Summary
holding that collective knowledge doctrine did not apply to impute knowledge of defendant's phone number to arresting officer for purposes of determining whether emergency exception to warrant requirement applied, but not deciding whether collective knowledge doctrine ever could be used to exonerate defendant
Summary of this case from State v. LewisOpinion
No. 18738.
2014-04-22
STATE of Connecticut v. Michael Angelo DeMARCO.
Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michele Bredefeld, deputy assistant state's attorney, for the appellant (state). Lindy R. Urso, Stamford, for the appellee (defendant).
Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michele Bredefeld, deputy assistant state's attorney, for the appellant (state). Lindy R. Urso, Stamford, for the appellee (defendant).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, HARPER, VERTEFEUILLE and ESPINOSA, Js.
The listing of justices reflects their seniority status on this court as of the date of oral argument. This appeal originally was argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh and Harper. Thereafter, Justices Vertefeuille and Espinosa were added to the panel and they read the record and briefs, and listened to a recording of oral argument prior to participating in this decision.
EVELEIGH, J.
The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court convicting the defendant, Michael Angelo DeMarco, of two counts of cruelty to animals in violation of General Statutes (Rev. to 2007) § 53–247(a). On appeal, the state claims that the Appellate Court improperly reversed the judgment of the trial court on the ground that the trial court improperly denied the defendant's motion to suppress evidence obtained during a warrantless entry into his residence. Specifically, the state claims that the Appellate Court improperly applied the “scrupulous review” standard and did not give the required deference to the factual findings of the trial court. We agree and, accordingly, reverse the judgment of the Appellate Court.
General Statutes (Rev. to 2007) § 53–247(a) provides: “Any person who overdrives, drives when overloaded, overworks, tortures, deprives of necessary sustenance, mutilates or cruelly beats or kills or unjustifiably injures any animal, or who, having impounded or confined any animal, fails to give such animal proper care or neglects to cage or restrain any such animal from doing injury to itself or to another animal or fails to supply any such animal with wholesome air, food and water, or unjustifiably administers any poisonous or noxious drug or substance to any domestic animal or unjustifiably exposes any such drug or substance, with intent that the same shall be taken by an animal, or causes it to be done, or, having charge or custody of any animal, inflicts cruelty upon it or fails to provide it with proper food, drink or protection from the weather or abandons it or carries it or causes it to be carried in a cruel manner, or fights with or baits, harasses or worries any animal for the purpose of making it perform for amusement, diversion or exhibition, shall be fined not more than one thousand dollars or imprisoned not more than one year or both.” Hereinafter, unless otherwise indicated, all references to § 53–247(a) in this opinion are to the 2007 revision of the statute.
Judge Beach dissented from the opinion of the Appellate Court, concluding that “the totality of the facts found by the trial court justified a warrantless entry under the emergency ... exception to the warrant requirement.” State v. DeMarco, 124 Conn.App. 438, 458, 5 A.3d 527 (2010).
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “On January 11, 2008, the defendant filed a motion to suppress all evidence seized from his premises as a result of the warrantless entry by the police on October 21, 2007. In response, the state claimed that the warrantless entry was done pursuant to an emergency and, accordingly, no warrant was required. Following a hearing, the court denied the defendant's motion to suppress on the ground that the warrantless entry by the police was permissible under the emergency ... exception to the warrant requirement.
“In its memorandum of decision, the court, Comerford, J., set forth the following facts: ‘[Tilford Cobb] has been an [A]nimal [C]ontrol [O]fficer with the Stamford [P]olice [D]epartment for the past ten years. In said capacity, he has had many contacts with the defendant as a result of neighbor complaints relating to the defendant's keeping of animals in his [Windell] Place residence.
“ ‘On October 11, 2007, [Cobb], as a follow-up to prior complaints, left a notice on the defendant's front door and on the windshield of an automobile parked on the premises, directing the defendant to contact the animal shelter. At the time, a neighbor indicated [that] he had not seen the defendant in several days. Further, the defendant did not respond to his cell phone. Prior history indicated that he had generally responded to such notices.
“ ‘On Sunday, October 21, 2007, [Cobb], as further follow-up, paid a home visit to the defendant's residence. When approaching the house, he saw the October 11 notice on the floor of the front porch and the second notice left on the car still in place. [Cobb] observed that mail, current and dated, had piled up in an overflowing mailbox, and the same neighbor he had spoken to before once again said that he had not seen the defendant in several days. Dogs were heard barking inside the house. As he approached the front door, a strong, “horrible odor,” which he described as a “feces smell,” emanated from the premises. He knocked on the door, which became ajar, with no response. At the time, he did not have the defendant's cell phone number with him.
“ ‘Feeling something was wrong in the house and out of concern for the defendant's welfare and any animals in the house, [Cobb] called headquarters, resulting in a response by Sergeant Thomas Barcello, who, shortly thereafter, arrived with backup officers. Barcello, after initial discussion with [Cobb], confirmed his observations by finding the house to be in disarray, two or three vehicles on the property and overflowing and dated mail together with the previously left notices by animal control. He and his men did a perimeter check of the house and attempted to look through the windows, which were so filthy that visual observation of the interior was not possible. Patrol Officer [Will] Mercado confirmed the observations made by [Cobb] and Barcello. Out of [Cobb's] express concerns and his own findings and after consultation with [Cobb] and his officers, [Barcello] too, concluded that the defendant and possibly others, together with the animals in the house, might be in danger and [in] need of assistance. The aforesaid observations, check of the premises and consultations all took place within a very brief period of time. Barcello concluded that a “welfare check” was necessary. As a result of the putrid smell emanating from the house and fear for the safety of his men, Barcello enlisted the aid of the Stamford [F]ire [D]epartment, [which] he felt had the proper breathing equipment to enter. Inspection by fire personnel disclosed no humans present but that the dogs in the house were in bad shape. It is uncontroverted that the house was in such deplorable condition at the time of the incident that shortly thereafter it was condemned by the city of Stamford.’ ” State v. DeMarco, 124 Conn.App. 438, 440–42, 5 A.3d 527 (2010).
The trial court further noted: “ ‘While the defendant argues that telephone contact could have been made prior to entry, the evidence indicated otherwise, given the immediacy of the situation. [Cobb] had specifically indicated that he did not have the defendant's cell phone number with him when he made the check. Although telephone contact was made with the defendant later in the day, the evidence and the reasonable inferences therefrom indicate that this information was not available to Barcello at the time of the perceived emergency. The court specifically credits Barcello's testimony in this regard.’ ” Id., at 442, 5 A.3d 527.
“On July 10, 2008, following the denial of his motion to suppress, the defendant entered a plea of nolo contendere to two counts of cruelty to animals in violation of § 53–247(a), conditioned on his right to appeal from the court's denial of his motion to suppress pursuant to General Statutes § 54–94a. The court accepted the defendant's plea and determined that its denial of the motion to suppress was dispositive of the case. Also on that date, the court, Comerford, J., sentenced the defendant to nine months incarceration, execution suspended, and three years probation on each of the two counts, the sentences to run consecutively.” (Footnotes altered.) Id., at 442–43, 5 A.3d 527.
.General Statutes § 54–94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
Thereafter, the defendant appealed from the judgment of the trial court to the Appellate Court. On appeal, the defendant claimed that the trial court improperly denied his motion to suppress evidence obtained during a warrantless entry into his residence on the ground that the warrantless entry was justified under the emergency exception to the warrant requirement. Specifically, the defendant claimed that the trial court made erroneous factual findings and that “the evidence presented did not permit a finding that the police reasonably believed that a warrantless entry was necessary to help someone in immediate need of assistance.” Id., at 444–45, 5 A.3d 527. The Appellate Court, with one judge dissenting, agreed with the defendant. Id., at 458, 5 A.3d 527; see also footnote 2 of this opinion.
Specifically, following “a thorough review of the record,” the Appellate Court concluded that the trial court's factual finding “that Barcello did not have the defendant's cell phone number available to him while he was at the defendant's residence and before he decided to order the warrantless entry was clearly erroneous.” Id., at 447–48, 5 A.3d 527. The Appellate Court also concluded that the trial court's finding that Barcello did not have time to get the defendant's cell phone number due to “the immediacy of the situation” was also clearly erroneous. (Internal quotation marks omitted.) Id., at 449–50, 5 A.3d 527. The Appellate Court further concluded that, “[b]ased solely on the facts found by the [trial] court, as corrected ... the [trial] court improperly determined that the warrantless entry by the police was permissible under the emergency exception to the warrant requirement.” (Emphasis added.) Id., at 450, 5 A.3d 527.
The Appellate Court then stated as follows: “While we conclude that the subordinate facts found by the [trial] court do not support its finding that an objectively reasonable police officer would have believed that an emergency existed in this case, our own scrupulous review of the record provides additional support for our determination....
“The [trial] court's memorandum of decision properly sets forth many of the facts that were available to the police at the time that they were deciding to make a warrantless entry into the defendant's home. We need not repeat those facts in detail, but they include the terrible odor, the overflowing mailbox and so forth. The court, however, only sets forth the facts that tend to support the conclusion that an emergency situation existed. There was, however, additional uncontroverted and unchallenged evidence presented at the suppression hearing that the court wholly disregarded in its findings.” (Citation omitted.) Id., at 454–55, 5 A.3d 527.
On the basis of the foregoing analysis, the Appellate Court concluded as follows: “Taking all of the circumstances into account, unencumbered by the court's erroneous findings, we conclude that the court's ultimate conclusion that it was objectively reasonable for the police to believe that an emergency existed, thus, justifying a warrantless entry into the defendant's home, was not supported by substantial evidence. We do not believe that a well-trained police officer reasonably would have believed that a warrantless entry was necessary to assist a person inside the dwelling who was in need of immediate aid. Rather, the circumstances presented to the police would have given them time to apply for a warrant should they have reasonably believed that probable cause existed to search the premises for evidence of the crime of cruelty to animals, given the condition of the home, as seen from the outside, coupled with the fact that dogs were at large within the residence. Entering a person's home under the guise of an emergency when none exists, and there is no objectively reasonable basis for believing that an emergency exists, is not permitted under the fourth amendment to the United States constitution.” Id., at 457–58, 5 A.3d 527. Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case to the trial court with direction to grant the defendant's motion to suppress and for further proceedings according to law. Id., at 458, 5 A.3d 527.
We subsequently granted the state's petition for certification to appeal, limited to the following issue: “Whether the Appellate Court properly determined that the trial court improperly denied the defendant's motion to suppress?” State v. Demarco, 300 Conn. 902, 12 A.3d 574 (2011).
We begin with the appropriate standard of review. In doing so, we acknowledge that our statements regarding the proper standard to be applied have not always been the model of clarity. We take this opportunity to clarify the appropriate standard of review for deciding whether the trial court properly denied a defendant's motion to suppress on the ground that the search violated the fourth amendment to the United States constitution. “[I]n reviewing a trial court's ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court's legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo.... Conclusions drawn from [the] underlying facts must be legal and logical.... We must determine, therefore, whether, on the basis of the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed when they entered the [dwelling]....” (Internal quotation marks omitted.) State v. Ryder, 301 Conn. 810, 820–21, 23 A.3d 694 (2011), quoting State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455 (2010).
This court has further explained as follows: “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... As we have noted previously, however, when 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 findingsare supported by substantial evidence.... [W]here 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 memorandum of decision....” (Citations omitted; internal quotation marks omitted.) State v. Mullins, 288 Conn. 345, 362–63, 952 A.2d 784 (2008).
“Notwithstanding 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.... It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony.... Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... 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.” (Citations omitted; internal quotation marks omitted.) Id., at 365, 952 A.2d 784.
On the basis of the foregoing, we acknowledge that, if, upon examination of the testimonial record, the reviewing court discovers but one version of the relevant events upon which both the state and the defendant agree, and such agreement exists both at trial and on appeal, the reviewing court may rely on that version of events in evaluating the propriety of the trial court's determinations and determining whether the trial court's factual findings are supported by substantial evidence. In a case where the trial court has concluded that the police action at issue was justified and the undisputed version of events reflected in the transcript was adduced by the state through testimony of the police officers who were involved, a reviewing court's reliance on that version of events is particularly appropriate. If the officers' own testimony as to what occurred is internally consistent and uncontested by the defendant but, in fact, undercuts the trial court's ruling in favor of the state, a reviewing court would be remiss in failing to consider it.
We recognize that, as a general matter, merely because evidence is uncontroverted does not mean that the trial court was required to accept that evidence or give it weight in making its decision. Indeed, our model civil jury instructions explicitly instruct fact finders that “[y]ou may believe all of what a witness tells you, some of what a witness tells you, or none of what a particular witness tells you. You need not believe any particular number of witnesses and you may reject uncontradicted testimony if you find it reasonable to do so.” (Emphasis added.) Connecticut Civil Jury Instructions (4th Ed. 2008) instruction 2.5–1, available at http:// www. jud. ct. gov/ JI/ civil/ part 2/ 2. 5– 1. htm (last visited April 2, 2014). Likewise, our model criminal jury instructions also provide as follows: “In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness's testimony.” Connecticut Criminal Jury Instructions (4th Ed. 2008) instruction 2.4–2, available at http:// www. jud. ct. gov/ JI/ criminal/ part 2/ 2. 4– 2. htm (last visited April 2, 2014).
