Law Enforcement Guide: Search & Seizures & Arrests

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Table of Contents

• I. Introduction
  • Seizure defined
  • Search defined

• II. Search Warrants
  • Preparation
    • A. Particularity
    • B. Probable Cause    
    • C. Connecting Items to Place (Nexus)
    • D. Warrant Defects
  • Execution
    • A. Proper Officer
    • B. Timeliness
    • C. Filing and Service and Return
    • D. Manner of Entry
    • E. Knock and Announce
    • F. Detention of Persons
    • G. Search of Persons
    • H. Questioning of Persons
    • I.  Interference and Destruction
    • J. Scope and Duration
    • K. Private Citizens
  • Court Rules
    • A. Exclusionary Rule
    • B. Attacks Upon Information in Affidavit
    • C. Preservation of Useful Evidence

• III.       Warrantless Searches
  • A. Automobile Exception
  • B. Community Caretaking Function
  • C. Consent
  • D. Exigent Circumstances
  • E. Emergencies
    • Fires
    • Crime Scenes
  • F. Incident to Lawful Custodial Arrest
  • G. Inventory Search
  • H.  Plain View and Plain Feel
  • I. Protective Sweeps
  • J. Abandoned Property

• IV.       INVESTIGATIVE DETENTIONS (“Terry” Stops)

• V.        SEARCHES RELATING TO PROBATIONERS AND PAROLEES

• VI.       TRAFFIC STOPS

• VII.      SENSORY ENHANCEMENTS -TECHNOLOGY
  • A. Dog Sniffs
  • B. Technological Enhancements Generally
  • C. Global Positioning Satellite Tracking

• VII.      TELECOMMUNICATIONS
  • A. Cell Phones
  • B. Historical Cell Site Location Information
  • C. Ex Parte Orders
  • D. Pen Registers
  • E. Eavesdropping
  • F. Wiretapping

• IX.       “JOYCE” WARRANTS

• X.        THIRD PARTY SEARCHES

• XI.       STRIP SEARCHES AND BODY CAVITY SEARCHES

• XII.      FINANCIAL RECORDS

• XIII.     JOURNALIST OR NEWS ORGANIZATION

• XIV.    SCHOOL LOCKERS

• XV.      WARRANTLESS ARRESTS

• XVI.    FELONY ARREST WARRANT

• XVII.   DNA SAMPLES

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This Guide was written specifically with police officers in mind for the purpose of offering counsel and advice regarding the fundamentals of the law of search and seizure, and arrests.

Please be reminded that, ultimately, questions or concerns relating to a specific case or investigation should be directed to the appropriate Office of the State’s Attorney, as listed below:

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STATE’S ATTORNEY’S OFFICES

ANSONIA-MILFORD

• Margaret E. Kelley
• State’s Attorney
• 14 West River Street
• P.O. Box 210
• Milford, CT 06460
• (203) 874-3361

DANBURY

• Stephen J. Sedensky
• State’s Attorney
• 146 White Street
• P.O. Box 685
• Danbury, CT 06813
• (203) 207-8670

FAIRFIELD

• John C. Smriga
• State’s Attorney
• 1061 Main Street
• Bridgeport, CT 06604
• (203) 579-6506

HARTFORD

• Gail P. Hardy
• State’s Attorney
• 101 Lafayette Street
• Hartford, CT 06106
• (860)566-3190

LITCHFIELD

• David Shepack
• State’s Attorney
• 50 Field Street
• Torrington, CT 06790
• (860) 626-2502

MIDDLESEX

• Michael A. Gailor
• State’s Attorney
• One Court Street
• Middletown, CT 06457
• (860) 343-6425

NEW BRITAIN

• Brian W. Preleski
• State’s Attorney
• 20 Franklin Square
• New Britain, CT 06051
• (860) 515-5270

NEW HAVEN

• Patrick J. Griffin
• State’s Attorney
• 235 Church Street
• New Haven, CT 06510
• (203) 503-6823

NEW LONDON

• Michael L. Regan
• State’s Attorney
• 70 Huntington Street
• New London, CT 06320
• (860) 443-2835

STAMFORD-NORWALK

• Richard J. Colangelo, Jr.
• State’s Attorney
• 115 Hoyt Street
• P.O. Box 3281 – Ridgeway Station
• Stamford, CT 06905
• (203) 965-5215

TOLLAND

• Matthew C. Gedansky
• State’s Attorney
• 20 Park Street
• P.O. Box 270
• Rockville, CT 06066
• (860) 870-3270

WATERBURY

• Maureen Platt
• State’s Attorney
• 400 Grand Street
• P.O. Box 2157
• Waterbury, CT 06702
• (203) 236-8130

WINDHAM

• Anne Mahoney
• State’s Attorney
• 120 School Street
• Suite 208
• Danielson, CT 06239
• (860) 779-8510  
  

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I.       INTRODUCTION

The federal and state constitutions prohibit only “unreasonable” searches and seizures:

Fourth Amendment to the United States Constitution

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.

Article First, Section Seven of the Connecticut Constitution

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing then as nearly as may be, nor without probable cause supported by oath or affirmation.

The reasonableness of any search is evaluated “under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999). 

In most instances, the federal and state constitutions offer the same protection against unreasonable searches and seizures. In some instances, as will be noted, the state constitution offers persons in Connecticut greater protection than the federal constitution.

Seizure Defined

In Connecticut, a person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained. A seizure occurs when, in view of all of the circumstances, a reasonable person would believe that he was not free to leave.  State v. Oquendo, 223 Conn. 635, 647-52 (1992).

Note: Connecticut has rejected the federal definition of a seizure which requires either physical force or submission to a show of authority. This is an instance where the state constitution affords greater protection than the federal constitution.

Relevant factors include the display of weapons, content and tone of language indicating that compliance is required, physical touching, blocking tactics, aggressive behavior, and use of sirens and/or flashing lights. State v. Burroughs, 288 Conn. 836, 847 (2008).

An officer’s subjective intentions are irrelevant to the seizure inquiry; State v. Burroughs, 288 Conn. at 852; unless “that intent has been conveyed to the person confronted.” Michigan v. Chesternut, 486 U.S. 567, 575 n.7 (1988). 

Mere presence does not constitute a seizure. “Although we recognize that a uniformed law enforcement officer is necessarily cloaked with an aura of authority, this cannot, in and of itself, constitute a show of authority sufficient” to constitute a seizure. State v. Burroughs, 288 Conn. at 849. For a seizure to occur, some indication must be given to the subject that he is not free to leave. Absent such an indication, allowing police officers to approach and interact with citizens on foot and in vehicles to make minimal inquiries “serves important law enforcement purposes without jeopardizing constitutional rights.” State v. Burroughs, 288 Conn. at 855.

            Search Defined

            For constitutional purposes, a search occurs where the government (1) physically intrudes upon a protected area for the purpose of obtaining information; or (2) breaches an area in which a person possesses a reasonable expectation of privacy for the purposes of discovering evidence of a crime.

            United States v. Jones, 565 U.S. 400 (2012), is the quintessential example of a physical intrusion/trespass upon protected property. In that case, the government attached a GPS tracker to the underside of the defendant’s car, which it used to obtain a constant flow of real-time location information.

            United States v. Katz, 389 U.S. 347 (1967), is the quintessential example of breaching a reasonable expectation of privacy. In that case, the government surreptitiously placed a listening device outside the public pay telephone that Katz was prone to use for the purpose of capturing his conversations.  

A person possesses a reasonable expectation of privacy in a particular place or thing if: (1) he exhibits an actual subjective expectation of privacy; and (2) that expectation is one that society is prepared to recognize as objectively reasonable. Houghtaling, 326 Conn. 330, 341 (2017), cert. denied, (U.S. Apr. 23, 2018).

            A court properly tests a person’s subjective expectation of privacy “by looking for conduct demonstrating an intent to preserve [something] as private, and free from knowing exposure to the view of others.” (Internal quotation marks omitted; brackets in original.) State v. Houghtaling, 326 Conn. at 347–48. Pertinent factors include examining whether the person’s relationship with the property was personal in nature, or whether it was more sporadic, irregular or inconsequential, and whether the person maintained the location and the items within it in a private manner at the time of the search. Id.

“Curtilage” is the area immediately surrounding and associated with the home and the activities of home life, and it is treated as part of the home itself for Fourth Amendment purposes. Collins v. Virginia, 584 U.S. ___, 138 S.Ct. 1663 (2018) (back portion of residential driveway that ran beside dwelling, was partially enclosed by brick wall, and was not on route visitors would take to reach front door); Florida v. Jardines, 569 U.S. 1 (2013) (front porch of private residence).

Curtilage does not necessarily include all of the real property surrounding a dwelling, and land falling outside the curtilage is called an “open field,” which is not treated as a part of the home for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170 (1984). Curtilage questions are often resolved by applying four factors: (1) the proximity of the area to the dwelling; (2) whether the area is included within an enclosure surrounding the dwelling; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from the observation of passersby. Oliver; see e.g., State v. Ryder, 301 Conn. 810, 822 (2011) (curtilage included area enclosed within walled and securely gated estate).

License to Enter: The police may enter upon a protected area without a warrant, or other constitutional justification, so long as they do so consistent with an explicit or implied license to do so. For example, homeowners implicitly invite any member of the public “to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Florida v. Jardines, 569 U.S. 1 (2013). Barring measures taken by the homeowner which make it clear that no one is impliedly invited to approach the house and ring the bell, the police may enter upon curtilage for this purpose and they are, of course, free to receive and utilize sensory information as they do so. No one, however, “is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.” Id. 

Examples of Reasonable Expectations of Privacy:

Invited houseguests have a reasonable expectation of privacy in their personal possessions and generally in the host’s residence. State v. Edwards, 214 Conn. 57, 74-75 (1990).

A motor vehicle passenger, without an ownership interest in the vehicle, has a privacy interest in his person and personal possessions, but lacks an expectation of privacy in the vehicle’s interior. Rakas v. Illinois, 439 U.S. 128 (1978).

A tenant who was incarcerated, and whose rent was overdue by five days, retained a privacy interest in his apartment under circumstances where he took no affirmative action to abandon the apartment, the landlord took no action to regain possession or evict, and Connecticut landlord-tenant law contained provisions regarding abandonment, late rental payment, and eviction that supported a reasonable expectation of privacy. State v. Jacques, 332 Conn. 271 (2019).

An owner has an expectation of privacy in an unregistered motor vehicle parked in front of his residence. State v. Rodriguez, 223 Conn. 127, 133 (1992). On the other hand, an owner has no expectation of privacy in a motor vehicle that is legally parked away from his home and has had it license tags removed. State v. Sivri, 231 Conn. 115, 149-50 (1994).

A vehicle is a protected “effect” for purposes of the Fourth Amendment. United States v. Jones, 565 U.S. 400 (2012). A physical intrusion upon the vehicle by the government, such as attaching a tracking device to its underside, constitutes a trespass and, if done for the purpose of using the device to obtain information, it constitutes a search. Id.

A person who otherwise lawfully possesses and controls a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver. Byrd v. United States, 584 U.S. ___, 138 S.Ct. 1518 (2018).

A resident of a multi-family home generally has an expectation of privacy in those common areas of the building over which he has the legal right to control access and exclude others, but not common areas that are shared or accessible to others.  State v. Sealy, 208 Conn. 689, 693 (1988); State v. Reddick, 207 Conn. 323, 329 (1988) (expectation of privacy in commonly shared basement); State v. Torres, 36 Conn. App. 488, 500, cert. denied, 232 Conn. 912 (1995) (no expectation of privacy in common front hallway, even though controlled by buzzer system and locked door).

There is no reasonable expectation of privacy in statements voluntarily made by a person during a call that he places to another and makes no effort to ascertain the identity of the person to whom he spoke. State v. Gonzalez, 278 Conn. 341, 349-54 (2006) (phone was answered by police officer who had just seized it).

II.      SEARCH WARRANTS

         Search warrants are statutorily authorized pursuant to General Statutes §§ 54-33a and 33b, which authorizes and regulates warrants for: (1) persons, places or things: (2) tracking devices; and (3) records or data in the possession of an out-of-state corporation. Always refer to a current, up-to-date version of the General Statutes.

            Administrative search warrants for suspected violations of local ordinances pertaining to the protection of public health when a property owner or occupant refuses to obey an order of inspection given by a local department official are authorized under General Statutes § 19a-220. State v. Saturno, 322 Conn. 80, 95 (2016). The same general probable cause concepts relating to criminal warrants apply in this context. In this specific context, “before a court may issue an order permitting a [department] officer to enter and search a particular property, there must be a preliminary showing of facts within the knowledge of the … officer and of which the officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the [municipal] ordinances are present on the subject property.” 322 Conn. at 98.

Preparation

There are three key components to a search warrant: (1) particularity of the descriptions of what is to be searched and what is to be seized; (2) probable cause to believe that the items sought are (a) connected with criminality, and (b) presently in the space to be searched. A deficiency in any area will render the warrant unconstitutional and invalid.

A.        Particularity

The warrant must describe the place to searched and the item(s) to be seized with sufficient detail so that the person executing it is able to determine with reasonable certainty what place is to be searched and what item(s) is to be seized.

Places:

Single Family Residence: Provide the postal address and an exterior description, including color, type of structure, and readily identifiable features. Insure that the components of the postal address, especially the number and the name of the thoroughfare, are complete and correct.

Example: 12 Maple Street, Rocky Hill, CT, a blue, two-story private residence with an attached two vehicle garage.

Note: You must separately and particularly describe any detached structures (e.g. tool shed or garage) or vehicles on the property for which probable cause also exists. Absent inclusion in the warrant, these structures cannot lawfully be searched pursuant to the warrant.   

Multi-Family Residence: Provide the postal address, including the unit number, an exterior description of the structure in which it is located, and the location of the unit within that structure.     

Example: Apartment B, second floor, 12 Maple Street, Rocky Hill, CT, a blue, two-story shared private residence.   

Note: You must separately and particularly describe any detached structures or other areas for which probable cause also exists. This would include, for example, a private storage cage or area in a shared basement.   

Businesses: Postal address, exterior description, unit number and location within larger structure (if applicable), and signage. 

Motor Vehicles: Year, make, model, identifying marks, tag number. Do not simply describe it by its tag number.

Items: Must be described as precisely as the circumstances and the nature of the criminal activity at issue permit. General descriptions should be coupled with particular criminal activity: e.g., items used in the manufacture, operation, maintenance, or detonation of explosive devices.  

Persons: Name, physical description and identifying features. If a name is unknown, a “John Doe” warrant is acceptable on the basis of an adequate description. See Practice Book § 36-3 (requiring in context of arrest warrant any name or description by which subject can be identified with reasonable certainty).

