State of Connecticut v. Jean Jacques (2016)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS SEARCH OF 5 CROSSWAY STREET, APT. # 3

On March 3, 2016, the defendant, Jean Jacques, filed a motion to suppress a search of 5 Crossway Street, apartment # 3, Norwich, CT, which had been conducted by the police on July 15, 2015, while the defendant was incarcerated, having been charged with the murder of Casey Chadwick.  The defendant argues that he maintained a right to privacy in the apartment, despite the fact that his lease had expired, and that the police conducted the search in violation of the Fourth and Fourteenth Amendments to the United States Constitution and article first, section seven, of the Connecticut Constitution.

The court held an evidentiary hearing on this matter on March 18, 2016.¹  Four witnesses testified at that hearing;  the defendant, Antonio Barros,² Lisa Barros, and Detective Anthony Gomes of the Norwich Police Department.  Based on the facts set forth below, and for the reasons set forth below, the motion to suppress is denied.³

FINDINGS OF FACT

The court credits the testimony of Antonio Barros, Lisa Barros, and Detective Anthony Gomes and finds the following facts based on that testimony and exhibits submitted during the hearing.⁴

1. Prior to June 10, 2015, the defendant was living in a room at 111 Broad Street, Norwich, CT. The defendant entered into a month-to-month lease agreement with Antonio and Lisa Barros beginning on June 10, 2015 for apartment # 3 located at 5 Crossway Street, Norwich, CT. Mr. Barros provided the defendant with a receipt for the first and only month's rent (State's Exhibit No. 1), which stated that the rent was $450 and the rental period was from June 10, 2015 through July 10, 2015.

2. Just days after making the first and only rent payment of $450, the defendant was arrested on June 15, 2015 for sale of narcotics and a $100,000 cash bond was set.  The defendant did not post bond.  On the date of his arrest, the defendant was on parole having been released from incarceration to supervised parole by the Department of Correction on January 16, 2015.  The defendant had previously been convicted of attempted murder and carrying a pistol without a permit and received a total effective sentence of twenty-five years, suspended after twenty-one years, and five years probation.⁵  He thus had been on parole for five months on the date of the murder of Casey Chadwick.

3. At the time of his arrest, the defendant had in his pocket the receipt for the rent payment for apartment # 3, 5 Crossway Street.  Subsequently, on June 25, 2015, the defendant was charged with the murder of Casey Chadwick and a $1 million cash bond was set.  Since his arrest on June 15, 2015 the defendant has been incarcerated.

4. At no time did the defendant make any further payment of rent for any period after July 10, 2015.  At no time did the defendant contact or even attempt to contact his landlord to seek to either pay his rent or extend his lease or seek additional time from his landlord in which to make any arrangements to continue to rent the apartment.  At no time did the defendant request anyone else to contact the landlord about any continued interest in maintaining the apartment or extending his lease.  At no time did the defendant, or any third party on his behalf, seek to make any arrangements with his landlord for the return or safekeeping of any of his personal property or possessions which were located at apartment # 3, 5 Crossway Street.  The defendant had the ability to contact family members to obtain funds for rent, but chose not to do so.

5. The defendant was unable to post bond on either of his cases and had no income.  He testified that he received no notice from the landlord that he was being “kicked out” and that it was difficult to contact Mr. Barros from the Corrigan correctional facility where he was being held on his charges.  He knew that he was going to be incarcerated “for a long time.”  The defendant acknowledged that he had a counselor at the correctional facility and that he had written a number of letters to friends and family and had made telephone calls while incarcerated but had not asked anyone to pay his rent, make arrangements to continue the lease or contact his landlord or even to retrieve any of his belongings.

6. On July 15, 2015, after the date of expiration on the lease term as reflected on the receipt, and after receiving information from an informant, Detectives Gomes and Harrison Formiglio went to apartment # 3 at 5 Crossway Street in order to verify whether there was a hole in the bathroom wall in the apartment.  Gomes had received information from a confidential informant regarding items hidden inside the apartment and sought the consent of the landlord to search in order to verify the existence of the hole in the wall.  After arriving, Detective Gomes spoke with Mr. and Mrs. Barros about the apartment and whether they were aware of a hole in the wall behind the toilet in the bathroom.  Both Mr. and Mrs. Barros were unsure whether the hole existed.

