State of Connecticut v. Ryan Hettrick (2013)

MEMORANDUM OF DECISION RE MOTION TO SUPPRESS

The defendant moves to exclude the admission into evidence of alleged child pornography based on a claimed violation of the Fourth Amendment.   The Court took testimony and exhibits at a hearing on the Motion.

General Rule Under the Fourth Amendment

The exclusionary rule, first applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961), requires the suppression of evidence obtained in violation of the fourth amendment's prohibition against unreasonable searches and seizures.   The exclusionary rule serves a twofold purpose:  to deter police misconduct, and to remove inducements to unreasonable invasions of privacy by government agents.   See United States v. Leon, 468 U.S. 897, 916–19 (1984);  James v. Illinois, 493 U.S. 307, 311–20 (1990) (the use of illegally obtained evidence to impeach the testimony of defense witnesses, other than the defendant, is inconsistent with the balance of values underlying the application of the exclusionary rule).

The Warrant Requirement

A warrantless search is per se unreasonable under both the U.S. and Connecticut Constitutions, subject to only a few specifically established and well-delineated exceptions.   See Minnesota v. Dickerson, 508 U.S. 366, 372 (1993);  California v. Carney, 471 U.S. 386, 390 (1985);  United States v. Ross, 456 U.S. 798, 824–25 (1982);  State v. Blades, 225 Conn. 609, 617 (1993);  State v. Lewis, 220 Conn. 602, 609 (1991);  State v. Dukes, 209 Conn. 98, 121 (1988).

Under Connecticut's State Constitution

Connecticut's Supreme Court has joined other states in interpreting its own constitution as affording “more expansive protection to fundamental rights of their citizens, particularly in the area of civil liberties including searches and seizures.”  State v. Dukes, 209 Conn. 98, 114 (1988).   The state's policy in favor of warrants has led the Supreme Court to narrowly construe exceptions to the state constitutional warrant requirement of article first, § 7. See State v. Miller, 227 Conn. 363, 386 (1993).

Private Residences

Private residences and the areas immediately surrounding them are accorded the strongest constitutional protection.   See Oliver v. United States, 466 U.S. 170, 178, 180 (1984).   Once it is determined that the search was constitutionally protected, the focus shifts to the question of the reasonableness of the particular search or seizure.   The analysis turns on whether it was conducted pursuant to a warrant or under circumstances that do not require a warrant.   See State v. Zindros, 189 Conn. 228, 236–37 (1983), cert. denied, 465 U.S. 1012 (1984).

Warrantless Search

The state has the burden of persuasion to show justification on the basis of one or more of the recognized exceptions to the warrant requirement.   Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971);  State v. Eady, 249 Conn. 431, 436, cert. denied, 528 U.S. 1030 (1999);  State v. Copeland, 205 Conn. 201, 210 (1987);  State v. Badgett, 200 Conn. 412, 424, cert. denied, 479 U.S. 940 (1986);  State v. Holmes, 51 Conn.App. 217, 220 (1998), cert. denied, 248 Conn. 904 (1999).

Exigent Circumstances

Police may enter private premises without a warrant when there are exigent circumstances or an emergency to justify the intrusion, and may seize any evidence that is in plain view during the course of their legitimate presence on the premises.  Mincey v. Arizona, 437 U.S. 385 (1978);  State v. Guertin, 190 Conn. 440, 447 (1983);  State v. Magnano, 204 Conn. 259, 266 (1987).

Exigent circumstances “refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.”  State v. Gant, 231 Conn. 43, 64 (1994), cert. denied, 514 U.S. 1038 (1995) (police at the front door were informed that someone had tried to escape through a back window);  State v. Owen, 126 Conn.App. 358, 368 (2011).

The Supreme Court adopted a totality-of-the-circumstances test for determining the presence of exigent circumstances.  State v. Guertin, 190 Conn. 440, 453 (1983).   Under this test, the court must make the following findings:  there was probable cause that the individual committed a felony;  and the officers reasonably believed that if the premises are not entered and the suspect seized, then the suspect will flee, evidence will be destroyed, or the safety or property of others will be endangered.

“[E]vidence supporting any one of the identified categories may be sufficient for a court to conclude that a warrantless entry was objectively reasonable.”   State v. Aviles, 277 Conn. 281, 294 n.9, cert. denied, 549 U.S. 840 (2006).

In adopting this broad test, the Guertin court recognized the value of, and practical limitations to, the factors enumerated in Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970), in determining whether the test has been met.   Subsequent cases have looked to the Dorman factors in analyzing the totality of the circumstances.   See State v. Mills, 57 Conn.App. 202, 217–19, cert. denied, 253 Conn. 914–15 (2000);  State v. Scott, 27 Conn.App. 403, 409, cert. denied, 222 Conn. 911 (1992).  State v. Guertin, supra, 190 Conn. 449–50.

