State of Connecticut v. Frederick Acker (2013)

MEMORANDUM OF DECISION RE MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A WARRANT, EVIDENCE SEIZED PURSUANT TO A WARRANT, AND STATEMENTS MADE TO AN ANIMAL CONTROL OFFICER

By motion dated September 22, 2013, the defendant, Frederick Acker, seeks to suppress certain evidence seized without a warrant in October 2012, as well as evidence seized pursuant to a warrant issued on November 8, 2012.   The defendant also moves to suppress statements made to Bethlehem Animal Control Officer Judy Umstead (“Umstead”).   The defendant's motion was supported by a memorandum of law.   This matter came before the court and was heard on October 9, 2013.¹  The court invited additional submissions from the parties.   The defendant filed a supplemental memorandum on October 21, 2013;  the State responded to that filing with a memorandum filed on October 30, 2013.   The motion is denied.

I

FACTUAL HISTORY

This case is paralleled by a civil action brought by the Town of Bethlehem, Bethlehem v. Acker, Superior Court, judicial district of Litchfield, CV–12–5007404–S.   The defendant supports his motion with three transcripts from court proceedings in that case.²  The defendant moves to suppress:  1) evidence seized on and after October 11, 2012, at 310 Watertown Road, Morris, Connecticut ³ (“the property”), by Umstead and Richard Gregan (“Gregan”), a state animal control officer, and by others working with Umstead and Gregan;  2) evidence seized pursuant to a warrant executed on November 8, 2012;  3) a dead animal found on a public road in Morris, Connecticut;  and 4) statements made by the defendant.

II

DISCUSSIONAEvidence Seized Without a Warrant On and After October 11, 2012

The defendant moves to suppress “tangible and intangible evidence seized and observations made from and after October 11, 2012” at 310 Watertown Road by Umstead, Gregan, members of the Connecticut State Police, and other animal control officers.   The court understands this aspect of the defendant's motion to refer to evidence that was seized without a warrant.

Despite the breadth of the defendant's motion, his supporting memorandum and argument at the hearing on this issue focused primarily on temperature readings taken by Umstead, on more than one occasion, using a “Raytek mini temp laser gun.”   Umstead claimed, at a hearing in the parallel civil proceeding, that she used the device from a location outside the barn (“the barn”), where the animals were housed, by directing it through a barn window in an attempt to determine the temperature inside the barn.   The defendant claims, and the State does not dispute, that the device was not designed to produce reliable information when used in that manner.   However, the State represents that it has no intention of introducing such evidence at trial.

In view of the State's concession, no further discussion regarding the “Raytek mini temp laser gun” exterior temperature readings is necessary.   The court has directed the State to instruct Umstead, prior to trial, that she is not to offer any testimony regarding the foregoing type of temperature readings.   To be clear, this ruling is not intended to preclude the State from attempting to introduce evidence of the ambient temperature outside the barn during the relevant time period, to the extent such evidence is shown to be relevant and reliable, nor is the State precluded from attempting to introduce relevant and reliable evidence of the ambient temperature inside the barn, to the extent that the foregoing evidence was derived from measurements taken inside the barn and is otherwise shown to be admissible.

The defendant argues that the temperature inside the barn, whatever it was, is not admissible because Umstead misapplied applicable temperature standards, as set forth in State regulations, relative to the barn.   The latter argument is not properly raised in a motion to suppress but is, rather, in the nature of a motion in limine.   Treating the defendant's motion on this issue as a motion in limine, the motion is denied without prejudice to renewal.

The ultimate question of whether the temperature in the barn was below a statutorily set minimum temperature is a mixed question of law and fact.   Issues regarding the actual temperature inside the barn and the manner in which the defendant carried out his operation are questions of fact for the jury to decide.   The issue of whether there is a statutory minimum temperature that applies to the barn where the dogs were housed is a question of law for the court.   It is premature and inappropriate to decide the foregoing issues at this stage of the proceedings.

The defendant also argues that he had a reasonable expectation of privacy in the barn, and he seems to be arguing that Umstead had “no probable cause to enter the business facility [i.e., the barn] and make a search ․” He bases this argument, first, on his position that the barn was not open to the public and, second, on his claim that Umstead was mistaken about the minimum temperature standard applicable to the barn where the dogs were housed.