B.        Probable Cause

A search warrant affidavit must contain sufficient information to establish probable cause to believe that the items sought: (1) are contraband, or otherwise connected with criminal activity, or will assist in an apprehension or conviction; and (2) are presently located in the place(s) to be searched. State v. Vincent, 229 Conn. 164, 171 (1994).

“Four Corners” Rule: As a general rule, the judge issuing the warrant may only consider the “four corners” of the affidavit itself and nothing extraneous thereto. State v. Colon, 230 Conn. 24, 34 (1994).

            An exception to this rule was recognized in State v. Coleman, 35 Conn. App. 279, 282-84, cert. denied, 231 Conn. 928 (1994), where the court concluded that it was proper for the judge who issued a search warrant to consider information that did not appear in the affidavit where: (1) the two pages containing the additional information were initialed by the affiants and the judge; (2) the pages were physically attached to the affidavit; and (3) the affidavit had no space left for additional information.

“Totality of the Circumstances” Test: In determining whether information establishes probable cause, the judge must make “a practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the ‘veracity’ and the ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983); State v. Johnson, 219 Conn. 557, 563 (1991).

Information Used to Establish Probable Cause: Two types of information are used to establish probable cause: (1) first hand information and (2) second hand (or hearsay) information. Each is treated differently.

First Hand Information: Any information which is derived from the law enforcement affiants’ own personal knowledge. A judge may consider this information at face value, without any further inquiry regarding its reliability, because law enforcement officers are presumed to be credible and their information is presumed to be reliable. State v. Morrill, 205 Conn. 560, 568 (1987).

Second Hand (Hearsay) Information: Any information which is not derived from the law enforcement affiants’ own personal knowledge, but from any other source. Before a judge may consider hearsay information, he must inquire regarding its reliability or the credibility of its source.

Methods to Establish the Credibility of a Source:

Identify the source of the hearsay information as a fellow police officer. Police officers are presumed to be credible sources of information. State v. Smith, 38 Conn. App. 29, 39 (1995). Make sure to identify the source of hearsay information as a fellow officer in the affidavit.

Identify the source of the hearsay information as a crime victim, a witness to the criminal activity at issue, or an “average” citizen tipster. These persons are also presumed to be credible sources of information. State v. Amarillo, 198 Conn. 285, 310 (1986); State v. Smith, 16 Conn. App. 223, 231 (1988). Make sure to identify these sources as such in the affidavit. 

Demonstrate that the source of the hearsay information is known and reliable by showing that he has developed a prior track record for giving accurate information. State v. DeFusco, 224 Conn. 627, 644 (1993). A conclusory statement that the person is known and reliable is inadequate. The track record must be described at least briefly – e.g., this person has provided accurate information on several prior occasions, which information has led to the seizure of illegal narcotics and the arrest and conviction of several persons.  

Methods to Establish the Reliability of Information

Where the source of second-hand information is unknown, it will not be possible to establish the credibility of that source. Consequently, you must seek to establish the reliability of the information itself. This can be accomplished in a number of ways.

Corroboration. Where significant details of the information is independently corroborated by the police, on their own or through other credible sources, it is considered reliable. State v. Ferguson, 185 Conn. 104, 113 (1981). Make sure to note successful corroboration in the affidavit.

Information obtained personally by the affiant during a corroboration investigation may be stated in the affidavit as personal knowledge, eliminating the need to rely solely upon the informant.     

Statement against penal interest. Information which constitutes a statement against the penal interest of the person making it is considered reliable because persons are not likely to falsely implicate themselves in criminal activity. State v. Ferguson, 185 Conn. 104, 114 (1981).

Reputation and past record of suspect: “A suspect’s prior criminal record, even if inadmissible at trial, may be [a] basis for establishing probable cause.” State v. Mordowanec, 259 Conn. 94, 111 (2002). The reliability of information accusing a suspect of criminal activity is enhanced where the suspect has a prior record or reputation for such activity. Make sure to note such record or reputation in the affidavit.

False Statement. A sworn statement is considered reliable because General Statutes § 53a-180 makes it a crime to give the police a false sworn statement. State v. DeFusco, 224 Conn. 627, 644 (1993). Make sure to note in the affidavit that the statement was sworn.

C.        Connecting Items to Place (Establishing a nexus)

A search warrant affidavit must also establish probable cause to believe that the items sought are presently in the place(s) to be searched. State v. Couture, 194 Conn. 530, 536 (1984). In other words, the information cannot be stale. Often, this connection is established with information which directly places the item in the place at a particular time.  

In some instances, the connection may be inferred without direct observation. For example, were the crime under investigation is narcotics trafficking, courts have concluded that it is reasonable to infer that participants in this activity maintain records and supplies relating to this activity in their homes. State v. Diaz, 27 Conn. 427, 432 (1992), aff’d., 226 Conn. 514 (1993). In another case, the court concluded that it was reasonable to infer that stolen coins would be located in the suspect’s home because the suspect was himself a coin collector, who stored, and sold coins from his home. State v. Ives, 37 Conn. App. 40, 46, cert. denied, 234 Conn. 906 (1995).

Freshness Requirement: Information which establishes probable cause must relate to an existing condition and cannot be stale. “The determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time…. Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when the information has become too old to be reliable.” State v. Bova, 240 Comm. 210, 232 (1997).

            Freshness depends in large measure on the nature of the activity under investigation and the character of the items sought. Greater passages of time are permitted where the crime under investigation is a continuing or regenerative activity, such as drug dealing, or other ongoing and active criminal ventures. Greater time is also permitted to pass where the items sought have enduring value or are not inherently incriminating, such as personal artifacts, personal records, business records. Persons tend to keep items of these sorts for long periods of time. A lesser passage of time is demanded where the crime under investigation is a one-off occurrence or the items sought are contraband, perishable or inherently incriminating.

Freshness Examples:

State v. Ives, 37 Conn. App. 40 (1994), cert. denied, 234 Conn. 906 (1995): four month passage of time between crime of burglary and issuance of search warrant for suspect’s residence. Items sought (stolen coins and business records) not inherently incriminating because suspect was an avid coin collector and was likely to keep prize coins for longer period of time.

State v. Vincent, 229 Conn. 164 (1994): one year passage of time between child’s disappearance and issuance of search warrant for father’s home. Items sought (photos, artifacts and records relating to child) were not inherently incriminating, had enduring value, and were likely to be kept for long period of time.   

State v. Bova, 240 Conn. 210 (1997): three month passage of time between officer’s observation of items and issuance of search warrant for suspect’s home. Items sought (sawdust and wood particles) not inherently incriminating and not likely to be completely removed, even if attempted.

Anticipatory Warrant

An anticipatory search warrant is one which becomes effective upon the happening of a future event, frequently the controlled delivery of contraband to the target premises. Such warrants satisfy the Fourth Amendment if the affidavit establishes probable cause and the future event upon which the warrant depends (e.g., successful delivery) actually occurs. See Grubbs v. United States, 547 U.S. 90, 95-96 (2006); United States v. Loy, 191 F.3d 360 (3^rd Cir. 1999); United States v. Moetamedi, 46 F.3d 225 (2^nd Cir, 1995); United States v. Rivera, 928 F.2d 592 (2^nd Cir. 1991); United States v. Garcia, 882 F.2d 699 (2^nd Cir.), cert. denied, 493 U.S. 943 (1989).

Remember that an anticipatory warrant is issued before the item sought has reached the place to be searched pursuant to the warrant. Therefore, in addition to establishing probable cause to believe that the item sought is evidence of a crime or contraband, the affidavit must establish probable cause to believe that the item will be located in place to be searched at the time that the warrant is executed. Obviously, the warrant cannot properly be executed unless and until the item arrives at the place to be searched. 

D.        Warrant Defects

While every effort should be taken to insure that the warrant application is complete and accurate, not every defect is fatal.

The failure of the judge to sign the warrant itself is fatal, cannot be corrected, and renders the warrant of no effect. State v. Surowiecki, 184 Conn. 95, 97-98 (1981). 

The failure of the judge to sign the jurat (attestation that the affiants have been sworn) is not fatal and may be corrected in later proceedings. State v. Colon, 230 Conn. 24, 34-36 (1994).

            Technical defects, such as typographical errors, are not fatal so long as they are not material to probable cause, and either a common sense reading of the affidavit justifies the conclusion that it is an obvious error; State v. Rosario, 238 Conn. 380, 396-97 (1996); or additional evidence demonstrates this. State v. Thompson, 307 Conn. 567, 575 (2012) (typographical error regarding time of issuance).

EXECUTION

The execution of a search warrant is governed principally by General Statutes §§ 54-33a through 54-33c. Always refer to a current, up-to-date version of the General Statutes.

A.        Proper Officer

Connecticut statutory law requires that a search warrant be executed by a “proper officer,” which the statute does not define. A warrant will have been executed by a “proper officer” so long as at least one member of the execution team is acting within his territorial jurisdiction. State v. Cosgrove, 181 Conn. 562, 589-90 (1980). 

B.        Timeliness

A search warrant is valid for ten days after issuance and must be executed within that time period, or sooner if a delay in execution will render the information upon which it is based stale. State v. Burgos, 7 Conn. App. 265, 270 (1986). The warrant may be executed at any time of day.

            In the event that a warrant is not executed within the ten day period and it expires, a second warrant may be sought. In doing so, the affidavit should explain the circumstances surrounding the issuance and non-execution of the original warrant and contain any pertinent updated information.

            Date and Time of Issuance: Pursuant to General Statutes § 54-33a (c), the warrant must state the date and time of its issuance. It provides that the judge’s inadvertent failure to so state does not in and of itself invalidate the warrant.

            A typographical error regarding the date or time of issuance is likewise not a fatal defect and may be overcome. State v. Thompson, 307 Conn. 567, 575 (2012).

C.        Filing and Service and Return Requirements

            Filing: In accordance with § 54-33c (a), the warrant application and all affidavits upon which it is based shall be filed with the clerk of court for the geographical area in which “any person who may be arrested in connection with or subsequent to the execution of the warrant would be presented.” This rule is designed to keep suspects and paperwork together in the same courthouse.

            In accordance with § 54-33c (a), the warrant shall be returned “with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized.” The law offers no definition of “reasonable promptness.” Unnecessary and protracted delay should be avoided.

In accordance with § 54-36a (b)(1), if no arrest has been made, the inventory is to be filed with the clerk of court for the geographical area in which the search warrant was issued. If an arrest has been made, the inventory and a uniform arrest report is to be filed with the clerk of court for the geographical area in which the criminal offense is alleged to have been committed. An inventory need not be filed, and the property may be returned to the owner, if it is stolen property which, in the officer’s opinion, does not exceed $250 or an attempt to steal it was unsuccessful and it remained on the premises in a sealed container. 

            General Statutes § 54-36a (b)(2) governs seized property that is stolen property, including stolen currency. General Statutes § 54-36a (B) governs seized property that is not stolen property.

            Service: In accordance with General Statutes § 54-33c, a copy of the warrant (not the application and affidavits) shall be given to the owner, occupant or person named therein. Leave a copy in the premises if no one is present. Within forty-eight hours of execution, copies of the application and affidavits must be given to the owner, occupant or named person. The judge issuing the warrant may temporarily dispense with the required disclosure of the affidavit for listed reasons.                   

D.        Manner of Entry

The manner of entry is governed by the general constitutional protection against unreasonable searches and seizures, and forcible entry is permitted where entry is refused or where it cannot be made peaceably. Dalia v. United States, 441 U.S. 238, 257 & n.19 (1979).

Entry may also be accomplished by ruse or trick. See e.g. United States v. Syler, 430 F.2d 68 (7^th Cir. 1970) (police induced door opening by calling out “gas man.”); United States v. Salter, 815 F.2d 1150 (7^th Cir. 1987) (police induced door opening by posing as desk clerk, calling room, and asking occupant to come to desk).

E.        Knock and Announce Rule

Absent exigent circumstances, police officers entering a residence to execute a search warrant must knock and announce their identity and purpose prior to forcing entry. Wilson v. Arkansas, 514 U.S. 927, 934 (1995); State v. Pelletier, 209 Conn. 564, 574 (1989); State v. Mariano, 152 Conn. 85, 94 (1964), cert. denied, 380 U.S. 943 (1965).

The time between the “knock and announce” and a forced entry must be reasonable under the circumstances. See e.g. United States v. Banks, 540 U.S. 31, 33 (2003) (15 to 20 second delay in case of felony drug warrant); State v. Huff, 69 Conn. App. 51, 54-55 (2002) (7 to 8 second delay in felony drug and weapon warrant). Note, however, that courts do not recognize a blanket exception to the rule for felony drug warrants. Richards v. Wisconsin, 520 U.S. 385 (1997). 

Exceptions: It is not necessary to knock and announce if police have a reasonable suspicion that: (1) the circumstances present a threat of physical violence; or (2) evidence would likely be destroyed if advance notice were given; or (3) announcing would be futile (such as where the occupants know of the police presence). Richards v. Wisconsin, 520 U.S. 385, 394 (1997); State v. Pelletier, 209 Conn. at 564, 574 (1989); State v. Roscoe, 212 Conn. 223, 236 (1989). Where a “no-knock” entry is made, it is wise to document the reasons for such action in a report.

In Hudson v. Michigan, 547 U.S. 586 (2006), the court held that a knock and announce violation (entry too soon after announcing) did not justify application of the exclusionary rule (discussed below). Such a violation could, however, result in civil liability and internal police discipline.   

F.        Detention of Persons

            Officers executing a search warrant for evidence or contraband have the authority “to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 704-05 (1981); Muehler v. Mena, 544 U.S. 93, 98, (2005); State v. Clark, 255 Conn. 268, 282 (2001); State v. Torres, 197 Conn. 620, 625 (1985). The authority to detain is categorical, and not dependent upon specific circumstances, and it promotes three legitimate law enforcement interests:   “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force.” Michigan v. Summers, 452 U.S. at 702–703.

            The “categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched….” Once an occupant is beyond the immediate vicinity of the premises to be searched, the authority to detain that person incident to execution of the warrant ends. Bailey v. United States, 568 U.S. 186 (2013). Factors that officers may consider in seeking to determine the limits of the immediate vicinity include “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location and other relevant factors.” Id.

            In inherently dangerous situations, such as a drug and weapons warrant, or the presence of multiple occupants, the use of handcuffs to affect the detention is reasonable. Muehler v. Mena, 544 U.S. at 100.

G.        Search of Persons

A search warrant authorizes only the search of persons named therein.

Police may search anyone arrested during the execution of a warrant as incident to lawful custodial arrest and they may search anyone whom they reasonably believe is concealing an item described in the warrant.

