October 17, 2018
information charging the defendant with the crime of murder,
brought to the Superior Court in the judicial district of New
London, where the court, Jongbloed, J., denied the
defendant's motion to suppress certain evidence;
thereafter, the case was tried to the jury before Jongbloed,
J.; verdict and judgment of guilty, from which the defendant
appealed to this court. Reversed; new trial.
Simmons, assigned counsel, for the appellant (defendant).
J. Smith, senior assistant state's attorney, with whom,
on the brief, was Michael L. Regan, state's attorney, for
the appellee (state).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
jury trial, the trial court convicted the defendant, Jean
Jacques, of murdering the victim, Casey Chadwick, in
violation of General Statutes § 53a-54a. The defendant
now appeals from that conviction. The subject of this appeal
is the trial court's denial of his motion to suppress
incriminating evidence linking him to the murder, which the
police obtained from a search of his apartment without a
warrant. The defendant had a month-to-month lease for the
apartment and had paid only the first month's rent. Five
days into that lease, the defendant was arrested for certain
drug offenses and, shortly thereafter, the murder of the
victim. The defendant never posted bond or made any
arrangements to pay for a second month of rent.
days after his rent was due for a second month, the police
searched his apartment without a warrant and discovered the
victim's cell phone hidden in a bathroom wall. The
defendant moved to suppress that evidence on the ground that
the search violated his right to be free from unreasonable
searches and seizures under the fourth amendment to the
United States constitution. In denying his motion to
suppress, the trial court explained that the defendant had
failed to ‘‘maintain the apartment as his
own'' because the lease had expired, the defendant
had not made any further rent payments, and the defendant did
not make arrangements to secure his belongings in the
apartment. Thus, the court concluded that the defendant did
not have a subjective expectation of privacy in the apartment
at the time of the search.
question before us is whether the trial court properly denied
the defendant's motion to suppress on the ground that he
did not have a subjective expectation of privacy in the
apartment at the time of the search. We conclude that, under
the specific facts of this case, the defendant established
that the apartment was his home and that neither his
incarceration nor his failure to pay rent five days after it
was due divested him of his subjective expectation of privacy
in his apartment. Therefore, we further conclude that the
trial court improperly denied the defendant's motion to
suppress and, accordingly, reverse the judgment of the trial
following undisputed facts and procedural history are
relevant to our analysis. On January 16, 2015, the defendant
was released from incarceration to supervised
parole. Upon being released, he lived with a
friend until June 10, 2015. On that date, the defendant
secured his own apartment in Norwich. He entered into a
month-to-month tenancy and paid the landlord $450 for the
first month of rent, which ran from June 10 to July 10, 2015.
After securing the apartment, the defendant moved all of his
belongings into the apartment and began living there.
15, 2015, the defendant was arrested on drug charges
unrelated to this case. At the time of his arrest, the police
noticed blood on his sneakers. That same day, police officers
discovered the body of the victim stuffed into a closet in
her apartment. She had been stabbed multiple times.
Subsequent forensic testing indicated that some of the blood
on the defendant's shoes had come from the
following day, on June 16, 2015, the police, accompanied by
the defendant's parole officer, searched the
defendant's apartment. Inside, they discovered blood on
the walls and a mattress. Forensic testing indicated that
this blood came from the defendant, who had various cuts on
his hands. The defendant was subsequently arrested for the
murder of the victim while he was incarcerated on the drug
the defendant was in jail on the pending drug and murder
charges, the police received a tip from a confidential
informant that the defendant had hidden the victim's cell
phone and some drugs in a hole in the wall of the bathroom of
his apartment. As a result, on July 15, 2015, police officers
conducted a second search of the defendant's apartment in
order to investigate whether there was a hole in the bathroom
wall. This time, the officers were not accompanied by the
defendant's parole officer. Instead, the officers went to
the apartment alone and without a warrant. They obtained
written consent from the landlord to search the apartment.