Turning, first, to the defendant's expectation of privacy regarding the barn, the court must examine the issue from two perspectives:  evidence acquired by Umstead as a result of being on the property where the barn was located and evidence acquired as a result of Umstead looking into the barn and, in addition, entering the barn.

There is no basis to suppress evidence acquired by Umstead as a result of entering onto the property, as opposed to entering the barn itself.   It is the defendant's burden to establish, first, that he had an actual subjective expectation of privacy in the property at issue and, second, that any such expectation was reasonable.  State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986).  “What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth Amendment protection.”  (Internal quotation marks omitted.)  Id., 357.

Reasonable expectations of privacy are necessarily diminished on leased property, surrounding a business, and on property that is shared with a landlord.   See State v. Brown, supra, 198 Conn. 357.   Here, the defendant made no showing that he had a legitimate privacy interest in the property surrounding the barn that he leased.   On the contrary, the defendant offered no evidence that there was any limitation on the landlord's right to traverse the landlord's own property.   Indeed, the defendant offered evidence that the landlord even shared space with the defendant within the barn where the defendant housed the dogs.   Tr. 41, November 19, 2012.   There is no evidence that would permit the court to find that the defendant could have reasonably expected that evidence on the property, as opposed to evidence in the barn, would remain private.

The second question the court must address is whether society would accept and give deference to any expectation of privacy that the defendant may have had regarding the property.  “This determination is made on a case-by-case basis ․ Whether a defendant's actual expectation of privacy ․ is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.”  (Citation omitted;  internal quotation marks omitted.)  State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994).   In State v. Boyd, 57 Conn.App. 176, 188, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000), the Appellate Court set forth ten non-exclusive factors ⁴ to be considered in evaluating whether a defendant's expectation of privacy is legitimate within the norms of society.   See also State v. Ryder, 301 Conn. 810, 823, 23 A.3d 694 (2011) (setting forth four factors, or “analytical tools,” to be considered in determining whether there is an expectation of privacy in curtilage).

The defendant has not addressed any of ten Boyd factors, specifically.   However, the defendant offered to support his motion with three transcripts from the parallel civil proceeding.   See n.1, supra.   Having reviewed those transcripts and the affidavit filed in support of the search warrant that is at issue,⁵ the court concludes that the defendant leased a part of the barn and did not lease the entire property.

There is evidence before the court that the owner of the property, Gary Swingle, initially reached out to Umstead, and it was in response to that invitation that Umstead was present on the property on October 10, 2012.   On October 11, 2012, one of Swingle's employees contacted Umstead, which led to Umstead's presence on the property on that date.   Further, there is evidence before the court that the property was used for a business purpose and that a common driveway existed on the property.   The common driveway was not only used for the defendant's business operation but also for the property owner's business, “Sugar Mountain Farm.”

In her affidavit, Umstead states that she was present on the property on October 10, 11, 13 and 17, and November 8, 2012.   The affidavit indicates that the defendant was only present on the property, at least when Umstead was on the property, on October 11, 2012.   There is no evidence of any security measures undertaken by the defendant to ensure privacy.   There is no evidence that the defendant had the authority to exclude anyone from the property, since the defendant introduced evidence that he only leased a part of the barn and there is no evidence that he leased the property on which the barn is located.

There is no evidence that the defendant had a subjective expectation that the premises would remain free from government intrusion in view of the fact that (1) the defendant knew that Umstead was aware of his operation when she cited him on October 11, 2012;  (2) the defendant spoke with Umstead on October 13, 2012, and they discussed the lack of heat in the facility;  and (3) the defendant called Umstead on October 17, 2012, to report that he was addressing the heat issue.