It is well established that “[o]rdinarily the trial court has discretion to reject even uncontested evidence, on the theory that the fact finder is uniquely well situated to make determinations of witness credibility.” Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 623, 717 A.2d 1211 (1998); see also Gianetti v. Norwalk Hospital, 266 Conn. 544, 560–61, 833 A.2d 891 (2003) (trial court was free to reject plaintiff's uncontradicted testimony); Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988) (“[t]he [fact finder] is under no obligation to credit the evidence proffered by any witnesses ... even if that evidence is uncontroverted” [citations omitted] ); C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 6.27.8, p. 349 (“The trier of fact is entitled to believe or disbelieve any testimony.... The fact that certain evidence is not controverted does not mean that it must be credited.” [Citation omitted.] ).
In the present case, even if we were to agree with the dissent and the Appellate Court that there is one undisputed version of events in the record, we disagree that the version of events culled from the officers' own testimony undercuts the trial court's ruling in favor of the state. To the contrary, we conclude that a careful examination of the facts in the present case demonstrates that there is nothing to support the conclusion that the findings were clearly erroneous. Instead, we conclude that the trial court's findings were supported by substantial evidence and that the trial court stated its rationale for its findings and reasonably reached its conclusions from the evidence presented. See id. (applying scrupulous review to trial court's decision on motion to suppress).
On appeal to this court, the state argues that, contrary to the determination of the Appellate Court, the trial court properly denied the defendant's motion to suppress because the police were authorized to enter the defendant's home without a warrant pursuant to the emergency exception to the warrant requirement. Specifically, the state asserts that the Appellate Court improperly concluded that the trial court's factual findings that the defendant's cell phone number was not available to Barcello at the time of the perceived emergency and could not have been obtained by him due to the immediacy of the situation were clearly erroneous. The state also claims that the Appellate Court improperly concluded that the factual findings of the trial court, properly viewed in the light most favorable to the trial court's ruling, supported its conclusion that an emergency existed. In response, the defendant asserts that the Appellate Court properly applied the “scrupulous review” standard and gave appropriate deference to the factual findings of the trial court. The defendant also asserts that the Appellate Court properly concluded that the trial court's finding that the defendant's cell phone number was not available to police was clearly erroneous. Further, the defendant claims that the Appellate Court properly found, or could have found, that the legal conclusion of the trial court that the warrantless entry by the police was justified was not supported by the factual findings of the trial court. We agree with the state and, accordingly, reverse the judgment of the Appellate Court.
The state first claims that the Appellate Court improperly determined that some facts found by the trial court were clearly erroneous—namely, that Barcello did not have the defendant's cell phone number available to him at the time he made the decision to enter the defendant's residence and that Barcello did not have time to get the cell phone number due to the “immediacy of the situation.” (Internal quotation marks omitted.) State v. DeMarco, supra, 124 Conn.App. at 449–50, 5 A.3d 527. We agree.
“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings.... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached.... Instead, we make every reasonable presumption ... in favor of the trial court's ruling.” (Internal quotation marks omitted.) State v. Ray, 290 Conn. 602, 631, 966 A.2d 148 (2009).
The trial court determined as follows: “While the defendant argues that telephone contact could have been made prior to entry, the evidence indicated otherwise given the immediacy of the situation. [Cobb] had specifically indicated that he did not have the defendant's cell phone number with him when he made the check. Although telephone contact was made with the defendant later in the day, the evidence and the reasonable inferences therefrom indicate that this information was not available to Barcello at the time of the perceived emergency. The court specifically credits Barcello's testimony in this regard.”
At the suppression hearing, during cross-examination by defense counsel, Barcello testified as follows:
“Q. Would you agree, then, if that was your concern that you undertook some investigation to find out whether or not for instance [the defendant] was working, to see if whether he was supposed to be in the house or out of the house?
“A. The preliminary investigation was to, and what I did, was to find out if he was around; whether he was working, whether he was visiting relatives, not specifically is he inside the house, is he home, or is he not home.
“Q. You're saying you had a specific concern that he might be in the house, correct?
“A. Yes.
“Q. Now, based on that, do you recall whether or not you undertook an investigation prior to going in, prior to deciding to go in the house to see if he was in there
“A. Yes.
“Q. Did you undertake an investigation to find out where he might be?
“A. I think it's a two part question. On the start of the investigation to see if he was there. The specifics, whether he's there or not, I'm not sure. I'm just—I'm trying to find out if there is a person inside that house or if that person is not there. You know, have they—I believe one of the questions that I had asked one of the neighbors have you seen him and have you seen him recently, for—to let me know whether he's inside the house or not inside the house.
“Q. And you don't know whether at that point you also ascertained whether or not he was a working man?
“A. I don't know. It was a Sunday, so I wasn't—it's—to me it wasn't as critical.
“Q. And it wasn't critical for you to see if anybody had a contact number for him to try to see—find out where he was?
“A. I probably did some type of preliminary investigation, but I don't remember if I asked for his cell phone, or a relative's or whatever. I asked, which is normal course of business, to find out where—is he around, can anyone get a hold of him, and if you can't get a hold of him is he inside this house or not inside this house.
“Q. Right, and the phone call inquiry—the [cell] phone number inquiry, that's something you would have done before you made a decision to go in the house and see if he's in there?
“A. If I personally had a [cell] phone number for somebody who I believe was inside the house or not inside the house I would attempt myself to contact that person to see if they were there if I had that information in front of me.
“Q. And if you didn't have the [cell] phone number you would attempt to get the [cell] phone number before you went in, right?
“A. Probably, yes.
“Q. Before you determined that it was an absolute necessity that you go in, right?
“A. In a lot of cases, yes. It's, you know, when things are happening rather quickly you do a quick investigation and then you got to determine the safety of the person. And the quick investigation revealed that he was not there, that there was a possibility, a probability of him being in there with the mail and with the cars being parked there, and my general concern at the time is his safety or anyone else who might be in there.”
On continued cross-examination, Barcello testified as follows:
“Q. And you would have done it without having ascertained, number one, whether you could have obtained [the defendant's] telephone number to call him?
“A. At that point in time I'm not sure if I had obtained the [cell] phone number or had not obtained the [cell] phone number. At the point of the decision to enter I know that I had made—I had tried to find out if he was available, if he was inside or outside or had anyone seen him, and based on, in my mind, nobody seeing him, based on mail being in the mailbox and overflowing, based on vehicles parked on the front lawn along with notices that other people had put on [there] from weeks ago I would assume that he was in there.
The dissent asserts that “if the police have ready access to the cell phone number of the person who is the object of their concern, attempting to contact that person would be among the very first things, if not the very first thing, that a reasonable police officer would do.” (Emphasis in original.) We disagree. Although the dissent may not approve of the steps taken by the officers in the present case, it is not our role as an appellate court to dictate the appropriate steps and questions that police should use while investigating. “Whether in retrospect this course of action might have been preferable is not dispositive: [t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.” (Internal quotation marks omitted.) Hunsberger v. Wood, 570 F.3d 546, 556 (4th Cir.2009), cert. denied, 559 U.S. 938, 130 S.Ct. 1523, 176 L.Ed.2d 113 (2010). To the extent that the dissent may not believe Barcello's testimony that he conducted a preliminary investigation pursuant to his usual routine, such credibility determinations are not appropriate for our review. Notwithstanding 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. State v. Mullins, supra, 288 Conn. at 365, 952 A.2d 784.
“Q. And so—so at that point you went in not—you didn't think it was important, before you went in, to try to see if you can call inside the house?
“A. I don't know if we had a [cell] phone number at that time.
“Q. You didn't ascertain any of this is what I'm saying before you made the decision to go in?
“A. I—under normal circumstances and under routine like a routine investigation I would make those attempts before I entered somebody's personal private property. I would entertain all those avenues before I'd make the entry.
“Q. But in this case you didn't?
“A. I don't know. I don't remember if I did or did not have that information at that time. My normal course of business would be to do something like that.” (Footnote added.)
On the basis of the foregoing testimony, making every reasonable presumption in favor of the trial court's ruling as we are required to do, we conclude that there was sufficient evidence in the record to support the trial court's finding that the defendant's cell phone number was unavailable to Barcello at the scene.
The state next claims that the Appellate Court improperly concluded that the trial court's finding that Barcello could not obtain the defendant's cell phone number because of the immediacy of the situation was also clearly erroneous. We disagree. The evidence also established that when Cobb arrived at the defendant's home, he knew that the defendant did not respond to two notices left at his property by animal control approximately ten days before and had not returned calls to his cell phone. Cobb considered this lack of response by the defendant to be unusual because the defendant normally responded to such notices. Upon arrival at the premises, Cobb saw the defendant's silver Honda pickup, which he knew the defendant usually drove and observed that the notices were still on the truck and on the porch. A neighbor told Cobb that he had not seen the defendant “for several days” and mail was piling up in the mailbox and overflowing onto the ground. Cobb also noticed a “horrible smell” coming from the home, a smell which he had never smelled before. When Cobb knocked on the front door, the door became ajar and he noticed “feces all over the floor” and heard dogs barking. On the basis of those observations, Cobb called the Stamford police.
The evidence further demonstrated that when Barcello arrived, he conducted a preliminary investigation to determine the defendant's whereabouts. Barcello was unable to determine the defendant's whereabouts and, based on the facts that nobody had seen him, the mail was accumulated in the mailbox and overflowing, vehicles were parked on the front lawn, including the vehicle the defendant usually drove, and that notices that were placed there weeks ago were still in place, Barcello believed that the defendant was inside of the residence. Barcello also testified that there was a putrid smell coming from the home, which was unidentifiable, but could have been ammonia.
Ammonia is a compound of nitrogen and hydrogen that forms “a colorless gas with a penetrating, pungent-sharp odor in small concentrations which, in heavy concentrations, produces a smothering sensation when inhaled” that “burns with a greenish-yellow flame.” Van Nostrand's Encyclopedia of Chemistry (G. Considine ed., 5th Ed. Rev. 2005) pp. 82–83.
The evidence further demonstrated that, after making these findings and conducting an initial investigation of the property, Barcello contacted the Stamford Fire Department for immediate assistance because he was unable to identify the odor emanating from the home and was worried about the safety of his officers and the community. The evidence further showed that the Stamford Fire Department responded promptly using their lights and sirens while responding and entered the dwelling quickly after arrival. A lieutenant in the Stamford Fire Department, who also responded to the defendant's home, testified that he “had not determined the cause of the odor, and [that] it could have been fatal or life threatening.” The Stamford firefighters who entered the defendant's home wore protective gear and used a special monitor to determine the nature and source of the odor in order to alert them to any gases that were of an explosive nature.
On the basis of the foregoing evidence, we cannot conclude that the delays caused by the officers in investigating and then seeking backup and assistance from the Stamford Fire Department to protect their safety negate the trial court's finding that the immediacy of the situation prevented Barcello from obtaining the defendant's cell phone number. Indeed, the fact that there may have been an ammonia odor present would heighten the awareness of a police officer who would reasonably believe an emergency may exist. Also, the fact that the door was open would suggest to a reasonable officer that something was amiss in the house. Therefore, we conclude that the Appellate Court improperly concluded that the trial court's findings that Barcello did not have the defendant's cell phone number available to him at the time he made the decision to enter the defendant's residence and that he could not obtain it because of the immediacy of the situation were clearly erroneous.
In concluding that the factual finding that Barcello did not have the defendant's cell phone number available to him at the time he made the decision to enter the defendant's residence was clearly erroneous, the Appellate Court acknowledged that Barcello did not physically possess the defendant's cell phone number prior to entering the defendant's home. State v. DeMarco, supra, 124 Conn.App. at 447, 5 A.3d 527. Nevertheless, the Appellate Court concluded that the cell phone number was available to him because it was at the animal control office and there were other animal control employees in that office on the date in question. Id., at 447–48, 5 A.3d 527. The Appellate Court concluded, therefore, that “Cobb could have readily obtained the defendant's cell phone number by calling the animal control office.” Id., at 448, 5 A.3d 527. The Appellate Court further used the principle applied in probable cause cases that “it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered” in order to conclude that the trial court's finding that the cell phone number was unavailable to Barcello was clearly erroneous. (Internal quotation marks omitted.) Id., quoting State v. Batts, 281 Conn. 682, 698, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S.Ct. 667, 169 L.Ed.2d 524 (2007). We disagree that it is appropriate to apply the collective knowledge doctrine in the present case so as to require the police officers at the scene to contact animal control and obtain the defendant's cell phone number prior to entry.
“The emergency doctrine allows law enforcement officers to enter and secure premises without a warrant when they are responding to a perceived emergency. [United States v. Cervantes, 219 F.3d 882, 888 (9th Cir.2000) ]; see also Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (noting that [nu]merous state and federal cases have recognized that police may respond to emergency situations without a warrant).... The emergency doctrine is based on and justified by the fact that, in addition to their role as criminal investigators and law enforcers, the police also function as community caretakers. [United States v. Cervantes, supra, at 889]; see also [Mincey v. Arizona, supra, at 392, 98 S.Ct. 2408] (noting that the [c]ourt did not question the right of the police to respond to emergency situations); Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (discussing the community caretaking function of police officers).” (Internal quotation marks omitted.) United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.2005). Imposing upon law enforcement officers who are responding to an emergency situation the obligation to contact the police station and obtain information that may be contained in a police file, or in the present case, and animal control office file, is not consistent with the purpose of the emergency exception.