Police may frisk anyone whom they reasonably believe to be armed. If the search relates to an inherently dangerous criminal activity, such as drug dealing, all persons present and associated with the activity may be frisked for weapons. State v. Clark, 255 Conn. 268, 283-85 (2001).   

            H.        Questioning of Persons

            Officers executing a search warrant do not need particularized suspicion to ask occupants routine questions pertaining to identification, such as name, date and place of birth. Muehler v. Mena, 544 U.S. at 101.

            Miranda Rights: Miranda v. Arizona, 384 U.S. 436 (1966), applies whenever a person is subjected to custodial interrogation. Custody for Miranda purposes is not simply being detained or seized. Miranda custody occurs either when there is a formal arrest or where there is a “restraint on [the person’s] freedom of movement of the degree associated with a formal arrest.” Maryland v. Shatzer, 559 U.S. 98, 112 (2010); State v. Mangual, 311 Conn. 182, 194 (2014). Interrogation occurs whenever police either ask questions explicitly designed to elicit an incriminating response, or use words or actions that police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980); State v. Vitale, 197 Conn. 396, 412 (1985).

            In State v. Mangual, the court held that the execution of a search warrant for drugs created a police dominated atmosphere, and resulted in “custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1996), when numerous police officers entered a small apartment brandishing handguns and rifles, confined the defendant and her children under guard to a couch in one room, did not explain the circumstances surrounding her confinement, and questioned her regarding the presence and location of drugs.

            In State v. Spence, 165 Conn. App. 110 (2016), the court rejected the defendant’s claim under Mangual that the execution of a search warrant in his home created a similar police dominated atmosphere. In reaching this conclusion, the court considered significant that, unlike in Mangual, the target of the search was a residential home, not a small apartment; the police officers were armed, but did not brandish their weapons; the residents of the home, who the police gathered in one room, included two other adults; and, after the lead officer told the residents that the police were there investigating a computer crime, and asked the defendant if he knew why the police were there, the defendant responded by asking to speak with the officer in private and he was brought outside to an unmarked police car. 

I.          Interference and Destruction

General Statutes § 54-33d makes it a crime to forcibly assault, resist, oppose, impede, intimidate or interfere with any person authorized to serve or execute search warrants or make searches and seizures while engaged in the performance of his duties.

General Statutes § 54-33e makes it a crime, before, during or after the seizure of any property by the police, to break, destroy, remove, or causes the breaking, destruction or removal of the property. 

J.         Scope and Duration

The scope of the search is dictated by the nature of the items sought. “[W]hen police search for an item, they are entitled to search any [area or] container that logically could hold the item.” State v. Montgomery, 254 Conn. 694, 704 (2000).

            The warrant authorizes the seizure only of those items described therein. Police also may seize items not described in the warrant which are in plain view and are readily discernable contraband or evidence of crime.

The excavation of land is within the scope of a warrant which authorizes the search of exterior premises. State v. St. Louis, 128 Conn. App. 703, 720 (2011). In St. Louis, the affidavit established probable cause to search land for a dead body. 

There is no hard and fast rule regarding the duration of a search. It must be completed within a reasonable time.

            Unless there has been a completion or abandonment of the search, it may be resumed within a reasonable time.

K.        Private Citizens

Consistent with the Fourth Amendment, police may enlist the assistance of private citizens who legitimately and directly aid in the execution of the warrant. Hanlon v. Berger, 526 U.S.808 (1999); Wilson v. Layne, 526 U.S. 603 (1999); State v. St. Louis, 128 Conn. App. 703, 721 (2011).

In Hanlon v. Berger and Wilson v. Layne, it was held unreasonable to allow non-essential media persons (cameramen for the TV show “Cops”) to be present during the execution of a search warrant in a private residence.

In State v. St. Louis, it was held reasonable to enlist the assistance of town highway department employees (and their mechanical equipment) for the purpose of excavating land during the execution of search warrant for exterior premises that sought a dead body. 

COURT RULES

A.        The Exclusionary Rule

Evidence seized as a result of unlawful action by the police, or any evidence that is the “fruit” thereof, is subject to suppression at trial. Weeks v. United States, 232 U.S. 383 (19140 (federal exclusionary rule); Mapp v. Ohio, 367 U.S. 643 (1961) (federal exclusionary rule applies to state through Fourteenth Amendment); Wong Sung v. United States, 371 U.S. 471 (1963) (exclusionary rule applies to tainted “fruit of poisonous tree.”); State v. Dukes, 209 Conn. 98, 108-10 (1988) (exclusionary rule under state constitution).

Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Stone v. Powell, 428 U.S. 433, 454 n.29 (1976). Its sole purpose is to deter future violations of the Fourth Amendment. Herring v. United States, 555 U.S. 135, 141 (2009); Hudson v. Michigan, 547 U.S. 596 (2006).

There are several exceptions to this rule:

Objectively Reasonable Reliance on Binding Precedent: Where police conduct a search or seizure in objectively reasonable reliance on binding precedent, the exclusionary does not apply in the event that, after the conduct in question, the precedent is altered or overruled. Davis v. United States, 564 U.S. 229 (2011). In Davis, police conducted a vehicle search incident to arrest in accordance with New York v. Belton, 453 U.S. 454 (1991), before Belton was effectively overruled by Arizona v. Gant, 556 U.S. 332 (2009).

            Attenuation: Where the passage of time and/or other intervening circumstances sufficiently weaken the connection between the illegality and the receipt of the evidence, the “taint” of the illegality is said to be attenuated or purged and the evidence may be admitted. Brown v. Illinois, 422 U.S. 590 (1975); State v. Luurtsema, 262 Conn. 179, 188-96 (2002). A court applying the attenuation doctrine examines: (1) the temporal proximity between the unconstitutional conduct and the discovery of the evidence; (2) the presence of intervening circumstances; and, most importantly, (3) the purpose and flagrancy of the unlawful police conduct. Utah v. Strieff, 579 U.S. ___ , 136 S.Ct. 2056 (2016).

            In Strieff, the United States Supreme Court concluded that the exclusionary rule does not apply when an officer makes an unconstitutional investigatory detention (a lack of reasonable suspicion); learns during the detention that the suspect is subject to a valid arrest warrant; arrests the suspect pursuant to the warrant; and seizes evidence incident to that arrest. Attenuation applied despite the close temporal proximity between the illegal stop and the seizure of the evidence. The the warrant was a legitimate intervening circumstance because it was valid, predated and was entirely unconnected to the illegal stop, and checking for it was a negligibly burdensome precaution related to officer safety. The unlawful conduct was, at most, the product of a negligent assessment of reasonable suspicion made during a bona fide investigation, and it was not purposeful, flagrant, or part of any systemic or recurrent police misconduct. 

Independent Source: Tainted evidence may be admitted if it was obtained, in fact, by a lawful means untainted by the illegality. Murray v. United States, 487 U.S. 533 (1988); State v. Vivo, 241 Conn. 665, 672 (1997). For example, a lawfully issued search warrant based on information wholly independent of a prior illegal warrantless entry may constitute an independent source.

Inevitable Discovery: Tainted evidence may be admitted if inevitably it would have been discovered by lawful means in motion at the time of the illegality. Nix v. Williams, 467 U.S. 431 (1984); State v. Vivo, 241 Conn. 665, 673 (1997). For example, interrogations of two persons separately in progress at the same time, one unlawful and one lawful, lead police to the same piece of evidence.

New Crime Exception: The exclusionary rule cannot be used to suppress evidence of a new crime committed in response to any illegal police conduct. State v. Brocuglio, 264 Conn. 778, 786-91 (2003). This means that citizens may resist illegal police conduct, but only with conduct of their own that is not criminal. 

Good Faith: Federal courts, and a number of state courts, recognize an exception to the rule where the police, in good faith, rely upon a search warrant that is later held to be invalid, so long as such reliance was objectively reasonable.

Connecticut does not recognize an exception to the exclusionary rule based on good faith reliance on an invalid warrant. State v. Marsala, 216 Conn. 150, 161 (1990).

B.        Attacks Upon Information in Warrant Affidavit

Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), a defendant is entitled to attack material information in a search warrant affidavit that is deliberately false or made with reckless disregard of the truth. This includes deliberate and reckless omissions of material information. State v. Bergin, 214 Conn. 657, 666-69 (1990). Immaterial or unsubstantiated information may be omitted from the affidavit. State v. Rodriguez, 223 Conn. 127, 143 (1992).

A Franks violation will result in the excision of tainted information from the affidavit. If the excised information is critical to probable cause, the warrant will be rendered invalid and evidence seized thereunder will be suppressed.

C.        Preservation of Potentially Useful Evidence

Pursuant to State v. Morales, 232 Conn. 707 (1995), police have a constitutional duty to preserve evidence that might potentially be useful to the defendant. In determining whether a breach of this duty has deprived the defendant of his right to a fair trial, courts will assess: (1) the materiality of the missing evidence; (2) its likelihood of mistaken interpretation of the missing evidence; (3) the reason the evidence is not available; and (4) prejudice to the defendant. 

III.     WARRANTLESS SEARCHES

            A.        Automobile Exception

Police may conduct a warrantless on-the-scene search of a motor vehicle based on probable cause to believe that it contains contraband or evidence of a crime. United States v. Ross, 456 U.S. 798 (1982); State v. Longo, 243 Conn. 732 (1998). The scope of the search is defined by the nature of probable cause and includes any and all places and containers in the vehicle that are capable of containing the contraband or evidence. State v. Williams, 311 Conn. 626, 648 (2014) (so holding under state constitution). This includes the personal effects of any occupant capable of containing the items, whether or not probable cause was developed specifically as to a particular occupant. Wyoming v. Houghton, 526 U.S. 295 (1999).

            The automobile exception to the Fourth Amendment does not permit the police without a warrant to enter a home or its curtilage in order to search a vehicle therein. Collins v. Virginia, 584 U.S. ___, 138 S.Ct. 1663 (2018).

On-the-scene requirement: Under the Connecticut constitution, an automobile exception search is valid only if conducted on-the-scene of the stop. State v. Miller, 227 Conn. 363 (1993). Once the vehicle is removed from the scene – for whatever reason – the authority to conduct an automobile exception search ends. A subsequent search of the vehicle must be conducted pursuant to a warrant or another exception to the warrant requirement, such as an inventory search.

            A decisionby the police to impound a vehicle, and the ultimate impounding of it, does not trigger application of Miller and render improper an auto exception search of the vehicle so long as the search is conducted on-the-scene. State v. Winfrey, 302 Conn. 195, 207 (2011).

Probable Cause As To Container Later Placed in a Vehicle: Where probable cause develops as to a specific container before it is placed into a motor vehicle, once it is placed in the vehicle, police are permitted, absent further justification, to search the suspect container only, and not the entire vehicle. California v. Acevedo, 500 U.S. 565 (1991). In Acevedo, the police had probable cause to believe that a suitcase contained drugs. The suitcase was then placed into the trunk of a motor vehicle, which the police stopped. The search was limited to the suitcase.

Note: Take care to distinguish the Houghton situation, in which probable cause develops as to the vehicle (or someone or something already within it), and the Acevedo situation, in which probable cause develops as to an item that is subsequently placed into a vehicle.  

            B.        Community Caretaking Function

Action taken by the police that is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute[,]” does not constitute a “search” for constitutional purposes. Cady v. Dombrowski, 413 U.S. 433 (1973); State v. Bernier, 246 Conn. 63, 76 n.12 (1998).

Such action is commonly referred to as “community caretaking” and, as the following examples demonstrate, relates to the safety and welfare of the community.

State v. Tully, 166 Conn. 126 (1974): Permissible community caretaking function to enter an unlocked vehicle, with a broken vent window, that was left unattended in school parking lot at night for the purpose of securing a guitar visible in the back seat. Once inside the vehicle, the officer observed drug paraphernalia in plain view.

Cady v. Dombrowski, 413 U.S. 433 (1973): Permissible community caretaking function to remove a vehicle crashed by a suspected drunk driver, who was a police officer, and later search it for the officer’s service weapon.

State v. Joyce, 229 Conn. 10 (1994): Permissible community caretaking function to seize for safekeeping and inventory articles of clothing of a fire victim that were left at the roadside after the victim was transported to the hospital.

            Note: As will be discussed later under “Joyce” warrants, possessions that have been seized for safekeeping may be visually inspected and inventoried, but not further searched, under the community caretaking function.

            C.        Consent

A warrantless entry or search is permitted on the basis of the free and voluntary consent of an authorized person. State v. Reagan, 209 Conn. 1, 7 (1988). An authorized person is someone who lawfully possesses or has an interest in the property. United States v. Matlock, 415 U.S. 164, 171 (1974).

            The fact that the police may have sufficient probable cause to obtain a search warrant does not preclude them from seeking to obtain consent. State v. Azukas, 278 Conn. 267, 285-86 (2006).

            Consent lawfully may be obtained from persons who are detained or in custody. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Watson, 423 U.S. 411, 424 (1976).  

Shared Premises – Common Authority: Generally speaking, “the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.” United States v. Matlock, 415 U.S. at 170. [Note that common authority generally does not exist over exclusively personal possessions or effects].

            In Georgia v. Randolph, 547 U.S. 103, 122-23 (2006), the United States Supreme Court recognized a narrow exception to the general rule, holding that the consent of one occupant is ineffectual as to another occupant who is present and objects to the search. “[A] physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.” Id. 

            Randolph is strictly limited to situations in which the objecting occupant is physically present. Fernandez v. California, 571 U.S. 292 (2014). The police may remove an actual or potential objector who is present if they have objectively reasonable grounds for doing. In Fernandez, police officers, while investigating an assault, arrived at the home of the defendant and his girlfriend, and knocked on the door. After the girlfriend answered the door, the defendant appeared and objected to the police entering. Having probable cause to believe that the defendant had assaulted the girlfriend, the police placed him under arrest and removed him to the police station for booking. As this was occurring, the police returned to the home and obtain consent to search the apartment from the girlfriend. Under these circumstances, the court concluded that the Randolph exception did not apply.

A homeowner may consent to a search of his home, as against an invited houseguest, unless the guest has exclusive possession or sole control over the area of the home that is searched. State v. Azukas, 278 Conn. 267, 277-78 (2006). Factors relevant in determining whether this is the case include: whether the guest is rent-paying tenant, whether the searched area is generally kept locked or closed; and whether other residents use or have access to the room. A host has no authority, however, to consent to the search of the private possessions of a guest. State v. Edwards, 214 Conn. 57, 75-76 (1990).