The foregoing facts, viewed in light of the ten Boyd factors, militate against a conclusion that the defendant had an expectation of privacy relative to the property, as opposed to the barn.   See State v. Brown, supra, 198 Conn. 348 (defendant, a tenant in a multi-family house, lacked standing to challenge search of a separate two-car garage in the absence of evidence that the defendant had exclusive possession or control of the area);  State v. Harris, 122 Conn.App. 521, 525, 527, 3 A.3d 82 (2010) (defendant did not establish a subjective expectation of privacy in a locked hallway closet in his apartment building because he lacked exclusive access to that closet);  State v. Alexander, 115 Conn.App. 1, 7–8, 972 A.2d 252, cert. denied, 293 Conn. 920, 979 A.2d 491 (2009) (defendant did not establish a reasonable expectation of privacy because he did not have exclusive control over a common hallway in his apartment building and could not control access to, or exclude others from, that hallway);  State v. Boyd, supra, 57 Conn.App. 188–89 (defendant, who lived on the second floor of a three-story apartment building, lacked standing to challenge the seizure of evidence from a third-floor exterior porch).

The defendant also asserts that Umstead did not have probable cause to enter onto the property because she was mistaken, as a matter of law, as to the minimum temperature standards applicable to the barn where the dogs were housed.   Since the court has concluded that the defendant lacks standing to move to suppress evidence seized from the property (as opposed to the barn) prior to the issuance of the warrant, the court need not address this claim.   The court notes, however, that the applicable statute, General Statutes § 53–247, makes no reference to any minimum acceptable temperature for any kind of facility where animals are housed.   That section prohibits cruelty to animals and makes it a violation of General Statutes § 53–247(a) if, inter alia, “[a]ny person ․ who, having ․ confined any animal, fails to give such animal proper care or neglects to ․ restrain any such animal from doing injury to itself ․ or fails to supply any such animal with wholesome air, food and water ․” Further, that statute makes it a violation if any person “having charge or custody of any animal ․ fails to provide it with proper food, drink or protection from the weather ․” General Statutes § 53–247.   When Umstead was first invited onto the property by the owner, on October 10, 2012, she claims that she observed outdoor pens with small breed dogs who had been left out in the rain and were shivering.   On October 13, 2012, she obtained an opinion from a veterinarian that dogs should not be exposed to temperatures under forty-five degrees.   On the foregoing facts, alone, Umstead had probable cause to believe that, at least, some dogs were being kept without proper protection from the weather.   In the civil case, Umstead testified that she observed a dog that had apparently been injured due to the manner in which it was caged.

B

Evidence Seized Pursuant to Warrant

The defendant seeks to suppress evidence seized pursuant to a warrant issued on November 8, 2012, arguing that the warrant was based on Umstead's alleged “erroneous conclusions of law in her affidavit,” her improper reliance on a scientific device, and her failure to have seized animals “tested for dehydration, emaciation, physical condition, wounds, injuries, disease, and illness by a licensed veterinarian” as promised in the affidavit filed in support of the search warrant.

As has been discussed, the State does not intend to rely on any temperature readings taken outside the facility that purport to determine the temperature inside the facility.   Therefore, the issue before the court is whether the warrant, excluding the foregoing information as set forth in the affidavit, establishes probable cause (1) that the evidence to be seized would assist in an apprehension or conviction, and (2) to believe that the evidence to be seized would be found in the barn.  State v. Batts, 281 Conn. 682, 700–01, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S.Ct. 667, 169 L.Ed.2d 524 (2007).   It is the duty of this court to “defer to the reasonable inferences drawn by the magistrate.”  Id., 700.   This court notes, at the outset, that even if Umstead was mistaken about regulations that were, or were not, applicable to the facility, Umstead's understanding about the law is irrelevant to the question of whether Judge Marano, who issued the search warrant, made a finding that there was probable cause that evidence of a crime existed at the facility.

In this case, even setting aside Umstead's claims regarding temperature readings and since Umstead's conclusions of law are irrelevant to the question of whether Judge Marano properly found probable cause in this case, the affidavit sets forth ample evidence in support of a finding that there was probable cause justifying the issuance of the warrant.   Such evidence includes Umstead's October 10, 2012 observation of small breed dogs kept in crates, shivering in the rain;  her October 11, 2012 determination that one of the defendant's dogs was not protected from injury;  the defendant's October 13, 2012 acknowledgement that there was a heat issue in the facility coupled with a veterinarian's opinion as to the minimum acceptable temperature at which to house dogs;  and the defendant's alleged misrepresentation regarding the manner in which he was caring for small dogs, as reported in paragraph six of the affidavit.⁶  The “totality of circumstances” analysis approved by our Supreme Court requires this court to conclude that the foregoing facts constitute a substantial basis for finding that probable cause existed when Judge Marano signed the search warrant on November 8, 2012.  State v. Barton, 219 Conn. 529, 537–38, 594 A.2d 917 (1991).

