State v. Ryder
State v. Ryder
Opinion of the Court
Opinion
The defendant, Gary Ryder, appeals
The opinion of the Appellate Court sets forth the following relevant facts as found by the trial court: “On August 15, 2004, [Andrew Kelly, a police officer] was working the 4 p.m. to 12 a.m. shift. He was ordered out of his daily check out at the beginning of his shift and told to report to dispatch. [Kelly] testified that such a procedure was unusual and done only in cases of emergency situations, such as a motor vehicle accident.
“[Kelly] was informed that the dispatcher received numerous telephone calls from a father in Vermont,
“[Kelly] proceeded to the defendant’s house ... in Greenwich, which he described as an affluent area of town. He arrived at the house at [approximately] 4:30 p.m. and pulled into the beginning of the gated driveway, [the gate to which] was closed. He immediately noticed from that vantage point that there was a couch that was sticking partly out of the garage onto the driveway and a BMW convertible with its top down parked in the driveway.
“[Kelly] testified that based on the facts as he knew them to be, he believed that the missing [sixteen year old son] may be in danger inside the house. Important to that belief were the facts of a reportedly missing [teenager], the nature of the couch and vehicle in the driveway area, no response to his repeated calls from outside the house, an unlocked door and the . . . clothes strewn on the cot on the first floor. For those and other reasons, [Kelly and Smurlo] decided to enter the residence ... to look in places where a [teenager] may be located.
“The officers searched the first floor of the house for the [sixteen year old son] and then proceeded upstairs. At one point . . . Kelly went into a bathroom on the second floor and noticed what appeared to be a dark figure through the bathtub shower door. The glass was frosted. He testified that he believed the dark figure was the missing [son]. In this regard, he testified as follows: I slid the door open to the tub. To the greatest
“[Kelly] closed the shower door, and he and . . . Smurlo continued to search the rest of the residence for the [sixteen year old son]. [Kelly] did not know at the time whether the possession of the reptile in the tub was illegal. The officers, having completed their search . . . exited the residence and left the reptile still in the bathtub where they found it.
“On September 8, 2004, almost four weeks later, the defendant was arrested on charges of risk of injury to a child in violation of General Statutes § 53-21 and illegal possession of a reptile in violation of [General Statutes] § 26-55. On March 6, 2006, the defendant moved to suppress the evidence obtained from the search of his home and to dismiss the charges against him. After a three day suppression hearing, the court denied the defendant’s motions. The state entered a nolle prosequi with regard to the charge of risk of injury to a child, and the defendant entered a plea of nolo contendere to the possession of a reptile charge, conditioned on reserving his right to appeal from the court’s ruling on his motions to suppress and to dismiss. . . . The [trial] court found that the rulings on the defendant’s motion to dismiss and motion to suppress were dispositive of the case for the purposes of General Statutes § 54-94a and Practice Book § 61-6 (a) (2) (i) and sentenced him to pay a $35 fine, which he since has paid.” (Citation omitted; internal quotation marks omitted.) Id., 530-33.
The record also reveals the following additional undisputed facts and procedural history. The defendant subsequently appealed to the Appellate Court from the trial court’s denial of his motions to suppress and to dismiss. The Appellate Court described his appeal as claiming that “the warrantless search of his house vio
In light of the trial court’s findings, the Appellate Court determined that it had jurisdiction over the defendant’s appeal, and it then reviewed the question of whether the warrantless search of the defendant’s home had violated his right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution.
The defendant claims that the Appellate Court improperly determined that the warrantless search of his house did not violate his right to be free from unreasonable searches and seizures under the fourth amendment.