7. Detective Gomes presented Mr. Barros with a consent to search form, which was translated for him by Mrs. Barros.  Mr. Barros signed the form, which was witnessed by Detectives Gomes and Formiglio.  (State's Exhibit No. 2.) Mrs. Barros unlocked the apartment and the detectives then entered the apartment.⁶

8. Mr. Barros did not initiate eviction proceedings, but never received any payment for rent after the first $450 payment.  He stated that if the defendant had been released from jail in July and had the money to pay rent, he would have let him stay, but he never heard from Mr. Jacques or anyone on his behalf and knew he was in jail.  He ultimately moved the defendant's items out of the apartment, changed the lock and rented it to a different tenant beginning in September 2015.

DISCUSSION

The defendant claims that the search of apartment # 3, 5 Crossway Street on July 15, 2015, was conducted in violation of the Fourth and Fourteenth Amendments to the United States Constitution and article first, § seven, of the Connecticut Constitution.  The state argues that the defendant lacks standing ⁷ to raise this claim because he did not have a reasonable expectation of privacy in the apartment.  As set forth below, the court finds that the defendant did not have a reasonable expectation of privacy in the apartment and the motion is therefore denied.

“The application of the fourth amendment prohibition against unreasonable searches and seizures requires the defendant to establish that he had a legitimate expectation of privacy in the invaded area ․ Absent such an expectation, the subsequent police action has no constitutional ramifications ․” (Internal quotation marks omitted.)  State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991);  State v. Pierre, 139 Conn.App. 116, 121, 54 A.3d 1060 (2012), aff'd, 311 Conn. 507, 88 A.3d 489 (2014).  “The touchstone to determining whether a person has standing to contest an allegedly illegal search is [whether] that person has a reasonable expectation of privacy in the invaded place.”  Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).  The defendant bears the burden of proving that he had a reasonable expectation of privacy in the place he alleges was searched unconstitutionally.  Rawlings v. Kentucky, 448 U.S. 98, 104–05, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).  Whether the defendant has established the reasonableness of his expectation of privacy requires a fact-specific inquiry into all the relevant circumstances.  State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986).  The party attempting to assert standing to contest the search must satisfy a two-part test:  “(1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to the invaded premises;  and (2) whether that expectation [is] one that society would consider reasonable ․” State v. Houghtaling, 155 Conn.App. 794, 801, 111 A.3d 931 (2015) (citing State v. Hill, 237 Conn. 81, 92, 675 A.2d 866 (1996)).  Determining if the defendant's actual expectation is one society will recognize as reasonable requires “a fact-specific inquiry into all the relevant circumstances.”  State v. Alexander, 115 Conn.App. 1, 7, 972 A.2d 252, cert. denied, 293 Conn. 920, 979 A.2d 491 (2009).

In this case, the defendant has not demonstrated “an actual subjective expectation of privacy.”  The defendant was arrested with the receipt for apartment # 3, 5 Crossway Street on his person, which reflected that the lease ran from June 10 through July 10.  (State's Exhibit No. 1.) During the entire month of the lease term the defendant made no effort to contact the landlord about maintaining the lease nor did he contact anyone else to speak with the landlord about the lease.  The defendant could not have a reasonable expectation of privacy in an apartment whose lease had expired, especially without making any payment, payment arrangements or indeed any effort to maintain the apartment as his own.  The defendant was in custody, initially on a $100,000 cash bond, which was later increased to a total of $1.1 million cash only, and by his own testimony, had no income.  The defendant himself testified that he knew he was going to be in prison for a long time.  He could have accessed or attempted to access funds from his family, but chose not to do so.  The defendant made no effort whatsoever to maintain the apartment as his own by contacting either his landlord or anyone else about renewing or maintaining his lease or continuing to pay rent.  The defendant never contacted anyone about retrieving or safekeeping any possessions he had at that location.  The defendant did not even attempt to secure the personal possessions which he left at the apartment.  He therefore showed no interest in the apartment.  Considering all of these factors, the defendant, who was on parole at the time of his arrest, did not have an expectation of privacy in the apartment.