After obtaining that consent, the officers entered the
defendant's apartment and confirmed the presence of a
hole in the bathroom wall with a bag inside of it. Inside the
bag, the officers found the victim's cell phone and some
to trial, the defendant filed a motion to suppress the
victim's cell phone and the drugs, asserting that this
evidence was inadmissible under the exclusionary rule as the
fruit of prior police illegality. An evidentiary hearing on
the motion was held during which both parties presented
evidence related to the defendant's lease of the
apartment and the contested search.
memorandum of decision on that motion, the trial court made
the following explicit findings of fact. The defendant had
entered into a month-to-month lease for the apartment and
paid rent for the first month. Five days into his lease, on
June 15, 2015, he was arrested on the drug charges. His bond
was set at $100, 000, which he was not able to post. While
incarcerated on the drug charges, he was arrested for the
murder of the victim, and his bond was increased to $1
million. He did not post that bond either. Thus, the
defendant was incarcerated and never returned to the
apartment following his arrest on June 15, 2015. The
defendant did not make any further rent payments for any
period beyond the first month. Nor did the defendant contact
the landlord or attempt to have his lease extended. Despite
having the ability to do so, the defendant also did not
contact his friends or family to ask them to pay his rent.
The trial court also found that the search at issue occurred
on July 15, 2015, five days after the date of expiration of
the lease term. Despite not receiving rent for a second
month, the landlord did not initiate eviction proceedings. In
fact, the court credited the landlord's testimony that,
if the defendant had been released from jail in July and had
the money to pay his rent, the landlord would have permitted
him to continue to stay in the apartment.
basis of these findings, the court determined that the
defendant did not show an interest in the apartment and,
thus, did not meet his burden of demonstrating a subjective
expectation of privacy in it at the time of the second
search. In making that determination, the court considered
that the lease had expired five days before the second search
occurred, the defendant neither made any further rent payment
nor any arrangements to have his rent paid, and the defendant
made no effort to ‘‘maintain the apartment as his
own.'' The trial court further explained that, even
though the defendant had been incarcerated, he could have
exhibited some interest in the apartment by asking his family
or friends to maintain the apartment or the personal
belongings within it. The court acknowledged the
defendant's testimony that he would have gone back to the
apartment if he had been released from jail. It determined,
however, that his expressing this view many months later did
not rise to the level of exhibiting an actual subjective
expectation of privacy in the apartment.
trial court denied the defendant's motion to suppress,
and, following a nine day trial, the jury returned a verdict
of guilty on the charge of murder. The trial court
subsequently rendered judgment in accordance with that
verdict and sentenced the defendant to sixty years
incarceration. This appeal followed. Additional facts will be
set forth below as necessary.
appeal, the defendant asserts that the trial court improperly
denied his motion to suppress the evidence obtained during
the second search of his apartment, which occurred on July
15, 2015. Specifically, he claims that he had a
reasonable expectation of privacy in the apartment because it
was his home and he had never been evicted from it or
otherwise abandoned it. We agree with the defendant.
begin by setting forth the relevant principles of law and the
standard of review governing the defendant's claim.
‘‘The fourth amendment to the United States
constitution . . . provides that [t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . .''
(Internal quotation marks omitted.) State v.
Saturno, 322 Conn. 80, 88, 139 A.3d 629 (2016).
‘‘The capacity to claim the protection of the
fourth amendment does not depend upon a property interest,
permanency of residence, or payment of rent but upon whether
the person who claims fourth amendment protection has a
reasonable expectation of privacy in the invaded
area.'' State v. Reddick, 207 Conn.
323, 330, 541 A.2d 1209 (1988); see id., 329
(‘‘[a] person is entitled to fourth amendment
protection anywhere he resides where he has a reasonable
expectation of privacy''); see also Rakas v.
Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58
L.Ed.2d 387 (1978); Katz v. United States, 389 U.S.
347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J.,
receive fourth amendment protection against unreasonable
searches and seizures, a defendant must have a legitimate
expectation of privacy in the [subject of the search]. . . .
