April 20, 2006
MEMORANDUM OF DECISION
The question in this case presented by the defendant's motion to dismiss the information is whether certain information known to the police concerning a parent's report of a missing child justified their warrantless entry into the defendant's residence based on the emergency exception established in Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The defendant seeks to suppress any seized evidence, or any evidence derived therefrom, discovered by the police during their search of his premises for the missing child. Specifically, the defendant seeks to suppress any evidence relating to a large reptile found by the officers in a bathtub on the second floor of the premises. At the hearing on the present motion, the reptile was referred to interchangeably as an alligator and a crocodile. The defendant is charged in the information with illegal possession of a reptile in violation of § 26-55 of the General Statutes and risk of injury to a minor in violation of § 53-21 of the General Statutes.
The defendant's motion to dismiss the information against him is based on various grounds. However, the only ground claimed by the defendant at the hearing was that the charges were based on illegally obtained evidence.
The court finds the following facts as credibly proven for purposes of its determination of the motion. Officer Andrew Kelly has been a member of the Stamford Police Department for approximately seven and one-half years. On August 15, 2004, he was working the 4:00 p.m. to 12:00 a.m. shift. He was ordered out of his daily "check out" at the beginning of his shift and told to report to dispatch. Officer Kelly testified that such a procedure was unusual and done only in cases of emergency situations, such as a motor vehicle accident.
He was informed that the dispatcher received numerous phone calls from a father in Vermont, who was sounding increasingly frantic. The father informed the police that his two sons took the train to Greenwich for the weekend to visit friends, that they were suppose to return to Vermont by train at the conclusion of the weekend and failed to do so. The children had been missing for approximately twenty-four (24) hours prior to the time the father called the police, during which time the father indicated that he was constantly trying to contact them. The father was finally able to contact one of his sons, who informed him that the other son was at the defendant's house in Greenwich. Officer Kelly was told by the dispatcher that the Vermont father and the defendant previously had a relationship and resided together. Officer Kelly also learned from the dispatcher that officers from the prior shift that day went to the defendant's house, spoke with him about the Vermont father's claim that his child inexplicably failed to return to Vermont and informed him that the father believed that he was at the defendant's residence. The defendant directed the officers to another address where he stated the child was staying, which proved to be wrong information.
Officer Kelly proceeded to the defendant's house located at 345 Round Hill Road in Greenwich, which he described as an affluent area of town. He arrived at the house around 4:30 p.m. and pulled into the beginning of the gated driveway, which gate was closed. He immediately noticed from that vantage point that there was a couch that was sticking partly out of the garage onto the driveway and a BMW convertible with its top down parked in the driveway.
The officer, who was dressed in full uniform, used the intercom located at the driveway's entrance, but received no response. Consequently, he stepped over the low white fence and began to walk around the house announcing the presence of the police. Officer Kelly rang the front door bell and knocked on the front door to no avail. He then walked around the back of the house and approached a set of French doors. He observed through those doors a cot on which was a bag of clothes that appeared suitable for a teenager, some video games and an otherwise impeccable house. Officer Kelly grabbed the handle, realized that the door was not locked and proceeded to open the door. At that point, he called for backup in accordance with police procedure relative to finding an open door in a residence. Officer Robert Smurlo arrived at the scene within a few minutes, and was briefed by Officer Kelly before they entered the residence.
Officer Kelly testified that, based on the facts as he knew them to be, he believed that the missing child may be in danger inside the house. Important to that belief were the facts of a reportedly missing child, the nature of the couch and vehicle in the driveway area, no response to his repeated calls from outside the house, an unlocked door and kid's clothes strewn on the cot on the first floor. For those and other reasons, Officer Kelly decided to enter the residence along with Officer Smurlo to look in places where a child may be located.
The officers searched the first floor of the house for the child, and then proceeded upstairs. At one point Officer Kelly went into a bathroom on the second floor and noticed what appeared to be a dark figure though the bathtub shower door. The glass was frosted. He testified that he believed that the dark figure was the missing child. In this regard, he testified as follows: "I slid the door open to the tub. To the greatest bit of relief, just a crocodile or a large lizard, definitely a crocodile in the tub." Officer Kelly estimated that the reptile was six or seven feet in length.