“[I]n reviewing atrial court’s ruling on the emergency doctrine, subordinate factual findings will not be dis
“It is axiomatic that the police may not enter the home without a warrant or consent, unless one of the established exceptions to the warrant requirement is met. Indeed, ‘[p]hysical entry of the home is the chief evil against which the wording of the fourth amendment is directed.’ State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983); Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).” State v. Aviles, 277 Conn. 281, 292, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). “To discourage unreasonable searches and seizures, the evidence obtained as a direct result of that illegal search or seizure, as well as the ‘fruits,’ or evidence derived therefrom, are excluded from evidence, unless the connection between the ‘fruits’ and the illegal search has been sufficiently attenuated to be purged of its primary taint. Segura v. United States, 468 U.S. 796, 804-805, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).” State v. Geisler, 222 Conn. 672, 682, 610 A.2d 1225 (1992).
Before addressing the issue of whether the war-rantless search of the defendant’s home was unreasonable, we first consider the question of when precisely the search commenced. The defendant contends that
“The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept.” Dow Chemical Co. v. United States, 476 U.S. 227, 235, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986). “[T]he [f]ourth [a]mendment protects the curtilage of a house and . . . the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. . . . [T]he central component of this inquiry is whether the area harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.” (Citation omitted; internal quotation marks omitted.) United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).
The United States Supreme Court has “declin[ed] ... to adopt a ‘bright-line rule’ that ‘the curtilage should extend no farther than the nearest fence surrounding a fenced house.’ . . . Fencing configurations are important factors in defining the curtilage . . . but . . . the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” (Citations
In the present case, we conclude that the area between the gate and the front door was curtilage protected by the fourth amendment. According to the trial court’s factual findings, the defendant’s house was approximately two or three stories tall. The police could
Because we conclude that Kelly conducted a war-rantless search of the defendant’s curtilage when he crossed the gate, we now turn to the question of whether that warrantless search was unreasonable. “[I]t is clear that a search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . Searches conducted pursuant to emergency circumstances are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions.” (Citations omitted; internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. 794.
“[T]he emergency doctrine relies on an objective test wherein the reasonableness of the officer’s belief is
Application of these principles leads us to conclude that Kelly’s entry onto the defendant’s curtilage was not justified by an emergency situation because a reasonable police officer would not have believed that an emergency existed. It was not objectively reasonable for Kelly to believe that a sixteen year old was in need of immediate aid, despite the urgent telephone calls by an apparently concerned parent, the presence of the car and couch in the driveway and the lack of an answer at the intercom and front door.
In its brief to this court, the state cites State v. Blades, supra, 225 Conn. 619-20, in which we stated: “Among the infinitely varied situations in which entry for the purpose of rendering aid is reasonable, one is the search for an occupant reliably reported missing.’’ Blades, however, involved a markedly different situation. In Blades, the police officer received repeated calls from close
We acknowledge that, “[a]mong the infinitely varied situations in which entry for the purpose of rendering aid is reasonable, one is the search for an occupant reliably reported missing.” Id., 619-20. Blades, however, involved more than a rehable report of a missing person; it involved a person who had been subjected to spousal abuse and threatened by that abuser. Telephone cahs from a father who is upset that a teenaged son has not returned his calls or arrived at home at the appointed hour, do not rise to the level of a reliable report of a
We do not read our prior case law applying the emergency exception to the warrant requirement “to require direct evidence of an emergency situation . . . .” State v. Colon, 272 Conn. 106, 147, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). We do require, however, that officers know some facts at the time of entry that would lead them to reasonably conclude that they could dispense with the necessity of obtaining a warrant supported by probable cause in accordance with the dictates of the fourth amendment. Here, the officers knew no such facts.
In addition to the father’s telephone calls regarding his sixteen year old son, Kelly believed that an emergency existed because of the presence of the car and
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to grant the
We granted the defendant’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly affirm the trial court’s denial of the defendant’s motion to suppress?” State v. Ryder, 292 Conn. 919, 920, 974 A.2d 723 (2009).
The record reveals that the ages of the teenagers were undisputed. Kelly testified at the suppression hearing that he believed the teenagers were “over thirteen. I think the ages [were] between thirteen and fifteen or thirteen and sixteen.”