            Similarly, a homeowner/parent may consent to a search of his home, as against a resident child, whether a minor or not, unless the child has exclusive possession or sole control of the area of the home that is searched. State v. Azukas, 278 Conn. 267, 278 (2006). Factors relevant in determining whether this is the case include: whether the child pays rent; whether he has an ownership interest in the premises; whether the door to the room is generally kept locked or closed; and whether other family members use or have access to the room. 

Landlords are generally not authorized to consent to the search of leased premises even if the landlord possesses some rights of entry under the lease. Chapman v. United States, 365 U.S. 610, 616-17 (1961); State v. Jacques, 332 Conn. 271, 293 n. 14 (2019). Information obtained by a landlord, who is not acting as an agent of law enforcement, may be utilized by the police in seeking a warrant or in acting under an appropriate recognized exception to the warrant requirement.

Right to Refuse: Police are not obligated to inform a person that he has a right to refuse to consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Police, however, cannot suggest that a refusal to consent will be futile because the issuance of a search warrant is automatic. Dotson v. Warden, 175 Conn. 614, 620-21 (1978). It is permissible to inform a person that, if consent is refused, a search warrant could or might be sought and issued and that entry to the home might possibly be barred pending this process. State v. Brunetti, 279 Conn. 39, 70-71 (2006).

Apparent Authority: Consent is valid, even if it is later revealed that the consenter was not authorized to give consent, so long as the police possessed a reasonable belief regarding such authority. Illinois v. Rodriguez, 497 U.S. 177 (1990); State v. Buie, 129 Conn. App. 777 (2011), aff’d., 312 Conn. 574 (2014) (state constitution).

Limitations – Withdrawal: The scope of consent may be limited, and consent may be withdrawn, by word or act at any time. State v. Reagan, 209 Conn. 1, 14 (1988).

Automobiles: Consent may lawfully be obtained from the owner, lessee, or third party possessor.

            Consent to search a motor vehicle includes consent to search an unsecured containers, but does not include containers that are locked or secured. Florida v. Jiminez, 500 U.S. 248 (1991). Additional consent is required for these items.

            D.        Exigent Circumstances

Exigent circumstances exist in general terms when “there is a compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978). Typically, exigent circumstances exist if, absent immediate official action, “the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.” State v. Guertin, 190 Conn. 440, 453 (1983).

            In applying the exigent circumstances exception, courts consider all of facts and circumstances of a particular case to determine whether, in essence, the police were truly confronted with a “now or never” situation. Missouri v. McNeely, 569 U.S. 141 (2013). The scope of any warrantless exigent circumstances search is strictly limited by the demands of the exigency.

Police-Created Exception

Conduct by the police which leads to the creation of an exigent circumstance does not deprive them of the lawful authority to act so long as they “do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Kentucky v. King, 563 U.S. 452 (2011).

In King, for example, after smelling the odor of burning marijuana, police officers knocked on the door of an apartment and identified themselves. They forced entry when they heard noises which reasonably led them to believe that evidence was being destroyed. As the Court observed, “[o]ccupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances [entry] that may ensure.”

Examples:

In State v. Aviles, 277 Conn. 281, 293 (2006), a warrantless entry into a bedroom to apprehend the defendant was justified on the basis of exigent circumstances where: (1) police had lawfully entered the home with consent; (2) the defendant was visible in the bedroom through an open door; (3) four other civilians, and other police officers, were in the home; (4) probable cause existed to believe that, twelve hours earlier, the defendant had shot a man to death; and (5) the weapon used in the killing was unaccounted for.  

In State v. Gant, 231 Conn. 43, 63-64 (1994), a warrantless entry into an apartment to apprehend the defendant was justified on the basis of exigent circumstances where: (1) the defendant was the subject of an arrest warrant for murder; (2) probable cause existed to believe that the defendant had just threatened a person with a handgun; (3) the defendant was reported to be in the apartment; (4) police observed a person, who looked like the defendant, attempt to exit a rear window and scurry back inside upon the sight of officers outside.

A warrantless search of a sofa inside the apartment was justified on the basis of the above facts and the following: (1) a person matching the defendant’s description was found inside the apartment and appeared nervous and anxious; (2) the room in which he was located was small and the only object in it was a sofa; (3) other civilians, including children, were in the apartment; and (4) the weapon used to threaten the person was unaccounted for.

Drunk Driving: The natural dissipation of alcohol from a person’s bloodstream may, but does not necessarily, create an exigent circumstance justifying a warrantless and nonconsensual blood test. Missouri v. McNeely, 569 U.S. 141 (2013). Exigencies in the context of drunk-driving are examined on a case-by-case basis. In Schmerber v. California, 384 U.S. 757 (1966), for example, the delay in seeking a warrant that was caused by the officer confronting an emergency and pressing duties caused by a motor vehicle accident would have threatened the destruction of blood alcohol content evidence and justified a warrantless blood test.

In Mitchell v. Wisconsin, 588 U.S. ___, 139 S.Ct. 515 (2019), the United States Supreme Court concluded that: “When the police have probable cause to believe that a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before the police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”  

            In essence, the driver’s unconsciousness creates an exigent circumstance because the police are unable to administer a breath test, and it presents a medical emergency that creates a pressing need for action. The court’s “almost always” rule is general and did “not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”    

            E.        Emergencies

Police may enter a private residence without a warrant if they possess an objectively reasonable belief that an occupant may be in immediate danger or in need of aid. Michigan v. Fisher, 558 U.S. 45 (2009); Brigham City v. Stuart, 547 U.S. 398 (2006); Mincey v. Arizona, 437 U.S. 385 (1978); State v. Colon, 272 Conn. 106, 142-43 (2004); State v. Magnano, 204 Conn. 259, 266 (1987); State v. Blades, 225 Conn. 609, 620-22 (1993). Direct evidence of an actual in-progress emergency is not required; police need only possess valid reasons to believe that life or limb is in jeopardy, and that an intrusion is reasonably necessary to alleviate the threat. State v. DeMarco, 311 Conn. 510, 536 (2014); State v. Fausel, 295 Conn. 785, 800-02 (2010). Even where serious injury has yet to occur, entry may be made if ongoing violence might escalate. Brighman City v. Stuart, 547 U.S. 398 (2006).

            “[T]he business of policemen … is to act, not to speculate or meditate…. 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 1963).

In State v. DeMarco, 311 Conn. at 530-41, the court the court rejected a hard and fast rule that first responders must attempt to ascertain and exhaust their department’s collective knowledge regarding the person and/or place involved before entering a home in the face of an apparent emergency: “[i]mposing 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 … is not consistent with the purpose of the emergency exception.” The information in DeMarco was the defendant’s cell phone number, which was not readily accessible to the officers on-scene, but which may have been listed in a file located in the animal control office. Under the facts of the case, the court concluded that the police had no obligation to stand by on-scene while attempts were made to determine whether the defendant’s cell phone number was contained in a file in the animal control office and, if so, ring it.

            Of course, this does not mean that police are always free to ignore alternatives to a warrantless entry, such as a telephone call. In a case in which a phone number is known or is readily accessible, and the call may be placed without the potential for peril or additional risk, it should be attempted prior to entry.

The scope of the intrusion is strictly limited to meeting the demands posed by the emergency.  

Examples:

State v. Colon, 272 Conn. 106 (2004): Entry justified where: (1) a child had died as a result of severe injuries; (2) the mother’s explanation of the cause of the injuries was not medically plausible; and (3) the defendant, who was the mother’s boyfriend, had abruptly taken the dead child’s sister from their home. When the police arrived at the door to the apartment of the defendant’s mother, they heard a child crying and an adult running inside. The police received no response when they knocked and announced their identity and purpose.

State v. Blades, 225 Conn. 609 (1993): Entry and limited search justified where: (1) victim was reported missing by her mother; (2) victim had a stormy relationship with her husband, the defendant, and several relatives expressed fear for her safety; (3)  defendant had given his children a false story regarding their mother’s whereabouts and suddenly sent them out of state unattended; (4) defendant acted suspiciously when questioned by police; and (5) police observed a blood smear on the interior side rear common door leading to the couple’s apartment.

Arizona v. Hicks, 480 U.S. 321 (1987): Entry and limited search of a second floor apartment justified when a bullet was fired from above into and through the ceiling of a first floor apartment, striking an occupant.

The emergency justified the entry and a limited search for the shooter or the weapon, but not a search of stereo equipment for serial numbers (that were not in plain view) that an officer suspected may have been stolen. This search exceeded the scope of the emergency, which related solely to the gunshot, not stolen property.

Fires: A burning structure creates an emergency permitting police and fire officials to enter and remain without a warrant to: (1) extinguish the fire; (2) investigate the cause and origin of the blaze; (3) prevent the destruction of evidence; and (4) prevent flare-ups. Michigan v. Tyler, 436 U.S. 499 (1978); Michigan v. Clifford, 464 U.S. 287 (1984); State v. Wilson-Bey, 21 Conn. App. 162, 266-67, cert. denied, 215 Conn. 806 (1990).

            General Statutes §§ 29-310 and 29-311 expressly permit fire officials to remain in a burned structure for a reasonable time to investigate the cause and origin of the fire.

Where a structure is not destroyed and a reasonable expectation of privacy remains in a portion of it, additional investigation cannot be undertaken without a warrant after the fire has been extinguished and officials have left the scene, unless a new emergency justifies warrantless action. Michigan v. Clifford, 464 U.S. 287, 293 (1984).     

Crime scenes: Outside the context of arson, there is no “crime scene” exception to the warrant requirement which permits the police to remain in a private place and conduct a criminal investigation. Mincey v. Arizona, 437 U.S. 385 (1978); Flippo v. West Virginia, 528 U.S. 11 (1999). Once an emergency or exigency created by the commission of a crime is quelled, continued presence and further intrusion require a search warrant. Of course, the scene may be secured pending the issuance of a warrant.

            F.        Incident to Lawful Custodial Arrest

A lawful custodial arrest permits the police to conduct a full search (not just a frisk) of the arrestee’s person and the area within his immediate control. United States v. Robinson, 414 U.S. 218 (1973); California v. Chimel, 395 U.S. 752 (1967); State v. Hull, 210 Conn. 481, 495-97 (1989). This search may occur on-scene at the time of arrest or be conducted after arrest at the detention destination. United States v. Edwards, 415 U.S. 800 (1974); State v. Holliman, 20 Conn. App. 521, 528, cert. denied, 214 Conn. 805 (1990). The authority to conduct a search incident to arrest derives solely from the fact of custody and is not dependent upon the nature or seriousness of the charge. State v. Carolina, 40 Conn. App. 762 (1996).

            As long as the two events occur contemporaneously, the search may occur momentarily before the actual arrest. State v. Trine, 236 Conn. 216, 234 (1996).

            It is constitutionally permissible for the police to monitor the movements of the arrestee and to accompany him to another part of his premises for officer safety. Washington v. Chrisman, 455 U.S. 1, 7 (1982); State v. Shaw, 186 Conn. 45, 48 (1982); State v. Moore, 120 Conn. App. 512, 520, cert. denied 297 Conn. 910 (2010).

Personal Effects and Evidence of Crime

Following a lawful arrest, personal effects may be taken from the arrestee and kept in official custody without any probable cause. United States v. Edwards, 415 U.S. at 804. Compelling an arrestee to yield physical evidence in his possession or on his person, including submitting to photographing injuries, does not constitute an unreasonable search, or amount to compelled self-incrimination. State v. Morales, 164 Conn. App. 143, 172 (2016).

            Based on probable cause, police may seize evidence of a crime in the arrestee’s immediate possession, including clothing, without a warrant. United States v. Edwards, 415 U.S. at 804-06. This is true whether probable cause exists at the time of the arrest or whether it develops later as long as the seizure occurs during the custodial period. United States v. Edwards, 415 U.S. at 804-06. Items lawfully seized as evidence may be further tested and analyzed without a warrant. United States v. Edwards, 415 U.S. at 804.* 

*See further discussion under Joyce warrants.

Drunk Drivers

A valid drunk-driving arrest, by itself, justifies a warrantless breath test, but not a warrantless blood test. Birchfield v. North Dakota, 579 U.S. ___, 136 S.Ct.2160 (2016). A blood test, unlike a breath test, is physically intrusive, implicates substantial privacy interests, and is generally unnecessary given the availability of a compulsory warrantless breath test. Motorists, moreover, do not impliedly consent to submitting to a warrantless blood draw. Absent the existence of an exigent circumstance as per Missouri v. McNeely discussed above, a warrant is needed to compel a blood draw.  

Cell Phones

A cell phone lawfully may be seized from an arrestee pursuant to a lawful custodial arrest, but it cannot be searched incident to arrest. Riley v. California, 573 U.S. 373 (2014). Generally, a warrant is required, or exigent circumstances must exist to justify a warrantless search of cell phone data.

Areas Within Immediate Control

State v. Reddick, 15 Conn. App. 342, 345-46, cert. denied, 209 Conn. 819 (1988) (under pillow on bed on which arrestee lying).

State v. Fletcher, 63 Conn. App. 476, 480, cert. denied, 257 Conn. 902 (2001) (closet two to four feet from arrestee).

Recent Occupant of Motor Vehicle

The police are authorized to search the interior compartment of a vehicle incident to the arrest of a recent occupant only if: (1) the arrestee is within reaching distance of the vehicle at the time of the search; or (2) there is reason to believe that the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S. 332 (2009).

Note: The Gant case marked a significant change from New York v. Belton, 453 U.S. 454 (1981), which had come to commonly be understood as permitting a search of the interior compartment of the a vehicle incident to the arrest of a recent occupant even when there was no realistic possibility that the arrestee could gain access to the vehicle and there was no reason to believe that the vehicle contained evidence of any crime. This broad application of Belton is no longer good law.

A person who has voluntarily exited a vehicle, and begins to head away from it, before the police can initiate contact is considered the recent occupant for purposes of this exception. Thornton v. United States, 541 U.S. 615 (2004).     

Under the Connecticut Constitution, the vehicle search is permitted only while the arrestee remains at the scene of the arrest. Once the arrestee is removed from the scene, for whatever reason, the authority to search the vehicle’s interior under this exception ends. State v. Badgett, 200 Conn. 412, cert .denied, 479 U.S. 940 (1986).   

            Where a vehicle is stopped and the officer is authorized to make a custodial arrest, but elects instead to issue a summons or citation, a non-consensual search of the vehicle is not permitted. Knowles v. Iowa, 525 U.S. 113 (1998).Even where a summons is issued, and the stop technically over, the officer may attempt to secure consent to search the vehicle without informing the operator that the stop is effectively over. Ohio v. Robinette, 519 U.S. 33 (1996). 

Arrest Powers:

The authority of a peace officer to make a warrantless arrest derives from General Statutes § 54-1f (a), the provision of which are summarized in the section regarding warrantless arrests below.