Upon consideration of all the facts as set forth above, the defendant did not “manifest a subjective expectation of privacy with respect to [the invaded premises].”  State v. Houghtaling, supra, 155 Conn.App. 801.  Although the defendant testified that he would have gone back to apartment # 3, 5 Crossway Street if he were released in July 2015, “[t]he subjective test does not rest on the absolute subjective perception of the individual defendant.”  State v. Boyd, 57 Conn.App. 176, 749 A.2d 637 (2000) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967);  State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991) (subjective inquiry focuses on “whether the individual has exhibited an actual subjective expectation of privacy”).  Expressing a view, many months later, that he would have gone back if he could, does not rise to the level of “exhibiting” an actual subjective expectation of privacy in a location.  The defendant in this case exhibited absolutely no interest whatsoever in apartment # 3, 5 Crossway Street after he was incarcerated on June 15, 2015.

The defendant claims that the action of the State in incarcerating him pretrial prohibited him from exhibiting an actual expectation of privacy in the apartment.  Here, however, even though the defendant was incarcerated by the State, he still showed no interest in maintaining the apartment or the items within it during that time.  State v. Houghtaling, 155 Conn.App. 794, 802, 111 A.3d 931 (2015).  He conceded during his testimony that despite his incarceration, he could and did write letters and make telephone calls and had access to a counselor who could assist him.  He therefore could have taken efforts to contact the landlord directly or indirectly, but failed to do so.  Although he called his family in New Jersey, who would have provided funds according to the defendant's own testimony, he never asked them to pay rent, retrieve his belongings or contact the landlord.  His incarceration thus did not prevent him from exhibiting an actual expectation of privacy in the apartment.  All of the facts and circumstances presented here compel the conclusion that the defendant did not exhibit an actual “subjective expectation of privacy in the property.”  State v. Houghtaling, supra, 155 Conn.App. 802.

Because one prong of the two-part test fails under the facts of this case, the court need not reach the second prong requiring a determination as to “whether that expectation is one society recognizes as reasonable.”  See State v. DeFusco, 224 Conn. 627, 633 n.9, 620 A.2d 746 (1993) (no reasonable expectation of privacy in garbage placed at the curb for collection);  State v. Pierre, 139 Conn.App. 116, 121–28, 54 A.3d 1060 (2012), aff'd, 311 Conn. 507, 88 A.3d 489 (2014) (expectation of privacy in open, shared and accessible attic space not one which society would deem reasonable).⁸

In this case, not only did the defendant lack any actual subjective expectation of privacy in the apartment, but also the police entered the apartment after the expiration of the month-to-month tenancy, with permission from the landlord, who signed a formal consent to search and who opened the door for them.  “A warrantless search is not unreasonable under the fourth amendment to the United States Constitution when a person with authority to do so has freely consented.”  State v. Martinez, 49 Conn.App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998).⁹

For all the reasons set forth above, the motion to suppress is DENIED.

It is so ordered, this 6th day of June 2016.

Jongbloed, J.

FOOTNOTES

FN1. Both the defendant and the State filed memoranda of law with regard to this issue on March 22, 2016..  FN1. Both the defendant and the State filed memoranda of law with regard to this issue on March 22, 2016.

FN2. Antonio Barros testified using the services of a Portugese interpreter..  FN2. Antonio Barros testified using the services of a Portugese interpreter.

FN3. Prior to the start of trial on March 29, 2016, the court denied the motion and indicated that this written memorandum of decision would follow.  The evidence began on March 29, 2016 and the jury returned a verdict of guilty on the single count of murder on April 11, 2016..  FN3. Prior to the start of trial on March 29, 2016, the court denied the motion and indicated that this written memorandum of decision would follow.  The evidence began on March 29, 2016 and the jury returned a verdict of guilty on the single count of murder on April 11, 2016.

FN4. The exhibits entered during the hearing were an image of a receipt the defendant received after renting apartment # 3 at 5 Crossway Street in Norwich (State's Exhibit No. 1) and a consent to search form for the apartment signed by the landlord, Antonio Barros.  (State's Exhibit No. 2.).  FN4. The exhibits entered during the hearing were an image of a receipt the defendant received after renting apartment # 3 at 5 Crossway Street in Norwich (State's Exhibit No. 1) and a consent to search form for the apartment signed by the landlord, Antonio Barros.  (State's Exhibit No. 2.)