Because the defendant failed to provide an independent analysis of his assertion that the search also violated his state constitutional rights, the Appellate Court reviewed only the federal constitutional claim. State v. Ryder, supra, 114 Conn. App. 534 n.3.
As the dissent points out, the Appellate Court, in State v. Ryder, supra, 114 Conn. App. 533, did not describe the defendant’s claim on appeal as a claim that the warrantless search of his premises violated his right to be free from unreasonable searches and seizures. Instead, the Appellate Court quoted its earlier decision in State v. Ryder, supra, 111 Conn. App. 274, in which it had addressed only the jurisdictional issue and described the defendant’s appeal as claiming that “the warrantless search of his house violated his right to be free from unreasonable searches and seizures.” The state, in its brief to the Appellate Court, did not address the issue of the
The defendant also predicates his claim on article first, § 7, of the constitution of Connecticut. Because the defendant again undertakes no independent analysis of his state constitutional claim, we address only his claim under the federal constitution. See, e.g., State v. Melendez, 291 Conn. 693, 704 n.16, 970 A.2d 64 (2009); State v. Johnson, 288 Conn. 236, 244 n.14, 951 A.2d 1257 (2008). In addition, we note that the standard of reasonableness governing police conduct under the emergency doctrine is the same under both the federal and state constitutions. State v. Blades, 225 Conn. 609, 624, 626 A.2d 273 (1993).
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The dissent repeatedly refers to the defendant’s argument that the emergency exception was not satisfied when Kelly stepped over the gate as a “newly raised claim . . . It was not; the argument clearly was made to both the trial court and the Appellate Court.
First, although the transcripts of the suppression hearing do not reveal that the defendant specifically used the term “curtilage” in arguing that the entry upon his property was improper, they confirm that the trial court clearly anticipated and understood that the defendant claimed that Kelly had violated his fourth amendment rights by crossing the gate. For example, during the suppression hearing, Kelly, Smurlo and the father testified that a three foot tall, closed security gate needed to be traversed in order to enter the defendant’s property and that a stone wall extended across the front of the lawn. Indeed, Smurlo testified that when he crossed over the gate, he understood that he was entering the defendant’s “curtilage” and, upon further questioning, agreed that he believed that the term “curtilage” meant an “individual’s property intimately connected with the residence itself . . . .” Contrary to the dissent’s assertion, this testimony is relevant because it demonstrates that the trial court understood that the curtilage issue had been raised, not because it shows Kelly’s belief that an emergency existed when he crossed the curtilage.
The following colloquy further illustrates the court’s understanding that this issue was raised at the hearing. During the redirect examination of the father, the prosecutor asked: “What would happen when [the United Parcel Service (UPS)] delivered packages and no one was home? What would they do with the packages?” Rather than allow the father to respond, the trial court interjected and the following colloquy took place:
“The Court: They would leave them at the gate. I understand the whole issue of the gate, honestly, and this isn’t a jury. I understand the gate doesn’t open unless it is opened.
“[The Prosecutor]: Your Honor, the issue is that it is three feet tall and it’s for decoration. UPS would leave it right at the front door.
“The Court: So you can argue that.
“[The Prosecutor]: Okay.” (Emphasis added.)
Moreover, when the prosecutor asked Smurlo if he had to “scale any walls” to enter the property, the court interrupted: “You said he walked over the [gate]. I got it.”
Second, the dissent mischaracterizes the defendant’s brief to the Appellate Court as “contain[ing] two passing references to the curtilage surrounding
Although we recognize that, as with many briefs written by pro se parties, the defendant’s brief was not a model of organization and clarity, the defendant clearly raised the issue of curtilage before the Appellate Court. The state chose to ignore that issue and stated in its brief that it instead had “elected to focus solely on the jurisdictional defect in the defendant’s appeal in order to prudently conserve scarce prosecutorial and judicial resources.” Indeed, it appears that, because the state only briefed the jurisdictional issue, after the Appellate Court remanded the case to the trial court and that court had made the relevant findings, the Appellate Court needed “[t]o resolve [the] appeal ... [by looking] beyond the state’s brief to the evidence that the trial court [had] heard and the decision it [had] made.” State v. Ryder, supra, 114 Conn. App. 537.