Duration

Whether based on exigent circumstances or emergencies, once an emergency or exigency has ended, no further warrantless search and seizure activity will be permitted, and a warrant must be sought.  Mincey v. Arizona, 437 U.S. 385, 393, 394 (1978).

Consent to Search

A consent to a warrantless search is an exception to the requirements of both a warrant and probable cause.  Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973);  State v. Zarick, 227 Conn. 207, 226 (1993).

Whether a consent to search was voluntary is a factual question, to be determined from the totality of the circumstances.   No one factor is controlling.  State v. Torres, 197 Conn. 620, 627 (1985);  State v. Martinez, 49 Conn.App. 738, 743, cert. denied, 247 Conn. 934 (1998);  State v. Story, 53 Conn.App. 733, 737, cert. denied, 251 Conn. 901 (1999);  State v. Burke, 51 Conn.App. 328, 335 (1998), cert. denied, 248 Conn. 901 (1999).

In ruling on whether consent was voluntary, the court should articulate all of its subsidiary factual findings.  State v. Azukas, 278 Conn. 267, 276 n.5 (2006) (court did not make explicit findings that person had the authority to consent to the search of the upstairs bedroom).

Burden of Proof

The state has the burden of proving consent, and that burden is not satisfied by showing no more than acquiescence to a claim of lawful authority.   The state must affirmatively establish by a preponderance of the evidence that the consent was in fact freely and voluntarily given.   See State v. Jones, 193 Conn. 70, 79 (1984);  State v. MacNeil, 28 Conn.App. 508, 513, cert. denied, 224 Conn. 901 (1992);  State v. Van Der Werff, 8 Conn.App. 330, 341, cert. denied, 201 Conn. 808 (1985).

Coercive Effect of Police Threat to Return with a Warrant

The representation by the police that they could get a warrant was held improper in Dotson v. Warden, 175 Conn. 614, 620–21 (1978) (police must clarify that issuance of a search warrant involves judicial discretion).   A person must be informed that refusal to consent will not automatically result in a warrant.   See State v. Martinez, 49 Conn.App. 738, 745, cert. denied, 247 Conn. 934 (1998) (holding that police statement that if person did not give consent they would apply for a warrant was not inherently coercive).

Must Not Exceed Scope of the Consent, Which May Be Withdrawn

The standard for measuring the scope of a consent under fourth amendment jurisprudence is that of objective reasonableness, i.e., what the typical reasonable person would have understood by the exchange between the officer and the suspect.  Florida v. Jimeno, 500 U.S. 248, 251 (1991).

“On a motion to suppress, [i]t is the function of the trier to determine the credibility of witnesses and the weight to be given their testimony ․ It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable ․ A warrantless search or entry into a house is not unreasonable, however ․ when a person with authority to do so has freely consented ․ It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so ․ Such consent may not be established by mere acquiescence to police authority ․ Whether there was valid consent to search is a factual question that will not be lightly overturned on appeal.”  (Internal quotation marks omitted.)  State v. Douros, 90 Conn.App. 548, 554, 878 A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005);  State v. Janulawicz, 95 Conn.App. 569, 575 (2006).

“The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with reasonable inferences that can be drawn therefrom ․ Whether there was a valid consent to search is a factual question that will not be lightly overturned on appeal ․ The ultimate question is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.”  (Citations omitted;  internal quotation marks omitted.)  State v. Martinez, 49 Conn.App. 738, 742–43, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998).

The Court makes the following findings of fact and reaches the conclusion of law herein by a preponderance of the evidence:

1. In May 2009, Rhode Island state law enforcement authorities received several “Cyber Tip” reports from the National Center for Missing and Exploited Children (hereinafter “NCMEC”) regarding online child pornography distribution;

2. Working in conjunction, Rhode Island state and federal law enforcement authorities identified an IP (“Internet Protocol”) address as belonging to the defendant's mother, Michelle Hettrick, at 51 Baker Avenue, Apartment 2, Meriden, Connecticut;

3. After confirming the location of the aforementioned IP address, federal authorities determined that several images of apparent child pornography had been uploaded from that IP address to a certain file sharing website.   Law enforcement also confirmed at least one photograph as known child pornography from identifiable child victims;

4. Federal law enforcement authorities were also in possession of “screen shots” of multiple computers and viewed icons causing them to develop the defendant as the source of the uploaded child pornography;

5. In July 2009, federal authorities developed 51 Baker Avenue as an address for Ryan Hettrick;

6. 51 Baker Avenue and 49 Baker Avenue are part of the same two-family home owned by the defendant's grandmother, Juliette Cousino.   51 Baker Avenue is described as “Apartment 2” and 49 Baker Avenue is described as “Apartment 1”;

