STATE OF CONNECTICUT v. GEORGIOS ZINDROS
10505
Supreme Court of Connecticut
February 15, 1983
189 Conn. 228
SPEZIALE, C. J., PETERS, HEALEY, SHEA and SPADA, Js.
Argued October 7, 1982
Applying these various legal principles to the decisions of the trial court, we conclude that Wright, J., was correct in denying the plaintiff‘s motion to strike the defense of constructive eviction, and that O‘Donnell, J., was in error in granting the defendant‘s motion for summary judgment. Only a full trial can establish whether the defendant was in fact constructively evicted or was entitled, for lack of adequate assurance, to infer that its lease had been terminated.
There is error, the judgment is set aside, and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
Edward G. Fitzpatrick, with whom was Raymond J. Shepack, for the appellee (defendant).
ARTHUR H. HEALEY, J. On February 12, 1977, a fire broke out in a building located on Highland Avenue in Waterbury. The building was owned by Louis Cipriano and was under a lease to the defendant for his exclusive use as a pizza restaurant. The premises suffered extensive damages rendering them unfit for occupancy. In an information filed
On June 21, 1977, the defendant filed a motion to suppress all evidence, and related testimony, obtained in a search of the premises by police and fire officers on February 23, 1977. As the basis for his motion, the defendant claimed that the search was conducted without a warrant and without his consent. After an evidentiary hearing on the matter, the court, Maiocco, J., granted the defendant‘s motion. Thereafter, the defendant filed a motion to dismiss the information against him with prejudice which was granted by the court, Henebry, J., on November 12, 1980. On the same day, the state filed a request, pursuant to
To assess the parties’ claims properly, it is necessary to delineate certain events that led to the search of the leased premises on February 23, 1977, and to examine the business relationship between the defendant and his landlord, Cipriano, as that relationship was affected by the events occurring between the time of the fire and the search. The defendant was assigned the lease for the premises on April 15, 1976, with a term that ran until October 31, 1978. The defendant was current in
There are four clauses in the lease that are relevant to this appeal. The third clause provides, in part, that “if the leased premises shall be deserted or vacated, the Landlord or its agents shall have the right to and may enter the said premises as the agent of the Tenant.” The tenth clause gives the landlord the right to enter the premises at reasonable hours to inspect and to make any necessary repairs on the premises. The eleventh clause deals with the parties’ rights in the event the premises were destroyed by fire, explosion or otherwise. It provides as follows:
“In the event of the destruction of the demised premises or the building containing the said premises by fire, explosion, the elements or otherwise during the term hereby created, or previous thereto, or such partial destruction thereof as to render the premises wholly untenantable or unfit for occupancy, or should the demised premises be so badly injured that the same cannot be repaired within ninety days from the happening of such injury, then and in such case the term hereby created shall, at the option of the Landlord, cease and become null and void from the date of such damage or destruction and the Tenant shall immediately surrender said premises and all the Tenant‘s interest therein to the Landlord, and shall pay rent only to the time of such surrender, in which event the Landlord may re-enter and re-possess the premises thus discharged from this lease and may remove all parties therefrom. Should the demised premises be rendered untenantable and unfit for occupancy, but yet be repairable
within ninety days from the happening of said injury, the Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after said repairs shall be completed. But if the premises shall be so slightly injured as not to be rendered untenantable and unfit for occupancy, then the Landlord agrees to repair the same with reasonable promptness and in that case the rent accrued and accruing shall not cease or determine. The Tenant shall immediately notify the Landlord in case of fire or other damage to the premises.”
Finally, the twenty-fourth clause provides that “[t]he foregoing rights and remedies are not intended to be exclusive but as additional to all the rights and remedies the Landlord would otherwise have by law.” The significance of these clauses will be addressed while examining the substantive issues raised by this appeal.
As previously noted, the fire occurred on February 12, 1977. The defendant testified at the hearing on the motion to suppress that he first found out about the fire on Sunday, February 13, 1977, from both the landlord and his own daughter. He did not go into the restaurant on that day, but he did call the fire marshal to make an appointment for the marshal to inspect the premises the following day. Meanwhile, on Sunday, Cipriano had someone secure the building by boarding it up.2
On Monday, February 14, two members of the Waterbury fire marshal‘s office inspected the premises. There was conflicting testimony as to who let them in;4 however, it was the defendant who showed them around. Nothing was removed on that day, but the marshals were able to determine the place of origin of the fire.5 The defendant resecured the premises when they left. The defendant at one point testified that he did not tell them they could not reenter the building because “I can‘t stop anyone.”