Third, “[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712 (2006). “A party who, unskilled in [legal] matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task. Our courts, however, have always been lenient toward such a one, relaxing the rules wherever it can be done with propriety . . . .” O’Connor v. Solomon, 103 Conn. 744, 745, 131 A. 736 (1926).
We acknowledge that it is the defendant’s responsibility to provide an adequate record for review. In the present case, the defendant timely filed a designation of the motions to suppress and to dismiss to be included by the clerk in the record on appeal. The trial court clerk improperly destroyed the file, however, including both of the motions, after the defendant had entered a conditional plea of nolo contendere, specifically reserving the
During oral argument, the state argued that this court could not reach the issue of whether the area between the gate and the front door constituted curtilage protected by the fourth amendment because neither the trial court nor the Appellate Court had made any determination on that issue. The trial court, however, clearly was aware of the curtilage issue and implicitly determined that the fourth amendment search did not occur until the officers entered the house. See footnote 5 of this opinion.
The state further claims that the curtilage question is outside of the certified question on appeal. The certified question, however, is both broad and vague. See footnote 1 of this opinion. The defendant clearly argued the issue of curtilage in his brief before this court. The state chose not to respond to that argument in its brief to this court, but the issue was discussed during oral argument. Thus, we may address the curtilage claim. See, e.g., State v. Holmes, 257 Conn. 248, 251-52 n.3, 777 A.2d 627 (2001) (construing certified issue broadly to encompass all of defendant’s claims on issue insofar as they were raised in defendant’s briefs and at oral argument), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L. Ed. 2d 229 (2002); Eldridge v. Eldridge, 244 Conn. 523, 527 n.3, 710 A.2d 757 (1998) (reading certified question broadly to embrace issue raised by plaintiff); State v. Brown, 242 Conn. 445, 447, 700 A.2d 1089 (1997) (court may address related claims not certified for review in interest of judicial economy); Schult v. Schult, 241 Conn. 767, 776 and n.8, 699 A.2d 134 (1997) (court may rephrase certified questions to render them more accurate in framing issues that case presents); Stamford Hospital v. Vega, 236 Conn. 646, 648-49 n.1, 674 A.2d 821 (1996) (same); Newman v. Newman, 235 Conn. 82, 87, 663 A.2d 980 (1995) (same).
Additionally, as we state in this opinion, “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo.” (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. 793. “[WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 222, 3 A.3d 806 (2010). Thus, in the present case, we properly consider
The Appellate Court regarded the warrantless search to have begun when the officers entered through the back door of the house and, accordingly, considered Kelly’s sight of a teenager’s belongings on the first floor in its determination of whether the search was unreasonable. State v. Ryder, supra, 114 Conn. App. 539. Because we conclude that the search began when Kelly traversed the gate, we do not take into account his sight of a teenager’s belongings. Even if we did consider such an observation, it would not lead an officer to conclude reasonably that he could dispense with the necessity of obtaining a warrant supported by probable cause in accordance with the dictates of the fourth amendment.
Although not found by the trial court, the father admitted that, after the police had located the fourteen year old son, confirmed his safety and spoken with the defendant at his home, they informed him around 1 p.m. on August IB, 2004, that they could not assist him any further unless he filed a missing person’s report. We cite this admission because it demonstrates that the police clearly understood, and indeed informed the father, that this was not a case of a missing person.
