Opinion
No. CR 03-24295
November 12, 2004
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS
On November 25, 2003, the defendant, Jesus Gonzalez, was arrested for possession of narcotics, in violation of General Statutes § 21a-279(a), possession of narcotics with intent to sell, in violation of General Statutes § 21a-277(a), possession of narcotics within 1500 feet of a school, in violation of General Statutes § 21a-279(d), possession of narcotics with intent to sell within 1500 feet of a school and conspiracy on all of the above charges. The defendant's arrest resulted from communications carried through another individual's cellular telephone, which was seized in an earlier investigatory stop that same day.
On May 10, 2004, the defendant, pursuant to Practice Book §§ 41-12 and 41-14, the fourth, fifth, sixth and fourteenth amendments to the United States constitution, article first, § 7, of the constitution of Connecticut and article first, § 8, of the constitution of Connecticut, as amended by article twenty-nine of the amendments, filed a motion to suppress all fruits of what the defendant claims to be an illegal search and seizure on November 25, 2003. An evidentiary hearing was conducted in this matter on September 17, 2004.
Based upon a review of the testimony as well as the relevant case law, the court denies the defendant's motion to suppress.
I. FACTS
The court finds the following facts. On November 25, 2003, Officer Bennett Hines was assigned to the intelligence unit of the New Haven police department (NHPD). As a member of the intelligence unit, Hines's focus was to apprehend street-level drug dealers. The intersection of Ferry Street and Grand Avenue was notorious as a bed of drug activity within the city of New Haven. At the time of the defendant's arrest, NHPD officers had received information relating to a Dominican male supplying street-level narcotics dealers in the above-mentioned area.
At 12:00 p.m. on November 25, 2003, at the intersection of Fillmore Street and Grand Avenue, Hines observed a white female, later identified as Maria Nonamaker, approach an unknown Hispanic male. Based upon prior investigations, Hines knew Nonamaker to be a drug addict. Hines observed Nonamaker engage in a hand-to-hand drug transaction in which money was exchanged for narcotics. A field interview and a Terry pat-down check of Nonamaker was conducted soon thereafter. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). During the pat-down check, Hines discovered Nonamaker was in possession of five glassine bags, the contents of which field-tested positive for heroin. As a result, Nonamaker was placed under arrest and read her Miranda rights, which she waived. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Nonamaker was then transported to the intersection of Ferry Street and Grand Avenue whereupon she positively identified Luis Fonseca as the individual who sold her the heroin.
Prior to the positive identification of Fonseca, Hines contacted an Officer Hartnett and a Detective Reyes, who proceeded to the above-mentioned intersection. Reyes testified at the September 17, 2004 hearing that he is a five-year member of the NHPD assigned to the Drug Enforcement Agency (DEA) task force. These three officers observed Fonseca closely for approximately twenty minutes. Following what appeared to be further illegal drug activity by Fonseca, Hartnett and Reyes conducted a field interview of Fonseca as he was nearing the entrance to his home. Fonseca produced a valid Connecticut state identification card (JD#177252947) and carried $60 in cash and a cellular telephone. No weapons or narcotics were found on Fonseca.
Reyes further testified that as he held Fonseca's cellular telephone, it rang constantly during the field interview. Hines testified that it is common practice for drug dealers to use cellular telephones in conducting their business. Reyes, who is fluent in Spanish, answered Fonseca's cellular telephone. Fonseca neither gave Reyes permission to answer his cellular telephone nor protested. A male, Spanish-speaking caller told Reyes he wanted to "resupply" him. In Reyes's opinion, the caller apparently believed Reyes was Fonseca. The caller instructed Reyes to meet him at the intersection of Blatchley Avenue and Clay Street, a location approximately two blocks away. Thereafter, Fonseca was released when a warrant check showed he had no active warrants. Hines testified that Fonseca was released because of a "command decision"; it was feared that if Fonseca had been arrested on sight, it could have been detected by a lookout thereby jeopardizing any further action. Reyes confiscated Fonseca's cellular telephone as evidence.
At the September 17, 2004 evidentiary hearing, Officer Hines testified that an arrest warrant has been issued for Fonseca as a result of this incident, but it has yet to be served. It remains active.
Hartnett, Hines and Reyes proceeded to the prearranged location. Alter waiting approximately five minutes, a red van arrived at the intersection. At that point, Fonseca's cellular telephone rang again, and Reyes answered it. The caller told Reyes that he was waiting in the red van. Hartnett and Reyes exited an unmarked police vehicle and saw the driver of the van holding a cellular telephone to his ear with his left hand. Hartnett observed the driver making furtive movements with his right hand. The driver was asked to step out of the vehicle. A pat-down search was conducted for weapons. In plain view on the front seat, Hartnett observed an electronic scale and a handcuff key. The interior portion of the van was searched incident to the arrest, and twenty-five glassine bags were located secreted within an air vent. This was the same area where the driver had made furtive movements just moments earlier. The contents of the glassine bags were field-tested positive for heroin. The driver was placed under arrest. The driver of the van was identified as the defendant, Jesus Gonzalez.