Officer Kelly closed the shower door, and he and Officer Smurlo continued to search the rest of the residence for the child. Officer Kelly did not know at the time whether the possession of the reptile in the tub was illegal. The officers, having completed their search for the child, exited the residence and left the reptile still in the bathtub where they found it.
The Fourth Amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Entry by the government into a person's home, "is the chief evil against which the wording of the Fourth Amendment is directed." (Citation omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
"Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [ 101 S.Ct. 1642, 68 L.Ed.2d 38] (1981); Payton v. New York, [supra]; Johnson v. United States, 333 U.S. 10 [ 68 S.Ct. 367, 92 L.Ed. 436] (1948). Donovan v. Dewey, 452 U.S. 594, 598 n. 6, 101 S.Ct. 2535, 69 L.Ed.2d 262 (1981). State v. Reagan, [ 209 Conn. 1, 8, 546 A.2d 839 (1988)]. The burden is on the state to show that an exception exists. State v. Harris, [Conn.App. 217, 224, 522 A.2d 323 (1987)]." (Internal quotation marks omitted.) State v. Enright, 17 Conn.App. 142, 147, 550 A.2d 1095 (1988).
In Mincey, the United States Supreme Court recognized another exception to the warrant requirement. The Court noted that the founders' recognition of the privacy of a home is the reason that "warrants are generally required to search a person's home or his person unless `the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, supra, 437 U.S. 393-94.
In recognizing the emergency exception to the warrant requirement the Mincey Court stated that "[w]e do not question the right of police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person is in need of immediate aid . . . But a warrantless search must be strictly circumscribed by the exigencies which justify its initiation." (Citations omitted; internal quotation marks omitted.) Mincey v. Arizona, supra, 437 U.S. 392-93.
The emergency exception to the warrant requirement was adopted by the Connecticut Supreme Court in State v. Magnano, 204 Conn. 259, 266, 528 A.2d 760 (1978). In State v. Blades, 225 Conn. 609, 619-20, 626 A.2d 273 (1993), the Court addressed the societal foundation for the exception. "As a prefatory matter, we note that 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 . . . Police often operate in the gray area between their community caretaking function and their function as criminal investigators. Often there is no bright line separating the one from the other; the emergency doctrine relies on an objective test wherein the reasonableness of the officer's belief is assessed on a case-by-case basis." (Citations omitted; internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 619-20.
"[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 . . ." (Citations omitted; internal quotation marks omitted.) State v. Magnano, supra, 204 Conn. 266.
"An objective test is employed to determine the reasonableness of a police officer's belief that an emergency situation necessitates a warrantless intrusion into the home . . . [The police] 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 . . . 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." (Citations omitted; internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 618-19, quoting State v. Geisler, 22 Conn.App. 142, 150, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated, 498 U.S. 1019, 111 S.Ct 663, 112 L.Ed.2d 657, on remand, 25 Conn.App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).
The defendant claims that this is merely a reportedly missing person case, and nothing more, in support of his argument that the police officers' warrantless entry into his residence was legally unjustified and that the fruits of that wrongful entry, namely evidence of the large reptile in the bathtub, should be excluded from evidence. The defendant asserts that a report of a missing person reported to be at a certain premises does not constitute an emergency situation under Mincey and its progeny. The court does not have to resolve that issue because it disagrees with such a narrow view of the pertinent facts. The totality of the facts and circumstances known to the officers at the time they decided to enter the defendant's residence lead this court to conclude that a reasonable officer would have believed that an emergency situation existed concerning the missing child.
Officer Kelly stressed at the hearing that it was the totality of the facts known to him, not any single fact, that lead him to believe that an emergency existed concerning the reportedly missing child. He made the decision to enter the premises, along with Officer Smurlo, based on all of the facts known to him at the time he crossed the threshold of the French doors.