The state cites State v. Jones, 24 Kan. App. 2d 405, 947 P.2d 1030 (1997), in support of its proposition that the emergency exception to the warrant requirement justified the warrantless search. In Jones, the Court of Appeals of Kansas held that the warrantless search of a home was justified when parents informed the police that they had not heard from their son in three days, that he uncharacteristically had missed a dinner appointment with them and had failed to answer his telephone or return their messages, and recently made an acquaintance of whom he was afraid. Id., 415. Notably, although the court ultimately concluded that the warrantless search was
We disagree with the dissent’s suggestion that this ruling may inhibit officers in the performance of their duties when they reasonably believe that a child is in danger. We do not expect this ruling to have any such chilling effect. Indeed, we emphasize that an officer should not hesitate to perform warrantless searches and seizures when faced with a true emergency or a reasonable belief that a “danger to human life, destruction of evidence [or the] flight of a suspect” is at risk. State v. Aviles, supra, 277 Conn. 294. Given the specific facts and circumstances of the present case, however, the police had no reason to believe that an emergency situation existed. The risk the dissent seems to suggest is that a police officer, having a reasonable belief that someone’s life or safety is at risk, would fail to act because of fear that evidence of some unknown and unsuspected criminal activity would be suppressed. This concern is not reasonable.
Dissenting Opinion
dissenting. I agree with Justice Eve-leigh’s conclusion that, under the totality of the circumstances, Officer Andrew Kelly made a permissible warrantless entry onto the property of the defendant, Gary Ryder. I write separately because I agree with the majority that the defendant’s argument that the fourth amendment was implicated at the time Kelly stepped over the security gate onto the defendant’s curtilage is not a newly raised claim and is properly before this court. A thorough review of the trial transcripts persuades me that the questions whether the defendant sought to secure the privacy of his curtilage, and whether Kelly had a reasonable belief that an emergency existed at the moment he entered thereon, were distinctly raised at trial, as required by Practice Book § 60-5.
Because the state did not retain the defendant’s motion to suppress, the defendant, through no fault of his own, is unable to demonstrate that he formally raised the curtilage issue with the trial court.
Dissenting Opinion
joins, dissenting. I respectfully dissent. I disagree with the major
I
I begin by noting the majority’s decision to resolve this appeal on the basis of the defendant’s newly raised claim that Kelly’s “warrantless search began when he stepped over the [security] gate onto the defendant’s curtilage” and, therefore, that the reasonableness of Kelly’s belief that an emergency situation existed must be evaluated at that moment. I disagree. First, the defendant failed to raise this claim before the trial court in his motion to suppress.
Moreover, and significant to appellate review, the trial court was not required to evaluate the validity of Kelly’s warrantless search at the moment that he entered the defendant’s curtilage. This necessarily would have entailed that the trial court make factual findings as to Kelly’s exact knowledge at that moment, and a conclusion as a matter of law regarding whether Kelly’s belief that an emergency existed was objectively reasonable at that same moment. As this court has oft stated, “[i]t is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court.”
The defendant, in one and one-half pages of his brief to this court, raises for the first time the curtilage issue that he claims warrants reversing both the judgments of the Appellate Court and the trial court. In its brief, the state did not respond to the defendant’s attempt to improperly raise this claim for the first time, and the state further contended at oral argument before this court that we should not consider the claim because neither the trial court nor the Appellate Court addressed it. Accordingly, I would not consider the defendant’s newly raised claim that the warrantless search commenced when Kelly entered the curtilage of his residence because doing so would “permit [the defendant] to raise a claim on appeal that has not been raised at trial — after it is too late for the trial court ... to address the claim — [and] would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007); see also Johnson v. Commissioner of Correction, 285 Conn. 556, 580, 941 A.2d 248 (2008) (declining, on basis of ambuscade of trial court, to review pro se
Second, the defendant also did not raise this claim on appeal to the Appellate Court. Although the defendant’s brief to the Appellate Court contains two passing references to the curtilage surrounding his residence and his efforts to ensure the privacy of his home, the defendant did not claim that the judgment of the trial court should be reversed on the basis of his present claim that the warrantless search commenced when Kelly entered the defendant’s curtilage. See State v. Ryder, 114 Conn. App. 528, 533, 969 A.2d 818 (2009) (“[o]n appeal, the defendant contends that the warrantless search of his house violated his right to be free from unreasonable searches” [emphasis added; internal quotation marks omitted]). The issue before the Appellate Court was, instead, “whether the defendant’s fourth amendment rights were violated by the warrantless search of his home”; (emphasis added) id., 534-35; and, in “resolv[ing] this appeal, the [Appellate Court looked] ... to the evidence that the trial court heard and the decision it made.” Id., 537. Accordingly, because the defendant in the present case failed to raise this issue before the Appellate Court, I would not consider it as a basis to reverse that court. See State v. Duhan, 194 Conn. 347, 354-55, 481 A.2d 48 (1984) (failure to raise issue before Appellate Court is ground to deny review in this court).