The dissent states that “[t]here simply is no legitimate reason not to apply the [collective knowledge] doctrine to warrantless searches, like the one in the present case, based on a purported emergency, because it is reasonable to expect investigating officers who are working together to share important information about their investigation, provided, of course, that it is feasible to do so under the circumstances.... The majority's contrary conclusion is simply indefensible.” We disagree. The legitimate reason not to apply the collective knowledge doctrine to a search like the one in the present case is that it takes away the ability of the police to act quickly in an emergency situation. Moreover, the cases cited by the dissent are distinguishable because in those cases the collective knowledge doctrine was used in support of allowing a search under the emergency doctrine when the knowledge of the police department as a whole supported a finding of an emergency when the emergent nature of the situation was not apparent at the scene. See State v. Lemieux, 726 N.W.2d 783, 789 (Minn.2007) (warrantless search of home lawful based on collective knowledge of police department conducting investigation into homicide); Oliver v. United States, 656 A.2d 1159, 1166 n. 14 (D.C.1995) (finding warrantless search of home during kidnapping investigation lawful in part because information possessed by some officers could be imputed to officers at scene to further their belief that emergency existed that may not have been readily apparent at scene). It makes sense that we would want to support the community caretaking function of police by allowing officers to communicate information that may alert one officer responding to a situation that there may be other factors that constitute an emergency that may not be apparent to the officer who responds. On the other hand, it would frustrate the purpose of the emergency doctrine to require officers who are first responders to a scene that reasonably appears to be an emergency to contact the police department to see if there are facts known to other officers or in the department's files that negate what they see in person at the scene. Doing so may cause officers to lose valuable time. As courts have recognized in analogous situations, “[t]he reasonableness of a particular officer's actions is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight, and allowances must be made for the fact that officers must make quick decisions under tense, uncertain, and rapidly changing circumstances.” Zayas v. State, 972 S.W.2d 779, 790 (Tex.App.1998); see also id., at 789–90 (officer acted reasonably in handcuffing defendant at beginning of investigatory detention because he was sole officer, defendant did not comply with directions, and officer did not know whether other suspects were there). The other two cases cited by the dissent for this proposition can also be readily distinguished. First, the citation to United States v. Russell, 436 F.3d 1086, 1094–95 (9th Cir.2006), is to the concurring and dissenting opinion in that case. The majority in Russell upheld the search on the basis that an emergency existed. Id., at 1090–93. In disagreeing with the majority's conclusion, the concurring and dissenting opinion asserted that the collective knowledge doctrine should apply so as to find that no emergency existed. Id. The majority, however, did not address this issue. Accordingly, Russell is not useful to our analysis in the present case. Second, the quotation from Mitchell v. State, 294 Ark. 264, 270, 742 S.W.2d 895 (1988), proffered by the dissent actually comes from the court's discussion of whether there was probable cause to believe that an offense has been or is being committed within the home, not its discussion of whether an emergency situation existed so as to warrant entry into the home. Accordingly, we conclude that the dissent's reliance on this case law is misplaced.
Indeed, the Fourth Circuit Court of Appeals rejected a similar claim where a property owner claimed that the officer should have asked the dispatcher for his home telephone number and attempted to call him before entering. In concluding that such a course of action was not constitutionally required, the Fourth Circuit reasoned as follows: “Whether in retrospect this course of action might have been preferable is not dispositive: [t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.” (Internal quotation marks omitted.) Hunsberger v. Wood, 570 F.3d 546, 556 (4th Cir.2009), cert. denied, 559 U.S. 938, 130 S.Ct. 1523, 176 L.Ed.2d 113 (2010); see also State v. Myers, 601 P.2d 239, 245 (Alaska 1979) (rejecting respondents' claim that “officers' failure to attempt to contact the theatre owner prior to entering the building rendered the entry unreasonable”). We recognize that “the business of [police officers] and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process.” Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963).
We do not intend to suggest that police officers need never attempt to contact a homeowner before making entry pursuant to the emergency exception to the warrant requirement. Such a determination necessarily must depend on the facts of the case, including the nature of previous communications with the defendant and how quickly entry must be effectuated to address the emergency. Under the facts of the present case, however, although entry was not possible immediately, it is clear that animal control had a history with the defendant and that typically the defendant responded to notices left by animal control. The fact that the defendant called animal control, unbeknownst to Cobb, the day after the first notice was left, demonstrates that Cobb's view of the defendant's conduct was correct. Therefore, the fact that the notices, which were left approximately ten days before, were still outside and seemingly ignored made it more likely that an emergency existed inside the home.
In the present case, the trial court found that Cobb had tried to contact the defendant in the prior few weeks and had not been successful, including being unable to reach the defendant on his cell phone. Furthermore, the trial court also found that a neighbor told Cobb that he had not seen the defendant in several days and an overflowing mailbox and prior notices from animal control were visible when the officers arrived at the scene. Moreover, the trial court also found that the house was in such a filthy condition that the officers could not see through the windows and that there was a “putrid smell emanating from the house.” On the basis of these findings, we decline to apply the collective knowledge doctrine to conclude that the officers were required to obtain the defendant's cell phone number from animal control and attempt to contact him prior to entering the home. Accordingly, we conclude that the trial court's finding that the defendant's cell phone number was unavailable to Barcello and could not be obtained is not clearly erroneous.
Further, we note that Cobb, who had visited the house on prior occasions, described the “putrid smell” as follows:
“Q. Could you identify what type of smell it was?
“A. It was really hard to say, not a smell that I really smelled before. I could tell it may have been feces, or thought it may have been feces, but it was a strong smell mixed with an ammonia smell.
“Q. And could you identify the source at all, in particular, where the smell was coming from?
“A. Yes. I knew it was coming from the door that had opened as I knocked. I also noticed that there was feces all over the floor there....” Barcello described the odor as follows:
“Q. And what was—can you describe the odor?
“A. It was a strong pungent odor not a normal scent in the air.” Mercado described the odor as follows:
“Q. Can you describe that odor?
“A. Honestly, I can't even describe it. It's just—it's just [an] odor I have never smelt it before. It was just [a] really foul and strong stench.”
Finally, Troy Jones, a firefighter with the Glenbrook Fire Department, described the odor as follows:
“Q. And what type of odor was coming from the building?
“A. It was a pungent odor.”
This testimony further supports our conclusion that there was substantial evidence in the record to support the trial judge's decision that an emergency situation was properly perceived by the police at the time of entry.
Moreover, it is important to note that the dissent and the Appellate Court place great emphasis on the fact that the police officers did not attempt to contact the defendant by cell phone. Indeed, the dissent states “the warrantless search in the present case was objectively unreasonable in view of the officers' failure to make any effort to reach the defendant on his cell phone, a call that would have obviated any possible concern about the perceived need for the warrantless intrusion into the defendant's home.” We disagree. There is absolutely nothing in the evidence to support this statement. We have no idea whether the police officers would have been able to reach the defendant if they did try to call him prior to entering his residence. In fact, the evidence demonstrates that the animal control office had attempted to reach the defendant on his cell phone in the previous weeks and was unable to do so. Moreover, it is this type of speculation that we must reject when evaluating warrantless searches under the emergency doctrine. See State v. LaFleur, 307 Conn. 115, 182, 51 A.3d 1048 (2012) ( Palmer, J., dissenting) (“this court regularly eschews [speculation] as inherently unreliable and thus unworthy of reliance for any reason”).
Having concluded that the findings of fact by the trial court were not clearly erroneous, we examine whether the trial court “properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed when they entered the [dwelling].” State v. Colon, 272 Conn. 106, 142, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).
“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.” (Internal quotation marks omitted.) State v. Ryder, supra, 301 Conn. at 821, 23 A.3d 694; see also Payton v. New York, 445 U.S. 573, 585–86, 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); State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983).
“[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. at 794, 993 A.2d 455. “[T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid.... The extent of the search is limited, involving a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.... The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities.... Such a search is strictly circumscribed by the emergency which serves to justify it ... and cannot be used to support a general exploratory search.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 691, 610 A.2d 1225 (1992).
It is well established in Connecticut that the test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances. See State v. Aviles, supra, 277 Conn. at 293, 891 A.2d 935; State v. Guertin, supra, 190 Conn. at 453, 461 A.2d 963. Specifically, “the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.... 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.... 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.) State v. Fausel, supra, 295 Conn. at 795, 993 A.2d 455. “The reasonableness of a police officer's determination that an emergency exists is evaluated on the basis of facts known at the time of entry.” (Emphasis in original; internal quotation marks omitted.) State v. Blades, 225 Conn. 609, 619, 626 A.2d 273 (1993). “[T]he emergency doctrine relies on an objective test wherein the reasonableness of the officer's belief is assessed on a case-by-case basis.... The three general categories that the courts have identified as justifying the application of the doctrine are danger to human life, destruction of evidence and flight of a suspect.” (Citation omitted; internal quotation marks omitted.) State v. Aviles, supra, at 294, 891 A.2d 935.
“Moreover, this court previously held that ‘we do not read [prior case law] to require direct evidence of an emergency situation....’ State v. Colon, supra, 272 Conn. at 147, 864 A.2d 666; see also State v. Ortiz, [95 Conn.App. 69, 83, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d 94 (2006) ] (‘[t]he fact that a person in need of assistance was not present in the apartment does not in any way detract from the objectively reasonable interpretation of the facts that were before the police officers in their haste to render whatever assistance was necessary’); 3 W. LaFave, [Search and Seizure (4th Ed. 2004) ] § 6.6(a), pp. 452–53 (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.’).” State v. Fausel, supra, 295 Conn. at 800, 993 A.2d 455.
“Direct evidence of an emergency is not required because the emergency exception to the warrant requirement arises out of the caretaking function of the police. It has been observed that [t]he police have complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses; by design or default, the police are also expected to reduce the opportunities for the commission of some crimes through preventive patrol and other measures, aid individuals who are in danger of physical harm, assist those who cannot care for themselves, resolve conflict, create and maintain a feeling of security in the community, and provide other services on an emergency basis.... 3 W. LaFave, supra, § 6.6, p. 451. As this court previously has noted, the emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation.... Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life.... State v. Blades, supra, 225 Conn. at 619, 626 A.2d 273; see also Brigham City v. Stuart, [547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ] ( [t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing [or hockey] referee, poised to stop a bout only if it becomes too one-sided).” (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. at 800–801, 993 A.2d 455.
The Appellate Court attempted to distinguish the facts of the present case from those in which this and other courts have found warrantless searches to be justified under the emergency doctrine on the grounds that “[t]he police did not respond to the defendant's home as a result of an alarm, there was no evidence that a violent criminal offender might be hiding in the house, no evidence of a break-in and no signs of a struggle or blood or any other indication of a potentially dangerous situation.” State v. DeMarco, supra, 124 Conn.App. at 452–53, 5 A.3d 527. As we have explained previously in this opinion, however, this court has repeatedly recognized that “[d]irect evidence of an emergency is not required because the emergency exception to the warrant requirement arises out of the caretaking function of the police.” State v. Fausel, supra, 295 Conn. at 800, 993 A.2d 455.
Similarly, the dissent claims that “the present case bears a striking resemblance to State v. Vargas, 213 N.J. 301, 63 A.3d 175 (2013), in which the New Jersey Supreme Court recently concluded on very similar facts that a search was not justified under the emergency exception to the warrant requirement.” We disagree with the dissent's reliance on Vargas. In Vargas, the issue was “whether the community-caretaking doctrine authorizes the police to conduct a warrantless entry and search of a home to check on the welfare of a resident in the absence of the resident's consent or an objectively reasonable basis to believe that there is an emergency.” State v. Vargas, supra, at 305, 63 A.3d 175. The New Jersey Supreme Court ultimately concluded that the trial court properly held “that the community-caretaking doctrine standing alone, without exigent circumstances, could not justify the warrantless search of Vargas's apartment....” Id., at 328, 63 A.3d 175. It is important to note, however, that the New Jersey Supreme Court's conclusion was premised on the fact that “the state concede[d] [that] the facts in [Vargas ] would not permit the invocation of either the exigent-circumstances or emergency-aid exceptions to the warrant requirement because no emergency spurred the police into action.” Id., at 312, 63 A.3d 175. On the basis of the state's concession in Vargas, the New Jersey Supreme Court's analysis in that case is of little use in the present case where the precise issue is whether the facts permit the invocation of the exigent circumstances exception to the warrant requirement.