The defendant visited the premises on at least two other occasions. Between February 16 and February 18, he met a representative of his insurance company, and on February 22, he met an inspector from the Waterbury health department. The defendant was concerned with the restaurant goods and equipment6 that remained in the premises. After each visit, the defendant resecured the premises.
No formal action was taken on the part of the defendant or Cipriano to terminate the lease in accordance with its terms in the event of a fire. While the defendant testified that he did not really understand the lease, he felt that the lease was broken by the fire but that he was entitled to stay in the premises until the end of February because his rent was paid. Cipriano, on the other hand, requested that the defendant pay the rent for March.8 Both Cipriano and the defendant cleaned out the premises. The defendant testified that although he felt that the lease was broken, it was also his responsibility to “repair” the place. He did not, however, take any action to make any substantial repairs because he was waiting for his insurance claim to be settled.
The search which was the basis for the defendant‘s motion to suppress occurred on February 23, 1977, eleven days after the fire. Officers of the Waterbury police department, the Waterbury fire
As a result of the fire Cipriano collected $21,000 from his insurance company for damage to the building. At the hearing in January, 1979, the defendant said that he had not collected any money on his insurance claim.9 Subsequent to the fire, the defendant never reoccupied the premises or reopened the premises. After remaining vacant for seven months, the building was sold by Cipriano.
In making its claim that the trial court erred in granting the motion to suppress, the state essentially argues (1) that the defendant had no reasonable expectation of privacy in the premises searched that was fatally offended by the search, and (2) that the landlord Cipriano clearly had the authority to consent to the entry and the search by the officers whether such authority be denominated
The issue of whether a “search” comes within the protection of the fourth amendment involves a twofold requirement under Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring). The first is whether the person who is the focus of the inquiry has “exhibited an actual (subjective) expectation of privacy and, second . . . [whether] the expectation be one that society is prepared to recognize as ‘reasonable.‘” Katz v. United States, supra, 361. Where it is established that law enforcement officials have encroached upon a defendant‘s reasonable expectation of privacy, and the trial court explicitly found that this had in fact taken place, then the focus of inquiry should move to the “reasonableness” of the search. That is, where there was a warrant, was it accomplished pursuant to the warrant and where there is no warrant, was it justified and thus constitutional because it was within an exception to the warrant requirement? The state does not disagree that the United States Supreme Court has made it clear that “a search conducted without a warrant issued upon probable cause is ‘per se
Two recognized exceptions to the warrant requirement are where searches have been undertaken pursuant to (1) “exigent circumstances“;11 see, e.g., Mincey v. Arizona, 437 U.S. 385, 392-94 (1978); Terry v. Ohio, 392 U.S. 1, 25-26 (1968); State v. Runkles, 174 Conn. 405, 412 (1978), cert. denied, 439 U.S. 859 (1978); and (2) consent. See, e.g., Davis v. United States, 328 U.S. 582, 593-94 (1946), reh. denied, 329 U.S. 824 (1946); Dotson v. Warden, 175 Conn. 614, 618 (1978). The exceptions “have been jealously and carefully drawn.” Jones v. United States, 357 U.S. 493, 499 (1958); see State v. Krause, 163 Conn. 76, 80 (1972). The burden of proof is upon the state to show that an exception exists. Coolidge v. New Hampshire, supra, 455; see McDonald v. United States, 335 U.S. 451, 456 (1948);
Before we analyze the issues raised by this appeal, it should be recognized that our power to upset the findings of the trial court is limited. We have stated our function here on many occasions. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court‘s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court‘s judicial review of decisions of the trial court. Beyond that, we will not go.” Pandolphe‘s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22 (1980).