            G.        Inventory Search

Police are permitted to inventory vehicles and other items lawfully in their custody so long as the inventory is conducted pursuant to a standardized departmental procedure. Illinois v. Lafayette, 462 U.S. 640 (1983) (arrestee’s shoulder bag); South Dakota v. Opperman, 428 U.S. 364 (1976) (motor vehicle).

            An inventory search derives from physical possession by the police, not probable cause or other legal authority. The purposes of the search are to insure that the item is safe and to protect the police from claims of loss. State v. Billias, 17 Conn. App. 635, 640 (1989). Consequently, always complete the inventory even upon the discovery of contraband or evidence.

The owner or possessor of a motor vehicle may, but does not have to, be given an opportunity to make arrangements to have the vehicle removed in lieu of impoundment. State v. Nelson, 17 Conn. App. 556, 569-74 (1989). 

            H.        Plain View and Plain Feel

Plain View

Law enforcement officers may seize evidence in plain view, provided that they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, and they have probable cause to believe that the item is contraband or evidence of a crime. Coolidge v. New Hampshire, 403 U.S. 443 (1971); Horton v. California, 496 U.S. 128 (1990); State v. Montgomery, 254 Conn. 694, 706 (2000); State v. Eady, 249 Conn. 431, 437, cert. denied, 528 U.S. 1030 (1999). 

Regarding motor vehicles, police may, without any need of justification, lawfully stand beside a vehicle and look inside, even with the aid of a flashlight. Texas v. Brown, 460 U.S. 730, 739 (1983); State v. Kuskowski, 200 Conn. 82, 85 (1986).

Plain Feel

An item detected lawfully through the sense of touch may be seized absent a warrant if it is immediately apparent, without removal, visual inspection or further manipulation, that the item is contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993); State v. Trine, 236 Conn. 216 (1996).

            In the Dickerson case, the plain feel exception did not apply because the nature of the item was not immediately apparent and the officer had to continually feel and manipulate it in order to conclude that it was contraband.

            In the Trine case, the plain feel exception did apply because the officer was able to immediately determine, based on his experience and knowledge of illegal drugs, that the item was contraband.

As with plain view, plain feel cannot arise as a result of a violation of the Fourth Amendment. This happened in Bond v. United States, 529 U.S. 334 (2000), when border patrol agents patted down luggage in the overhead bins of a commercial bus as they exited, in violation of the Fourth Amendment (no reasonable suspicion). They removed and searched a bag in which one agent felt what he believed was a brick of cocaine. The court refused to apply the plain feel exception because the agents had no right to conduct tactile examinations of the bags in the first place.

            I.          Protective Sweeps

Police are permitted to conduct a limited protective sweep of an area adjoining an arrest to insure their own safety and the safety of others. Maryland v. Buie, 494 U.S. 325, 334 (1990).

First Tier Sweep

Arresting officers may, as a precautionary matter and without further justification, examine areas and places immediately adjoining the place of arrest from which an attack could immediately be launched. Maryland v. Buie, 494 U.S. 325, 334 (1990); State v. Spencer, 268 Conn. 575, 591 (2004).

Second Tier Sweep

Arresting officers may sweep areas beyond those immediately adjoining the place of arrest based on a reasonable and articulable belief that the area poses a danger to those on-scene. Maryland v. Buie, 494 U.S. 325, 334 (1990); State v. Spencer, 268 Conn. 575, 593 (2004).

            J.         Abandoned Property

No reasonable expectation of privacy exists in property that has been fully abandoned. Consequently, such property may be seized and searched without a warrant. State v. Sivri, 231 Conn. 115, 149-50 (1994). Property that is disposed of as a result of unlawful police pursuit is not deemed abandoned. State v. Oquendo, 223 Conn. 635, 659-60 (1992). Property that is left unattended in a public place more or less of necessity is not deemed fully abandoned. State v. Jackson, 304 Conn.383, 408 (2012); State v. Joyce, 229 Conn. 10, 21-22 (1994). In both Jackson and Joyce, clothing was removed from the injured defendant for purposes of medical treatment, before he was suspected of any crime, and left behind when the defendant was taken to the hospital. Such personal property may be seized without a warrant for safekeeping, and inventoried, pursuant to the community caretaking function. Further “searches” of the items are governed by subsection O., relating to “Joyce” warrants     

Possessions of the Homeless

Closed containers belonging to a homeless person that are left unattended in a public place may be seized without a warrant but cannot be searched without a warrant when the owner is in police custody. State v. Mooney, 218 Conn. 85, 106 (1991).

Note: General Statutes § 1-500 sets forth Connecticut’s Homeless Person’s Bill of Rights, section (b)(5) of which grants “a reasonable expectation of privacy in his or her personal property[.]” 

Trash

Trash placed outside for pick-up is considered abandoned and may be seized and searched without a warrant. State v. DeFusco, 224 Conn. 627, 634-35 (1993).

IV.     INVESTIGATIVE DETENTIONS (“Terry Stop”)

            “The Fourth Amendment permits brief investigative stops … when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U.S. 411, 417–418 … (1981); see also Terry v. Ohio, 392 U.S. 1, 21–22 … (1968). The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependent upon both the content of information possessed by police and its degree of reliability.’ Alabama v. White, 496 U.S. 325, 330 … (1990). The standard takes into account ‘the totality of the circumstances—the whole picture.’ Cortez, 449 U.S. at 417. Although a mere ‘”hunch”‘ does not create reasonable suspicion, Terry, 392 U.S. at 27, the level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause, United States v. Sokolow, 490 U.S. 1, 7 (1989).” Navarette v. California, 572 U.S. 393, 397 (2014); see also State v. Lamme, 216 Conn. 172 (1990) (endorsing investigative detentions under Connecticut constitution).

Reasonable and Articulable Suspicion: Specific and identifiable facts which directly and/or inferentially provide a particularized and objective basis for suspecting the person being detained of criminal activity. State v. Davis, 331 Conn. 239, 256-58 (2019). This requires more than a bare hunch or speculation, but less than probable cause. A possible innocent explanation for circumstances does not defeat a reasonable view of the circumstances as suspicious. State v. Days, 89 Conn. App. 789, 802 (2005).

            Circumstances giving rise to a reasonable and articulable suspicion frequently involve some of the following: nervous, furtive or evasive behavior; unprovoked flight; proximity in time and place to crime scene; knowledge of criminal activity occurring in the area generally; conformity with material physical descriptions of potential suspects; knowledge of a suspect’s past criminal record or behavior; and tips.

In State v. Manousos, 179 Conn. App. 310, 323 (2018), the court considered the defendant’s “classic deer in the headlights” look to be a relevant, albeit not determinative, consideration. 

            Attire that is consistent with membership in a criminal gang is a pertinent factor, but does not by itself support an investigative detention. State v. Benton, 304 Conn. 838, 847-48 (2012).

Individualized Suspicion: As noted, the suspicion must be particularized to the person being detained. For example, in State v. Davis, 331 Conn. 239 (2019), the police possessed a tip that a young man among a group of men at a particular location was in the possession of a handgun, but the tipster was unable to identify which man possessed the gun and, therefore, absent particularized suspicion that Davis possessed the gun, his seizure was unlawful.

Incidental Detention of Companions: It is reasonable under the state constitution “for officers to briefly detain a suspect’s companion [for whom no individualized suspicion exists] incident to the lawful stop of the suspect when the officers reasonably believe that the suspect presents a threat to their safety.” State v. Kelly, 313 Conn. 1, 20 (2014). In Kelly, the police had reason to believe that Burgos was in possession of a firearm, and was the subject of an outstanding arrest warrant. Incidental to detaining Burgos, the police also detained the defendant, who was his companion at the time. Under these circumstances, the police had reason to believe that Burgos presented a threat to their safety and, therefore, the suspicionless detention of the defendant was constitutionally reasonably. 

Unprovoked flightby a person in an area known for narcotics trafficking, after making eye contact with a police officer patrolling in a marked vehicle, was alone held to be sufficient justification for an investigative detention. Illinois v. Wardlow, 528 U.S. 119 (2000).

“[T]he judicial concern over provoked flight does not arise every time police conduct precipitates flight, but, rather, pertains to situations in which the police have engaged in some sort of provocative conduct that could cause a reasonable individual to take flight for reasons other than criminal culpability.” (Emphasis added.) State v. Benton, 304 Conn. 838, 853 (2012). In Benton, the court rejected the defendant’s claim that the police provoked his flight when all they did was step into the roadway on which the defendant was riding his bike about twenty-five feet ahead of the defendant.

Anonymous tipsgenerally do not satisfy the requirement of reasonable suspicion because they lack a sufficient basis to assess the informant’s basis of knowledge or credibility or the tip’s reliability. Florida v. J.L., 529 U.S. 266 (2000) (anonymous tip that young man in lumberjack shirt at particular bus stop had gun).

Anonymous tips are not always deficient:

In Alabama v. White, 496 U.S. 325 (1990), the court concluded that an anonymous tip was sufficient because the tipster had accurately predicted the suspect’s future actions (he would leave particular apartment, at particular time, in particular car, and travel in particular direction). The accuracy of this information suggested that the tipster had reliable inside information.

In Navarette v. California, 572 U.S. 393 (2014), the court concluded that an anonymous tip was sufficient because the tipster used the 9-1-1 system to report firsthand observations of a particularly described vehicle that was being driven dangerously, supporting an inference of drunk driving.

As Florida v. J.L. makes clear, there is no exception to the anonymous tipster rule merely based on a report of a firearm. See also State v. Davis, 331 Conn. 239, 256 (2019).  

Use of Profiles: Criminal profiles may contribute to the formulation a reasonable and articulable suspicion, but the mere fact that a person fits a profile does not alone amount to a reasonable and articulable suspicion. United States v. Sokolow, 490 U.S. 1, 10 (1989). There must also be sufficient indication of imminent or ongoing criminal activity.  

Exit Motor Vehicle: In cases of motor vehicle Terry stops, the police may lawfully order the driver and any passengers to exit the vehicle. State v. Peterson, 320 Conn. 720, 739-40 (2016). 

Patdown/Frisk: Police are permitted to conduct a patdown, or frisk, based on a reasonable belief that the person is potentially armed or dangerous. State v. Kyles, 221 Conn. 643 (1992). A frisk involves a limited patdown of the exterior of the suspect’s clothing for weapons and it does not involve manipulation of the objects discovered. State v. Trine, 236 Conn. 216 (1996).

Nonthreatening contraband that is detected through the sense of touch during a patdown may be seized only if the nature of the item is immediately apparent on the basis of “plain feel” without further manipulation or removal. Minnesota v. Dickerson, 508 U.S. 366, 376-78 (1993); State v. Trine, 236 Conn. 216, 233-34 (1996). 

Where the detainee is an occupant or recent occupant of a motor vehicle, areas of the passenger compartment capable of concealing a weapon may protectively be searched if police have a reasonable and articulable suspicion that the person is dangerous and might access the vehicle and gain control of a weapon. Michigan v. Long, 463 U.S. 1032, 1049 (1983); State v. Butler, 296 Conn. 62, 71-72 (2010); State v. Wilkins, 240 Conn. 489, 504-11 (1997).

            Items discovered during the course of a lawful search of a detainee may give rise to probable cause to make an arrest. State v. Kyles, 221 Conn. 643, 660 (1992).

Identifications: Officers conducting an investigative detention may request that the suspect provide identification. A refusal to provide identification may constitute a violation of § 53a-167a (interference with an officer), even if it is unaccompanied by any physical force or other affirmative act, if it obstructs or hinders the investigation. State v. Aloi, 280 Conn. 824, 834-41 (2007). In Aloi, the court upheld an interference conviction because the suspect’s refusal to provide identification delayed the progress of the investigation. 

Interrogations: Police conducting an investigative detention are permitted to ask the detainee a reasonable number of questions designed to confirm or dispel suspicion. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Miranda warnings are generally not required when conducting a basic investigative detention, but should be given if probable cause to arrest begins to develop and the questioning takes on a criminal investigation purpose.

Note that there is a “public safety” exception to Miranda that applies in situations in which a threat to police and/or public safety outweighs the need for the prophylactic protections afforded by the Miranda warnings. State v. Smith, 321 Conn. 278, 285-91 (2016). Under the exception, the police are permitted to ask questions that relate to an objectively reasonable need to protect the police and/or the public from an immediate danger without administering Miranda warnings.

The Smith case is illustrative. In that case, the court concluded that the public safety exception to Miranda applied under circumstances where: “On arrival at the scene of an assault, the police spoke to the victim, who was seriously injured and who made statements that he had been beaten with a baseball bat [footnote omitted], that a gun hand been involved, and that six people had been involved, including the defendant. The victim had also told the dispatcher [during his 9-1-1 call] that six people were coming back to the scene with guns…. There were [also] a number of individuals in the area at the time that had come out of their residences and gathered at the crime scene.” When the defendant arrived on-scene shortly thereafter, to inquire whether he was being sought, the police handcuffed him for safety and frisked him and asked him, in essence, whether he had any weapons, whether he knew where the weapons were, about another person reported by the victim to have been present and armed, and what happened that night.

Based on the above circumstances, the court concluded that the police had a legitimate concern that they were in the midst of a volatile situation, that now included numerous onlookers, which involved unaccounted for dangerous weapons and guns, as well as several unaccounted for suspects, some or all of whom might have returned or been on their way back to the vicinity.

Movement of Detainee: The detainee may not be compelled to go to the station merely for further investigation. State v. Edwards, 214 Conn. 57, 72-73 (1990). Generally, detainees should not be moved from the scene of the detention and persons needed to conduct the investigation (eyewitnesses to a crime, for example) should be brought to the detainee. In State v. Mitchell, 204 Conn. 187, 199 (1987), it was deemed reasonable to transport a detainee to a hospital to be viewed by a hospitalized witness. In State v. Nash, 278 Conn. 620, 642 (2006), it was deemed reasonable to handcuff a detainee and transport him a very short distance to a police substation to complete a patdown, which officers ceased conducting at the scene based on the defendant’s verbal resistance and a gathering crowd that officers testified caused them concern for their safety. 

Use of Show-Up Identification Procedure: A “show-up” is an identification procedure in which the witness is asked to view the suspect one-on-one and not as a member of a group (either a line-up or a photo array). Show-ups are inherently suggestive and, therefore, should not be used unless necessary under the circumstances. State v. Revels, 313 Conn. 762 (2014). In Revels, the court upheld the use of a show-up where the police received a report of shots fired, discovered a man that lay dying of a gunshot wound on the street with what was likely his own firearm near his body, and thus had reason to believe that the shooter was likely on the run, in the area, and armed. Under these circumstances, which also included the fact that no firearm had been recovered from the suspect, the police needed to act quickly to determine whether the eyewitness to the shooting could or could not identify the suspect. An immediate attempt at an identification further ensured that the victim viewed the suspect while her recollection was still fresh. The court also took into account the lateness of the hour (11:40 p.m.), which it said made a quick line-up effectively impossible and a quick photo array impracticable.   