In the present case, the facts found by the trial court support the trial court's conclusion that, under the totality of the circumstances, a reasonable officer would have believed that an emergency existed inside the defendant's home. We briefly review the following facts contained within the record. On October 11, 2007, Cobb had visited the defendant's home, left a notice on the front door and a notice on the windshield of an automobile that the defendant typically drove, which was parked on the premises. The notice directed the defendant to contact the animal shelter. During that visit, a neighbor informed Cobb that he had not seen the defendant in several days. Further, attempts to reach the defendant by telephone at that time were unsuccessful. Despite previously responding to such notices, the defendant never responded to the notices left on October 11, 2007. Ten days later, Cobb conducted a further follow-up at the defendant's home. When he approached the defendant's home, he saw the notice that had been placed on the defendant's door on October 11, 2007, lying on the floor of the front porch and the other notice still on the windshield of the automobile, which the defendant typically drove. Cobb also noticed that the defendant's mailbox was overflowing with current and dated mail. The neighbor once again said he had not seen the defendant in several days. Cobb could hear dogs barking inside the house and smelled a strong, “horrible odor” emanating from the defendant's home. Cobb testified that, despite responding to the defendant's home on other occasions in response to complaints about the smell, this was a smell he had never smelled before. Cobb knocked on the door, which became ajar, and there was no response. Cobb called for backup.
Thereafter, Barcello and other officers arrived. The officers did a perimeter check of the house, noted a number of automobiles on the premises and things in disarray. The officers attempted to look in the windows, but the windows were so dirty that visual observation of the interior was not possible. After completing a preliminary investigation, Barcello determined that a person or persons could be in danger in the house and that the unidentified odor presented a safety concern. Therefore, Barcello called the Stamford Fire Department for assistance. The Stamford Fire Department responded, using their lights and sirens. Once at the scene, the firefighters were still unsure of the source and nature of the smell and thought it could be “life threatening.” As a result, the firefighters utilized protective gear, including breathing apparatuses. While entering the defendant's home, the firefighters also used a special monitor to determine the nature and source of the odor in order to alert them to any gases that were of an explosive nature.
On the basis of these facts—namely, that the notices were still there after ten days, that mail was piling up, and that the same vehicles were at the premises—a police officer, reasonably would have believed that an emergency existed inside the defendant's home. Moreover, the putrid, overwhelming odor that was different than that which was present at the defendant's home on other occasions—together with the door being open—supported a finding that an emergency situation existed in connection with these other facts. The concern regarding the threat to human safety relating to the pervasive overwhelming bad odor emanating from the house was amply demonstrated by the refusal of police to enter the premises and their call for support from properly equipped fire personnel.
We note that the dissent bolsters its argument with reference to the amount of time it took to notify the defendant that the police were looking for him, and, thereafter, how long it took him to appear at his house. We evaluate the situation, as the trial court did, at the time the police entered the house, based upon the totality of the circumstances at that time in order to make a determination if a police officer reasonably would have believed that an emergency existed. A resort to circumstances that occurred subsequent to that time would not be prudent and would distort the analysis.
Indeed, other courts have affirmed trial court findings that an unidentified odor, in connection with other facts, may justify police entry into the home. See, e.g., United States v. Presler, 610 F.2d 1206, 1209 (4th Cir.1979) (defendant's landlord had not seen him for some time, unusual odor emanating from his room); People v. McGee, 140 Ill.App.3d 677, 681–82, 95 Ill.Dec. 218, 489 N.E.2d 439 (1986) (warrantless entry of residence authorized because of uncertainty of what officers would find upon entering residence based upon odor and general condition of house as seen through windows); People v. Molnar, 288 App.Div.2d 911, 732 N.Y.S.2d 788 (2001) ( “[i]t was the duty of the police here to resolve the source of the noxious odor ‘suggesting harm’ to the person or persons inside defendant's apartment”), aff'd, 98 N.Y.2d 328, 774 N.E.2d 738, 746 N.Y.S.2d 673 (2002); Rauscher v. State, 129 S.W.3d 714, 722 (Tex.App.2004) (warrantless entry authorized under caretaking function due to detection of foul unidentified odor); State v. York, 159 Wis.2d 215, 217, 464 N.W.2d 36 (App.1990) (couple reported missing and foul odor, possibly decomposing body, detected), review denied, 465 N.W.2d 656 (Wis.1991). Accordingly, we conclude, contrary to the Appellate Court, that the trial court properly concluded that, under the totality of the circumstances present in this case, a police officer reasonably would have believed that an emergency existed inside the defendant's home.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court. In this opinion HARPER, VERTEFEUILLE and ESPINOSA, Js., concurred.
PALMER, J., with whom ROGERS, C. J., and ZARELLA, J., join, dissenting.
Under the emergency exception to the warrant requirement of the fourth amendment, the police may enter a dwelling without a warrant if they reasonably believe that an occupant is seriously injured or otherwise in immediate danger. The present case implicates the commonsense requirement that, to meet this objective standard, before entering a dwelling to save or rescue an occupant, the police must take all reasonable measures, consistent with the exigencies of the situation, to ascertain whether a true emergency exists. Accordingly, if, in light of those exigencies, it is feasible for the police to attempt to contact the person whose safety is the subject of concern in order to determine whether that person actually is in the dwelling and, if so, in need of immediate aid, the police must make such an effort, and their failure to do so will render the search unlawful as incompatible with the reasonableness requirement of the fourth amendment to the United States constitution. As the Appellate Court correctly concluded, that is exactly what happened in the present case: the undisputed evidence that the state itself adduced at the suppression hearing conclusively established that the police, in particular, Officer Tilford Cobb, had ready access to the cell phone number of the defendant, Michael Angelo DeMarco, which, as Cobb well knew, was contained in the defendant's file at the police department. See State v. DeMarco, 124 Conn.App. 438, 447–48 and n. 5, 5 A.3d 527 (2010). Furthermore, that uncontested evidence demonstrated beyond a doubt that Cobb and his colleagues had more than ample opportunity to retrieve and call that number during the nearly one hour period that transpired from the time Cobb, followed by other officers, arrived at the defendant's home until the time they ultimately entered it. See id., at 449, 5 A.3d 527. Finally, it also is undisputed that moments after the police concluded their search of the defendant's residence, they contacted the defendant on his cell phone, and he returned home immediately. Even though the state offered no reason or justification for the failure of the police to call the defendant in an effort to ascertain his whereabouts before searching his home for him, the trial court denied the defendant's motion to suppress, concluding that the state's evidence supported the inference, first, that the defendant's cell phone number was “not available” to the police—and, in particular, to Sergeant Thomas Barcello, the officer at the scene who, in consultation with Cobb and Patrol Officer Will Mercado, made the decision to enter the defendant's home—and, second, that, in any event, it was not necessary for the police to attempt to contact the defendant due to “the immediacy of the situation.”
Of course, “the emergency doctrine does not give the state an unrestricted invitation to enter the home. [G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.... 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.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 691–92, 610 A.2d 1225 (1992).
In a given case, the state might be able to establish that it would have been futile, and therefore unnecessary, for the police to have tried to contact the person who is feared to be in danger inside the dwelling, even if they had time to do so. That, however, is not the case here, and the state makes no such claim. Indeed, it is undisputed that the police did, in fact, reach the defendant via cell phone immediately after completing the search of his home, at which time the defendant promptly returned home.
Because these findings are belied by the unchallenged testimony of the state's own witnesses, the Appellate Court, after conducting a thorough analysis of the trial court record in accord with well established principles of appellate review, properly concluded that the findings were clearly erroneous and, therefore, not sustainable on appeal. See State v. DeMarco, supra, 124 Conn.App. at 448–50, 5 A.3d 527. Consequently, contrary to the determination of the majority—which refuses to apply the collective knowledge doctrine and, instead, ignores the undisputed fact that Cobb easily could have contacted the defendant on his cell phone, thereby obviating any possible need to enter the defendant's home without a warrant—the state's claim under the emergency exception must be rejected because the police failed to take the steps necessary to establish the existence of a true emergency. I therefore dissent.
Under the collective knowledge doctrine applicable to police investigations, the knowledge of any one investigative officer is imputed to the other officers involved in the investigation. Although we sometimes have described the doctrine in somewhat broader terms; see, e.g., State v. Butler, 296 Conn. 62, 72, 993 A.2d 970 (2010) (“in testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer ... but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered” [internal quotation marks omitted] ); for present purposes, its applicability may be limited to circumstances such as those in the present case, in which there is active communication between the officers involved in the investigation.
For the reasons set forth in this opinion, I also agree with the Appellate Court that the factual scenario with which the police were confronted in the present case simply does not rise to the level of an emergency that would justify a warrantless entry into the defendant's home. See State v. DeMarco, supra, 124 Conn.App. at 450–51, 5 A.3d 527. Indeed, on the present record, I do not believe that the state has established that the police would have been justified in entering the defendant's home without a warrant when they did, even if they had tried and failed to contact the defendant. The failure of the police to take that threshold investigative step, however, clearly is fatal to the state's claim under the emergency doctrine. I therefore focus on that issue.
I
FACTS
The majority recites the limited facts found by the trial court but omits most of the highly relevant, undisputed testimony, adduced by the state itself from the responding officers, that this court must consider in determining whether the trial court's findings are supported by the evidence. That uncontroverted testimony may be summarized as follows. On October 21, 2007, Cobb and his partner, Officer Jean Louis, were on patrol in the city of Stamford (city) when they decided to conduct an impromptu inspection of the defendant's home. Ten days earlier, in response to complaints about a horrible odor emanating from the defendant's home, Cobb had left a notice on the windshield of one of the defendant's vehicles asking him to contact the city's Animal Care and Control Shelter (animal control). Cobb could not recall, however, whether he had indicated on the form, by checking one of several boxes—licensing, complaints, vaccinations, and the like—what his visit had been about. Cobb also testified that the defendant's neighbors always were complaining about the horrible smell coming from the defendant's house. According to Cobb, the defendant complied with animal control on some matters but not on others, and “usually” responded to notices that were left at his house requesting that he call animal control. Because the defendant had not responded to the last notice, Cobb decided to conduct an unannounced follow-up visit on October 21, 2007. Unaware that Cobb would be visiting, the defendant had left his house earlier that morning to go to a local beach.
As the Appellate Court explained, “the record reveals that considerable time passed between Cobb's initial arrival at the scene and the warrantless entry by the fire department. Cobb testified that he had been at the defendant's home for several minutes when he decided that something might be wrong inside the home and called the police dispatch number. Notably, Cobb did not call the emergency number. The dispatcher told Cobb that he would contact the sergeant who was on duty, and, within one-half hour, Barcello arrived at the defendant's residence. After Barcello spoke with Cobb, he went to the front door, walked around the exterior of the premises and attempted to look in the windows.
“At some point during Barcello's initial examination of the premises, Officer Mercado arrived, after being dispatched to assist Barcello. Mercado testified that he checked the front and back of the house and attempted to look in the windows. Mercado also testified that he spoke with Barcello and that they decided to call the [Stamford Fire Department (fire department) ]. Barcello, whose testimony the [trial] court specifically credited, testified that between fifteen and twenty minutes [had] elapsed [from the time he arrived at the defendant's residence until he summoned the fire department]. When [the fire department arrived, the] firefighters put on their breathing apparatus and entered the dwelling.” State v. DeMarco, supra, 124 Conn.App. at 449, 5 A.3d 527.
With respect to whether the defendant's cell phone number was available to Barcello during that time, “Cobb testified that animal control possessed the defendant's cell phone number.... He also testified that he did not bring the number with him on the day of the warrantless entry but that the number was at the animal control office and that there were other animal control employees in the office on the date in question.” (Footnote omitted.) Id., at 447–48, 5 A.3d 527. When Cobb was asked why he did not call the defendant if he had been concerned about his welfare, he responded that he did not call the defendant because he did not have the defendant's cell phone number with him and that his primary concern was for the animals inside the defendant's home. Cobb further testified that, after calling police dispatch, while waiting approximately thirty minutes for Barcello to arrive, he called Laurie Hollywood, his supervisor at animal control, and asked her to come to the scene to assist him in the seizure of the defendant's dogs, which she did. Cobb did not ask Hollywood to call the defendant, however, nor did he ask her to bring the defendant's cell phone number with her when she came.
Cobb testified that, as he approached the house on foot, he smelled a horrible odor that he thought was from dog feces. When he knocked on the door, the door opened, and he could see feces all over the floor. He also smelled the strong stench of ammonia. When the door opened, one dog ran toward him, so he closed the door quickly. He also could hear other dogs barking inside the house.
When asked whether Barcello was aware prior to the search of the defendant's home that animal control had the defendant's contact information, Cobb responded that he believed Barcello was aware of this fact. Barcello's testimony, however, was somewhat vague and often conflicting as to when he actually obtained the defendant's cell phone number. Although he testified that he may have obtained the number prior to entering the defendant's home, he also stated that he never asked anyone for the defendant's cell phone number prior to entering the home, and that he did not know whether anyone actually had tried to call the defendant. He conceded, however, that, as soon as the search concluded, one of the officers at the scene called the defendant on his cell phone and asked him to return home. Mercado, the officer who placed that call, testified that Barcello handed him the number after the search and told him to call the defendant. The defendant, who was approximately ten minutes away when he received Mercado's call, returned home immediately and was placed under arrest.
