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STATE OF CONNECTICUT v. MICHAEL
ANGELO DEMARCO
(SC 18738)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Harper, Vertefeuille and
Espinosa, Js.*
Argued October 24, 2012—officially released April 22, 2014
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Michele Bredefeld, deputy assistant state’s
attorney, for the appellant (state).
Lindy R. Urso, for the appellee (defendant).
Opinion
EVELEIGH, J. The state appeals, following our grant
of certification, from the judgment of the Appellate
Court reversing the judgment of the trial court con-
victing the defendant, Michael Angelo DeMarco, of two
counts of cruelty to animals in violation of General
Statutes (Rev. to 2007) § 53-247 (a).1 On appeal, the state
claims that the Appellate Court improperly reversed the
judgment of the trial court on the ground that the trial
court improperly denied the defendant’s motion to sup-
press evidence obtained during a warrantless entry into
his residence.2 Specifically, the state claims that the
Appellate Court improperly applied the ‘‘scrupulous
review’’ standard and did not give the required defer-
ence to the factual findings of the trial court. We agree
and, accordingly, reverse the judgment of the Appel-
late Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘On
January 11, 2008, the defendant filed a motion to sup-
press all evidence seized from his premises as a result
of the warrantless entry by the police on October 21,
2007. In response, the state claimed that the warrantless
entry was done pursuant to an emergency and, accord-
ingly, no warrant was required. Following a hearing,
the court denied the defendant’s motion to suppress
on the ground that the warrantless entry by the police
was permissible under the emergency . . . exception
to the warrant requirement.
‘‘In its memorandum of decision, the court, Com-
erford, J., set forth the following facts: ‘[Tilford Cobb]
has been an [A]nimal [C]ontrol [O]fficer with the Stam-
ford [P]olice [D]epartment for the past ten years. In
said capacity, he has had many contacts with the defen-
dant as a result of neighbor complaints relating to the
defendant’s keeping of animals in his [Windell] Place
residence.
‘‘ ‘On October 11, 2007, [Cobb], as a follow-up to prior
complaints, left a notice on the defendant’s front door
and on the windshield of an automobile parked on the
premises, directing the defendant to contact the animal
shelter. At the time, a neighbor indicated [that] he had
not seen the defendant in several days. Further, the
defendant did not respond to his cell phone. Prior his-
tory indicated that he had generally responded to
such notices.
‘‘ ‘On Sunday, October 21, 2007, [Cobb], as further
follow-up, paid a home visit to the defendant’s resi-
dence. When approaching the house, he saw the Octo-
ber 11 notice on the floor of the front porch and the
second notice left on the car still in place. [Cobb]
observed that mail, current and dated, had piled up in
an overflowing mailbox, and the same neighbor he had
spoken to before once again said that he had not seen
the defendant in several days. Dogs were heard barking
inside the house. As he approached the front door, a
strong, ‘‘horrible odor,’’ which he described as a ‘‘feces
smell,’’ emanated from the premises. He knocked on
the door, which became ajar, with no response. At the
time, he did not have the defendant’s cell phone number
with him.
‘‘ ‘Feeling something was wrong in the house and out
of concern for the defendant’s welfare and any animals
in the house, [Cobb] called headquarters, resulting in
a response by Sergeant Thomas Barcello, who, shortly
thereafter, arrived with backup officers. Barcello, after
initial discussion with [Cobb], confirmed his observa-
tions by finding the house to be in disarray, two or
three vehicles on the property and overflowing and
dated mail together with the previously left notices by
animal control. He and his men did a perimeter check of
the house and attempted to look through the windows,
which were so filthy that visual observation of the inte-
rior was not possible. Patrol Officer [Will] Mercado
confirmed the observations made by [Cobb] and Bar-
cello. Out of [Cobb’s] express concerns and his own
findings and after consultation with [Cobb] and his offi-
cers, [Barcello] too, concluded that the defendant and
possibly others, together with the animals in the house,
might be in danger and [in] need of assistance. The
aforesaid observations, check of the premises and con-
sultations all took place within a very brief period of
time. Barcello concluded that a ‘‘welfare check’’ was
necessary. As a result of the putrid smell emanating
from the house and fear for the safety of his men,
Barcello enlisted the aid of the Stamford [F]ire [D]epart-
ment, [which] he felt had the proper breathing equip-
ment to enter. Inspection by fire personnel disclosed
no humans present but that the dogs in the house were
in bad shape. It is uncontroverted that the house was
in such deplorable condition at the time of the incident
that shortly thereafter it was condemned by the city
of Stamford.’ ’’ State v. DeMarco, 124 Conn. App. 438,
440–42, 5 A.3d 527 (2010).
The trial court further noted: ‘‘ ‘While the defendant
argues that telephone contact could have been made
prior to entry, the evidence indicated otherwise, given
the immediacy of the situation. [Cobb] had specifically
indicated that he did not have the defendant’s cell phone
number with him when he made the check. Although
telephone contact was made with the defendant later
in the day, the evidence and the reasonable inferences
therefrom indicate that this information was not avail-
able to Barcello at the time of the perceived emergency.
