State v. Ryder (dissenting)

Annotate this Case

Download PDF

****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. RYDER SECOND DISSENT EVELEIGH, J., with whom ROGERS, C. J., joins, dissenting. I respectfully dissent. I disagree with the majority s conclusion that the entry of the police onto the property of the defendant, Gary Ryder, was not justified by an emergency situation because a reasonable police officer would not have believed that an emergency existed. Contrary to the majority, and consistent with both the decisions of the Appellate Court and the trial court, I would conclude that, under the totality of the circumstances, Andrew Kelly, an officer of the Stamford police department, made a justifiable warrantless entry onto the property of the defendant. Specifically, I would conclude that, on the basis of the facts known to him at the time of entry, Kelly had an objectively reasonable belief that an emergency situation existed, namely, that a missing minor was in need of immediate aid or assistance within the defendant s residence. Accordingly, I would affirm the judgment of the Appellate Court upholding the trial court s denial of the defendant s motion to suppress. I I begin by noting the majority s decision to resolve this appeal on the basis of the defendant s newly raised claim that Kelly s warrantless search began when he stepped over the [security] gate onto the defendant s curtilage and, therefore, that the reasonableness of Kelly s belief that an emergency situation existed must be evaluated at that moment. I disagree. First, the defendant failed to raise this claim before the trial court in his motion to suppress.1 As a result, the issue was not the focus of testimony, evidence or argument during the hearings on that motion.2 The proceedings before the trial court instead focused on the validity of Kelly s warrantless search by examining the basis for, and reasonableness of, his belief that an emergency situation existed at the moment that he entered the defendant s residence through a set of French doors. Accordingly, the trial court, in its memorandum of decision denying the motion to suppress, did not make specific findings of fact regarding the scope and nature of the defendant s curtilage. Moreover, and significant to appellate review, the trial court was not required to evaluate the validity of Kelly s warrantless search at the moment that he entered the defendant s curtilage. This necessarily would have entailed that the trial court make factual findings as to Kelly s exact knowledge at that moment, and a conclusion as a matter of law regarding whether Kelly s belief that an emergency existed was objectively reasonable at that same moment. As this court has oft stated, [i]t is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court. (Internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 351, 999 A.2d 713 (2010). Moreover, [a]s is always the case, the [appellant], here the [defendant], bear[s] the burden of providing a reviewing court with an adequate record for review. Cable v. Bic Corp., 270 Conn. 433, 442, 854 A.2d 1057 (2004), citing Practice Book § 61-10. It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . to clarify the legal basis of a ruling . . . or to ask the trial judge to rule on an overlooked matter. . . . In the absence of any such attempts, we decline to review this issue. (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 379, 999 A.2d 721 (2010). The defendant, in one and one-half pages of his brief to this court, raises for the first time the curtilage issue that he claims warrants reversing both the judgments of the Appellate Court and the trial court. In its brief, the state did not respond to the defendant s attempt to improperly raise this claim for the first time, and the state further contended at oral argument before this court that we should not consider the claim because neither the trial court nor the Appellate Court addressed it. Accordingly, I would not consider the defendant s newly raised claim that the warrantless search commenced when Kelly entered the curtilage of his residence because doing so would permit [the defendant] to raise a claim on appeal that has not been raised at trial after it is too late for the trial court . . . to address the claim [and] would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007); see also Johnson v. Commissioner of Correction, 285 Conn. 556, 580, 941 A.2d 248 (2008) (declining, on basis of ambuscade of trial court, to review pro se habeas petitioner s newly articulated claim); Seymour v. Region One Board of Education, 274 Conn. 92, 105, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005) (rejecting, on basis of trial by ambuscade, pro so appellant s standing claim articulated for first time on appeal). Second, the defendant also did not raise this claim on appeal to the Appellate Court. Although the defendant s brief to the Appellate Court contains two passing references to the curtilage surrounding his residence and his efforts to ensure the privacy of his home, the defendant did not claim that the judgment of the trial court should be reversed on the basis of his present claim that the warrantless search commenced when Kelly entered the defendant s curtilage. See State