With respect to whether the immediacy of the situation prevented Barcello or any of the other officers from calling the defendant prior to entry, none of the officers testified that it would have been impracticable or difficult to do so. According to Mercado, the issue simply never was discussed. Indeed, although Barcello was the supervising officer, he testified that he did not know whether anyone had tried to call the defendant. Nevertheless, according to Barcello, he and the other officers at the scene conducted an investigation into the defendant's whereabouts prior to searching the defendant's home. With the exception of asking one of the defendant's neighbors whether he had seen the defendant “recently,” however, Barcello could not identify any investigative efforts that he or the other officers had undertaken to ascertain the whereabouts of the defendant. For example, it does not appear that he asked the defendant's neighbors how many cars the defendant owned and whether any of them were missing, whether they had seen the defendant in the ten days since Cobb had left the last notice, whether the defendant's house smelled any different than it usually smelled, or whether the accumulation of mail in the defendant's mailbox was unusual. In fact, while Cobb, Barcello and Mercado all cited the overflowing mailbox as one of the reasons why they thought the defendant might be in peril, there is nothing in the record to indicate that any of them examined the mail to determine how long it had been there.
One neighbor responded that he had not seen him recently.
The record reveals that the mailbox in question was approximately five by fifteen inches and was attached to the house. According to Cobb, although he did not actually examine any of the mail, some of it “looked like it had been there several days.... [There] was like a grocery store flyer, something like that, and there were other items in the mailbox at that time.”
Finally, the undisputed evidence established that the conditions that the officers encountered at the defendant's home—barking dogs, horrible odor, multiple vehicles and unkempt premises—were not at all unusual for the defendant's residence, and the officers knew it. As the Appellate Court explained, “the uncontroverted evidence established that the police were aware on the day of their warrantless entry that the defendant's home was consistently in a state of disrepair and always had multiple cars parked on the premises, both in the driveway and on the front lawn.” State v. DeMarco, supra, 124 Conn.App. at 456–57 n. 11, 5 A.3d 527. Furthermore, both Cobb and Hollywood testified that they were aware that the defendant owned several vehicles, and, according to Mercado and Barcello, there were only two vehicles parked in front of the house when they arrived. As for the odor and the barking dogs, Cobb testified that the defendant's neighbors “were always complaining” about “a horrible smell coming from the house.”
II
APPELLATE COURT DECISION
The Appellate Court concluded that the trial court's finding that the defendant's cell phone number was not available to Barcello was clearly erroneous in light of Cobb's uncontested testimony that animal control, which is a division of the Stamford Police Department, had the defendant's cell phone number. See State v. DeMarco, supra, 124 Conn.App. at 447 and n. 5, 5 A.3d 527. The Appellate Court reasoned that, although Barcello did not physically possess the defendant's number when he arrived at the defendant's residence, the only reasonable inference was “that Cobb could have readily obtained [it] by calling the animal control office.” Id., at 448, 5 A.3d 527. In reaching its determination, the Appellate Court relied on the collective knowledge doctrine, pursuant to which a court considers the knowledge of all of the investigating officers, and not merely the personal knowledge of any single officer, in assessing the reasonableness of a warrantlesssearch or seizure, if it is reasonable to do so. See id. In the view of the Appellate Court, therefore, because Cobb would have been expected either to obtain the defendant's cell phone number and to call the defendant himself, or to provide Barcello with that number, the police did not act reasonably in entering the defendant's residence without first trying to contact him. See id., at 448–50, 5 A.3d 527.
The Appellate Court explained: “Cobb knew about the number, [animal control] was in possession of the number, and, accordingly, [the court] conclude[s] that the finding by the court that Barcello did not have the defendant's cell phone number available to him while he was at the defendant's residence and before he decided to order the warrantless entry was clearly erroneous.” State v. DeMarco, supra, 124 Conn.App. at 448, 5 A.3d 527.
The Appellate Court further concluded that the trial court's finding that the immediacy of the situation prevented Barcello from obtaining the number “was also clearly erroneous and [was] contradicted by the uncontested police testimony relating to the length of time that was spent at the [defendant's] residence before any authorities entered the dwelling.” Id., at 448, 5 A.3d 527. Specifically, the Appellate Court stated: “[T]he record clearly demonstrates that the authorities were at the defendant's home for nearly one hour prior to entering the dwelling.... [The events that took place during that time belie] any claim of emergency or imminent danger and the attendant implication that the police did not have adequate time to attempt to contact the defendant ... before their warrantless entry of his home.” Id., at 453–54, 5 A.3d 527. The Appellate Court also observed that there were additional, uncontested facts in the record that bolstered the conclusion that an objectively reasonable officer would not have believed that the defendant's life was in immediate danger. Specifically, the Appellate Court concluded that “[t]he [trial] court's memorandum of decision properly sets forth many of the facts that were available to the police [when] they were deciding to make a warrantless entry into the defendant's home.... [T]hey include the terrible odor, the overflowing mailbox and so forth. The [trial] court, however, only [set] forth the facts that tend[ed] to support the conclusion that an emergency situation [had] existed. There was, however, additional uncontroverted and unchallenged evidence presented at the suppression hearing that the court wholly disregarded in its findings.” Id., at 455, 5 A.3d 527.
The Appellate Court then summarized that evidence, which included that “Cobb and [Hollywood, Cobb's] supervisor ... both testified without challenge that, over a period of years, the defendant's neighbors had often complained of the ‘horrible smell coming from the house,’ as well as dogs barking and roaming.” Id., at 455–56, 5 A.3d 527. The Appellate Court further observed that, although the trial court had relied on the number of vehicles in the defendant's front yard in concluding that it was reasonable for the officers to believe that the defendant was home, “the uncontroverted evidence [adduced at the suppression hearing] established that the police were aware on the day of their warrantless entry that the defendant's home was consistently in a state of disrepair and always had multiple cars parked on the premises, both in the driveway and on the front lawn.” Id., at 456–57 n. 11, 5 A.3d 527. Specifically, the Appellate Court observed that Hollywood had testified, “without challenge, that she had been to the defendant's home three or four times, that she knew that he lived alone, that he owned three motor vehicles and a boat and that the property was generally in a state of disrepair.” Id., at 456, 5 A.3d 527.
III
MAJORITY OPINION
The majority commences its analysis by setting forth the proper standard of review “for deciding whether [a] trial court properly denied a defendant's motion to suppress on the ground that the search violatedthe fourth amendment to the United States constitution.” As the majority states, when a defendant seeking to suppress evidence does not dispute the credibility or accuracy of the testimony of the state's witnesses, such that there is only one version of the relevant events on which the parties agree, the reviewing court must consider that uncontroverted evidence in evaluating a claim that the trial court's findings are clearly erroneous. Because, as the majority concedes, the present case implicates this standard of review, this court, in reviewing the defendant's claim, must consider all of the evidence adduced by the state in determining whether the record supports the trial court's findings that the defendant's cell phone number was not available to the police and that the immediacy of the situation relieved them of any obligation that they otherwise might have had to contact the defendant.
More specifically, the majority states: “[I]f, upon examination of the testimonial record, the reviewing court discovers but one version of the relevant events [on] which both the state and the defendant agree, and such agreement exists both at trial and on appeal, the reviewing court may rely on that version of events in evaluating the propriety of the trial court's determinations and [in] determining whether the trial court's factual findings are supported by substantial evidence. In a case [in which] the trial court has concluded that the police action at issue was justified and the undisputed version of events reflected in the transcript was adduced by the state through [the] testimony of the police officers who were involved, a reviewing court's reliance on that version of [the] events is particularly appropriate. If the officers' own testimony as to what occurred is internally consistent and uncontested by the defendant but, in fact, undercuts the trial court's ruling in favor of the state, a reviewing court would be remiss in failing to consider it.” Text accompanying footnote 4 of the majority opinion. The majority acknowledges that these requirements are satisfied in the present case.
The majority then addresses the merits of the state's claim that the Appellate Court incorrectly concluded that these two findings by the trial court were clearly erroneous. With respect to the finding that the defendant's cell phone number was not available to the police, the majority merely block quotes three pages of Barcello's vague and equivocal testimony, which was elicited on cross-examination, about what he recalled he may possibly have done on the day in question. Then, without any analysis or discussion of that testimony, and without any acknowledgment of the undisputed facts that undeniably support the contrary conclusion of the Appellate Court, the majority summarily asserts that, “[o]n the basis of the foregoing testimony, making every reasonable presumption in favor of the trial court's ruling as we are required to do, we conclude that there was sufficient evidence in the record to support the trial court's finding that the defendant's cell phone number was unavailable to Barcello at the scene.” At no point does the majority even attempt to explain why Cobb, who concededly knew how to contact the defendant, was not under a duty to do so, or why, at the very least, Cobb was not obligated to inform Barcello that he could contact the defendant by calling his cell phone.
The majority determines that the evidence also justified the trial court's finding that the “immediacy of the situation” prevented Barcello from obtaining the defendant's cell phone number. In support of this conclusion, the majority refers to the evidence that the trial court relied on in concluding that the officers reasonably believed that an emergency existed, namely, the overflowing mail, the putrid smell, the dog feces on the floor, and the fact that, according to Barcello, he and his fellow officers conducted some sort of “preliminary investigation”—Barcello did not elaborateon the nature or extent of that investigation—to ascertain the defendant's whereabouts prior to entering his home. The majority, however, makes no mention of the fact that the officers were on the scene for nearly one hour before they entered the defendant's home, or that they were aware that the deplorable conditions were not unusual for the defendant's residence. Nevertheless, the majority states, without further explanation, that “[it] cannot conclude that the delays caused by the officers in investigating and then seeking backup and assistance from the [fire department] ... negate the trial court's finding that the immediacy of the situation prevented Barcello from obtaining the defendant's cell phone number.”
The majority further asserts that the Appellate Court improperly applied the collective knowledge doctrine, pursuant to which the knowledge of one investigating officer is imputed to the other investigating officers when it is reasonable to do so, in concluding that the trial court's finding that Barcello did not have access to the defendant's cell phone number was clearly erroneous. In reaching its determination, the majority asserts that it would be inappropriate to apply the collective knowledge doctrine in cases, like the present one, involving the emergency exception to the warrant requirement, because “[i]mposing [on] law enforcement officers who are responding to an emergency situation the obligation to contact the police station and [to] obtain information that may be contained in a police file ... is not consistent with the purpose of the emergency exception.” Text accompanying footnote 7 of the majority opinion; see also footnote 7 of the majority opinion (“[t]he legitimate reason not to apply the collective knowledge doctrine to a search like the one in the present case is that it takes away the ability of the police to act quickly in an emergency situation”). Finally, the majority concludes that the evidence, viewed in the light most favorable to sustaining the trial court's findings, was sufficient to support that court's determination that the police harbored an objectively reasonable belief that the defendant was inside his home and in need of emergency aid.
See footnote 3 of this opinion.
The majority's analysis is fundamentally flawed in a number of crucial respects. First, the majority refuses to apply the collective knowledge doctrine—specifically, it refuses to consider the fact that Cobb knew full well how to reach the defendant—without any legitimate reason for doing so. The majority's second, and most critical, impropriety, stems, in part, from its unwarranted failure to treat Cobb as an active participant in the events that culminated in the search. Notably, the majority cherry-picks evidence from the record and ignores certain other undisputed and highly relevant evidence, in particular, the fact that Cobb had easy access to the defendant's cell phone number and ample time to call the defendant's cell phone. As a result of these improprieties, the majority's evaluation of the evidence is hopelessly skewed. Finally, to buttress its ultimate determination that the police lawfully entered the defendant's home under the emergency doctrine, the majority relies on cases that have no bearing on the proper resolution of this case and disregards adverse case law that is squarely on point. I address each of these defects in turn.
A
I turn first to the majority's refusal to recognize the applicability of the collective knowledge doctrine because its refusal to do so renders invalid its conclusion that the defendant's cell phone number was not available to the police. Because Cobb was a sworn police officer who arrived at the scene first and remained there until the police entered the defendant's home approximately one hour later, the evidence establishing that he readily could have retrieved the defendant's cell phone number and called him must be considered for purposes of determining whether the conduct of the police was reasonable under the circumstances. Common sense dictates this conclusion.