The appropriate starting point for fourth amendment analysis here is, thus, the defendant‘s reasonable expectation of privacy. Katz recognized the importance of the individual‘s expectations of privacy when it explained: “For the Fourth Amendment protects people, not places. What a person
The determination of whether a person has exhibited a subjective expectation of privacy requires
Inasmuch as the trial court found that the defendant had a reasonable expectation of privacy, it follows that it also found that such an expectation in this case was one that “society is prepared to recognize as ‘reasonable‘” under Katz and its progeny.15
We turn now to the state‘s claim that the court erred in finding that the defendant‘s landlord,
The state recognizes that if it is found that the defendant had a reasonable expectation of privacy, it must prove that the consenting party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”17 United States v. Matlock, supra, 171; Dotson v. Warden, supra, 621. The state maintains in its brief that, by operation of the lease and the fact of the fire, the landlord had “a right to possession superior to that of the lessee.” This claim goes as follows: construing the facts most favorably to the defendant the premises were untenantable but repairable within ninety days thereby implicating that portion of the lease (article eleventh)18 which provides: “[T]he Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while
“While property ownership is clearly a factor to be considered in determining whether an individual‘s Fourth Amendment rights have been violated . . . property rights are neither the beginning nor the end of [this court‘s] inquiry.” United States v. Salvucci, supra, 91. “The test applicable to third-party consent requires the state to prove that the consenting party ‘possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ United States v. Matlock, supra, 171. Matlock (p. 171) goes on to elaborate in a footnote on what constitutes ‘common authority.’ ‘Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant his-
To begin with, the landlord clearly did not, as the state asserts, have, under the facts and the lease, a “superior” right of possession.22 The trial court made no finding that the premises were untenantable and repairable within or without a ninety day period.23 The landlord did not repair the prem-
A fair reading of the trial court‘s memorandum discloses that it concluded that the landlord‘s consent on either the “common authority” or “other sufficient relationship” criteria of Matlock had not been proven by the state. We agree. The landlord took no action to terminate the defendant‘s possession under the lease; he permitted the defendant‘s property to remain and demanded another month‘s rent. He did not demonstrate that he curtailed the defendant‘s access; he even left the leased premises upon the defendant‘s asking him to do so several days prior to February 23.24 It is true that the landlord caused the premises to be boarded up initially and entered the premises on several occasions after the fire. There was, however, no evidence that he exercised his “absolute right to temporary possession” as the state suggests concerning “the necessity to gut the premises to make necessary repairs and the corollary need to bring in
The defendant was not contacted concerning giving any consent to this search. He lived in Waterbury and the police and fire officials involved knew he was there. He had not fled nor is it claimed he was likely to do so and this was eleven days after the fire. See Chapman v. United States, supra, 615. Only one day prior to the search, the landlord had seen the defendant when the latter had brought a check for property taxes to the landlord‘s home. The landlord knew his consent was
The state next argues that even if the landlord had no actual authority to consent, the search was
The defendant claims that the record does not contain facts sufficient to justify the search on the doctrine of “apparent authority” which, in turn, would be necessary to support the state‘s claim that the officers’ action based on that authority establishes a reasonable good faith belief by them that validates the search.
In pressing its line of argument the state points to the following circumstances: Cipriano owned the building, the premises had been “gutted” by fire, he (and not the defendant) had secured the premises after the fire and he opened the premises for the fire marshal on the Monday after the fire. It also claims that the defendant‘s attorney called the landlord to gain access to the building.30 The defendant argues that the police were not at all mistaken as to the essential facts. They knew that Cipriano owned the premises but that it was currently occupied by the defendant. Detective Lieutenant Solomita was one of the two officers
In Stoner, the United States Supreme Court said that “the rights protected by the
e.g., United States v. Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Jones v. United States, 362 U.S. 257, 270, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Bember, 183 Conn. 394, 412, 439 A.2d 387 (1981); State v. Jackson, 162 Conn. 440, 445, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). One of the purposes of the warrant requirement “is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure.” United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). Just as a search cannot be justified by the potent evidence it produces, so also an unlawful search cannot be justified by claiming that the evidence seized might have been obtained by other and lawful means. United States v. Mancusi, 379 F.2d 897, 903 n.9 (2d Cir. 1967), aff‘d sub nom. Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). The state has not shown, as it must,
There is no error.
In this opinion SPEZIALE, C. J., and PETERS, J., concurred.
SHEA, J. (dissenting). In my view the majority opinion constitutes a wholly unwarranted and unprecedented application of the
Under the terms of the lease the landlord had a general right to enter the premises in order to inspect them and also to make necessary repairs. He also had a more specific right to enter and repair in the event of a fire. These provisions must be construed to authorize the landlord to inspect the premises for the purpose of ascertaining the cause of a fire before proceeding to repair the damage caused by the fire. Whether the suspected cause was defective wiring or arson by the tenant, the landlord would have a sufficient interest in the protection of his property to justify an investigation for the purpose of determining the origin of the fire. Since the landlord had such a right to
The difference between this case and the cases involving permission of the owner to enter a hotel room or other premises occupied by another is that here the owner had an interest based upon his status as a landlord in determining the cause of the fire and a right of entry reserved in the lease broad enough to entitle him to do so. These circumstances negate any reasonable expectation of privacy on the part of the tenant.