Force and Coercion: “The law recognizes the important need to allow authorities to graduate their responses to the demands of any particular situation.” State v. Nash, 278 Conn. 620, 642 (2006). Consequently, police are permitted to display or use force that is commensurate with the danger and resistance posed to effect and conduct an investigative detention. State v. Wilkins, 240 Conn. 489 (1997). Cooperative, peaceful and nonviolent suspects should not be handcuffed.

In Wilkins, for example, it was reasonable for a lone officer to remove two suspects from a vehicle at gunpoint and detain them in a cruiser. In State v. Braxton, 196 Conn. 685, 689-90 (1985), it was reasonable for a lone officer to secure a potentially violent suspect in a cruiser. In State v. Casey, 45 Conn. App. 32, 41, cert. denied, 241 Conn. 924 (1997), it was reasonable for five officers with weapons drawn to remove and secure three suspects believed to have been involved in two armed robberies and a felony murder.

            In State v. Courchesne, 296 Conn. 622, 650 (2010), it was reasonable for police to use an unmarked police vehicle to block the vehicle in which the defendant was riding to maintain the status quo and get the defendant’s attention in light of the fact that the defendant, upon arriving at his home, attempted almost immediately to drive away before officers could approach him on foot.  

Duration: “An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491 (1983). As long as the police are actively working to confirm or dispel their suspicion, there is no prescribed limitation on the duration of an investigative detention.

In State v. Casey, 45 Conn. App. 32, cert. denied, 241 Conn. 924 (1997), a fifty to sixty minute detention was upheld. In State v. Foster, 13 Conn. App. 214 (1988), a one hour detention was upheld.

Private Residences: No measure of suspicion is required to justify a knock on the door of a private residence and, if the door is voluntarily opened, an officer may enter the home for the limited purpose of patting down an occupant who does something to justify a reasonable and articulable suspicion that he is armed or poses an immediate danger. State v. Mann, 271 Conn. 300 (2004). In Mann, the police knocked on the door of an apartment acting on a tip of drug activity. The defendant voluntarily opened the door and, as soon as he saw uniformed officers, reached one hand toward a pant’s pocket and used the other to quickly attempt to close the door. This behavior permitted the police to push inside the apartment and pat down the defendant for a weapon.

V.      SEARCHES RELATING TO PAROLEES / PROBATIONERS

It is well established that parolees have a diminished expectation of privacy, even than do probationers. Samson v. California, 547 U.S. 843, 850 (2006). The particular scope of a parolee’s reasonable expectation of privacy depends on the conditions of parole. Id. at 847.

Police are permitted to search a probationer’s private residence on the basis of a reasonable suspicion of criminal activity where the probationer has agreed, as a condition of probation, to submit to warrantless searches by probation or law enforcement officials. United States v. Knights, 534 U.S. 112 (2001).

In Griffin v. Wisconsin, 483 U.S. 868 (1987), the court upheld a warrantless search of a probationer’s home conducted by a probation officer on the basis of a state regulation permitting a warrantless search on the basis of reasonable grounds to believe that contraband was present and a supervisor’s approval.

VI.     TRAFFIC STOPS

Police may stop a motor vehicle on the basis of a reasonable and articulable suspicion that a motor violation has occurred. This requires “some minimal level of objective justification for making the stop.” United States v. Sokolow, 490 U.S. 1, 7 (1983); State v Cyrus, 297 Conn. 829, 837 (2010). 

Routine Motor Vehicle Violations

The permissible scope and duration of a routine motor vehicle stop must be tailored to its underlying justification, which legitimately may include issuing a ticket and other incidentals such as attending to any safety concerns, checking the operator for outstanding warrants, and checking the licensing, registration and insurance related documents. Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609 (2015).

Activities aimed at detecting criminal wrongdoing, such as a suspicionless dog sniff of the vehicle, or off-topic inquiries of the operator such as those relating to possessing or transporting drugs, may be conducted, but only within the time it takes, or reasonably should take, to diligently complete the mission of the traffic stop. Rodriguez v. United States, supra; see also Illinois v. Caballes, 543 U.S. 405 (2005) (dog sniff); State v. Jenkins, 298 Conn. 209, 237 (2010) (off-topic inquiry).

            Do not follow Jenkins literally because it was decided after Rodriguez and the suggestion it contains, that the normal duration of the stop may be extended, but not unreasonably, may be of questionable legal validity.

A routine motor vehicle violation stop constitutes a seizure of all of the occupants, so each may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S. 249 (2007).

Following a valid routine motor vehicle stop, an officer may, without further justification, order the operator; Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); State v. Dukes, 209 Conn. 98, 122 (1988); and/or any passengers out of the vehicle. Maryland v. Wilson, 519 U.S. 408, 412 (1997).    

Additional Suspicion

After a vehicle is lawfully stopped for a routine motor vehicle violation, an officer may conduct a patdown of a passenger if the officer reasonably suspects that the passenger is armed and dangerous, even if the officer does not have reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense. The suspicion may develop during interactions on matters unrelated to basis of the stop. Arizona v. Johnson, 555 U.S. 323 (2009).

Areas of the passenger compartment capable of concealing a weapon may protectively be searched if police have a reasonable and articulable suspicion that the person is dangerous and might access the vehicle and gain control of a weapon. Michigan v. Long, 463 U.S. 1032, 1049 (1983); State v. Butler, 296 Conn. 62, 71-72 (2010).

Custodial Arrest Versus Release on Own Recognizance

General Statutes § 14-140 provides that:

(a) Any person who has been arrested by an officer for a violation of any provision of any statute relating to motor vehicles may be released, upon his own recognizance, by such officer in his discretion, unless such violation is of a provision relating to driving while under the influence of intoxicating liquor or drugs or using a motor vehicle without permission of the owner or evading responsibility for personal injury or property damage or involves the death or serious injury of another, in which cases such person shall not be released on his own recognizance.

This statute “presumes custody and then permits the officer, in his discretion, to release the offender.” State v. Wilkins, 240 Conn. 489, 499 (1997); State v. Carolina, 40 Conn. App. 762, 766, cert. denied, 237 Conn. 914 (1996). Consequently, pursuant to the statute, an officer may make a custodial arrest for a motor vehicle violation, but must make a custodial arrest for the three specific offenses that are listed.

The same “may-must” scheme appears in Practice Book § 44-23 and § 44-24, which provide as follows:

Practice Book § 44-23

(a) Except for those offenses listed in Section 44-24, and as provided in subsection (b) herein, a resident of the state of Connecticut or of a state that is a signatory with Connecticut of a no-bail compact, who has been arrested for a violation of any statute relating to motor vehicles, shall be issued a summons and complaint, and may, in the discretion of the law enforcement officer, be released without bail on his or her promise to appear.

(b) Any resident of the state of Connecticut who is charged with an infraction or violation payable by mail pursuant to statute, and any resident of a state that is a signatory with Connecticut of a no-bail compact who is charged with an infraction involving a motor vehicle or with a violation of General Statutes § 14-219(e), shall not be taken into custody, but shall be issued a summons and complaint and follow the procedure set forth in Sections 44-25 through 44-27.

Practice Book § 44-24

(a) Any person charged with an infraction or with a violation, whether or not payable by mail pursuant to statute, who is not a resident of the state of Connecticut or of a state that is a signatory with Connecticut of a no-bail compact shall be taken into custody.

(b) In the following offenses, the defendant, whether or not a resident of this state, shall be taken into custody:

(1) Driving while under the influence of intoxicating liquor or drugs;

(2) Using a motor vehicle without the permission of the owner;

(3) Evading responsibility;

(4) Any offenses involving an accident resulting in death; or

(5) Any felonies.

Basis of Stop

As long as a traffic stop has an objectively lawful basis, other subjective intentions of the officer, even if improper, are irrelevant in the context of the Fourth Amendment. Whren v. United States, 517 U.S. 806 (1996).

An objectively reasonable mistake of law may support the reasonable suspicion needed to stop a vehicle under the Fourth Amendment. Heien v. North Carolina, 574 U.S. 54 (2014) (whether state law required one or two functioning brake lights). In Heien, the mistake was objectively reasonable because the law was facially ambiguous and without judicial construction. The mistake must relate to the question of whether the defendant’s conduct was illegal. A mistake regarding the scope, application or requirements of the Fourth Amendment will not save a search or seizure under the Heien rationale.

Note: To defend against a claim that a stop is a mere pretext, it is always advisable to record the lawful basis of the stop by issuing either a citation or a written warning.

In accordance with General Statutes § 54-33m, the failure of an operator or front seat passenger to wear a seat belt (see §14-100a) does not constitute cause to search the vehicle or its contents.

Obstructed Vision or Distracted Operation

In State v. Cyrus, 297 Conn. 829, 838-44 (2010), the court concluded that the police lacked a reasonable suspicion to stop a motor vehicle for violating General Statutes § 14-99f (c) (pertaining to obstructed vision or distracted operation) based solely on the observation of a chain (necklace) hanging from the vehicle’s rear view mirror.

A reasonable suspicion that this statute was being, or was about to be violated, requires more specific observations regarding the size, shape, nature and positioning of the object, and/or its actual movement inside the vehicle.    

Sobriety Checkpoints

Police are permitted to conduct sobriety checkpoints that are administered in accordance with a plan that restricts officers’ discretion and provides for uniform initial treatment of all motorists. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990); State v. Mikolinski, 256 Conn. 543 (2001); State v. Boisvert, 40 Conn. App. 420, cert. denied, 237 Conn. 903 (1996).

As an example, the plan upheld in Mikolinski required that all vehicles be stopped and that all operators be asked the same three questions: (1) where are you coming from?; (2) have you consumed and alcohol tonight?; and, if yes,  (3) how much? If, based on this initial encounter, an officer’s suspicions are aroused, the operator would be directed to another officer for further investigation. The plan also called for the posting of signs alerting motorists of the upcoming checkpoint and precluded pursuit of turnarounds absent reckless operation.

Drug Interdiction Checkpoints

Police are not permitted to conduct motor vehicle checkpoints for the purpose of discovering and interdicting illegal drugs. Indianapolis v. Edmond, 531 U.S. 32 (2000). This is so even if the operation is conducted in the same manner as a sobriety checkpoint.

Emergency Checkpoints

The police are permitted to conduct a motor vehicle checkpoint for purposes of thwarting “an imminent terrorist attack” or apprehending a fleeing “dangerous criminal[.]” Indianapolis v. Edmond, 531 U.S. 32 (2000).

Information-Seeking Checkpoints

The police are permitted to conduct a motor vehicle checkpoint to seek witnesses and information relating to a crime that recently occurred in the vicinity. Illinois v. Lidster, 540 U.S. 419 (2004). In Lidster, every motorist was briefly stopped and asked about a fatal hit-and-run accident that had occurred at the location one week earlier. Note: Conducted in an unreasonable manner, a checkpoint of this type will be unconstitutional. 

VII.      SENSORY ENHANCEMENTS – TECHNOLOGY

A.        Dog Sniffs

In Florida v. Jardines, 569  U.S. 1 (2013), the police brought a specially trained drug detection dog onto the front porch of a private residence and directed it to sniff the front door area. The court concluded that, in doing so, the police violated the 4^th Amendment by exceeding the scope of their implied public invitation to enter upon private property and intruding into the home’s curtilage.      

            In State v. Kono, 324 Conn. 80 (2017), the court held that the warrantless dog sniff of the front door of a residential condominium for marijuana, launched from the common hallway in a multiunit complex, constituted an unlawful search under the state constitution. The court concluded that while the police had a lawful right to be in the common hallway, their use therein of a specially trained drug detection dog to sniff the front door of a private residence was akin to using sensory enhancing technology and invaded the defendant’s reasonable expectation of privacy in his residence regardless of the fact that dog could only detect the odor of contraband substances.  

Kono does not implicate:

(1) the ability of the police to lawfully enter, and be physically present in, the common area of a multiunit structure based on proper consent, or consistent with the implied invitation that exists for other nonresidents to do so. Information obtained via the officer’s own unenhanced senses while lawfully present in a common area remains fair game.     

(2) the ability of the police to lawfully use a specially trained drug detection dog to sniff motor vehicles and personal possessions such as luggage in public places. Note, however, that Connecticut has yet to address the question whether the use of a specially trained dog in such applications constitutes a search under the state constitution.  

(3) the ability of the police to lawfully use a specially trained detection dog without a warrant pursuant to an exception to the warrant requirement, such as exigent circumstances or an emergency. Practically speaking, such circumstances may be rare in the case of a drug dog, but one can imagine such circumstances arising in the case of a tracking dog.      

A drug dog sniff of the exterior of a lawfully stopped vehicle is not a search and may be conducted absent any particularized suspicion so long as doing so does not prolong the stop beyond the time it takes, or reasonably should take, to diligently complete the mission of the traffic stop. Bear in mind that the scope and duration of the stop must be tailored to its underlying justification, which legitimately may include issuing a ticket and other incidentals such as attending to any safety concerns, checking the operator for outstanding warrants, and checking the licensing, registration and insurance related documents. Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609 (2015); Illinois v. Caballes, 543 U.S. 405 (2005). As Rodriguez makes clear, under no circumstances, absent reasonable suspicion, must the stop be extended beyond the point at which its mission is completed, or reasonably should have been completed, to conduct a sniff, even if only for a minimal amount of time.   

The Connecticut Supreme Court has upheld dog sniffs on the basis of a reasonable and particular suspicion, but has had no occasion to pass on the question of a sniff done without any suspicion. State v. Waz, 240 Conn. 365, 371 (1997); State v. Torres, 230 Conn. 372 (1994).

B.        Technological Enhancements Generally

The use of a device, not in general public use, to explore the details of a home that would previously have been unknowable without physical intrusion, constitutes a search and requires a warrant. Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging device used to detect heat waste emanating from private residence).

C.        Global Positioning Satellite Tracking

The warrantless and nonconsensual installation of a GPS device to the underbody of the target’s vehicle while it is publicly parked, and the use of the device to monitor the vehicle’s movement and position, constitutes a “search” for purposes of the Fourth Amendment. United States v. Jones, 565 U.S. 400 (2012).

            A majority of the court held that the placement of the device on the vehicle amounted to a common law trespass – i.e., a physical intrusion upon a constitutionally protected area. The Fourth Amendment protects persons, houses, papers and effects. A vehicle is an “effect.”