This court routinely applies the doctrine to analogous searches and seizures; e.g. State v. Butler, 296 Conn. 62, 72–73, 993 A.2d 970 (2010) (applying doctrine to reasonable suspicion determination); State v. Batts, 281 Conn. 682, 698, 916 A.2d 788 (applying doctrine to probable cause determination and review of trial court's denial of hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978] ), cert. denied, 552 U.S. 1047, 128 S.Ct. 667, 169 L.Ed.2d 524 (2007); and other jurisdictions have applied it to emergency searches. See, e.g., United States v. Huffman, 461 F.3d 777, 784–85 (6th Cir.2006) (applying collective knowledge doctrine in assessing reasonableness of officers' belief that emergency existed inside home), cert. denied, 549 U.S. 1299, 127 S.Ct. 1863, 167 L.Ed.2d 353 (2007); United States v. Russell, 436 F.3d 1086, 1094–95 (9th Cir.2006) (Thomas, J., concurring in part and dissenting in part) (“[w]e analyze the ‘reasonable grounds to believe that there is an emergency at hand,’ on an objective basis, taking into consideration the collective knowledge of the officers at the time”); Mitchell v. State, 294 Ark. 264, 270, 742 S.W.2d 895 (1988) (“[r]egardless of what [the officer] personally knew, he is charged with the collective knowledge of the police department at the time [of the emergency search]”); Oliver v. United States, 656 A.2d 1159, 1166 and n. 14 (D.C.1995) (applying collective knowledge doctrine in assessing reasonableness of emergency search); State v. Lemieux, 726 N.W.2d 783, 789 (Minn.2007) (“[w]hen assessing the reasonableness of an emergency-aid search, the officer who conducts the search is imputed with knowledge of all facts known by other officers involved in the investigation, as long as the officers have some degree of communication between them”). There simply is no legitimate reason not to apply the doctrine to warrantless searches, like the one in the present case, based on a purported emergency, because it is reasonable to expect investigating officers who are working together to share important information about their investigation, provided, of course, that it is feasible to do so under the circumstances. There is nothing in the record of the present case to suggest that it would not have been feasible either for Cobb to tell Barcello that he could obtain the defendant's cell phone number, or for Barcello to inquire of Cobb and his fellow officers whether they knew how to contact the defendant. Although Barcello might be excused for failing to ask Cobb whether Cobb knew how to reach the defendant—because Barcello reasonably would have expected Cobb, or any of the other officers on the scene, to alert him to the fact that the defendant's cell phone number was readily available—Cobb himself was required to take the exceedingly simple investigative step of calling the defendant. Because Cobb was required to do so but did not, his failure to act necessarily is attributable to the police. The majority's contrary conclusion is simply indefensible.
The majority contends that the collective knowledge doctrine applies only to uphold emergency searches but not to invalidate them. In support of this assertion, the majority states: “It makes sense that we would want to support the community caretaking function of [the] police by allowing officers to communicate information that may alert one officer responding to a situation that there may be other factors that constitute an emergency that may not be apparent to the officer who responds. On the other hand, it would frustrate the purpose of the emergency doctrine to require officers who are first responders to a scene that reasonably appears to [involve] an emergency to contact the police department to see if there are facts known to other officers or in the department's files that negate what they see in person at the scene. Doing so may cause officers to lose valuable time.” Footnote 7 of the majority opinion. In a similar vein, the majority states that “[i]mposing [on] law enforcement officers who are responding to an emergency situation the obligation to contact the police station and [to] obtain information that may be contained in a police file ... is not consistent with the purpose of the emergency exception.” Text accompanying footnote 7 of the majority opinion. The obvious defect in the majority's argument is that it begs the question: the argument assumes that an emergency exists. Of course, if the police confront a situation that causes them to reasonably believe that it is necessary to enter a dwelling or other property immediately to save life or limb, they have every right—in fact, they have an obligation—to do so, without conducting any additional investigation. In the present case, however, the police did not enter the defendant's residence immediately because, as they knew, they needed to ascertain additional facts to determine whether a true emergency existed. In such circumstances, if the police have ready access to the cell phone number of the person who is the object of their concern, attempting to contact that person would be among the very first things, if not the very first thing, that a reasonable police officer would do. That is especially true when, as in the present case, the police previously have contacted that person via cell phone in the past.
Although the collective knowledge doctrine typically has been applied for the benefit of the state, there is, of course, no reason why it should not apply to the state's detriment when, as in the present case, an officer involved in an investigation possesses highly relevant information that bears directly on the necessity for a warrantless search but fails to share that information with his fellow officers. As one court has explained, when one officer has information concerning the propriety of a warrantless search and “could have conveyed it to the searching officer in time ... [that officer] has a duty to convey it ... just as he would if he were seeking a warrant. Nor does that duty evaporate ... if the search has already begun, though whether it has begun will often affect the feasibility of communicating the information in time to stop the search.” (Citation omitted; emphasis omitted.) United States v. West, 321 F.3d 649, 651 (7th Cir.), cert. denied, 540 U.S. 946, 124 S.Ct. 385, 157 L.Ed.2d 275 (2003); see also United States v. Santa, 180 F.3d 20, 28 (2d Cir.) (when facts known to some officers exonerated defendant, “the issue is whether the failure to communicate [the] facts to the arresting officer rendered the mistaken arrest unreasonable” [internal quotation marks omitted] ), cert. denied, 528 U.S. 943, 120 S.Ct. 356, 145 L.Ed.2d 278 (1999); United States v. Valez, 796 F.2d 24, 28 (2d Cir.1986) (same), cert. denied, 479 U.S. 1067, 107 S.Ct. 957, 93 L.Ed.2d 1005 (1987). The majority's contrary conclusion is predicated on the false premise that the police need not communicate with each other even when doing so is the only reasonable course of conduct. I know of no other legal rule or principle of general applicability that is so one-sided and so result driven.
Ordinarily, the collective knowledge doctrine is applied to defeat a challenge to the legality of an arrest or detention on the ground that the individual police officer responsible for arresting or detaining the defendant personally did not have probable cause or reasonable suspicion to do so. Under the doctrine, an arrest or detention is not unlawful, even if the arresting or detaining officer himself lacked probable cause or reasonable suspicion, as long as other participating officers were aware of facts sufficient to satisfy the requisite standard.
Not surprisingly, the majority's determination that the collective knowledge doctrine may be applied only to uphold a warrantless emergency search and never to invalidate one will have truly bizarre and untenable consequences. For example, if one of several investigative officers actually knew or strongly suspected that the subject of the investigation was not in the dwelling to be searched, the entry into that dwelling nevertheless could be upheld under the emergency doctrine if that officer did not reveal that information to the officer responsible for making the decision to search the dwelling for the subject. In other words, under the majority's view, an emergency search of a residence would be deemed lawful even when one of the officers involved in the search was aware or reasonably believed, prior to the search, that the premises actually were unoccupied, but the officer simply opted not to share that knowledge or belief with the other officers. This cannot possibly be the law because such a patently absurd result cannot be countenanced. It also cannot be the law that Cobb's failure to alert his colleagues of the ready availability of the defendant's cell phone number somehow relieved the police of their duty to attempt to contact the defendant by calling his cell phone.
The majority also suggests that it is inappropriate to apply the collective knowledge doctrine in the present case because it would set a bad precedent for future cases. In support of this argument, the majority accuses the dissent of advocating a rule pursuant to which the police will be required to cull through department files and to poll all police personnel to determine whether those sources might shed some light on the issue of whether an emergency exists. See footnote 7 of the majority opinion (asserting that it would be inconsistent with purpose of emergency doctrine to require police “to contact the police department to see if there are facts known to other officers or in the department's files that negate what they see in person at the scene” and that “[d]oing so may cause officers to lose valuable time”). In making this argument, the majority sets up the proverbial straw man. As the majority well knows, I do not contend that police officers responding to an emergency must contact the police department to see if there are facts known to other officers, or information contained in the department's files, that might contradict what they themselves observe at the scene. Of course, the collective knowledge doctrine imposes no such general or blanket obligation on the police. Whether an officer would be required to contact the police department—or to take any other action to rule out the possibility that there is no emergency—always will turn on whether an objectively reasonable officer would have taken such action in light of the facts known at the time of the perceived emergency. Obviously, no such communication can be expected if the need for swift action renders such communication impracticable or imprudent. But when they do have time to communicate the relevant information, there is no excuse for not doing so if the officer reasonably should know that sharing that information is necessary to the determination of whether a true emergency exists. That is precisely the scenario in the present case: a simple call to the defendant on his cell phone was an integral and necessary part of the investigation that the police undertook and deemed necessary to determine whether there was an emergency that would have justified the warrantless entry into the defendant's home.
Finally, it seems evident that the principles underlying the collective knowledge doctrine are inherent in the reasonableness requirement that governs the assessment of the constitutionality of any warrantless search, including a search under the emergency doctrine. The legality of any such search turns on a determination of whether an objectively reasonable, well trained officer would have believed that an emergency existed. See State v. Fausel, 295 Conn. 785, 795, 993 A.2d 455 (2010) (“[t]he test is not whether the officers [at the scene] actually believed that an emergency existed ... but whether a reasonable officer would have believed that such an emergency existed” [internal quotation marks omitted] ). Reasonableness in this context is assessed in light of the facts that were known to or reasonably discoverable by all of the officers involved in the search at the time of the perceived emergency. See, e.g., United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995) (“[t]he ‘exigent circumstances' inquiry is limited to the objective facts reasonably known to, or discoverable by, the officers at the time of the search” [emphasis added] ), cert. denied, 518 U.S. 1020, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996). In the present case, there is no question that Cobb knew that the defendant's cell phone number was readily available, and, as I have explained, any reasonable officer in his position either would have contacted the defendant himself or informed Barcello that the defendant easily could be contacted.
B
Having determined that the majority improperly treats Cobb as if he were not a participant in the events that culminated in the warrantless search of the defendant's home, I next turn to the principal defect in the majority opinion, namely, the refusal of the majority to examine the trial court's key findings in light of certain uncontroverted and highly relevant facts. Specifically, the majority improperly upholds the trial court's findings that the defendant's cell phone number was unavailable to the police and, in any event, that there was insufficient time for the police to attempt to call the defendant, even though the undisputed facts inarguably contradict those findings.
With respect to the first such finding, it is undisputed, as I previously discussed, that Cobb, an animal control officer, readily could have retrieved the defendant's cell phone number because, as Cobb well knew, the number was on file at animal control. Because Cobb had access to the defendant's cell phone number, it is legally irrelevant that Barcello personally may have been unaware that the defendant could be reached by phone. Under the circumstances, Cobb himself was required to call the defendant. Thus, because Cobb knew how to reach the defendant, the state cannot claim that the police somehow were ignorant of that fact.
Contrary to the conclusion of the majority, the trial court's second critical finding, namely, that the immediacy of the situation prevented the officers from calling the defendant prior to the search, also was clearly erroneous. As the Appellate Court observed, and the state does not dispute, officers were at the defendant's home for almost one hour prior to entering it. See State v. DeMarco, supra, 124 Conn.App. at 449, 5 A.3d 527. According to the testimony of those officers, Cobb spent the first thirty minutes making cell phone calls and waiting for Barcello to arrive. Cobb also called and spoke to animal control during this time frame, and he certainly could have obtained the defendant's cell phone number at that time. Thereafter, Barcello spent at least twenty minutes at the premises before the search commenced. In light of these undisputed facts, it defies credulity to conclude that there was inadequate time for Cobb, Barcello or Mercado to place a call to the defendant. To the contrary, there was plenty of time for them to do so; as Cobb testified, they simply neglected to do it.
Although the majority contends that the trial court's factual findings are supported by the record, what it really seems to be arguing is that the trial court's judgment can be sustained on the alternative ground that the officers' belief was objectively reasonable despite their failure to call the defendant. Thus, the majority states that it “decline[s] to apply the collective knowledge doctrine [in order] to conclude that the officers were required to obtain the defendant's cell phone number from animal control and [to] attempt to contact him prior to entering the home.” Text accompanying footnote 9 of the majority opinion. The majority also argues that, “[a]lthough the dissent may not approve of the steps taken by the officers in the present case, it is not our role as an appellate court to dictate the appropriate steps and questions that police should use while investigating.” Footnote 5 of the majority opinion. Although I agree, of course, that it is not our role to dictate the steps that the police must take in conducting an investigation, it most certainly is our role to evaluate the steps that were taken so that we may determine whether they gave rise to an objectively reasonable belief that an emergency existed. See, e.g., Nelms v. Wellington Way Apartments, LLC, 513 Fed.Appx. 541, 546 (6th Cir.2013) (“each time [the] court has upheld a warrantless entry based [on] the emergency aid exception, credible and reliable evidence established the potential for injury to the officers or others and the need for swift action” [internal quotation marks omitted] ); LaLonde v. Riverside, 204 F.3d 947, 957 (9th Cir.2000) (“police [officers] can meet [their heavy] burden only by demonstrating specific and articulable facts [that] justify the finding of exigent circumstances” [internal quotation marks omitted] ).
Although the majority asserts that the officers in the present case otherwise took appropriate steps and asked appropriate questions in the course of their investigation, it does not identify a single investigative step that would either excuse the officers' failure to call the defendant prior to entering his home or support an objectively reasonable belief that the defendant was inside his home in need of emergency assistance. Even if it is assumed that the police were actively investigating the defendant's whereabouts in the hour that transpired from the time Cobb arrived at the scene until the officers entered the defendant's home, an obvious first step in that investigation would have been to attempt to contact the defendant on his cell phone. Requiring evidence of such a call, or of some equivalent measure, is not Monday morning quarterbacking; it is, rather, an essential part of our responsibility as a reviewing court to ensure that the state has met its heavy burden of demonstrating that the warrantless search of the defendant's dwelling was constitutionally justified. See, e.g., Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.2009) (emergency exception to warrant requirement is “narrow” and its boundaries must be “rigorously guarded” by courts “to prevent any expansion that would unduly interfere with the sanctity of the home” [internal quotation marks omitted] ), cert. denied, 559 U.S. 1048, 130 S.Ct. 2342, 176 L.Ed.2d 561 (2010). Notably, as I discuss more fully hereinafter; see part III C of this opinion; in contrast to other emergency doctrine cases, in the present case, there were no rapidly developing or emerging events occurring within the relevant time frame that made it impracticable for the police to place such a call to the defendant. To the contrary, for most of that time, the officers were waiting around for other officers and rescue personnel to arrive.