The case is similar to United States v. Botsch, 364 F.2d 542 (2d Cir. 1966), where a landlord, who had been an unwitting accomplice in a fraudulent scheme utilizing the mails, invited postal inspectors to search a shanty which he had leased to the defendant. It was held that his interest in clearing himself from the taint of suspicion, which had been cast upon him because of his innocent participation in the cunning swindle concocted by the defendant, authorized him to allow the search. Id., 547-48. Here also the landlord had a legitimate interest in ascertaining the cause of the fire and, in addition, an express right of entry broad enough to authorize him to make an investigation for that purpose. Since the search conducted by the police did not exceed the scope of the authority vested in the landlord who had consented thereto, it was not unreasonable and did not violate the rights of the defendant under the
This is an appeal from a suppression order by the trial court invalidating, on constitutional grounds, the warrantless search of a fire-damaged building under lease to the defendant for his use as a restaurant.
The facts on appeal raise two issues: (1) whether the landlord, as a third party, had authority to consent to a police search of the building after the fire, and (2) whether the defendant‘s legitimate expectation of privacy was violated by the challenged search.
The threshold question in every suppression case is the existence of a reasonable expectation of privacy in the area searched. “[The] capacity [of a defendant] to claim the protection of the
The lease (paragraph 11) provided in relevant part that “[s]hould the demised premises be rendered untenantable and unfit for occupancy . . . the Landlord may enter and repair the same with reasonable speed . . . .” It was undisputed that as a consequence of the February 12, 1977 fire, the premises were rendered unfit for occupancy.
The defendant testified that he assumed the lease was terminated by the fire but that he could stay to the end of February because his monthly rent had been paid. Both the landlord and the defendant removed debris and cleaned the premises. The defendant made no repairs and eventually removed his salvageable restaurant fixtures. The claimed tainted search occurred on February 23, eleven days after the fire, when the landlord granted access to fire and police officials to search the premises, without a warrant, to ascertain the cause of the fire.
We are not reviewing herein the case of a landlord authorizing a search of his tenant‘s property. Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961). Under the lease, the landlord reserved to himself the right of access and entry upon the occurrence of a major fire. This reservation was broad enough to allow for appraisal of damage; the opportunity to repair and relet the premises; and finally to locate and abate a suspected cause of the fire. The early payment of the February rent neither altered nor reduced the landlord‘s contractual right to enter upon the premises. The majority decision limits the landlord‘s right of access to the time of the fire or within
In Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), cited by the majority, the warrantless search resulted after a fire without the intervention or presence of a landlord or third party. This precedent therefore is unpersuasive in an instance of third party consent, such as in the case before us.
The exigency of the fire triggered the landlord‘s right of access bargained for and contained in the lease. The landlord‘s right of unrestricted access effectively negated the defendant‘s reasonable expectation of privacy. Because the landlord‘s claim to possession was at minimum equal to that of the defendant, he had an independent right to permit the search.
The burden rests on one who seeks to suppress to prove that his legitimate expectation of privacy has been violated by the challenged search. United States v. Bellina, 665 F.2d 1335 (4th Cir. 1981). The evidence does not reasonably establish that the defendant exhibited any subjective expectation of privacy in the fire damaged restaurant; nor can I conclude that society would recognize any such expectation as reasonable. “Not all places enjoy, in the eyes of society and the law, the same legitimate or reasonable expectation of privacy.” United States v. Bellina, supra, 1340; see also United States v. Rucinski, 658 F.2d 741, 746 (10th Cir. 1981), cert. denied, 455 U.S. 939, 102 S. Ct. 1430, 71 L. Ed. 2d 649 (1982), making a distinction between private houses and commercial property for fourth amendment purposes.
I would reverse the trial court‘s ruling on the motion to suppress.
ALFRED B. BURNHAM v. PLANNING AND ZONING COMMISSION OF THE TOWN OF SOUTH WINDSOR
(10754)
HEALEY, PARSKEY, SHEA, GRILLO and DALY, JS.
Argued November 10, 1982—decision released February 15, 1983