II. LEGAL ANALYSIS
The issue of whether, or under what circumstances, police officers may, without a warrant, answer a cellular telephone seized pursuant to a valid Terry stop, is one of first impression in the state of Connecticut.
A. Standing to Challenge a Warrantless Search
The court first examines the crucial issue of whether the defendant has standing to challenge the NHPD officers' warrantless search into Fonseca's cellular telephone. "The defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing." (Citations omitted; internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92-93, 675 A.2d 866 (1996). "Standing is an individual's right to complain about an allegedly illegal governmental search, and thus to exclude evidence." Villarreal v. State, 935 S.W.2d 134, 137 (Tex.Cr.App. 1996), quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). "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 . . . Absent such an expectation, the subsequent police action has no constitutional ramifications . . . In order to meet this rule of standing . . . a two-part subjective/objective test must be satisfied: (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 . . . This determination is made on a case-by-case basis . . . Whether a defendant's actual expectation of privacy . . . is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances. (Citations omitted; internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 81, 92-93.
A subjective expectation of privacy is "a genuine intention to preserve something as private." Villarreal v. State, supra, 935 S.W.2d 137. The first prong of a standing analysis regarding a subjective expectation of privacy necessarily involves a factual analysis. Villarreal v. State, supra, 935 S.W.2d 137. When looking at the specific facts in the instant case, the court finds the defendant was under the impression that he was speaking with Fonseca, not an officer of the NHPD. The defendant dialed a telephone number he presumably knew to be Fonseca's cellular telephone. Additionally, the defendant is directly quoted as saying that he wanted to "resupply" Reyes. The word "resupply" itself implies a previous dealing between the defendant and Fonseca. When the defendant was arrested, he was found to be alone in the van. For the second call to Reyes, therefore, the defendant was alone in the van, demonstrating an effort to maintain privacy on his end of the conversation. For these reasons, it is manifestly clear to the court that the defendant maintained a subjective expectation of privacy in his phone conversations carried through a cellular telephone. Accordingly, the court will next address the second criterion of standing: whether the defendant's expectation of privacy is one in which society is willing to recognize.
The second prong in a standing analysis as to whether "society is willing to recognize . . . circumstances as giving rise to a reasonable expectation of privacy . . . is a question of law." Villarreal v. State, supra, 935 S.W.2d 137. In the present case, the court reiterates that the defendant bears the burden of proving a reasonable expectation of privacy as a caller in a telephone conversation.
In United States v. Congote, 656 F.2d 971, 976 (5th Cir. 1981), the court concluded no legitimate expectation of privacy existed for the defendant-caller (Congote) in calls he made to undercover agents. The facts of United States v. Congote are as follows. On November 8, 1979, co-defendants Bennett and Mitchell sold narcotics to DEA agents. Bennett and Mitchell identified co-defendant Brock as their supplier. Thereafter, Bennett led the DEA agents to the apartment, which was owned by Ms. Marszalkowski, where Brock delivered the narcotics. See id., 972. The agents entered the apartment uninvited and were advised "to secure it" until a search warrant was obtained. See id., 973. "While in the apartment, the agents answered the telephone when it rang, noting several calls from a man identifying himself as `George' who asked to speak with Brock." See id., 972. "On the morning of November 9, 1979, Agents Cairo and Peacher arrived at the apartment to relieve the other agents. The man known as `George' called once more, spoke with Agent Cairo, and agreed to meet him at the Best Department Store." See id., 973. While at the store, "George" described the narcotics he sold Brock and further complained about the payment. See id. Later at Brock's apartment, `George' again described the narcotics he previously sold Brock. See id. "George (Congote) was then arrested at 2:00 p.m. on November 9, 1979. The agents did not obtain a warrant to search the apartment until 2:50 p.m. on that date." See id.
The Congote court found "egregious violations of the constitutional rights of appellant's co-conspirators (Bennett, Mitchell and Marszalkowski)" but affirmed "the district court judge's denial of appellant's motion to suppress." See id., 973. "[T]he agents inside the apartment lacked a search warrant. By answering the telephone, they were grossly exceeding the Assistant United States Attorney's instructions merely to secure the apartment. They thus violated the lessee's fourth amendment rights." See id., 974-75.