The totality of the facts at the relevant time showed that Officer Kelly was called out of the beginning of his shift to report to dispatch. This was an unusual procedure, usually reserved for emergency situations like an automobile accident. The police dispatcher informed him that a father who resided in Vermont had made repeated calls to the police station, in which he was increasing frantic, to report that he believed his child to be missing. The father permitted his two teenage children to go to Greenwich by train for a weekend visit and that they didn't return to Vermont by train at the conclusion of the weekend. The father initially believed that both children were missing, but he was able to contact one of his sons who told the father that the other son was at the defendant's residence. The father reported that his child was missing for approximately twenty-four (24) hours, and that he was constantly trying to contact him without success. Officer Kelly knew from the dispatcher that the father and the defendant had been in a domestic relationship and that they had lived together at one time. He also knew from dispatch that the police went to the defendant's residence earlier that day, at which time the defendant was home, and inquired as to the reportedly missing child. The defendant told the police that the child was located at a different location, but when the police went to that location the people there didn't know anything about the child. Officer Kelly arrived at the residence approximately one-half hour after the start of his shift, encountered a gated driveway, and observed an open garage door with a couch hanging out of it onto the driveway and a BMW convertible with its top down. Officer Kelly pressed the intercom button, but received no response. Consequently, he stepped over the low gate and proceeded to walk the perimeter of the premises announcing his presence. There was no response to his repeated announcements. Officer Kelly next knocked on a door and rang the doorbell. Again, there was no response. He walked around the house again and approached a set of French doors. He looked through the windows and saw a cot, some clothes suitable for a teenager and some video games in an otherwise immaculate house. Officer Kelly grabbed the handle and realized the door was open. In accordance with established policy, he called for backup. Officer Smurlo arrived at the scene and was informed of the situation by Officer Kelly. Officer Kelly decided at that time to enter the premises in order to search the residence for places where the missing child might have been located. He announced the presence of the officers in the residence and there was no response. He walked upstairs and entered a second floor bathroom. He observed a dark shadow in the bathtub through the frosted shower door and, believing it to be the missing child, he opened the door. To his expressed surprise and relief, the shadow turned out to be a six- or seven-foot long reptile situated in the bathtub. Officer Kelly shut the door in order to leave the reptile in the tub while completing the search for the missing child. The child was not found in the residence, and the officers exited the residence after a brief search leaving the reptile where they found it.
Contrary to the defendant's assertion, the warrantless entry into his residence was not made simply because of a parent's report of a missing child reported to be there. The primary responding officer, Officer Kelly, was in possession of pieces of information that when viewed in their totality under the circumstances confronting him would have given a reasonable police officer the belief that an emergency situation existed such that a warrantless entry into the residence was justified.
Faced with the facts as known by Officer Kelly, a reasonable police officer could believe, as did Officer Kelly, that the defendant, who the police knew was present at the home earlier on the day at issue and gave the police wrong information concerning the whereabouts of the child that they were looking for, either left the residence in a hurry or was inside the residence and not responding to Officer Kelly's repeated announcements of his presence. Significantly, at the time of his entry into the defendant's residence Officer Kelly was engaged in a community caretaking function as opposed to a criminal investigation for evidence. The motivation for the search was not to arrest the defendant or to gather evidence against him for use in a criminal proceeding, but to expeditiously find a missing child who was reasonably believed to be at the defendant's residence sometime during the relevant time period. The child was supposed to return to Vermont, where he resided with his father and brother, on a certain train, but inexplicably failed to do so. The child had been missing for about a day by the time Officer Kelly arrived at the defendant's residence. That the officers were in the exercise of their caretaking function was evidenced by the fact that their search of the residence was properly limited to areas where a child may be in a home. Certainly, a bathtub is one of those areas. The officers left the residence once they determined that the missing child was not there, and left the reptile in the tub where they found it.
"Appraising a particular situation to determine whether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused." People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976).
Officer Kelly's actions were founded on indisputable facts that were known by him, and not just on any subjective feelings, suspicions or hunches he may have had concerning either the defendant or the missing child. The entry into the defendant's residence by Officer Kelly and his backup, Officer Smurlo, without a warrant was valid pursuant to the emergency doctrine exception to the warrant requirement.
In view of the foregoing, the defendant's motion to dismiss filed on January 9, 2006 is denied.