‘‘solely
for the purpose of insuring the lack of-insuring that no
evidence was being destroyed, '' it was lawful
pursuant to the exigent circumstances exception to the
warrant requirement. The state specifically noted that the
visual sweep did not constitute a ‘‘protective
sweep.''[5] The state alternatively argued that, even
if the visual sweep was unlawful, the evidence seized from
the room was still admissible pursuant to the independent
source doctrine.
On June
22, 2016, the court denied the defendant's motion to
suppress in a written memorandum of decision. The court
concluded that Sergeant Broems' warrantless visual sweep
was proper, under the exigent circumstances doctrine, to
prevent the destruction of evidence. The court reasoned that,
‘‘when all the facts of this case as known by
police at the time of the warrantless entry by Broems are
viewed objectively, the case meets the criteria for a finding
of exigent circumstances.'' In reaching its decision,
the court noted that other courts have found that evidence
destruction is frequent in drug cases, and it relied on the
testimony of the police officers, including: Sergeant
Broems' testimony that his only motivation to open the
door to room 118 was to avoid the destruction of possible
evidence; Sergeant O'Brien's testimony that, based on
his training and experience, it is common for additional
people to be present in a motel room, especially in the
context of narcotics or prostitution, regardless of the
actual number of registered parties; Sergeant
O'Brien's testimony that he was concerned that, on
the basis of his prior experience as a trained officer with
respect to the destruction or contraband or evidence, a
number of people already knew of the Stamford police's
investigation into the activity in room 118, and that phone
calls informing potential confederates of that investigation
may have already been made, prompting the destruction of
evidence; and Sergeant Broems' testimony that he believed
that there was a real possibility for the loss of potential
evidence of illegal activity in room 118 because the police
did not continue to surveil room 118 after initially
departing the motel to stop the Yukon. The court further
noted that the officers were not aware of the true extent of
Taveras' involvement with the room, or the possibility of
the presence of other persons inside the room. The court also
concluded that ‘‘even assuming, arguendo, that
the act of Broems in opening the door without a warrant in
order to check the room for other occupants violated the
defendant's fourth amendment rights, the court finds that
the evidence later seized pursuant to a search warrant is
admissible under the independent source doctrine.''
On
October 19, 2016, the defendant entered a conditional plea of
nolo contendere to conspiracy to possess a controlled
substance with intent to sell in violation of General
Statutes §§ 53a-48 and 21a-277 (b), conspiracy to
possess a controlled substance with intent to sell by a
person who is not drug-dependent in violation of General
Statutes §§ 53a-48 and 21a-278 (a), and conspiracy
to operate a drug factory in violation of General Statutes
§§ 53a-48 and 21a-277 (c). The plea was entered
conditionally on his right to take an appeal from the
court's ruling on the motion to suppress. The court,
Blawie, J., rendered a judgment of conviction. The
court sentenced the defendant to a term of incarceration of
nine years on each of the charges, followed by six years of
special parole, to run concurrently with one another, for a
total effective sentence of nine years to serve followed by
six years of special parole. On March 31, 2017, the court
made a finding that the motion to suppress was dispositive of
the case.[6] This appeal followed.
We
begin by noting that ‘‘[a]s a general matter, the
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, [however] and the
credibility of witnesses is not the primary issue, our
customary deference to the trial court's factual 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 ...