The Congote court noted that "[t]he core question in this case is whether appellant has standing to assert the violation of Brock's and Marszalkowski's fourth amendment rights. If so, all of his statements made to the agents over the telephone and in the apartment should have been excluded as fruit of the poisonous tree . . . The agents would not have found appellant without the unconstitutional entry into the apartment, arrests, and use of the telephone." See id., 975. The court found appellant had no standing "to assert the fourth amendment violation that occurred when Brock and Marszalkowski were arrested." See id. Further, the court held, "None of the agents pretended to be Brock, the party appellant wished to reach. Appellant had no legitimate expectation of privacy in his telephone conversation with the agents. He assumed the risk of exposure when he spoke freely with strangers." See id., 976.
The court notes the many similarities between the present case and United States v. Congote. First, the DEA agents in Congote conducted an illegal search in answering the ringing telephone in Marszalkowski's apartment without permission. Similarly, Reyes conducted an illegal search when he answered Fonseca's cellular telephone without consent. Second, in both cases the government arranged to meet the narcotics dealer personally via a telephone conversation. Third, both Congote and Gonzalez "spoke freely with strangers." Additionally, both Reyes in the present case and the agent in Congote neither affirmatively misrepresented their identities. "[A] certain degree of deception or subterfuge on the part of law enforcement authorities is a necessary incident to the investigation of unlawful activities, which are by their nature, covert and secretive . . . We concluded that the fourth amendment did not protect a wrongdoer's misplaced trust; nor did it require the police to offer their true identity whenever they answer[ed] the telephone." (Citations omitted; internal quotation marks omitted.) United States v. Francisco-Sangineto-Miranda, 859 F.2d 1501, 1515 (6th Cir. 1988).
"In determining whether an asserted privacy interest in a telephone conversation is reasonable, the court must consider the objective realities of the circumstances attendant to the conversation at issue and balance the probability of maintaining the confidentiality between the parties to the conversation against the probability of a violation of the privacy intended to attach to the conversation by a disclosure to others." United States v. Padin, 787 F.2d 1071, 1076 (6th Cir. 1986). The "objective realities" in the present case are that, "[a] person cannot control the conditions at the other end of a telephone conversation." Commonwealth v. Eason, 427 Mass. 595, 600, 694 N.E.2d 1264 (1998). "On the telephone, one is blind as to who is on the other end of the line. Thus, while society may certainly recognize as reasonable a privacy expectation in a conversation carried on face-to-face within one's home, we are convinced society would find that an expectation of privacy in a telephone conversation with another . . . is not objectively reasonable." Commonwealth v. Rekasie, 566 Pa. 85, 97-98, 778 A.2d 624 (2001). The uncertainty of who may or may not be the recipient is inherently present in any telephone call. The mobility and ready access of a cellular telephone further raises the level of uncertainty as to the situation on the other end of a telephone call.
"Every case that has considered the question has concluded that the caller has no valid Fourth Amendment objection to the use of the phone call against him or her at trial." Various cases have held that a caller does not have a reasonable expectation of privacy in calls he voluntarily makes. Further, "[t]hat one does not have an expectation of privacy in information voluntarily disclosed to another, has been consistently applied by the federal high court in denying assertions of expectations of privacy under the Fourth Amendment." (Internal quotation marks omitted.) Commonwealth of Pennsylvania v. Rekasie, supra, 566 Pa. 85, 94.
C. Fishman A. McKenna, Wiretapping and Eavesdropping (2nd Ed. 2004) § 6:46, p. 137.
State v. Gonzales, 78 Wash. App. 976, 982, 900 P.2d 564 (1995). State v. Goucher, 124 Wash. 2d 778, 783, 881 P.2d 210 (1994). United States v. Padin, 787 F.2d 1071, 20 Fed.R.Evid. Serv. (LCP) 868 (6th Cir. Tenn. 1986), cert. denied, 479 U.S. 823, 93 L.Ed.2d 45, 107 S.Ct. 93 (1986) (admissible despite the fact that the caller was the nominal, absentee tenant, in whose name the phone was registered; the caller knew that his house was used by transient visitors to distribute drugs, called the house and had a drug-related conversation with DEA agents who were lawfully on the premises and were waiting for other agents to obtain a search warrant before commencing a search; held, the agent's interception by impersonation did not constitute a search because the caller lacked a reasonable expectation of privacy with regard to the conversation." United States v. Passarella, 788 F.2d 377, 379-81 (6th Cir. 1986).
Despite any violation of Fonseca's fourth amendment rights, application of United States v. Congote and the various cases that have previously ruled on the issue of whether a caller has a reasonable expectation of privacy to the facts of this case leads to the conclusion that the defendant did not have a reasonable expectation of privacy into calls he voluntarily made. Consequently, he lacks standing to contest the legality of the NHPD's officers' warrantless search, and the defendant's motion to suppress is denied.
SO ORDERED.
By the Court,
Marano, J.