Finally, as the Appellate Court aptly noted, the unjustified failure of the police to attempt to contact the defendant before entering his home is compounded by the fact that virtually all of the conditions that the officers encountered there on the day in question—conditions that, according to the trial court, supported a reasonable belief that the defendant's life was in immediate danger inside the house, including barking dogs, multiple vehicles, a horrible odor, and unkempt premises—were not the least bit unusual for the defendant's property, and the officers were well aware of this fact when they made the decision to enter the defendant's home without a warrant. See State v. DeMarco, supra, 124 Conn.App. at 455–56, 5 A.3d 527. It is axiomatic that when an officer knows or has reason to know that a particular condition is normal for a home, even if that condition would be extremely unusual for any other home, it never will be objectively reasonable for the officer to believe that the condition itself is indicative of an emergency inside the home.
In sum, the undisputed facts belie the state's claim, and the majority's conclusion, that it was not reasonably feasible, and therefore unnecessary, for the police to attempt to contact the defendant on his cell phone prior to entering his home. Because the defendant's cell phone number was readily available to the police and they had ample time to retrieve that number and call him, they were required to take that most modest and obvious investigative step. Moreover, there is nothing in the record to suggest that it would have been futile for the police to attempt to contact the defendant; on the contrary, they reached him on his cell phone immediately after concluding the warrantless search. Consequently, their failure to call him rendered the warrantless search of the defendant's home unreasonable.
The majority criticizes me for observing that the police reached the defendant on his cell phone immediately after completing their search of his home. See footnote 11 of the majority opinion (“We note that the dissent bolsters its argument with reference to the amount of time it took to notify the defendant that the police were looking for him, and, thereafter, how long it took [for] him to appear at his house. We evaluate the situation, as the trial court did, at the time the police entered the house, based [on] the totality of the circumstances at that time in order to make a determination [of whether] a police officer reasonably would have believed that an emergency existed. A resort to circumstances that occurred subsequent to that time would not be prudent and would distort the analysis.”); see also State v. DeMarco, supra, 124 Conn.App. at 471, 5 A.3d 527 ( Beach, J., dissenting) (“[alt]hough the defendant perhaps could have been called prior to the entry, he was not called, and we ought not speculate about the result of a call not made”). It cannot reasonably be argued that the police can fail to take a required investigative step—a step that is necessary to safeguard the defendant's constitutional rights—and then be relieved of responsibility for failing to take that required action on the ground that we cannot know for certain that the action would have been successful. In such circumstances, the burden should be on the state to demonstrate why the required action likely would not have achieved its intended result. In any event, in the present case, the police called the defendant on his cell phone promptly after they searched his home, and he answered that call. Because there is no reason to believe that the defendant would not have answered his cell phone if the police had called him a few minutes earlier, before they searched his home, the record establishes beyond any reasonable doubt that a timely call to the defendant would not have gone unheeded. Moreover, in view of the fact that the police themselves bear responsibility for failing to call the defendant when they should have called him, the majority cannot reasonably preclude consideration of the only evidence on that issue and then maintain that there is nothing in the record to indicate that the defendant would have answered the call if it had been made.
C
Finally, the sparse precedent on which the majority relies in support of its conclusion is inapposite to the issue presented. In particular, the majority identifies three cases that, it claims, buttress the conclusion that, as a matter of law, the officers in the present case were not obligated to secure the defendant's cell phone number and to attempt to contact him prior to searching his home. None of these cases, however, bears any factual similarity to the present case, which likely explains why the majority does not discuss the facts of any of them. Indeed, one such case, State v. Myers, 601 P.2d 239 (Alaska 1979), does not even involve a search conducted pursuant to the emergency doctrine, and another, Wayne v. United States, 318 F.2d 205, 207, 211 (D.C.Cir.1963), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963), involved a paradigmatic emergency: the police forcibly entered and searched a locked apartment without a warrant after receiving a report that a dying or unconscious woman was being held inside. With respect to the third case, Hunsberger v. Wood, 570 F.3d 546 (4th Cir.2009), cert. denied, 559 U.S. 938, 130 S.Ct. 1523, 176 L.Ed.2d 113 (2010), the majority asserts that the “the Fourth Circuit Court of Appeals [in that case] rejected a similar claim,” namely, that an officer should have obtained a homeowner's telephone number “and attempted to call him before entering [his home].” Although one of the issues in Hunsberger was whether an emergency search of a residence was objectively reasonable in light of the failure of the police to call the homeowner prior to the search, that is the only similarity between that case and this case.
In Myers, the police entered and briefly searched a commercial establishment upon finding a door wide open in the middle of the night. State v. Myers, supra, 601 P.2d at 240. After observing that “the fourth amendment neither compels us to ignore the profound differences distinguishing one's home from one's business, nor compels us to presume that people desire or expect the police to conduct themselves in identical fashion with respect to each”; id., at 242–43; the Alaska Supreme Court concluded that a routine business security check such as the one that occurred in that case was per se reasonable under the United States and Alaska constitutions. See id., at 241–42, 244.
Hunsberger is a civil case in which the plaintiffs were seeking damages for the allegedly unlawful search of their home. See Hunsberger v. Wood, supra, 570 F.3d at 549.
In Hunsberger, the police were called to the plaintiffs' residence by a neighbor who had observed strangers entering the residence at a time when she believed the plaintiffs were on vacation. See Hunsberger v. Wood, supra, 570 F.3d at 549–50. When the police initially arrived, there were lights on inside the home and two cars parked in front of the home. Id., at 549. Seeing nothing suspicious, the officers left. Id. Later in the evening, the police were summoned again to the plaintiffs' home by the same neighbor, who reported possible vandals or burglars inside the home. Id., at 550. This time, when the police arrived, there were three cars parked in front of the residence, all of which were partially blocking the road. Id. The police also observed a young man enter the house through the garage. Id. “The officers decided to ask the occupants of the ... home to move their cars and [to] avoid disturbing the neighbors. They each pulled their cars into the ... home's driveway, at which point [the officers] noticed the lights inside the house turn off. [The officers] exited their vehicles, approached the house, and rang the ... doorbell twenty-five or thirty times. No one came to the door.” Id. “Walking back to their cars, the ... officers noticed that the previously closed side door to the garage .... was now open.” Id.
At this point, the officers' investigation began in earnest. As the Fourth Circuit explained: “It struck [the officers] as suspicious that the occupants of the home had turned off the lights when the officers approached, had refused to answer the door, and had apparently fled the home. Given [the next-door neighbor's] claim that the [plaintiffs] might be out of town, [the officers] became concerned about the possibility of vandalism. [They] also took into consideration the fact that two weeks earlier a vacant house nearby had burned down as the apparent result of unauthorized use.” Id. The officers therefore “decided to contact the [police] dispatcher to identify the owners of the vehicles in front of the house using the ... license plate information. The dispatcher routed calls to each of the car owners [from the] cell phone [of one of the officers, who then] spoke to several parents including William Blessard.... Each agreed to pick up his or her respective vehicle.” Id. “Blessard was the first parent to arrive. Blessard told [the officers] that [his stepdaughter, who had been driving his vehicle] was supposed to be sleeping over at a friend's house, and that he did not know why [his] car was at the home of the [plaintiffs], whom he did not know. Blessard called [his stepdaughter's cell phone] several times, but she did not answer. He became worried for the welfare of his stepdaughter.” Id., at 550–51.
“[The officers] suggested to Blessard that they see if anyone would come to the [plaintiffs' front] door if they rang the doorbell. Walking [toward] the front door, [the officers] passed the garage ... [and] ... heard something being knocked over. [The officers] stepped inside the garage and then heard the door that connected the garage to the house's basement shut and lock. Blessard followed [the officers] into the garage, walked down the steps to the basement door, knocked repeatedly, and shouted [his stepdaughter's] name. No one came to the door, and Blessard's apprehensions rose.” Id., at 551. One of the officers “then approached the door inside the garage that opened into the first floor of the home. He discovered it was unlocked. The series of strange happenings had increased [his] fears of vandalism as well as his concern for the welfare of Blessard's stepdaughter. At that point, [the officers] decided to enter the home.” Id.
As the foregoing facts demonstrate, Hunsberger is readily distinguishable from the present case. In Hunsberger, the reasonableness of the warrantless search could be established on the basis of the investigative steps that the officers took, prior to entering the plaintiffs' home, to determine whether an emergency existed inside the home. These steps included, among other things, contacting the owners of all of the vehicles in front of the home to determine whether the vehicles were there for a reason. See id., at 550. Moreover, unlike in the present case, the police in Hunsberger were responding to a neighbor's reports of suspicious activity inside or around the home, activity that the officers themselves had observed over the course of the evening, when the homeowners supposedly were out of town. See id., at 549–51. The officers also were responding to a stepfather's concerns about his missing stepdaughter, whom they had reason to believe was inside the plaintiffs' home but not responding to her cell phone. See id., at 550–51.
In stark contrast to Hunsberger, the police in the present case had little or no cause to believe that the defendant was missing or otherwise in harm's way. Equally important, they made no effort to rule out the possibility that he was not seriously injured or in imminent danger, even though they had ample time and opportunity to do so. Although courts have upheld emergency searches in cases involving similar delays preceding a search, they have done so only when the evidence established that the officers used the time to actively investigate the surrounding circumstances to ascertain whether their concerns were well founded. See, e.g., United States v. Jones, 635 F.2d 1357, 1362 (8th Cir.1980) (“[w]hen the police have a reasonable suspicion that someone is injured or that the public safety is in jeopardy, but refrain from taking immediate action in an effort to confirm or deny the suspicion, and then act once they have received no indication that the danger has been dissipated, the waiting period does not defeat the applicable exception to the warrant rule”); United States v. Brandwein, United States District Court, Docket No. 2: 11–CR–04015–01/02–BCW (W.D.Mo. March 28, 2013) (“Both defendants have also asserted that there was not a true emergency ... because there was a delay of approximately ... [forty-five] minutes before the officers made the decision to unlock the door and search the home. The [c]ourt does not believe this is a persuasive argument. The record is clear that it took this amount of time for both [officers] ... to conduct their preliminary investigation. The officers needed the time to assess the seriousness of the situation and [to] arrive at their determination that there was a very reasonable possibility that one or both of the residents of the home were likely inside and in need of assistance.”); Commonwealth v. Purnell, Virginia Court of Appeals, Docket No. 1761–02–1, 2002 WL 31907250 (Va.App. December 23, 2002) (“During the approximate two hour period before [the officers] entered the home, [they] were consistently and busily attempting to investigate the matter further and [to] determine a resolution to the problem. Neither the lapse of time ... nor the investigation dissipated the potential urgency of the situation.”). In marked contrast to these cases, the officers in the present case did virtually nothing that they reasonably would have been expected to do to determine whether the defendant was, in fact, at home and in need of emergency assistance. Most important, the officers failed to call the defendant—because they did not think to call him—even though they had access to his cell phone number and even though calling him would have been the most logical, investigative first step for the officers to have taken.
Moreover, as I previously noted, the fact that the officers called and reached the defendant on his cell phone immediately after the search makes it perfectly clear that they did not believe—because they had no reason to believe—that calling the defendant would be futile. Their failure to call him renders the search unreasonable because, in order to justify a search under the emergency doctrine, an officer “must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings....” (Emphasis added; internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. at 795, 993 A.2d 455. Implicit in this standard is the requirement that the police take objectively reasonable steps under the circumstances to eliminate the likelihood that, in fact, there is no emergency. Cf. Commonwealth v. Purnell, supra, Virginia Court of Appeals, Docket No. 1761–02–1 (upholding emergency search of residence when, prior to entry, officers unsuccessfully tried to contact defendant by calling his home telephone and cell phone numbers). Thus, the Appellate Court correctly observed that the facts of the present case bear no likeness to the facts of those cases in which this and other courts have found warrantless searches to be justified under the emergency doctrine. See State v. DeMarco, supra, 124 Conn.App. at 452–53, 5 A.3d 527. “The police did not respond to the defendant's home as a result of an alarm, there was no evidence that a violent criminal offender might be hiding in the house, no evidence of a break-in and no signs of a struggle or blood or any other indication of a potentially dangerous situation.” Id.; see also United States v. Brandwein, supra, United States District Court, Docket No. 2:11–CR–04015–01/02–BCW (“It is worth noting that all cases [in which] a court has found that an exigent circumstance existed appear to share two common factors. First, in all of the cases in which courts found exigency, officers observed events obviously occurring within the residence or building ... [f]or example, cries for help, screams, loud noises, or an observation of a struggle or fight within the structure [that was visible] through a window. Second, courts have found exigent circumstances exist when officers observed events or evidence leading directly to a structure ... [f]or example, a blood trail leading to a closed door.”).