v. Ryder, 114 Conn. App. 528, 533, 969 A.2d 818 (2009) ( [o]n appeal, the defendant contends that the warrantless search of his house violated his right to be free from unreasonable searches [emphasis added; internal quotation marks omitted]). The issue before the Appellate Court was, instead, whether the defendant s fourth amendment rights were violated by the warrantless search of his home ; (emphasis added) id., 534 35; and, in resolv[ing] this appeal, the [Appellate Court looked] . . . to the evidence that the trial court heard and the decision it made. Id., 537. Accordingly, because the defendant in the present case failed to raise this issue before the Appellate Court, I would not consider it as a basis to reverse that court. See State v. Duhan, 194 Conn. 347, 354 55, 481 A.2d 48 (1984) (failure to raise issue before Appellate Court is ground to deny review in this court). Third, the defendant s newly raised curtilage claim is outside the purview of his petition for certification, which this court granted limited to whether the Appellate Court properly affirm[ed] the trial court s denial of the defendant s motion to suppress? 3 State v. Ryder, 292 Conn. 919, 920, 974 A.2d 723 (2009). Although the certified issue broadly questions whether the judgment of the Appellate Court was proper, it does not permit an appellant to assert a claim on appeal not previously raised or otherwise waived. Rather, the scope of this court s review on a certified question is limited to determining whether the Appellate Court, on the basis of the claims before it, properly reached its conclusion. It is well settled that, in a certified appeal, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court. (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 221, 926 A.2d 633 (2007); see also State v. Nunes, 260 Conn. 649, 658, 800 A.2d 1160 (2002) ( on a certified appeal, our focus is on the judgment of the Appellate Court . . . and we ordinarily do not review claims not raised therein [citation omitted]); State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455 (2010) (noting this well settled principle applies in appeal involving emergency exception to warrant requirement). Accordingly, I would conclude that the judgment of the Appellate Court should not be reversed on the basis of a claim that, regardless of its merit, was never presented to the Appellate Court as a ground for reversing the trial court.4 Lastly, I acknowledge that [i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. (Internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 497 98, 863 A.2d 680 (2005). It is equally true, however, that [a]lthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. (Internal quotation marks omitted.) Id., 498. As part of the requirement of complying with the rules of procedure and substantive law, a selfrepresented party generally must raise an issue before the trial court and obtain a ruling on that issue in order for that party to preserve the claim for appellate review. See id. In the present case, although the defendant is self-represented before this court and was also selfrepresented before the Appellate Court, he was represented by counsel at all times during the suppression hearing and before the trial court in the proceedings culminating in his original entry of a plea of nolo contendere. In light of the prejudice to the state, the circumstances of this case and this court s jurisprudence, I would conclude that the defendant s present self-represented status does not excuse his failure to raise the curtilage claim before the trial court. For all of the foregoing reasons, I would decline at this late stage in the proceedings to review the defendant s newly raised claim that Kelly s warrantless search commenced when he entered the defendant s curtilage because that claim was not preserved at trial, was not raised before the Appellate Court and was not set forth in the defendant s petition for certification to appeal to this court. II Although I disagree with the majority s resolution of this appeal on the basis of the defendant s newly raised claim, even assuming, arguendo, that this claim is properly before this court, I additionally disagree with the majority s conclusion that Kelly s warrantless search was not justified because a reasonable police officer would not have believed that an emergency existed when he entered the defendant s curtilage. Specifically, I disagree with the majority s conclusion that [i]t was not objectively reasonable for Kelly to believe that a sixteen year old was in need of immediate aid, despite the urgent telephone calls by an apparently concerned parent, the presence of the car and couch in the driveway and the lack of an answer at the intercom and front door. I would instead conclude that, on the basis of the facts set forth in the trial court s memorandum of decision, Kelly had an objectively reasonable belief that an emergency situation existed at the moment he entered the defendant s curtilage, namely, that the missing sixteen year old may have been in need of immediate aid or assistance within the defendant s residence. I begin by noting my agreement with the majority opinion s discussion of our standard of review and governing legal principles. I also agree with