The limits of privacy rights under the Fourth Amendment were the focus of two cases recent Connecticut Supreme Court decisions.
In once case, justices ruled that a warrantless police search of a house that turned up many neglected dogs was not illegal because a strong odor and other evidence outside the house indicated that “an emergency existed.” In another case, the court found that there was no expectation of privacy in the common area of a boarding house, allowing a conviction on weapons charges to stand.
Between the two cases, whose decisions were released April 14, “it was not a good day for the Fourth Amendment in Connecticut,” said Stamford solo attorney Lindy Urso. “Any time there is a warrantless intrusion into a home, it emboldens the police, and waters down the protection of the Fourth Amendment.”
It wasn’t a good day for Urso either — he was the trial defense lawyer in both cases. “They were both referrals,” Urso said. “One was from a former client, the other from a mutual friend.”
The first search and seizure case, State v. DeMarco, involved a dog owner who was accused of animal cruelty in 2007. Faced with evidence that police found and seized 21 malnourished dogs from his home, Michael DeMarco pleaded no contest in 2008, and was sentenced to probation for two years. The sentence was later suspended, however, when DeMarco’s appealed, claiming police violated his constitutional rights by not trying to reach him by telephone before entering the home.
According to court records, DeMarco owned a large number of beagles, which led to complaints from neighbors about barking, unrestrained dogs and smells. Stamford animal control officers were routinely called in response to those complaints, and would typically leave notices for DeMarco to call them.
The last time this occurred, in October 2007, DeMarco did not respond to notices left on his door. When animal control officers returned 10 days later, they found the previous notices where they had left them. There was also several weeks’ worth of mail stuffed in the mailbox, and what the officers described as “a horrible smell” coming from the home.
The animal control officers decided something was wrong, Urso said. Evenutally, they called police, who in turn called firefighters, who went in the house in protective gear. Inside, authorities found the 21 neglected dogs, which were seized.
Police claimed they did not need a warrant to enter DeMarco’s home, because of an exception of the law that allows them to conduct warrantless searches when facing an emergency.
Urso said his appeal of the conviction was based “on prinicipal.” The key to his argument, he said, was that too much time had elapsed from when police officers first arrived on the scene, and when they ultimately entered the home, to support claims they were acting in “emergency circumstances.”
In 2010, the state Appellate Court agreed with Urso that the “emergency circumstances” exception did not apply. But the state appealed, and the Supreme Court justices voted 4-3 to reverse the judgment.
“Mail was piling up, the same vehicles were at the premises; a police officer, reasonably would have believed an emergency,” Justice Dennis Eveleigh wrote for the majority, joined by Justice Carmen Espinosa, Senior Justice Christine Vertefeuille and now-retired Justice Lubbie Harper Jr.. The majority found the decision to enter was justified because the “putrid, overwhelming odor” was different than what had been noticed before.
Justice Richard Palmer, joined by Chief Justice Chase Rogers and Justice Peter Zarella, dissented. They said police could have done more to try to reach DeMarco — and check on his welfare — before entering his home. Specifically, the dissenters said that the officers should have called DeMarco’s cell phone.
Although encouraged by the dissent, John Walkley, president of the Connecticut Criminal Defense Lawyers Association, called the decision “troubling.”
“Clearly, the urgency just wasn’t there to support an entry into the home without a warrant,” Walkley told the Law Tribune. “The fact that the officer knew the occupant, actually had a telephone number for the occupant, and had plenty of time to contact the occupant without entering the home should have persuaded the court that the police entry, search, and seizure was unlawful.”
Walkley continued: “Does this create a problem for defense attorneys in similar situations in the future? I would think so. [Could] this encourage police officers in the future to enter a home without a warrant? Yes, absolutely.
In the second case, State v. Clerde Pierre, the Supreme Court affirmed the Appellate Court’s decision to uphold the conviction of a Stamford man who was arrested for illegally possessing a firearm.
In February 2004, police were called about a fight involving a gun at a Stamford boarding house. When officers arrived, Clerde Pierre, then 25, allowed them to look through his room. They found nothing. But a police officer standing on a chair in a common area in the hallway spotted the handle of a pistol that had been tucked into a hole in the ceiling.
Without getting a warrant, police searched the attic space, retrieving the gun and several small bags of marijuana. Under questioning, Pierre said he was holding the gun “for a man that owed him money.” Urso tried to have the evidence suppressed before trial based on the argument that Pierre “had a reasonable expectation of privacy in his home.” But a Superior Court judge denied the motion.
Pierre was convicted and sentenced to two-and-a-half years in prison, leading to his appeal. The Appellate Court affirmed the conviction, finding that Dooley appropriately denied Pierre’s motion to suppress “because he did not have control of the crawl space” where the evidence was found.
The case was taken to the Supreme Court by Kirsten Coffin, a special public defender. In a statement to the media, Coffin said the case was of interest to the high court because the gun was not in plain view of the officers. The “plain view” exception to the Fourth Amendment allows an officer to seize — without a warrant — evidence found in plain view during a lawful observation.
“It is our contention that our defendant enjoyed a reasonable expectation in that area given the fact that was a boarding house, and the attic area was isolated and difficult to reach,” Coffin said.
The Supreme Court justices, however, agreed with the Appellate Court that because the attic was in an area of the boarding house accesible to anyone, Pierre had no “expectation of privacy.”•