The Jones case was not decided on the basis of the more commonly known and applied “reasonable expectation of privacy” test, which does not necessarily require a physical trespass or intrusion. The question whether and under what circumstances GPS tracking might intrude upon a reasonable expectation of privacy is open and unsettled.

Notes: Jones does not preclude visually observing and following a vehicle from lawful vantage points. It is distinct from cases such as U.S. v. Knotts, 460 U.S. 276 (1983), and U.S. v. Karo, 468 U.S. 705 (1984), in which tracking devices were placed into a container with the consent of the container’s owner prior to coming into the physical possession of the target, which the government used to track the container.

Connecticut’s search warrant statutes – 54-33a and 54-33c – were amended in 2014 to accommodate the issuance and execution of a tracking device warrant.

VIII.     TELECOMMUNICATIONS

A.        Cell Phones

A person possesses a reasonable expectation of privacy in the data contained in his or her cell phone, including the call log. Riley v. California, 573 U.S. 373 (2014). The Connecticut Supreme Court reached the same conclusion in State v. Boyd, 295 Conn. 707, 720-21 (2010). In Riley, the court refused to extend the incident to lawful custodial arrest exception to the warrant requirement to cell phone data.

A search of a cell phone must, therefore, generally be conducted pursuant to a search warrant. Given the lack of clear and consistent case law, a cell phone that is found by the police and seized for safekeeping should be considered lost or mislaid property and its contents examined only to the extent needed to determine its owner. 

            B.        Historical Cell Site Location Information

It is a search under the Fourth Amendment to access historical cell phone records that provide a comprehensive chronicle of the user’s past movements (so-called cell-site or CSLI data) because the user retains a reasonable expectation of privacy in such movements despite providing a record thereof to a third-party service provider. Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018); see also State v. Brown, 331 Conn. 258 (2019) (applying Carpenter). 

Since 2016, General Statutes §54-47aa requires a showing of probable in order to obtain an order that includes historical CSLI, which information is now included in the definition of “geo-location data.”

Carpenter does not implicate so-called “tower dumps” whereby all the numbers connecting to a cell tower at a particular time and place are accessed. Carpenter also acknowledges that an exception to the warrant requirement, such as the exigent circumstances doctrine, may apply and justify access to CSLI without a warrant based on probable cause.  

            C.        Ex Parte Orders

General Statutes § 54-47aa authorizes the police to apply to a judge for an ex parte order compelling telecommunication and computing service providers to disclose basic subscriber information – defined in 54-47aa (1); call-identifying information – defined in 54-47aa (2); geo-location data – defined in 54-47aa (6); and content. It also regulates the use of cell site simulator devices – defined in 54-47aa (3).

An order compelling the disclosure of basic subscriber information and call-identifying information may be obtained from a judge based upon the officer’s sworn statement of a reasonable and articulable suspicion that a crime has been or is being committed and that such information is relevant and material to an ongoing criminal investigation. An order compelling the disclosure of geo-location data and/or content requires a judicial finding of probable cause to believe that a crime has been or is being committed and that such information is relevant and material to an ongoing criminal investigation.

An order permitting the use of a cell site simulator device to obtain geo-location data may be obtained from a judge based upon the officer’s sworn statement that there is probable cause to believe that a crime has been or is being committed and that such information is relevant and material to an ongoing criminal investigation.

An officer may install and use a cell site simulator device without an order for a period not exceeding 48 hours when (1) facts exist upon which to base a belief that geo-location data is relevant and material to an ongoing criminal investigation; (2) the officer believes that exigent circumstances exist; and (3) the facts support such a belief.

An officer also may apply directly to a service provider for real-time and/or historical geo-location data and the provider may provide such data upon the applicant officer swearing that (1) facts exist upon which to base a belief that the data is relevant and material to an ongoing criminal investigation; (2) he believes that exigent circumstances exist; and (3) facts supporting such a belief exist.

Note: The statute sets forth a number of other requirements regarding notice to the subscriber, duration of orders and use of devices, and the maintenance of information so always consult the current version of the statute and/or seek the advice of the state’s attorney’s office. 

D.        Pen Registers

A “pen register” is a device that identifies telephone numbers going into and coming out of a particular phone line. These devices do not record sound or communications.

Pen registers do not constitute a search because a person has no reasonable expectation of privacy regarding the numbers calling in or calling out. Smith v. Maryland, 442 U.S. 735, 742 (1979); State v. Ralston, 7 Conn. App. 660, 665 n. 1 (1985).

E.        Eavesdropping

In accordance with General Statutes §§ 53a-187 through 53a-189, it is criminal to eavesdrop or tamper with private communications.

Exceptions are made for lawful activities by law enforcement officers.

Civil liability for illegally recording private telephonic communication is imposed in accordance with General Statutes § 52-570d. 

            F.        Wiretapping

The interception of telephonic communications by law enforcement officials is authorized by General Statutes § 54-41a (the Wiretap Act) and requires judicial approval.

Wireless signals transmitted by a cordless telephone are protected “wire communications” under the Wiretap Act. State v. McVeigh, 224 Conn. 593 (1993).

Interceptions conducted with the consent of one party to a telephonic conversation do not fall within the scope of the Wiretap Act and need no prior authorization. State v. Grullon, 212 Conn. 195 (1989).

The Wiretap Act applies only to surreptitious monitoring by “investigative officers.” Washington v. Meachum, 238 Conn. 692 (1996) (prison regulations permitting monitoring of certain inmate calls did not violate the Act).

IX.       “JOYCE” WARRANTS  

A so-called “Joyce” warrant stems from State v. Joyce, 229 Conn. 10, 23-27 (1994). It is nothing more than a search warrant authorizing the police to “search” an item (typically by subjecting it to forensic testing) which they came to possess lawfully, but lack lawful authority to search beyond a visual inspection or inventory without a warrant.  

In Joyce, the defendant was injured in a fire and his clothes were cut off him by EMTs and left on the roadside. The police took custody of the clothing pursuant to their community caretaking function before any criminal activity was suspected or any criminal investigation underway. When the ensuing investigation led the police to believe that the defendant had committed arson, acting without a search warrant, they submitted the clothing to the forensic lab for a chemical analysis. Our Supreme Court determined that the warrantless chemical analysis constituted a search, which violated the state constitution because there is a reasonable expectation of privacy in the clothes that one wears. State v. Jackson, 304 Conn. 383, 408 (2012) (person has expectation of privacy in hidden or invisible information contained in clothing).   

A warrant was required in Joyce because the community caretaking function did not authorize a search of the clothing (beyond, of course, a visual inspection or an inventory of the contents upon taking possession). Consequently, further legal authorization in the form of a warrant or an applicable exception to the warrant requirement was required to justify any further intrusion into the person’s expectation of privacy in the clothing. State v. Jackson, 304 Conn. 383, 408 (2012)

Joyce does not apply to require further legal authorization where the police have lawfully seized an item for criminal investigatory purposes. Generally speaking, the lawful seizure of an item for investigatory purposes legitimately breaches any expectation of privacy therein. An example is State v. Bernier, 246 Conn. 63 (1998). In Bernier, residential flooring samples had been taken by the police and fire marshals pursuant to a statutory scheme that authorized them to undertake cause and origin investigations of fires. Acting without a warrant, the police submitted the flooring to the forensic laboratory for chemical analyses. No warrant was required to do so because whatever expectation of privacy the defendant possessed in the chemical content of the flooring, if any, was breached by its lawful seizure for cause and origin investigatory purposes. Another example is United States v. Edwards, 415 U.S. 800 (1974), which held that no Fourth Amendment violation occurred where clothing, which was seized incident to lawful custodial arrest based on probable cause to believe it contained evidence of the crime, was later subjected to warrantless forensic testing. Another example is State v. Michael D., 153 Conn. App. 296 (2014). In Michael D., the police received a pair of shorts belonging to the victim from the victim’s mother, who had taken them from the defendant’s vehicle, and given them to the police for investigatory purposes when her daughter reported being abused by the defendant.

Note: It is never a bad idea to obtain a search warrant prior to subjecting items lawfully seized, even as evidence for investigatory purposes, to forensic testing, and the forensic laboratory may require a warrant. Please consult your local state’s attorney’s office for advice and guidance.

Extending An Initial Seizure

In a situation in which the police lawfully come into possession of an item for non-evidentiary and non-investigative purposes, they may retain possession of the item for such purposes, without a warrant, based on probable cause to believe that the item was used in the commission of a crime or is evidence of a crime. State v. Jones, 320 Conn. 22 (2015).

In Jones,for example, the police had cause to interact with the defendant, who they believed at the time was the victim of a crime. Due to the defendant’s intoxication, the police intended to drive him home, but required him to submit to a patdown for safety sake before getting into the cruiser. The defendant admitted to having a knife, which he voluntarily surrendered to the police. The defendant was told that he could reclaim the knife at the police station when he was sober. Shortly after dropping the defendant at home, the police developed probable cause to believe that he had used a sharp instrument to commit an assault. The defendant was arrested, and the police retained the knife, which they logged in and held as evidence of the crime of arrest. 

X.        THIRD PARTY SEARCHES

Constitutional restrictions apply only as to the actions of government officials and their agents, not the actions of private citizens. Burdeau v. McDowell, 256 U.S. 465, 475 (1921); State v. Smith, 40 Conn. App. 789, 793, cert. denied, 237 Conn. 915 (1996). Constitutional restrictions do apply to private citizens acting as agents or instruments of the government. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).

In determining whether a third party is acting as an agent of law enforcement, courts consider the following:

-who or what initiated the third party to act;

-who determined that the fruit of the action was to be given to the government;

-the nature and extent of contact between the third party and government officials;

-whether government officials had prior knowledge of the action.

XI.       STRIP SEARCHES AND BODY CAVITY SEARCHES

Strip searches and body cavity of persons are strictly governed by General Statutes §§ 54-33k and 54-33l.

A “strip search”is defined as having an arrested person remove or rearrange some or all of his clothing to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments used to cloth these parts of the body.

In accordance with § 54-33l (a), no one arrested for a motor vehicle violation or a misdemeanor shall be strip searched unless there is reasonable belief that the person is concealing a weapon, a controlled substance or contraband.

Strip searches must be conducted by a person the same sex as the suspect and where they cannot be observed by persons not physically conducting the search or not absolutely necessary to conduct the search.

Any officer conducting a strip search shall obtain the written permission of the police chief or his agent and prepare a report of the search. 

The statute does not define the term “body cavity search.” The language of the statute suggests, however, that a “strip search” and a “body cavity” search are distinct and different. State v. Robinson, 105 Conn. App. 179, 198 (2008).

No search of any body cavity other than the mouth may be conducted without a search warrant, which, of course, requires probable cause. The warrant must specify that the search be performed under sanitary conditions and be conducted either by or under the supervision of a person licensed to practice medicine.

The provisions of this statute do not apply to searches conducted incident to a lawful felony arrest. State v. Jenkins, 82 Conn. App. 111, 115-19 (2004). Police are permitted to strip search a person incident to a lawful felony arrest based on a reasonable and articulable suspicion that the person is concealing a weapon or contraband. The search must be conducted in a reasonable manner. In Jenkins, the police reasonably suspected that the arrestee was concealing narcotics, took him out of public view to an area beside a building, and pulled his pants and underwear away form his body to retrieve drugs concealed in the cleft of his buttocks.

XII.      FINANCIAL RECORDS

General Statutes §§ 36a-43 and 44 govern the disclosure of financial records held by a financial institution to lawful authority.

XIII.     JOURNALIST OR NEWS ORGANIZATION

General Statutes §§ 54-33i and 33j govern searches of journalists or news organizations.

In accordance with § 54-33j, “[n]o search warrant … may be issued to search any place or seize anything in the possession, custody or control of any journalist or news organization unless such warrant is issued upon probable cause that such person or organization has committed or is committing the offense related to the property named in the warrant or such property constitutes contraband or an instrumentality of a crime.”              

XIV.    SCHOOL LOCKERS

General Statutes § 54-33n governs searches of school lockers and provides that:

All local and regional boards of education and all private elementary and secondary schools may authorize the search by school or law enforcement officials of lockers and other school property available for use by students for the presence of weapons, contraband of fruits of a crime if (1) the search is justified at its inception and (2) the search as actually conducted is reasonably related in scope to the circumstances which justified the interference in the first place. A search is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. A search is reasonably related in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

The statute is based upon New Jersey v. T.L.O., 469 U.S. 325 (1985), in which the United States Supreme Court concluded that school related searches of students are governed by Fourth Amendment reasonableness principles and that such searches pass constitutional muster if they are based on reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.  

XV.      WARRANTLESS ARRESTS

General Statutes § 54-1f governs the authority of a peace officer to make a warrantless arrest and provides as follows:

 (a) For purposes of this section, the respective precinct or jurisdiction of a state marshal or judicial marshal shall be wherever such marshal is required to perform duties. Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others, provided that no constable elected pursuant to the provisions of section 9-200 shall be considered a peace officer for the purposes of this subsection, unless the town in which such constable holds office provides, by ordinance, that constables shall be considered peace officers for the purposes of this subsection.

(b) Members of the Division of State Police within the Department of Emergency Services and Public Protection or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.

(c) Members of any local police department or the Office of State Capitol Police and constables and state marshals who are certified under the provisions of sections 7-294a to 7-294e, inclusive, and who perform criminal law enforcement duties, when in immediate pursuit of a person who may be arrested under the provisions of this section, except a person alleged to have violated only a municipal ordinance, are authorized to pursue such person outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed.

(d) Any person arrested pursuant to this section shall be presented with reasonable promptness before proper authority.

General Statutes § 53a-3 (9) provides as follows:      

“Peace officer” means a member of the Division of State Police within the Department of Emergency Services and Public Protection or an organized local police department, a chief inspector or inspector in the Division of Criminal Justice, a state marshal while exercising authority granted under any provision of the general statutes, a judicial marshal in the performance of the duties of a judicial marshal, a conservation officer or special conservation officer, as defined in section 26-5, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, 29-18a or 29-19, an adult probation officer, an official of the Department of Correction authorized by the Commissioner of Correction to make arrests in a correctional institution or facility, any investigator in the investigations unit of the office of the State Treasurer, a United States marshal or deputy marshal, any special agent of the federal government authorized to enforce the provisions of Title 21 of the United States Code, or a member of a law enforcement unit of the Mashantucket Pequot Tribe or the Mohegan Tribe of Indians of Connecticut created and governed by a memorandum of agreement under section 47-65c who is certified as a police officer by the Police Officer Standards and Training Council pursuant to sections 7-294a to 7-294e, inclusive[.]