the statement of facts set forth in the majority opinion, which I will therefore not repeat in full in this dissent.5 I further note that, despite the defendant s strenuous claims to the contrary, the majority does not conclude that any of the trial court s findings of fact were clearly erroneous. Accordingly, the majority and I are in agreement as to the facts known by Kelly at the moment that he entered the defendant s curtilage. Nonetheless, the following facts known by Kelly must be emphasized in order to properly determine whether he possessed an objectively reasonable belief that an emergency situation existed at the moment that he entered the defendant s curtilage. At approximately 4 o clock in the evening on August 15, 2004, Kelly was pulled from his normal check-out process, something that only happened in emergencies. Kelly learned from a police dispatcher that a father in Vermont had telephoned several times about being unable to contact his sons, and that the father had sounded more frantic with each call. Kelly also learned: the sons were supposed to have taken a train that day from Greenwich to return to Vermont, but that they had not returned; twenty-four hours had passed since the father s first call to the police relaying he could not contact his sons, and that during those twenty-four hours he had constantly tried to contact them; the father finally had managed to contact one of the sons, who stated that his brother was at the defendant s residence; officers previously had spoken with the defendant at his home and he had told them that he did not know the location of the missing boys; on a later occasion the defendant had, however, provided an address where the missing boy might have been, but that information proved to be inaccurate at that time;6 and there had been a prior relationship between the defendant and the boys father. From this information, Kelly testified that he was under the impression that a boy was missing and that he was a minor between the ages of thirteen and sixteen. After learning this information, Kelly proceeded to the defendant s residence, arriving at approximately 4:30 p.m. The driveway from the street to the residence was blocked by a low white gate and Kelly exited his marked police cruiser. Kelly then made the following observations: the garage door was open; a couch of the type that would normally be found indoors was partly sticking out of the garage onto the driveway; and a convertible parked in the driveway had its top down. Kelly then made several attempts to contact anyone inside the residence using an intercom located at the gate, but no one responded. Kelly then proceeded to step over the low white gate and enter the defendant s curtilage, as he proceeded toward the defendant s residence. In explaining the nature of the emergency exception to the warrant requirement, this court recently stated that [t]he emergency exception to the warrant requirement allows police to enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. 794. The police, in order to avail themselves of this exception, must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings . . . . It is an objective and not a subjective test. The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. (Internal quotation marks omitted.) Id., 75, quoting State v. Geisler, 222 Conn. 672, 691 92, 610 A.2d 1225 (1992). Despite the rigorous requirements of the emergency exception, [t]he reasonableness of a police officer s determination that an emergency exist[ed] is evaluated on the basis of facts known at the time of entry. (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 143, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). Accordingly, as a reviewing court, [w]e must determine, therefore, whether, on the basis of the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed when [Kelly] entered the [the defendant s curtilage] . . . . In addition, we [must be] mindful that [i]t is well settled that, in a certified appeal, the focus of our review is not on the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. (Citations omitted; internal quotation marks omitted.) State v. Fausel, supra, 793. On the basis of the facts known to Kelly, and pursuant to our standard of review and governing principles, I would conclude that he possessed an objectively reasonable belief that an emergency situation existed at the moment that he entered the defendant s curtilage. From the onset, Kelly was presented with information from which an objectively reasonable officer could have adduced that an emergency situation existed. First, Kelly was removed from check-out, something only done in emergencies, and told that an increasingly frantic father had been unable to contact the missing sixteen year old for the preceding twenty-four hours. Second, and most significantly, Kelly learned that the fourteen year old son had told police that the missing sixteen year old son was at the defendant s residence, that the defendant had first denied knowing the location of the sixteen year old and had later provided an address where the sixteen year old might be located, but that the information proved inaccurate. In possession of information indicating that a minor was missing and might be located at the defendant