The final argument presented on this issue is that Umstead did not carry out the evaluation and test of the seized animals, as she promised she would do when she sought the warrant.   This argument is a non sequitur.   As has been established, the determination of whether there was probable cause for the warrant turns upon the historical facts reported by the affiant.   Representations about investigative steps that Umstead planned to take after the warrant was executed are completely irrelevant, in this case, to the question of whether there was probable cause to issue the warrant ab initio.⁷

C

Seizure of Dead Animal Found on Public Road

On October 10, 2012, the owner of the property reported that he had seen a small white dog loose in the area of the property.   One day later, an individual working on the property contacted Umstead to report that she had seen a small white dog near the entrance to the property.   Umstead found the dog, which was deceased, and recovered the carcass.   Umstead determined, through a microchip scan, that the animal had been in the custody of the defendant.

She returned to the property and the defendant identified the dead animal as having come from his facility.

The defendant moves to suppress the evidence relating to the dead dog because it was found on a road in Morris, Connecticut and Umstead is the animal control officer for Bethlehem, Connecticut.   The defendant claimed that it was illegal for Umstead to recover a dead animal from any road that is not within the town limits of Bethlehem.   He did not offer any authority in support of that claim.

For the defendant to prevail on his claim, he must first establish that he had a reasonable expectation of privacy in the place searched.  Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978);  State v. Brown, supra, 198 Conn. 348.   This rule of standing requires that the defendant satisfy a two-part subjective-objective test:  “(1) whether [he] manifested a subjective expectation of privacy with respect to [the location where the seizure occurred];  and (2) whether that expectation [is] one that society would consider reasonable.”  (Internal quotation marks omitted.)  State v. Boyd, supra, 57 Conn.App. 184.   The defendant has the burden of establishing the facts necessary to demonstrate a basis for standing.  State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S.Ct. 1178, 84 L.Ed.2d 327 (1985).   This Fourth Amendment protection is personal;  it extends to the person, not the place.  Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The first prong of the test requires the defendant to prove that he had a subjective expectation of privacy in the road where the seizure occurred.   He was required to show “an intention to keep activities or things private and free from knowing exposure to others' view” at the location where the seizure took place.  State v. Boyd, supra, 57 Conn.App. 185.   The defendant made no such showing and has failed to meet the first prong of the test.   He does not claim that he had an expectation of privacy with regard to the location where Umstead recovered the deceased dog and, thus, lacks standing to challenge the seizure of the deceased animal.⁸

The defendant also claims that he had an expectation of privacy in the dog, itself.   The evidence before the court is that, when Umstead recovered the dead dog, she could not definitively determine who owned the dog.   Consequently, in an attempt to determine whether an identifying microchip had been embedded in the dog, she arranged for a scan that, if successful, would identify the dog and its owner.

Our Supreme Court has addressed a situation in which law enforcement was lawfully in custodial possession of a defendant's clothing and then subjected that clothing to chemical analysis without first obtaining a warrant.  State v. Joyce, supra, 229 Conn. 11.   The court concluded that the question of whether the State should have obtained a warrant prior to carrying out the analysis turned upon the application of a two-part subjective/objective test:  “(1) whether the owner or custodian of the clothing manifested a subjective expectation of privacy with respect to it;  and (2) whether that expectation [is] one that society would consider reasonable.”  (Internal quotation marks omitted.)  Id., 20.   Such a determination, the court held, must be made on a case-by-case basis.  Id.

Unlike Joyce, where the court readily found that generally there is a reasonable expectation of privacy in the clothes that one wears, in the present case there is no basis on which to find that the defendant had a reasonable expectation of privacy in the body of dog that had escaped from the barn rented by the defendant.   On the contrary, the defendant would have expected, and hoped, that anyone finding the dog would attempt to identify it and return it to him—indeed, it is for that reason that dog owners arrange to have identifying microchips injected into their dogs.