Note: Title 21 of the U.S. Code pertains to food and drugs.

            Objective Reasonableness

Because probable cause is an objective standard, an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. Devenpeck v. Alford, 543 U.S. 146 (2004).

Offense

The word “offense,” as used in subsection (a), includes motor vehicle violations; State v. Harrison, 228 Conn. 758, 762 (1994); and misdemeanors. State v. Santiago, 224 Conn. 494, 498 (1993). The arrest must be based on probable cause. State  v. Santiago, 224 Conn. at 498.

The term “reasonable grounds” is equated with probable cause. State v. Velez, 215 Conn. 667, 672 (1990). Probable cause means information that is more than mere suspicion, but less than needed to convict. State v. Copeland, 205 Conn. 201, 213 (1987); State v. Cobuzzi, 161 Conn. 371, 376 (1971), cert. denied, 404 U.S. 1017 (1972). Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has trustworthy information are sufficient to justify the belief of a reasonable person that an offense has been or is being committed. State v. Copeland, 205 Conn. at 213. Probable cause is a flexible common sense standard, not a legally technical one. Texas v. Brown, 460 U.S. 730, 742 (1983).

Immediate Pursuit

The term “immediate pursuit” means pursuit that is “conducted without undue delay and is accomplished at the earliest safe opportunity. No chase is required for ‘immediate pursuit.’ ” State v. Kowal, 31 Conn. App. 669, 674, cert. denied, 227 Conn. 923 (1993). Immediate pursuit essentially means to follow without delay and the “pursuit” may be initiated on the basis of the personal observations of the officer or on the basis of speedy information from others. State v. McCullough, 88 Conn. App. 110, 120-22 (2005).

Immediate pursuit does not mean “hot pursuit.” Hot pursuit refers to the exigency of pursuing a fleeing suspect. United States v. Santana, 427 U.S. 38, 43 (1976); State v. Cappozziello, 21 Conn. App. 326, 329-30, cert. denied, 215 Conn. 816 (1990).

Entry Into Home

As a general rule, the police cannot make a warrantless and nonconsenual entry into a private dwelling to make a felony or misdemeanor arrest. Payton v. New York, 445 U.S. 573, 589-90 (1980). The exigent circumstances doctrine discussed below is an exception to this rule.

In Payton, police had probable cause to believe that the suspect had committed murder and, with no search or arrest warrant, they forcibly entered the suspect’s apartment. Inside they found some evidence, but no suspect. The entry was deemed illegal and the evidence was suppressed.

Exigent Circumstances

The police are permitted to enter a home to make a warrantless arrest supported by probable cause if exigent circumstances exist.

“The test of exigent circumstances for the making of an arrest for a felony without a warrant … is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.” State v. Guertin, 190 Conn. 440, 453 (1983).

The following factors, though not determinative, support the existence of exigent circumstances: (1) the offense is serious; (2) the offense involved violence; (3) a reasonable belief that the suspect is armed; (4) a likelihood that the suspect will escape if not quickly apprehended. A consensual or peaceable entry is ideal, but a forcible entry is justified where the degree of the exigency is heightened.

The exigent circumstances test is objective and asks what a reasonable, well-trained officer would believe, not what the arresting officer actually did believe. State v. Guertin, 190 Conn. at 453.

In State v. Guertin, 190 Conn. 440 (1983), the Court found that exigent circumstances justified a warrantless entry into a room at the YMCA where the police had probable cause to believe that the occupant had committed a burglary and a rape several hours before and where, after knocking on the door and announcing themselves, police heard the suspect say he would be a couple of minutes and then heard the sound of a window being raised. 

In State v. Scott, 27 Conn. App. 403, 411, cert. denied, 222 Conn. 911 (1992), the Court found that exigent circumstances justified a warrantless entry into a home where the police had probable cause to believe that the occupant had repeatedly shot a man on the street four hours earlier.

Public Place

A warrantless arrest authorized by § 54-1f can always be made when the arrest takes place in a public place.

A suspect who is standing in the doorway of a private residence is considered to be in a public place and may be arrested from that location without a warrant. United States v. Santana, 427 U.S. 38, 40 (1976); State v. Santiago, 224 Conn. 494, 499 (1993).

In Santana, the defendant was standing directly in the doorway of her house: “[O]ne step forward would have put her outside, one step backward would have put her in the vestibule of her residence.” As police approached to arrest her, she retreated into the house where police followed and made a warrantless arrest. The Court upheld the arrest concluding that the open doorway of the home was a public place.

In accordance with Santana, a suspect may not defeat an arrest, set in motion in a public place, by fleeing to a private place, and the police are permitted to make a warrantless entry into that private place to effect the arrest. State v. Capozziello, 21 Conn. App. 326, 329-30, cert. denied, 215 Conn. 816 (1990).

In Santiago, police responded to a report that someone had been threatened with a handgun and knocked on the defendant’s front door. The defendant answered the knock, opened the door and stood in the doorway conversing with police. He refused to allow police to search his house. The officer left the defendant momentarily to consult with his superior, then returned and arrested the defendant without a warrant for the misdemeanor charge of threatening as he stood in his doorway. The Court upheld the arrest in accordance with Santana. It was important in this case that the police did not enter the home itself and that the defendant willingly remained on the doorstep at the officer’s request.

Be advised that the Court might view differently a warrantless doorway arrest for a misdemeanor where the suspect has been tricked or coerced by police to answer the door or where police employ a “knock and grab” strategy.

Custodial Arrest For Minor Offense Punishable Only By Fine

The Fourth Amendment does not forbid a warrantless custodial arrest for a minor offense punishable only by a fine. Atwater v. Lago Vista, 532 U.S. 318 (2001). In Atwater, the defendant was arrested for a misdemeanor seat belt violation, handcuffed, taken to the station, booked, searched and jailed for an hour pending arraignment and release on bond. Absent a compelling reason, a Connecticut court might be reluctant to condone this level of intrusion under the state constitution.

Extraterritoriality

” ‘As a general rule, a police officer acting outside his or her jurisdiction does not act in his or her official capacity and does not have any official power to arrest.’ ” State v. Stevens, 224 Conn. 730, 740 (1993). The lack of official power does not necessarily render extraterritorial actions constitutionally unreasonable or invalid. State v. Jackson, 304 Conn. 383, 406-07 & n.16 (2012) (“[C]onduct by a local Connecticut police department that would be constitutional if it occurred in this state does not violate the fourth amendment merely because it occurred in another state.”)

            General Statutes § 54-1f (c) “authorizes police officers to continue immediate pursuit beyond their respective jurisdictions of any offender who may be arrested under the provisions of [§ 54-1f].” State v. Harrison, 228 Conn. 758, 762 (1994); State v. McCullough, 88 Conn. App. 110 (2005). The immediate pursuit may be based upon the officer’s own observations of a crime occurring in his/her jurisdiction, as was the case in Harrison, where a Branford police officer observed a motor vehicle violation occur in Branford, but could not stop the offender until his car had crossed the line into East Haven. Or, the immediate pursuit may be based upon the speedy information of others, as was the case in McCullough, where a Coventry police officer crossed the line into Bolton to conduct a DUI detention and investigation based upon the speedy information of an off-duty Manchester police officer (who witnessed the operator driving erratically in Coventry). 

Judicial Probable Cause Determination

A person arrested without a warrant must be presented to a court for a judicial probable cause determination within 48 hours of the arrest. Riverside County, Calif. v. McLaughlin, 500 U.S. 44 (1991). In Connecticut, this is an arraignment. 

XVI.    FELONY ARREST WARRANT

The execution of an arrest warrant is governed by the Connecticut Practice Book

Practice Book 36-1: Authorizes issuance of arrest warrant if the judicial authority determines that affidavit establishes probable cause.

Practice Book 36-2: Requires that affidavits in support of arrest warrant applications for which probable cause has been found shall be filed with the court clerk together with the return of the warrant.

    Supporting affidavits are open to public inspection unless the court orders them sealed from public inspection upon written request of prosecutor and for good cause shown. There is no limit on disclosure to defense counsel, but the court may restrict counsel’s further disclosure of the contents. Nondisclosure orders shall be for a specific time, not to exceed two weeks. The prosecutor may seek an extension of the order.

Practice Book 36-3: “The warrant shall be signed by the judicial authority and shall contain the name of the accused person, or if such name is unknown, any name or physical description by which the accused can be identified with reasonable certainty, and the conditions of release fixed, if any. It shall state the offense charged and direct any officer authorized to execute it to arrest the accused person and to bring him or her before a judicial authority without undue delay.”

Practice Book 36-4: Allows judicial authority, instead of issuing a warrant, to direct the use of a summons and complaint unless:

-the offense is a felony.

-there is substantial likelihood that accused will not appear in court.

-the accused is likely to cause injury to self or others or serious damage to property.

-the offense is likely to continue if accused is not taken into custody.

-custody is necessary for protection of accused or to provide him with medical or other aid.

-the accused fails to satisfactorily identify himself.

-the accused has previously failed to appear.

Failure to comply with this rule is not grounds for dismissal, but entitles accused to be released on promise to appear.

Practice Book 36-5: Provides that the officer executing the warrant may do so anywhere in state upon apprehension of the accused. The rule also provides that the accused shall be taken into custody and served with a copy of the warrant.

Practice Book 36-6: Judicial authority or prosecutor may request that any unserved arrest warrant be returned for cancellation.

Entry of Suspect’s Residence Based on Valid Arrest Warrant

An arrest warrant carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Payton v. New York, 445 U.S. 573, 603 (1980). The police must have reason to believe that the suspect is presently within the home in order to make a warrantless entry to execute the arrest warrant.

Entry of Third Party Residence Based on Valid Arrest Warrant

An arrest warrant does not justify entry into a third person’s home to search for the subject of an arrest warrant. Steagald v. United States, 451 U.S. 204, 215-16 (1981). Absent exigent circumstances, therefore, police cannot enter the residence of a third party to serve an arrest warrant on a suspect. A search warrant must be obtained to enter the target premises.

Factors Bearing On Residence:

The following factors may be helpful in formulating probable cause to believe that a suspect is residing in a particular dwelling:

1. physical presence at the dwelling for a substantial length of time prior to arrest;

2. regularity and continuity of presence in dwelling, particularly whether suspect sleeps there;

3. whether host grants suspect exclusive use of particular area of dwelling;

4. whether suspect stores clothes or possessions at dwelling;

5. whether suspect receives mail at dwelling or has name on door or mailbox;

6. monetary or other contributions to household;

7. blood or marital relation between suspect and host. 

Deception in Execution of Arrest Warrant

“There is no constitutional mandate forbidding the use of deception in executing a valid arrest warrant.” Leahy v. United States, 272 F.2d 487, 490 (9^th Cir. 1959), cert. denied, 364 U.S. 945 (1961); see State v. Sitaras, 106 Conn. App. 493, 496 n.4 (2008).

Scope of Search Made When Executing Arrest Warrant:

When executing an arrest warrant in a dwelling, police may examine those places where the suspect could conceal himself. Further searching must be based upon additional justification. Warden v. Hayden, 387 U.S. 294 (1967).

Of course, officers may monitor the movements of an arrestee and accompany him wherever he must go.

Arrest Of Homeless Person / Seizure Of Possessions:

The arrest of a homeless person justifies a search incident to arrest and also permits the seizure of items in the suspect’s possession.

If, while a homeless person is in custody, police discover his belongings in a public place, the items may be seized without a warrant, but sealed containers cannot be searched without a warrant. State v. Mooney, 218 Conn. 85 (1991). If taken into police custody, such items may be subject to a standardized inventory search.

Protective Sweeps

See Warrantless Searches – Protective Sweeps subsection 

Search Incident to Arrest

See Warrantless Searches – Incident to Lawful Custodial Arrest subsection

Interfering With Officer and Resisting Arrest

Under General Statutes § 53a-167a, a person is guilty of interfering with an officer when he intentionally obstructs, resists, hinders, or endangers a police officer in the performance of his duties. This includes lying and misleading behavior that thwarts the performance of duties or inciting others to interfere with the officer.

General Rule: Under General Statutes § 53a-23, a person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether or not the  arrest is legal.

Exceptions To The Rule:

In re Adalberto S, 27 Conn. App. 49, 58, cert. denied, 222 Conn. 903 (1992): The use of reasonable force to defend oneself against an assault by an arresting officer may be justified.

State v. Brocuglio, 264 Conn. 778, 791-94 (2003): A person may resist an unlawful entry by police, but only with conduct of their own that is not criminal.

XVII.   DNA SAMPLE

General Statutes § 54-102g provides in pertinent part:

(a) Whenever any person is arrested on or after October 1, 2011, for the commission of a serious felony and, prior to such arrest, has been convicted of a felony but has not submitted to the taking of a blood or other biological sample for DNA (deoxyribonucleic acid) analysis pursuant to this section, the law enforcement agency that arrested such person shall, as available resources allow, require such person to submit to the taking of a blood or other biological sample for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. If the law enforcement agency requires such person to submit to the taking of such blood or other biological sample, such person shall submit to the taking of such sample prior to release from custody and at such time and place as the agency may specify. For purposes of this subsection, “serious felony” means a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-56, 53a-56a, 53a-56b, 53a-57, 53a-59, 53a-59a, 53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-70, 53a-70a, 53a-70b, 53a-72b, 53a-92, 53a-92a, 53a-94, 53a-94a, 53a-95, 53a-100aa, 53a-101, 53a-102, 53a-102a, 53a-103a, 53a-111, 53a-112, 53a-134, 53a-135, 53a-136, 53a-167c, 53a-179b, 53a-179c or 53a-181c.

                        *                                              *                                              *

(i) Any person who refuses to submit to the taking of a blood or other biological sample pursuant to this section or wilfully fails to appear at the time and place specified pursuant to subsection (b) of this section for the taking of a blood or other biological sample shall be guilty of a class D felony. Any person required to submit to the taking of a blood or other biological sample pursuant to subsection (c) of this section who wilfully fails to appear to submit to the taking of such sample within five business days of the time specified by the Court Support Services Division may be arrested pursuant to a warrant issued under section 54-2a.

(j) If any person required to submit to the taking of a blood or other biological sample pursuant to any provision of this section is in the custody of the Commissioner of Correction and refuses to submit to the taking of such sample, the commissioner or the commissioner’s designee may use reasonable force to obtain a blood or other biological sample from such person.

(Emphasis added.)

In Maryland v. King, 569 U.S. 435 (2014), the court concluded that a search using buccal swab to obtain defendant’s DNA sample after arrest for serious offense was reasonable under Fourth Amendment. It did not address the constitutionality of a blood draw in this context, but that is constitutionally precarious, despite the language of 54-102g, and should be avoided in lieu of a swab.