s residence, Kelly proceeded directly to the defendant s house. Upon arrival, Kelly observed a convertible vehicle with its top down, an open garage door and a couch sticking out of the garage and partly into the driveway. As Kelly testified at trial, his observations at the defendant s residence, in addition to his prior knowledge, made him concerned that the missing sixteen year old was in need of immediate aid or assistance inside the residence. Specifically, Kelly explained that the open garage and couch partly sitting in the driveway were out of place in comparison to the rest of the defendant s home and the affluent neighborhood where he lived. Kelly also testified that, on the basis of his understanding that earlier in the day the defendant had sent officers to a location where the missing sixteen year old was not located, and in combination with his observations that things seemed amiss at the defendant s residence including the couch in the driveway, the open garage, the presence of a convertible with the top down and the silence in response to his intercom calls he believed that the defendant may have been attempting to flee and that the sixteen year old was inside the residence and in need of aid. This court previously has stated that [a]mong the infinitely varied situations in which entry for the purpose of rendering aid is reasonable, one is the search for an occupant reliably reported missing. State v. Blades, 225 Conn. 609, 619 20, 626 A.2d 273 (1993). In Blades, this court rejected the defendant s contention that the evidence supporting the warrantless search of his apartment was nothing more than a missing person investigation . . . . (Internal quotation marks omitted.) Id., 620. Similar to the present case, over the course of more than two hours, the officer in Blades had received telephone calls from relatives of the missing victim, the defendant s wife, worried about her whereabouts and welfare. Id. From these calls, the officer learned that the victim and the defendant had a troubled marriage and that the defendant had given relatives a patently false reason why he had sent his children unattended by train to New York. Id. Additionally, when police first went to the defendant s apartment, he told police that his wife had left for New York earlier that day, a fact which further investigation failed to substantiate. Id., 615. On the basis of these facts, the police determined that it was necessary to enter the defendant s apartment without a warrant because there was reason to believe the victim may have been injured or in danger. Id., 615 16. Upon arriving at the defendant s building, an officer observed a blood-like smear on the interior door to the common hallway of the building; id., 616; an observation that this court stated further heightened the officer s preexisting belief that the victim may be in need of immediate aid. Id., 621. I would conclude that, on the basis of the information relayed to Kelly, the sequence of events in the present case, like that in Blades, rose to the level of a reliable report of a missing minor, who may have been sequestered at the defendant s residence and in need of aid or assistance.7 Specifically, Kelly knew that the fourteen year old son had stated that the missing sixteen year old was at the defendant s residence, and yet the defendant had denied knowing where the missing sixteen year old was and, in fact, had offered an address that proved inaccurate. These facts logically permitted Kelly to draw the inference that the defendant may have been less than forthcoming with, if not misleading to, the police, and that the scene at the defendant s residence indicated a person possibly preparing for flight or attempting to remove evidence. As this court previously has cautioned, we do not read [prior case law applying the emergency exception to the warrant requirement] to require direct evidence of an emergency situation . . . . State v. Colon, supra, 272 Conn. 147. This standard must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences. As one court usefully put it, the question is whether the officers would have been derelict in their duty had they acted otherwise. This means, of course, that it is of no moment that it turns out there was in fact no emergency. (Internal quotation marks omitted.) State v. Fausel, supra, 295 Conn. 800, quoting 3 W. LaFave, Search and Seizure (4th Ed. 2004) § 6.6 (a), p. 452 53. This is true because the emergency exception to the warrant requirement arises out of the caretaking function of the police, which includes aid[ing] individuals who are in danger of physical harm, [and] assist[ing] those who cannot care for themselves . . . . State v. Fausel, supra, 295 Conn. 800 801, quoting 3 W. LaFave, supra, § 6.6, p. 451. Despite these important principles guiding our review, the majority concludes that Kelly s belief that an emergency existed was objectively unreasonable. As a result, I am concerned about the potentially chilling effect this ruling may have on police officers decisionmaking processes in the future regarding potential emergency situations. Indeed, in my view, an officer presented with the aforementioned information and observations may have been derelict in his or her duty if that officer, upon