Absent such an expectation, the subsequent police action has
no constitutional ramifications.'' (Internal
quotation marks omitted.) State v. Pink,
274 Conn. 241, 258, 875 A.2d 447 (2005). To determine whether
a defendant has a reasonable expectation of privacy in an
invaded place, we follow the test laid out by the United
States Supreme Court in Katz v. United
States, supra, 389 U.S. 347. ‘‘The
Katz test has both a subjective and an objective
prong: (1) whether the [person contesting the search]
manifested a subjective expectation of privacy with respect
to [the invaded premises or seized property]; and (2) whether
that expectation [is] one that society would consider
reasonable. . . . This determination is made on a
case-by-case basis. . . . The burden of proving the existence
of a reasonable expectation of privacy rests [with] the
defendant.'' (Internal quotation marks omitted.)
State v. Houghtaling, 326 Conn. 330, 341,
163 A.3d 563 (2017), cert. denied, U.S., 138 S.Ct. 1593, 200
L.Ed.2d 776 (2018).
well settled that ‘‘[w]hen reviewing a trial
court's denial of a motion to suppress, [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 . . . 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. . . . [When] the legal
conclusions of the court are challenged, [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 [trial court's] memorandum of decision . .
. .'' (Internal quotation marks omitted.)
our responsibility to examine the record scrupulously, it is
well established that we may not substitute our judgment for
that of the trial court when it comes to evaluating the
credibility of a witness. . . . We must defer to the trier of
fact's assessment of the credibility of the witnesses
that is made on the basis of its firsthand observation of
their conduct, demeanor and attitude.'' (Internal
quotation marks omitted.) State v. DeMarco,
311 Conn. 510, 519-20, 88 A.3d 491 (2014).
present case, the trial court's factual finding that the
defendant had no subjective expectation of privacy in the
apartment at the time of the search implicates the
defendant's constitutional rights. Thus, we undertake a
scrupulous review of the record to determine whether the
trial court's finding is supported by substantial
evidence in the record. See, e.g., id.
review of the record reveals the following. At the
suppression hearing, the defendant testified that the
apartment was his ‘‘home.'' He explained
that, after verbally entering into a lease and paying his
first month of rent on June 10, 2015, he moved all of his
personal belongings into the apartment and began living
there. He was living there when he was arrested and
incarcerated five days later. When he missed his rent payment
for the next month, he did not make arrangements to have his
belongings removed from the apartment because he did not
think that his landlord would kick him out for not paying
expressed his uncertainty as to whether his lease had expired
at the time of the search on July 15, 2015. In the five days
preceding the search in which the defendant's rent
payment was overdue, the landlord neither contacted him nor
gave him any reason to believe that he had to vacate the
apartment. The defendant testified that, if his landlord had
told him that he needed to leave the apartment, he would have
contacted a friend to remove his belongings from the
premises, but the landlord never did so. He stated that it
was his intention to stay in the apartment for a long time.
He also stated that he had a key to the apartment and did not
give permission for anyone, including the landlord, to enter.
the defendant acknowledged that he knew he might be
incarcerated for a long time and made no attempt to contact
his landlord when rent became due for a second month, he
testified that he thought he could easily talk to the
landlord and get his apartment when he got out of jail. When
testifying about his expectations with regard to the
apartment in the event that he was released from jail, the
defendant stated that ‘‘I . . . think about when
I get out, this is where I'm going . . . where I'm
going [to] go.''
landlord also testified at the suppression hearing, and his
testimony supported the defendant's contention that he
had a subjective expectation of privacy in the apartment. The
landlord testified that he never communicated to the
defendant in any way that he had to leave the apartment. He
made no attempt to get the keys back from the defendant prior
to the time of the search. Nor did he commence eviction
proceedings. Although he never notified the defendant, prior
to the search, the landlord took it upon himself to put all
of the defendant's personal belongings in bags and remove
them from the apartment.
aware that the first prong of Katz focuses on the
defendant's actions and beliefs as opposed to those of
the landlord. Nevertheless, we find it significant that the
landlord's conduct supports the defendant's testimony
that he actually believed he had a privacy right in the
apartment at the time of the search. The defendant heard
nothing from the landlord suggesting that he was in danger of
losing the apartment or his possessions
therein. Cf. United States v.