The defendant, having failed to meet the first prong of the Joyce test, failed to meet the second prong, as well.   The State relies on a Second Circuit Court of Appeals decision in which the court stated that “although an owner retains some privacy interest in property that is merely lost or stolen, rather than intentionally abandoned, that interest is outweighed by the interest of law enforcement officials in identifying and returning such property to the owner.”  Gudema v. Nassau County, 163 F.3d 717, 722 (2nd Cir.1998).   It is not reasonable to expect that no one, let alone an animal control officer, would attempt to identify the body of a dog found on the side of a public road.   The court concludes that an animal control officer finding a dead dog on a public road need not seek a warrant before attempting to identify the dog, even if the attempt at identification includes a scan for the presence of an identifying microchip.

D

The Defendant's Statements

The defendant seeks to suppress statements that he made to Umstead and to any member of the Connecticut State Police, any Connecticut state animal control officer, and any “agent, employee, assistant, veterinarian, or expert working by, through or with either of the aforementioned public safety officials.”   The defendant devoted minimal attention to this issue in his memorandum.   At page one of that memorandum, the defendant claimed that Umstead “failed to provide the defendant any notice of his Constitutional rights to refrain from speaking with her while she was in the process of conducting her investigation.”   At page 12 of that memorandum, he claimed that any statements that he made to Umstead “were not the result of voluntary interactions by the defendant, were not preceded by an explanation by [Umstead] to the defendant of his legal right to refrain from speaking and were coerced by [Umstead] based upon her unlawful seizure of a deceased dog on October 11, 2012 from a town in which she had no authority to act as an animal control officer.”

The defendant did not cite to any authority in support of his claim, nor did he offer any evidence relative to the motion to suppress his statements when he had the opportunity to do so at the hearing on October 9, 2013.   The defendant confirmed, at the hearing, that he was relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he further specified that he was seeking to suppress the statements that were summarized at paragraphs four through seven of the November 8, 2012 affidavit.⁹

The question of whether the defendant voluntarily, knowingly and intelligently waived his rights under Miranda v. Arizona before making a statement to law enforcement authorities turns, first, on the question of whether the defendant was in custody at the time he made the statement.   The dispositive question is “whether a reasonable person in the defendant's position would believe that he or she was in police custody of the degree associated with a formal arrest.”   (Internal quotation marks omitted.)  State v. Edwards, 299 Conn. 419, 437, 11 A.3d 116 (2011).   The defendant bears the burden of showing that he was in custody at the time he made the statements at issue.  State v. Kirby, 280 Conn. 361, 393, 908 A.2d 506 (2006);  State v. Vitale, 197 Conn. 396, 409, 497 A.2d 956 (1985).   Assuming that the defendant makes such a showing, he must also establish that he was subjected to interrogation.  State v. Copeland, 205 Conn. 201, 207, 530 A.2d 603 (1987).

Here, there is no question about the fact that the defendant was not in custody at the time he made his statements.   It is more frequent that this issue arises when a defendant is in unfamiliar, arguably intimidating surroundings, such as a police station.   See State v. Britton, 283 Conn. 598, 604, 929 A.2d 312 (2007).   In the present case, the defendant was, on the first occasion, on property that he had leased and where he operated his business.   The defendant, who is a mature adult, does not claim that he was threatened with arrest at the time he made his statement.   Indeed, he did not create any kind of factual record reflecting the circumstances surrounding the statements that he made on October 11, 2012.   With regard to the other communications between Umstead and the defendant, the defendant communicated with Umstead on the telephone (and one occasion initiated the communication and left a voicemail for Umstead) at the time he made the statements that he now seeks to suppress.

The defendant has failed to establish that he was in custody when he made statements to Umstead on either October 11, 2012, or October 26, 2012.   See State v. Fiocchi, 17 Conn.App. 326, 336–37, 553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d 611 (1989) (defendant not in custody when questioned in the driveway of his home and in a nearby cornfield).   Indeed, it is beyond peradventure, under the circumstances of this case, that any reasonable person would not have believed that he was in custody when he was communicating with an animal control officer over the telephone.¹⁰

The defendant has failed to meet his burden of proof.   The motion to suppress the defendant's statements to Umstead or to any other animal control officer, any law enforcement officer, or anyone working with either of the foregoing persons, based on an alleged failure to comply with the requirements of Miranda v. Arizona, is denied.