receiving no response at the intercom, had simply turned around and returned to the police station. As a result of the majority s decision, will officers demand heightened evidence of an emergency before responding to citizens concerns that someone is in danger of physical harm or in need of assistance? Will officers, acting in their community caretaking role, be more hesitant to make warrantless searches for fear that their prompt assessment of sometimes ambiguous information concerning potentially serious consequences ; State v. Fausel, supra, 295 Conn. 800; proved, in judicial hindsight, to be misplaced? In the cool morning of appellate review [this court will] not ignore the heated passion of immediacy that was the essence of the anxious concerns about the [sixteen year old s] safety and well-being . . . . State v. Blades, supra, 225 Conn. 621. Accordingly, on the basis of the facts known by Kelly when he entered the defendant s curtilage, I would conclude that Kelly possessed an objectively reasonable belief that an emergency situation existed, namely, that the missing sixteen year old was in need of immediate aid or assistance within the defendant s residence. I therefore respectfully dissent from the majority s conclusion that, under the facts of this case, Kelly s belief was objectively unreasonable and, consequently, his warrantless entry onto the defendant s curtilage was unjustified. Because the majority concludes that the warrantless search commenced at the moment Kelly entered the defendant s curtilage, and because the majority concludes that Kelly lacked an objectively reasonable belief that an emergency existed at that moment, the majority does not take into account Kelly s additional observations and actions culminating in his entry into the defendant s residence and discovery of the reptile, which the defendant challenged through his motion to suppress. Because I would affirm the judgment of the Appellate Court, I consider these additional facts in determining whether Kelly justifiably searched the defendant s residence without a warrant, because he possessed an objectively reasonable belief that an emergency situation existed within the defendant s residence pertaining to the missing sixteen year old. I set forth, therefore, the following additional relevant facts, as set forth in the opinion of the Appellate Court and as found by the trial court. [Kelly] stepped over the low white fence and began to walk around the house, announcing the presence of the police. [Kelly] rang the front doorbell and knocked on the front door to no avail. He then walked around the back of the house and approached a set of French doors. He observed through those doors a cot on which there was a bag of clothes that appeared suitable for a teenager, some video games and an otherwise impeccable house. [Kelly] grabbed the handle, realized that the door was not locked and proceeded to open the door. At that point, he called for backup in accordance with police procedure relative to finding an open door in a residence. [Robert Smurlo, another Stamford police officer] arrived at the scene within a few minutes and was briefed by [Kelly] before they entered the residence. State v. Ryder, supra, 114 Conn. App. 531 32. In my view, Kelly s observations of clothing suitable for a teenager, the unmade bedding on the makeshift cot and the presence of videogames, in apparent contravention of the defendant s earlier statement to police that he did not know where the missing sixteen year old was, as well as the defendant s attempt to direct the police to a different, apparently inaccurate address, buttressed the evidence available to Kelly, and led him to reasonably believe that the missing sixteen year old was inside the defendant s residence and in need of aid or assistance. In Blades, this court concluded that the officer s observation of a blood-like smear on an interior door to the common hallway of the defendant s building served to further heighten the officer s belief that the victim was in need of immediate aid and that a warrantless search was required. State v. Blades, supra, 225 Conn. 621. Similarly, in my view, Kelly s additional observations permissibly further heightened his belief that the missing sixteen year old was sequestered within the defendant s residence, that the minor may have been injured or otherwise unable to respond to the intercom, doorbell and Kelly s verbal announcements of police, and that the defendant had twice been untruthful to the police when he previously had stated that he did not know where the sixteen year old was and had provided an address as to his possible location that proved inaccurate. Pursuant to our standard of review and governing principles, I would conclude, on the basis of these additional facts, and in conjunction with the previously discussed information known by Kelly, that he possessed an objectively reasonable belief that an emergency situation existed within the defendant s residence at the moment Kelly entered the residence through the set of unlocked French doors. For all of the foregoing reasons, I would affirm the judgment of the Appellate Court upholding the trial court s denial of the defendant s motion to suppress. 