7. Based on the foregoing, on December 15, 2009, federal authorities obtained a search and seizure warrant for computer machinery and related items at 51 Baker Avenue, Meriden, CT.;

8. Prior to the execution of the search warrant, Special Agent Craig Bowling, an experienced computer forensics agent, profiled the defendant as a sophisticated computer user based on snap shots of the defendant's computer system and peripherals;

9. Based on this profile, Special Agent Bowling had reason to believe that the defendant may have established a “trap door” or “hot key”;  a computerized security measure which could delete all evidence in a manner of seconds and render it unrecoverable.   This possible destruction of evidence was a concern for law enforcement in the execution of the warrant;

10. On December 17, 2009, at or about 7 a.m., approximately eight Connecticut state and federal law enforcement agents executed a search and seizure warrant at 51 Baker Avenue;

11. Upon entry to that second-floor apartment, law enforcement was made aware that the defendant had recently relocated to the first-floor apartment.   It was later determined that the entire home shared one internet connection;

12. Law enforcement authorities immediately proceeded to the first floor and entered without consent and without knocking, through the unlocked apartment door;

13. Law enforcement authorities testified that, after having initially incorrectly determined the defendant's location, they were concerned that the downstairs residents, including the defendant, had been alerted to their presence.   Their concern was that potential evidence could be destroyed and that officer safety could be at risk if the downstairs residents were armed (firearms were later discovered on the premises);

14. Law enforcement authorities testified that they accessed the first-floor apartment to “freeze the scene” for officer safety and for subsequent lawful search;

15. Upon entry, law enforcement, in performing a “protective sweep,” awakened and secured the defendant and his grandmother;

16. Both the defendant and his grandmother quickly gave their verbal consent to law enforcement to search the apartment, including the defendant's computer and peripherals;

17. During his testimony, the defendant described his demeanor as “fairly calm” during the interview process in his home;

18. Michelle Hettrick testified that the “female officer” was “being really nice to [Juliette Cousino]” during the interview process in the home;

19. Mrs. Cousino testified alternately that she had no recollection at all of the night in question and that she told law enforcement:  “If you want Ryan's computer, go right ahead.”   Based on these contradictions, the court does not credit her testimony;

20. The defendant and his grandmother were questioned intermittently for approximately two hours;

21. Near the end of the interview process, both the defendant and his grandmother signed written consent to search forms for the subject premises at 49 Baker Avenue;

22. During questioning the defendant made several inculpatory statements concerning his possession and distribution of child pornography;

23. All occupants of the home were free to leave the premises and were told as much by the authorities present;

24. There was some brief delay in providing Mrs. Cousino with access to restroom facilities;

25. Ms. Hettrick was allowed to sit with Mrs. Cousino for her comfort.   Additionally, Mrs. Cousino was allowed to call her son for her added comfort;

26. The written Consent to Search forms executed by the defendant and his grandmother clearly informed them of their right to refuse to consent to the search of their property;

27. During the search of the premises, law enforcement authorities discovered computer equipment which was taken by consent and later determined to contain suspected child pornography;

28. Neither the defendant nor Mrs. Cousino were coerced or threatened by law enforcement relating to giving their consents to search the premises;

29. The consents to search were not withdrawn;

30. The Court credits the testimony of law enforcement as to the circumstances and reasons for entry into 49 Baker Avenue and the nature of the interview process with the defendant and his grandmother;

31. The Court does not credit the testimony of the defendant on the issue of his verbal and written consent to search and taking of his property;

32. The defendant, as owner of the computer equipment, had the authority to consent to the search and taking of the equipment and related items.

The search of the defendant's room is constitutionally protected.   The defendant had a reasonable expectation of privacy in his room and the items contained therein.

The warrantless entry into the premises was justified based on the exigent circumstances at the time, to wit:

a.  The likelihood of a “trap door” or “hot key” on the computer system which could have led to the destruction of potential evidence;

b. The serious nature of the allegations;

c. There was probable cause to believe that the defendant was in possession of child pornography;

d. There was strong reason to believe that the defendant was within the first-floor apartment at 49 Baker Avenue;  and

e.  The entry, though not consented to, was made peaceably.

The search of the residence is justified based on the verbal and written consents to search obtained from the defendant and his grandmother.   The Court finds, based on the totality of the circumstances, that the defendant's non-custodial consent to search his room and other property was given freely and voluntarily.   Additionally, this Court finds that the consent given by Mrs. Cousino to search the apartment was voluntary.

The State has affirmatively established by a preponderance of the evidence that the consents to search were freely and voluntarily given.   There was no evidence that the defendant's will was overborne.   Additionally, the Court finds that the search was within the scope of the consent given by the defendant.

Accordingly, the Defendant's Motion to Suppress the taken evidence is DENIED.

Hon. Vernon D. Oliver

Oliver, Vernon D., J.