Finally, the defendant has failed to establish his due process claim that the officers coerced him into making his statement.   The latter finding is also based upon the factual findings previously set forth in this opinion.   See State v. Pinder, 250 Conn. 385, 408, 736 A.2d 857 (1999).

III

CONCLUSION

For all of the foregoing reasons, the defendant's motion to suppress evidence seized by Umstead and others working with her, and his motion to suppress his oral statements and admissions to Umstead and anyone working with her, is denied.

So Ordered

John A. Danaher III

FOOTNOTES

FN1. At the hearing, the defendant made clear that he believes Umstead made mistakes in her factual determinations, but he is not claiming that any of her factual assertions were intentionally false or made with a reckless disregard for the truth.   Thus, the hearing on the motion to suppress was not a Franks hearing.   See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)..  FN1. At the hearing, the defendant made clear that he believes Umstead made mistakes in her factual determinations, but he is not claiming that any of her factual assertions were intentionally false or made with a reckless disregard for the truth.   Thus, the hearing on the motion to suppress was not a Franks hearing.   See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

FN2. November 19, 2012;  November 20, 2012;  and January 17, 2012..  FN2. November 19, 2012;  November 20, 2012;  and January 17, 2012.

FN3. Even though the mailing address for the property indicates that it is in the town of Morris, the parties agree that it is actually located in the town of Bethlehem, Connecticut..  FN3. Even though the mailing address for the property indicates that it is in the town of Morris, the parties agree that it is actually located in the town of Bethlehem, Connecticut.

FN4. “1) [O]wnership of or other conventional property interests in the premises or its contents;  2) use of the location as a residence;  3) use of the premises on a regular basis for professional, religious, or business purposes;  4) presence at the time of the search, or at other times;  5) security measures undertaken by the defendant to ensure the privacy of the particular area search;  6) a defendant's authority over the premises;  7) a defendant's ability or right to exclude others from the area;  8) use of the particular location as a repository for the defendant's personal belongings;  9) a defendant's subjective expectation that the premises would remain free from the Government intrusion;  and 10) whether any of the defendant's interests or efforts taken to ensure privacy were in existence or were undertaken at the time of the search or seizure.”   (Internal quotation marks omitted.)  State v. Boyd, supra, 57 Conn.App. 188..  FN4. “1) [O]wnership of or other conventional property interests in the premises or its contents;  2) use of the location as a residence;  3) use of the premises on a regular basis for professional, religious, or business purposes;  4) presence at the time of the search, or at other times;  5) security measures undertaken by the defendant to ensure the privacy of the particular area search;  6) a defendant's authority over the premises;  7) a defendant's ability or right to exclude others from the area;  8) use of the particular location as a repository for the defendant's personal belongings;  9) a defendant's subjective expectation that the premises would remain free from the Government intrusion;  and 10) whether any of the defendant's interests or efforts taken to ensure privacy were in existence or were undertaken at the time of the search or seizure.”   (Internal quotation marks omitted.)  State v. Boyd, supra, 57 Conn.App. 188.

FN5. See discussion regarding warrant, infra..  FN5. See discussion regarding warrant, infra.

FN6. Umstead acquired additional information, as set forth in paragraph eight of the affidavit, regarding low temperatures inside the barn on November 8, 2012.   Umstead obtained the latter information pursuant to consent given by one of Acker's employees.   The State has the obligation of showing that the consent was given by a person with authority to do so;  that the consent was voluntary;  and that the search was conducted within the scope of the consent that was given.  State v. Reagan, 209 Conn. 1, 13, 546 A.2d 839 (1988).   While the state is free to attempt to make the necessary showing at trial, it made no such showing at the suppression hearing.   Therefore, for purposes of this motion, the court will not consider the information set forth in paragraph eight of the affidavit..  FN6. Umstead acquired additional information, as set forth in paragraph eight of the affidavit, regarding low temperatures inside the barn on November 8, 2012.   Umstead obtained the latter information pursuant to consent given by one of Acker's employees.   The State has the obligation of showing that the consent was given by a person with authority to do so;  that the consent was voluntary;  and that the search was conducted within the scope of the consent that was given.  State v. Reagan, 209 Conn. 1, 13, 546 A.2d 839 (1988).   While the state is free to attempt to make the necessary showing at trial, it made no such showing at the suppression hearing.   Therefore, for purposes of this motion, the court will not consider the information set forth in paragraph eight of the affidavit.