1 Because the defendant initially pleaded nolo contendere, the defendant s file was culled, including his motions to suppress and dismiss filed with the Superior Court. Efforts to reconstruct all of the contents of the file were unavailing, and as a result the motions to suppress and to dismiss are not contained in the record before this court. 2 Robert Smurlo, the second Stamford police officer that arrived at the defendant s residence, testified at the suppression hearing and used the term curtilage when explaining his vantage point in viewing the defendant s property. Smurlo admitted that he understood the term to include property intimately connected to a residence and that his knowledge stemmed from his police training. Smurlo admitted, however, that he had no legal training and that he had no basis to state a legal opinion. The majority concludes that Smurlo s statements support a resolution of the present appeal on the basis of the defendant s newly raised curtilage claim. I disagree. Smurlo s understanding of the nature of the defendant s curtilage is not germane to the present appeal, as neither the trial court nor the Appellate Court focused on the reasonableness of Smurlo s belief that an emergency existed or the basis of his knowledge supporting such a belief. Both courts only made passing reference to his presence at the defendant s residence and instead focused on the reasonableness and basis of Kelly s belief that an emergency existed. Indeed, after mentioning Smurlo in a footnote, the remainder of the majority opinion focuses on Kelly, the extent of his knowledge concerning the missing minors and the reasonableness of his belief that an emergency situation existed. Accordingly, I would not consider Smurlo s statements in determining whether to resolve the present appeal on the basis of the defendant s newly raised curtilage claim. 3 At oral argument before this court, the state contended that because the defendant had failed to raise the curtilage claim before the trial court or the Appellate Court, the issue was outside of the certified question and this court should decline to review it. 4 The defendant failed to preserve this claim before the trial court or the Appellate Court, and he has not asked this court to review this claim pursuant to the bypass doctrine set forth in State v. Golding, 213 Conn. 233, 239 40, 567 A.2d 823 (1989). 5 The statement of facts set forth by the majority is adopted from the opinion of the Appellate Court, which adopted those facts from the trial court s memorandum of decision. 6 When another officer went to the address provided by the defendant, no one was home. Although the address provided by the defendant ultimately proved to be the location where the missing sixteen year old had stayed at some point during the weekend, that fact was not known by the police until hours after Kelly had entered the defendant s property. Because, however, this court determines the reasonableness of a warrantless search based on the facts known at the time of entry; State v. Blades, 225 Conn. 609, 619, 626 A.2d 273 (1993); it is of no moment that the missing sixteen year old had in fact been at that location at some point in time because Kelly did not have that information when he entered the defendant s curtilage. See, e.g., State v. Fausel, supra, 295 Conn. 800 ( it is of no moment that it turns out there was in fact no emergency [internal quotation marks omitted]). 7 The majority opinion states that [a]lthough . . . [such calls from a parent] understandably [create] a sense of urgency, Kelly also had been told that the teenaged boys had travelled from Vermont to Connecticut by train, presumably without the supervision of their father, that the father and the defendant previously had been in a personal relationship and had resided together and that the father already had been able to contact the fourteen year old son, who had informed him that the sixteen year old son was at the defendant s house. These facts in no way suggest an emergency; rather, they suggest that both the missing sixteen year old son and the defendant were not at home on a sunny Sunday afternoon in the summer. I disagree with this conclusion, which fails to reference all of the facts found by the trial court and also fails to consider the urgency suggested by the conflicting facts concerning the location of the missing sixteen year old. I note, specifically, the fourteen year old son s statement that the missing sixteen year old was at the defendant s house, the defendant s earlier denial that he knew where the sixteen year old was and subsequent provision of an apparently inaccurate address, and that the defendant and the father had a prior relationship. Although the majority s language suggests that the relationship between the defendant and the father remained positive and that the missing sixteen year old was simply visiting a family friend, and although Kelly did not testify that he was aware of the nature of the relationship between the defendant and the father at the time of this incident, the father testified at the suppression hearing that his relationship with the defendant was, in fact, very acrimonious and that he had explained this to police dispatch in his calls.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.