Third, the defendant’s newly raised curtilage claim is outside the purview of his petition for certification, which this court granted limited to whether “the Appellate Court properly affirm[ed] the trial court’s denial of
For all of the foregoing reasons, I would decline at this late stage in the proceedings to review the defendant’s newly raised claim that Kelly’s warrantless search commenced when he entered the defendant’s curtilage because that claim was not preserved at trial, was not raised before the Appellate Court and was not set forth in the defendant’s petition for certification to appeal to this court.
Although I disagree with the majority’s resolution of this appeal on the basis of the defendant’s newly raised claim, even assuming, arguendo, that this claim is properly before this court, I additionally disagree with the majority’s conclusion that Kelly’s warrantless search was not justified because a reasonable police officer would not have believed that an emergency existed when he entered the defendant’s curtilage. Specifically, I disagree with the majority’s conclusion that “[i]t was not objectively reasonable for Kelly to believe that a sixteen year old was in need of immediate aid, despite the urgent telephone calls by an apparently concerned parent, the presence of the car and couch in the driveway and the lack of an answer at the intercom and front door.” I would instead conclude that, on the basis of the facts set forth in the trial court’s memorandum of decision, Kelly had an objectively reasonable belief that an emergency situation existed at the moment he entered the defendant’s curtilage, namely, that the missing sixteen year old may have been in need of immediate aid or assistance within the defendant’s residence.
I begin by noting my agreement with the majority opinion’s discussion of our standard of review and governing legal principles. I also agree with the statement of facts set forth in the majority opinion, which I will therefore not repeat in full in this dissent.
At approximately 4 o’clock in the evening on August 15, 2004, Kelly was pulled from his normal check-out process, something that only happened in emergencies. Kelly learned from a police dispatcher that a father in Vermont had telephoned several times about being unable to contact his sons, and that the father had sounded more frantic with each call. Kelly also learned: the sons were supposed to have taken a train that day from Greenwich to return to Vermont, but that they had not returned; twenty-four hours had passed since the father’s first call to the police relaying he could not contact his sons, and that during those twenty-four hours he had constantly tried to contact them; the father finally had managed to contact one of the sons, who stated that his brother was at the defendant’s residence; officers previously had spoken with the defendant at his home and he had told them that he did not know the location of the missing boys; on a later occasion the defendant had, however, provided an address where the missing boy might have been, but that information proved to be inaccurate at that time;
After learning this information, Kelly proceeded to the defendant’s residence, arriving at approximately 4:30 p.m. The driveway from the street to the residence was blocked by a low white gate and Kelly exited his marked police cruiser. Kelly then made the following observations: the garage door was open; a couch of the type that would normally be found indoors was partly sticking out of the garage onto the driveway; and a convertible parked in the driveway had its top down. Kelly then made several attempts to contact anyone inside the residence using an intercom located at the gate, but no one responded. Kelly then proceeded to step over the low white gate and enter the defendant’s curtilage, as he proceeded toward the defendant’s residence.
In explaining the nature of the emergency exception to the warrant requirement, this court recently stated that “[t]he emergency exception to the warrant requirement allows police to enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. 794. “The police, in order to avail themselves of this exception, must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings .... It is an objective and not a subjective test. The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed.” (Internal quotation marks omitted.) Id., 75, quoting State v. Geisler, 222 Conn. 672, 691-92, 610 A.2d 1225 (1992).