Miller, 387 Fed.Appx. 949, 951-52 (11th Cir. 2010)
(concluding that defendant could not have subjective
expectation of privacy where defendant knew property manager
would give him only three weeks to remove belongings if he
failed to pay rent, and search occurred after three week
scrupulous examination of the record reveals that the trial
court's determination that the defendant did not have a
subjective expectation of privacy in his apartment at the
time of the search is not supported by substantial evidence.
Instead, the evidence demonstrates that the apartment was the
defendant's home and that he, therefore, had an
expectation of privacy in the apartment. The record shows
that, the defendant entered into a month-to-month lease and
paid for the first month. He was given the keys to the
apartment, moved all of his possession into the place, and
testified that he never gave anyone, including the landlord,
permission to enter. See, e.g., State v.
Reddick, supra, 207 Conn. 331-32 (holding that
defendant had legitimate expectation of privacy in
mother's apartment when defendant had key). He also
expressly testified that the apartment was his home, and the
landlord's behavior was consistent with that belief. Even
though the defendant was five days late on his second rent
payment in this month-to-month lease, the landlord did not
initiate any eviction proceedings.
the fact that the defendant was overdue on his rent nor the
fact that he was incarcerated during his tenancy is
sufficient, without more, for the defendant to have lost his
subjective expectation of privacy in his apartment. Indeed,
the failure to pay rent, on its own, does not result in the
loss of one's expectation of privacy. See United
States v. Robinson, 430 F.2d 1141, 1143-44 (6th
Cir. 1970); Browning v. State, 176 Ga.App.
420, 422, 336 S.E.2d 41 (1985); State v.
Hodges, 287 N.W.2d 413, 415 (Minn. 1979); State
v. Clark, 105 N.M. 10, 13, 727 P.2d 949 (App.),
cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). Similarly,
the defendant's incarceration and subsequent absence from
the apartment did not, without more, result in the loss of
his expectation of privacy. See United States v.
Robinson, supra, 1143; Browning v.
State, supra, 422; State v.
Hodges, supra, 415; State v.
Clark, supra, 952.
trial court faulted the defendant for not exhibiting any
interest in the apartment and for failing to
‘‘maintain the apartment as his own.'' We
construe this as an abandonment analysis. In such an
analysis, however, the burden of proof is not placed on the
defendant to show that he maintained his privacy interest
but, rather, on the state to show ‘‘an element of
conduct manifesting [an] intent to relinquish an expectation
of privacy in the [item or area searched].''
(Internal quotation marks omitted.) State v.
Jackson, 304 Conn. 383, 396, 40 A.3d 290 (2012); see
also United States v. Brazel, 102 F.3d
1120, 1147-48 (11th Cir.) (explaining that defendant bears
burden of proving legitimate expectation of privacy in area
searched, and government has burden of proving abandonment),
cert. denied, 522 U.S. 822, 118 S.Ct. 79, 139 L.Ed.2d 37
abandonment ‘‘must be established by clear and
unequivocal evidence.'' United States v.Harrison, 689 F.3d 301, 307 (3d Cir. 2012), cert.
denied, 568 U.S. 1242, 133 S.Ct. 1616, 185 L.Ed.2d 602
(2013). To show that the defendant abandoned his expectation
of privacy in his apartment, the law generally requires
affirmative conduct on the part of the defendant. See, e.g.,
United States v.Stevenson, 396 F.3d 546,
544 (4th Cir.) (defendant showed intent to relinquish his
privacy interest in apartment while he was incarcerated by
writing letter to his girlfriend in which he gave her all of
his personal belongings and referred to himself as
‘‘former renter''), cert. denied, 544
U.S. 1067, 125 S.Ct. 2534, 161 L.Ed.2d 1122 (2005); ...