FN5. Those charges stemmed from a shooting involving two victims who were discovered near a dumpster on Laurel Hill Avenue in Norwich, CT in February 1996.  One of the victims, the girlfriend of a second male victim, survived having been shot in the head and the defendant was convicted of attempted murder in addition to carrying a pistol without a permit.  The defendant was acquitted of the murder of the other victim..  FN5. Those charges stemmed from a shooting involving two victims who were discovered near a dumpster on Laurel Hill Avenue in Norwich, CT in February 1996.  One of the victims, the girlfriend of a second male victim, survived having been shot in the head and the defendant was convicted of attempted murder in addition to carrying a pistol without a permit.  The defendant was acquitted of the murder of the other victim.

FN6. After they confirmed the existence of the hole in the wall near the toilet, the detectives secured and left the apartment and obtained a search warrant for the apartment and a plastic bag within the hole in the wall.  Ultimately, the detectives discovered within the plastic shopping bag, a ziploc bag containing crack cocaine, marijuana and the cell phone of the murder victim, Casey Chadwick..  FN6. After they confirmed the existence of the hole in the wall near the toilet, the detectives secured and left the apartment and obtained a search warrant for the apartment and a plastic bag within the hole in the wall.  Ultimately, the detectives discovered within the plastic shopping bag, a ziploc bag containing crack cocaine, marijuana and the cell phone of the murder victim, Casey Chadwick.

FN7. Although the parties frame the issue in terms of “standing,” as noted in State v. Houghtaling, 155 Conn.App. 794, 800 n.7, 111 A.3d 931 (2015), “courts have questioned whether it serves any useful analytical purpose to consider [the] principle [that fourth amendment rights are personal] as a matter of standing, distinct from the merits of a defendant's [f]ourth [a]mendment claim ․ [and have concluded] that the definition of [fourth amendment] rights is more properly placed within the purview of substantive [f]ourth [a]mendment law than within that of standing.”  Id. “The inquiry under either approach is the same.”  Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)..  FN7. Although the parties frame the issue in terms of “standing,” as noted in State v. Houghtaling, 155 Conn.App. 794, 800 n.7, 111 A.3d 931 (2015), “courts have questioned whether it serves any useful analytical purpose to consider [the] principle [that fourth amendment rights are personal] as a matter of standing, distinct from the merits of a defendant's [f]ourth [a]mendment claim ․ [and have concluded] that the definition of [fourth amendment] rights is more properly placed within the purview of substantive [f]ourth [a]mendment law than within that of standing.”  Id. “The inquiry under either approach is the same.”  Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

FN8. Even if the court were to address the second prong of the Katz test, the defendant's first and only month's tenancy had expired and he made no effort to renew the lease or even to collect his belongings from the property.  He chose not to access a source of funds to pay rent or even to contact the landlord and he provided no notice to the landlord of any extended absence under C.G.S. § 47a–16a.  Under all these circumstances, even if the defendant had exhibited a subjective expectation of privacy in the property, it is not one society would consider reasonable..  FN8. Even if the court were to address the second prong of the Katz test, the defendant's first and only month's tenancy had expired and he made no effort to renew the lease or even to collect his belongings from the property.  He chose not to access a source of funds to pay rent or even to contact the landlord and he provided no notice to the landlord of any extended absence under C.G.S. § 47a–16a.  Under all these circumstances, even if the defendant had exhibited a subjective expectation of privacy in the property, it is not one society would consider reasonable.

FN9. Although the defendant claims that the landlord had “taken over” his apartment and essentially conducted an illegal eviction, the court notes that the police had the consent of a third party, Mr. Barros, whom they reasonably believed had authority over the premises.  State v. Buie, 129 Conn.App. 777, 779 n.1, 21 A.3d 550 (2011), aff'd, 312 Conn. 574, 94 A.3d 608 (2014)..  FN9. Although the defendant claims that the landlord had “taken over” his apartment and essentially conducted an illegal eviction, the court notes that the police had the consent of a third party, Mr. Barros, whom they reasonably believed had authority over the premises.  State v. Buie, 129 Conn.App. 777, 779 n.1, 21 A.3d 550 (2011), aff'd, 312 Conn. 574, 94 A.3d 608 (2014).

Jongbloed, Barbara Bailey, J.