On the basis of the facts known to Kelly, and pursuant to our standard of review and governing principles, I would conclude that he possessed an objectively reasonable belief that an emergency situation existed at the moment that he entered the defendant’s curtilage. From the onset, Kelly was presented with information from which an objectively reasonable officer could have adduced that an emergency situation existed. First, Kelly was removed from check-out, something only done in emergencies, and told that an increasingly frantic father had been unable to contact the missing sixteen year old for the preceding twenty-four hours. Second, and most significantly, Kelly learned that the fourteen year old son had told police that the missing sixteen year old son was at the defendant’s residence, that the defendant had first denied knowing the location of the sixteen year old and had later provided an address where the sixteen year old might be located, but that the information proved inaccurate.
This court previously has stated that “[a]mong the infinitely varied situations in which entry for the purpose of rendering aid is reasonable, one is the search for an occupant reliably reported missing.” State v. Blades, 225 Conn. 609, 619-20, 626 A.2d 273 (1993). In Blades, this court rejected the defendant’s contention that the evidence supporting the warrantless search of his apartment was “nothing more than a missing person investigation . . . .” (Internal quotation marks omitted.) Id., 620. Similar to the present case, over the course of more than two hours, the officer in Blades had received telephone calls from relatives of the missing
I would conclude that, on the basis of the information relayed to Kelly, the sequence of events in the present case, like that in Blades, rose to the level of a reliable report of a missing minor, who may have been sequestered at the defendant’s residence and in need of aid or assistance.
As this court previously has cautioned, “we do not read [prior case law applying the emergency exception to the warrant requirement] to require direct evidence of an emergency situation . . . .” State v. Colon, supra, 272 Conn. 147. “This standard must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences. As one court usefully put it, the question is whether the officers would have been derelict in their duty had they acted otherwise. This means, of course, that it is of no moment that it turns out there was in fact no emergency.” (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. 800, quoting 3 W. LaFave, Search and Seizure (4th Ed. 2004) § 6.6 (a), pp. 452-53. This is true because “the emergency exception to the warrant requirement arises out of the caretaking function of the police,” which includes “aid[-ing] individuals who are in danger of physical harm,
Despite these important principles guiding our review, the majority concludes that Kelly’s belief that an emergency existed was objectively unreasonable. As a result, I am concerned about the potentially chilling effect this ruling may have on police officers’ decision-making processes in the future regarding potential emergency situations. Indeed, in my view, an officer presented with the aforementioned information and observations may have been derelict in his or her duty if that officer, upon receiving no response at the intercom, had simply turned around and returned to the police station. As a result of the majority’s decision, will officers demand heightened evidence of an emergency before responding to citizens’ concerns that someone is in danger of physical harm or in need of assistance? Will officers, acting in their community caretaking role, be more hesitant to make warrantless searches for fear that their “prompt assessment of sometimes ambiguous information concerning potentially serious consequences”; State v. Fausel, supra, 295 Conn. 800; proved, in judicial hindsight, to be misplaced?
“In the cool morning of appellate review [this court will] not ignore the heated passion of immediacy that was the essence of the anxious concerns about the [sixteen year old’s] safety and well-being . . . .” State v. Blades, supra, 225 Conn. 621. Accordingly, on the basis of the facts known by Kelly when he entered the defendant’s curtilage, I would conclude that Kelly possessed an objectively reasonable belief that an emergency situation existed, namely, that the missing sixteen year old was in need of immediate aid or assistance within the defendant’s residence. I therefore respectfully dissent from the majority’s conclusion that, under the facts of this case, Kelly’s belief was objectively
Because the majority concludes that the warrantless search commenced at the moment Kelly entered the defendant’s curtilage, and because the majority concludes that Kelly lacked an objectively reasonable belief that an emergency existed at that moment, the majority does not take into account Kelly’s additional observations and actions culminating in Ms entry mto the defendant’s residence and discovery of the reptile, wMch the defendant challenged through Ms motion to suppress. Because I would affirm the judgment of the Appellate Court, I consider these additional facts in determinmg whether Kelly justifiably searched the defendant’s residence without a warrant, because he possessed an objectively reasonable belief that an emergency situation existed withm the defendant’s residence pertaimng to the missmg sixteen year old.