The majority takes issue with the Appellate Court's observation that the present case bears none of the features of a typical emergency exception case; State v. DeMarco, supra, 124 Conn.App. at 452, 5 A.3d 527; stating that “this court has repeatedly recognized that [d]irect evidence of an emergency is not required because the emergency exception to the warrant requirement arises out of the caretaking function of the police.” (Internal quotation marks omitted.) Footnote 10 of the majority opinion, quoting State v. Fausel, supra, 295 Conn. at 800, 993 A.2d 455. The majority's assertion misses the point. In explaining that the present case bears no resemblance to the typical emergency exception case, which normally involves cries for help, gunshots, fire, threats to human life, or reports of a missing person, the Appellate Court was simply and correctly pointing out that the state, in order to meet its burden in the present case, was required to demonstrate that, during the hour leading up to the warrantless entry, the police took appropriate steps to determine whether a true emergency existed.
The trial court in the present case nevertheless concluded that an objectively reasonable officer would have believed that an emergency existed on the basis of the odor emanating from the house, the dilapidated condition of the premises, the accumulation of mail, the multiple vehicles on the front lawn, and the defendant's failure to respond to a note that Cobb had left ten days earlier. As the Appellate Court explained, however, none of these facts, either alone or in combination, justified an immediate search of the defendant's home because, as strange or abhorrent as these conditions otherwise may have seemed, they were not unusual for the defendant's home. See State v. DeMarco, supra, 124 Conn.App. at 455–56, 5 A.3d 527. Cobb and Hollywood both testified that animal control had been dealing with the odor problem for years, the house had been in a state of disrepair for years, the defendant had left multiple vehicles on his front lawn for years, and the defendant's dogs had been neglected for years. Cf. United States v. Martinez, 643 F.3d 1292, 1297 (10th Cir.2011) (“Some households are tidy, others are not. A person's failure to keep an orderly home should not subject him or her to a warrantless search by police.”); see also State v. Geisler, 222 Conn. 672, 687, 610 A.2d 1225 (1992) (“The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!” [Internal quotation marks omitted.] ).
Rather, the present case bears a striking resemblance to State v. Vargas, 213 N.J. 301, 63 A.3d 175 (2013), in which the New Jersey Supreme Court recently concluded on very similar facts that a search was not justified under the emergency exception to the warrant requirement. In that case, “a landlord called the police because he had not seen or been able to contact a tenant for two weeks. During the two-week period, the tenant's garbage was not placed curbside, his mail accumulated, his car remained unmoved, and his monthly rent went unpaid. The landlord expressed concern for the tenant's well-being, and the police entered the [tenant's residence] without a warrant and conducted a ‘welfare check.’ The tenant was not at home, but the search uncovered evidence that led to the tenant's indictment.” Id., at 305, 63 A.3d 175. “The trial court suppressed the evidence because the warrantless entry and search were not prompted by an objectively reasonable emergency. The Appellate Division [of the New Jersey Superior Court] reversed, concluding that the community-caretaking doctrine did not require an exigency to conduct a warrantless search; it only required that the police act reasonably.” Id.
In reversing the judgment of the Appellate Division; id., at 329, 63 A.3d 175; the New Jersey Supreme Court noted that the essential facts of the case were “basically undisputed.” Id., at 327, 63 A.3d 175. The tenant, who was generally reliable, had not responded to several cell phone voicemail messages regarding nonpayment of rent, his car had not been moved in several weeks, his mailbox was full and he had not taken out his trash. See id., at 305, 307, 327, 63 A.3d 175. On the basis of this information, several officers entered the tenant's home to conduct a welfare check, without first attempting to contact him by phone. See id., at 308, 327, 63 A.3d 175. In concluding that the conditions that the officers observed did not justify the warrantless search under the emergency exception to the warrant requirement, the New Jersey Supreme Court stated: “Whatever legitimate worries [the landlord] had about [his tenant's] welfare before dialing 9–1–1, he did not attempt to call [the tenant's] emergency contact number or place of business ... [nor did he provide the police with the tenant's contact information so they could call him]. Indeed, [the landlord] did not know any of the personal details of the rhythms of [the tenant's] life, including whether and for how long he either vacationed, took business trips, or traveled to meet with family.
In Vargas, the New Jersey Supreme Court rejected the conclusion of the Appellate Division that a warrantless search under the community-caretaking doctrine did not require exigent or emergency circumstances; see State v. Vargas, supra, 213 N.J. at 328, 63 A.3d 175; and addressed the issue of whether there were sufficiently exigent circumstances in that case to justify the warrantless entry into the tenant's residence. See id., at 327, 329, 63 A.3d 175. In Vargas, the state of New Jersey actually conceded that the facts did not support an emergency search; id., at 328, 63 A.3d 175; and the Supreme Court of New Jersey agreed with that concession. See id., at 329, 63 A.3d 175.
“In that regard, this is unlike the case of a close family member whose housebound elderly relative is not responding to telephonecalls and knocks on the door. Nor is this like the case of a diabetic or infirm neighbor who is not seen carrying out routine daily activities and who is not answering the door or the telephone. We need not describe the myriad circumstances that might give rise to an objectively reasonable basis to believe that an emergency requires immediate action for the safety or welfare of another. Suffice it to say, those objectively reasonable circumstances were not found to be present here.” Id., at 327, 63 A.3d 175.
Notwithstanding marked similarities between Vargas and the present case, the majority argues that my reliance on Vargas is misplaced because, in that case, the state of New Jersey conceded that the facts did not support the application of the emergency exception. See footnote 10 of the majority opinion; see also State v. Vargas, supra, 213 N.J. at 328, 63 A.3d 175. The majority asserts that, “[o]n the basis of the state's concession in Vargas, the New Jersey Supreme Court's analysis in that case is of little use in the present case [in which] the precise issue is whether ... the facts permit the invocation of the exigent circumstances exception to the warrant requirement.” Footnote 10 of the majority opinion. The majority, however, fails to explain why Vargas is of “little use....” Id. Certainly, it is of little use to the majority because, on virtually identical facts, the Supreme Court of New Jersey reached a conclusion that is diametrically opposed to the conclusion that the majority reaches in the present case. Contrary to the majority's assertions, however, the court in Vargas did not simply reject the state's claim that the community-caretaking doctrine did not require proof that the officers had an objectively reasonable belief that an emergency existed. Indeed, in marked contrast to the analysis of the majority in the present case, the court in Vargas painstakingly applied the correct legal standard to the operative facts, explaining in detail why those facts did not support an objectively reasonable belief that an emergency existed. See State v. Vargas, supra, 213 N.J. at 328–29, 63 A.3d 175. The state's concession in Vargas that the court was correct in its analysis of the facts in no way detracts from that analysis.
The court in Vargas also emphasized that the person who had requested the police to check on the tenant, namely, the defendant's landlord, “did not live in the building where [the tenant] resided. The police officers who responded to his call learned only that [the tenant] had not been seen for two weeks and, during that time, [the tenant] had not picked up his mail, moved his car, or paid his rent and utility bills. [The landlord, however] could not convey anything about [the tenant's] routines, habits, or vulnerabilities. With this limited information, [the landlord] unlocked the apartment door, and the officers conducted a ‘welfare check.’ Although the police officers entered [the tenant's] residence without a warrant out of their expressed concern for the tenant's safety, the [s]tate concedes that neither the emergency-aid nor the exigent-circumstances exception to the warrant requirement justified the entry or search.” Id., at 327–28, 63 A.3d 175.
As in Vargas, whatever concerns Cobb or any of the other officers may have had about the defendant's welfare, they made no effort to contact him before entering his home, even though they had his contact information. According to Barcello, the search was conducted entirely on the basis of the information provided by Cobb. Like the landlord in Vargas, however, Cobb knew nothing about the details of the defendant's life. For example, he did not know whether the defendant was employed or unemployed, or whether he lived alone. He also did not know whether the defendant attended church, which could have explained where the defendant was when Cobb arrived unannounced at 11 a.m. on the Sunday morning in question. Apart from the fact that the defendant had more dogs than he could care for and his house always smelled terrible as a result, the only other thing that Cobb believed he knew about the defendant was that he had not responded to a notice that Cobb had left ten days earlier on the windshield of one of the multiple vehicles that were typically parked on the defendant's front lawn. Like Vargas, the present case lacks facts that would have led an objectively reasonable officer to deem it necessary to conduct an immediate search of the defendant's residence, at least without first trying to call the defendant and attempting to obtain relevant information about him from people who actually knew him and were familiar with his daily routine. Indeed, the majority has not identified a single case, and my research has not uncovered one, in which an emergency search was upheld under similar facts.
The majority underscores Cobb's testimony that the defendant was usually pretty prompt about responding to such notices as supporting an objectively reasonable belief that an emergency existed inside the defendant's home. Specifically, the majority asserts: “Under the facts of the present case ... although entry was not possible immediately, it is clear that animal control had a history with the defendant and that typically the defendant responded to notices left by animal control. The fact that the defendant called animal control, unbeknownst to Cobb, the day after the first notice was left, demonstrates that Cobb's view of the defendant's conduct was correct. Therefore, the fact that the notices, which were left approximately ten days before, were still outside and seemingly ignored made it more likely that an emergency existed inside the home.” Footnote 8 of the majority opinion. Although the defendant's seeming failure to respond to Cobb's notice may have been grounds to commence an investigation, it hardly supported an objectively reasonable belief that it was necessary to conduct an immediate search of the defendant's home without a warrant. Indeed, Cobb testified that he could not recall whether he even had indicated on the notice form, by checking a designated box, what his visit had been about or why the defendant needed to contact animal control. I note, moreover, that, if Cobb and his fellow officers had taken even the most basic investigative steps to determine whether an emergency existed, they likely would have learned, as the majority itself notes, that the defendant had in fact been in touch with animal control shortly after Cobb's prior visit. Of course, this knowledge alone would have obviated any possible rationale for a search under the emergency exception to the warrant requirement.
Instead, the majority relies on a handful of readily distinguishable cases in which a foul odor was found to have justified an emergency search of a residence. United States v. Presler, 610 F.2d 1206, 1209, 1211 (4th Cir.1979); People v. McGee, 140 Ill.App.3d 677, 678–79, 682, 95 Ill.Dec. 218, 489 N.E.2d 439 (1986); People v. Molnar, 288 App.Div.2d 911, 911–12, 732 N.Y.S.2d 788 (2001), aff'd, 98 N.Y.2d 328, 774 N.E.2d 738, 746 N.Y.S.2d 673 (2002); Rauscher v. State, 129 S.W.3d 714, 717, 722 (Tex.App.2004); State v. York, 159 Wis.2d 215, 217–18, 223, 464 N.W.2d 36 (App.1990), review denied, 465 N.W.2d 656 (Wis.1991). In most of these cases, however, persons familiar with the residence or the landlord or owner had reported the odor as something entirely out of the ordinary and of grave concern because the resident had not been seen in several days. See, e.g., United States v. Presler, supra, at 1209;State v. York, supra, at 217–18, 464 N.W.2d 36. In one of these cases, the investigating officer smelled what he believed to be a dead body. People v. McGee, supra, at 679, 95 Ill.Dec. 218, 489 N.E.2d 439. In the present case, by contrast, no one had reported the defendant missing, and the odor emanating from his home was not at all out of the ordinary. In fact, on the day in question, Cobb was following up on a prior foul odor complaint, one of many that his office had received over the years. Thus, the result that the majority reaches finds no support in the case law involving the emergency exception to the warrant requirement. On the contrary, that precedent dictates the opposite result.
IV
CONCLUSION
It is a “basic principle of [f]ourth [a]mendment law that searches and seizures inside a home without a warrant are presumptively unreasonable....” (Internal quotation marks omitted.) Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Moreover, “[t]he [f]ourth [a]mendment's requirements regarding search warrants are not formalities.... By requiring police officers first to obtain a warrant before they search a person's home, unless some exception applies that permits a warrantless search, the [f]ourth [a]mendment has interposed a magistrate between the citizen and the police, not to shield criminals nor to make the home a safe haven for illegal activities, but rather to ensure that an objective mind might weigh the need to invade that privacy in order to enforce the law.” (Citation omitted; internal quotation marks omitted.) United States v. Voustianiouk, 685 F.3d 206, 210–11 (2d Cir.2012), quoting McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Indeed, “physical entry of the home is the chief evil against which the wording of the [f]ourth [a]mendment is directed.” (Internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “Searches conducted pursuant to emergency circumstances are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions.” (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. at 794, 993 A.2d 455. “The 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.... Nevertheless, the emergency doctrine does not give the state an unrestricted invitation to enter the home. [G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.... 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.... The state bears the burden of demonstrating that a warrantless entry falls within the emergency exception.” (Citations omitted; internal quotation marks omitted.) Id., at 794–95, 993 A.2d 455.
In the present case, the state has failed to meet its burden of demonstrating that the warrantless search of the defendant's home was objectively reasonable in light of the facts that were known to or readily discoverable by the officers who conducted the search. In particular, the state has made no effort to justify the officers' failure to attempt to call the defendant even though they knew that the smell, the vehicles on the front lawn and the otherwise unkempt condition of the premises were hardly unusual. It therefore requires no second guessing of the trial court or the officers on the ground to conclude that the warrantless search in the present case was objectively unreasonable in view of the officers' failure to make any effort to reach the defendant on his cell phone, a call that would have obviated any possible concern about the perceived need for the warrantless intrusion into the defendant's home. On the contrary, even the most deferential 534review of the trial court's fact-finding leads inexorably to this conclusion. I therefore dissent.