FN7. The court notes, in passing, that the defendant did not offer any evidence that such evaluation and testing did not occur.   In fact, the state represented that some animals were evaluated and tested..  FN7. The court notes, in passing, that the defendant did not offer any evidence that such evaluation and testing did not occur.   In fact, the state represented that some animals were evaluated and tested.

FN8. Initially, the defendant simply made a bare claim that Umstead had “no authority” to pick up the dog.   In his supplemental brief, he argued that a municipality has the authority to remove dead animals from the streets of the municipality.  General Statutes § 7–148(c)(8)(B).  The fact that the town of Bethlehem has the authority to remove a dead dog from its streets does not mean that it is necessarily unlawful for anyone else to do so.   The State argues that Umstead acted in a mutual aid capacity because no Watertown police or animal control officer was available to make the recovery at the time of discovery.   However, since the defendant has no standing to challenge Umstead's actions in recovering the dead dog, the court need not address this issue further..  FN8. Initially, the defendant simply made a bare claim that Umstead had “no authority” to pick up the dog.   In his supplemental brief, he argued that a municipality has the authority to remove dead animals from the streets of the municipality.  General Statutes § 7–148(c)(8)(B).  The fact that the town of Bethlehem has the authority to remove a dead dog from its streets does not mean that it is necessarily unlawful for anyone else to do so.   The State argues that Umstead acted in a mutual aid capacity because no Watertown police or animal control officer was available to make the recovery at the time of discovery.   However, since the defendant has no standing to challenge Umstead's actions in recovering the dead dog, the court need not address this issue further.

FN9. At paragraph four of the November 8, 2013 affidavit, Umstead asserted that on October 11, 2012, she located a deceased dog, brought the carcass to “310 Watertown Road in Morris and spoke to a white male who identified himself as Frederick Acker, director of SPCA of CT. Acker identified the dog as coming from his facility.”   At paragraph 5 of the affidavit, Acker stated, apparently over the telephone, “that he was working on heat for the barn and would have it heated shortly.”   At paragraph six of the affidavit, Umstead reported that Acker left her a voicemail message to the effect that he was kenneling small dogs at a veterinarian's office at night.   At paragraph seven of that same affidavit, Umstead asserted that, on October 26, 2012, she contacted the defendant by telephone “and inquired if he required any assistance with the animals due to the approaching storm (Hurricane Sandy).   Acker stated that he would let ․ Umstead know if he required any help and thanked her for the offer.”.  FN9. At paragraph four of the November 8, 2013 affidavit, Umstead asserted that on October 11, 2012, she located a deceased dog, brought the carcass to “310 Watertown Road in Morris and spoke to a white male who identified himself as Frederick Acker, director of SPCA of CT. Acker identified the dog as coming from his facility.”   At paragraph 5 of the affidavit, Acker stated, apparently over the telephone, “that he was working on heat for the barn and would have it heated shortly.”   At paragraph six of the affidavit, Umstead reported that Acker left her a voicemail message to the effect that he was kenneling small dogs at a veterinarian's office at night.   At paragraph seven of that same affidavit, Umstead asserted that, on October 26, 2012, she contacted the defendant by telephone “and inquired if he required any assistance with the animals due to the approaching storm (Hurricane Sandy).   Acker stated that he would let ․ Umstead know if he required any help and thanked her for the offer.”

FN10. In view of this finding, it is unnecessary to reach the question of whether the defendant's statements were the product of “interrogation.”   If it were necessary to reach this question, however, the court would find that Acker failed to meet his burden of showing that his statements were the product of interrogation..  FN10. In view of this finding, it is unnecessary to reach the question of whether the defendant's statements were the product of “interrogation.”   If it were necessary to reach this question, however, the court would find that Acker failed to meet his burden of showing that his statements were the product of interrogation.

Danaher, John A., J.