I set forth, therefore, the following additional relevant facts, as set forth m the opiMon of the Appellate Court and as found by the trial court. “[Kelly] stepped over the low wMte fence and began to walk around the house, announcmg the presence of the police. [Kelly] rang the front doorbell and knocked on the front door to no avail. He then walked around the back of the house and approached a set of French doors. He observed tMough those doors a cot on wMch there was a bag of clothes that appeared smtable for a teenager, some video games and an otherwise impeccable house. [Kelly] grabbed the handle, realized that the door was not locked and proceeded to open the door. At that point, he called for backup m accordance with police procedure relative to finding an open door in a residence. [Robert Smurlo, another Stamford police officer] arrived at the scene within a few minutes and was briefed by [Kelly] before they entered the residence.” State v. Ryder, supra, 114 Conn. App. 531-32.
For all of the foregoing reasons, I would affirm the judgment of the Appellate Court upholding the trial court’s denial of the defendant’s motion to suppress.
Because the defendant initially pleaded nolo contendere, the defendant’s file was culled, including his motions to suppress and dismiss filed with the Superior Court. Efforts to reconstruct all of the contents of the file were unavailing, and as a result the motions to suppress and to dismiss are not contained in the record before this court.
Robert Smurlo, the second Stamford police officer that arrived at the defendant’s residence, testified at the suppression hearing and used the term “curtilage” when explaining his vantage point in viewing the defendant’s property. Smurlo admitted that he understood the term to include property
At oral argument before this court, the state contended that because the defendant had failed to raise the curtilage claim before the trial court or the Appellate Court, the issue was outside of the certified question and this court should decline to review it.
The defendant failed to preserve this claim before the trial court or the Appellate Court, and he has not asked this court to review this claim pursuant to the bypass doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 667 A.2d 823 (1989).
The statement of facts set forth by the majority is adopted from the opinion of the Appellate Court, which adopted those facts from the trial court’s memorandum of decision.
When another officer went to the address provided by the defendant, no one was home. Although the address provided by the defendant ultimately proved to be the location where the missing sixteen year old had stayed at some point during the weekend, that fact was not known by the police until hours after Kelly had entered the defendant’s property. Because, however, this court determines the reasonableness of a warrantless search based on the facts known at the time of entry; State v. Blades, 225 Conn. 609, 619, 626 A.2d 273 (1993); it is of no moment that the missing sixteen year old had in fact been at that location at some point in time because Kelly did not have that information when he entered the defendant’s curtilage. See, e.g., State v. Fausel, supra, 295 Conn. 800 (“it is of no moment that it turns out there was in fact no emergency” [internal quotation marks omitted]).
The majority opinion states that “[although . . . [such calls from a parent] understandably [create] a sense of urgency, Kelly also had been told that the teenaged boys had travelled from Vermont to Connecticut by train, presumably without the supervision of their father, that the father and the defendant previously had been in a personal relationship and had resided together and that the father already had been able to contact the fourteen year old son, who had informed him that the sixteen year old son was at the defendant’s house. These facts in no way suggest an emergency; rather, they suggest that both the ‘missing’ sixteen year old son and the defendant were not at home on a sunny Sunday afternoon in the summer.” I disagree with this conclusion, which fails to reference all of the facts found by the trial court and also fails to consider the urgency suggested by the conflicting facts concerning the location of the missing sixteen year old. I note, specifically, the fourteen year old son’s statement that the missing sixteen year old was at the defendant’s house, the defendant’s earlier denial that he knew where the sixteen year old was and subsequent provision of an apparently
Reference
- Full Case Name
- State of Connecticut v. Gary Ryder
- Cited By
- 20 cases
- Status
- Published