The court specifically credits Barcello’s testimony in
this regard.’ ’’ Id., 442.
‘‘On July 10, 2008, following the denial of his motion
to suppress, the defendant entered a plea of nolo con-
tendere to two counts of cruelty to animals in violation
of § 53-247 (a), conditioned on his right to appeal from
the court’s denial of his motion to suppress pursuant
to General Statutes § 54-94a.3 The court accepted the
defendant’s plea and determined that its denial of the
motion to suppress was dispositive of the case. Also
on that date, the court, Comerford, J., sentenced the
defendant to nine months incarceration, execution sus-
pended, and three years probation on each of the two
counts, the sentences to run consecutively.’’ (Footnotes
altered.) Id., 442–43.
Thereafter, the defendant appealed from the judg-
ment of the trial court to the Appellate Court. On appeal,
the defendant claimed that the trial court improperly
denied his motion to suppress evidence obtained during
a warrantless entry into his residence on the ground that
the warrantless entry was justified under the emergency
exception to the warrant requirement. Specifically, the
defendant claimed that the trial court made erroneous
factual findings and that ‘‘the evidence presented did
not permit a finding that the police reasonably believed
that a warrantless entry was necessary to help someone
in immediate need of assistance.’’ Id., 444–45. The
Appellate Court, with one judge dissenting, agreed with
the defendant. Id., 458; see also footnote 2 of this
opinion.
Specifically, following ‘‘a thorough review of the
record,’’ the Appellate Court concluded that the trial
court’s factual finding ‘‘that Barcello did not have the
defendant’s cell phone number available to him while
he was at the defendant’s residence and before he
decided to order the warrantless entry was clearly erro-
neous.’’ Id., 447–48. The Appellate Court also concluded
that the trial court’s finding that Barcello did not have
time to get the defendant’s cell phone number due to
‘‘the immediacy of the situation’’ was also clearly erro-
neous. (Internal quotation marks omitted.) Id., 449–50.
The Appellate Court further concluded that, ‘‘[b]ased
solely on the facts found by the [trial] court, as corrected
. . . the [trial] court improperly determined that the
warrantless entry by the police was permissible under
the emergency exception to the warrant requirement.’’
(Emphasis added.) Id., 450.
The Appellate Court then stated as follows: ‘‘While
we conclude that the subordinate facts found by the
[trial] court do not support its finding that an objectively
reasonable police officer would have believed that an
emergency existed in this case, our own scrupulous
review of the record provides additional support for
our determination. . . .
‘‘The [trial] court’s memorandum of decision properly
sets forth many of the facts that were available to the
police at the time that they were deciding to make a
warrantless entry into the defendant’s home. We need
not repeat those facts in detail, but they include the
terrible odor, the overflowing mailbox and so forth. The
court, however, only sets forth the facts that tend to
support the conclusion that an emergency situation
existed. There was, however, additional uncontroverted
and unchallenged evidence presented at the suppres-
sion hearing that the court wholly disregarded in its
findings.’’ (Citation omitted.) Id., 454–55.
On the basis of the foregoing analysis, the Appellate
Court concluded as follows: ‘‘Taking all of the circum-
stances into account, unencumbered by the court’s
erroneous findings, we conclude that the court’s ulti-
mate conclusion that it was objectively reasonable for
the police to believe that an emergency existed, thus,
justifying a warrantless entry into the defendant’s home,
was not supported by substantial evidence. We do not
believe that a well-trained police officer reasonably
would have believed that a warrantless entry was neces-
sary to assist a person inside the dwelling who was
in need of immediate aid. Rather, the circumstances
presented to the police would have given them time to
apply for a warrant should they have reasonably
believed that probable cause existed to search the prem-
ises for evidence of the crime of cruelty to animals,
given the condition of the home, as seen from the out-
side, coupled with the fact that dogs were at large within
the residence. Entering a person’s home under the guise
of an emergency when none exists, and there is no
objectively reasonable basis for believing that an emer-
gency exists, is not permitted under the fourth amend-
ment to the United States constitution.’’ Id., 457–58.
Accordingly, the Appellate Court reversed the judgment
of the trial court and remanded the case to the trial
court with direction to grant the defendant’s motion to
suppress and for further proceedings according to law.
Id., 458.
We subsequently granted the state’s petition for certi-
fication to appeal, limited to the following issue:
‘‘Whether the Appellate Court properly determined that
the trial court improperly denied the defendant’s motion
to suppress?’’ State v. DeMarco, 300 Conn. 902, 12 A.3d
574 (2011).
We begin with the appropriate standard of review.
In doing so, we acknowledge that our statements
regarding the proper standard to be applied have not
always been the model of clarity. We take this opportu-
nity to clarify the appropriate standard of review for
deciding whether the trial court properly denied a
defendant’s motion to suppress on the ground that the
search violated the fourth amendment to the United
States constitution. ‘‘[I]n reviewing a trial court’s ruling
on the emergency doctrine, subordinate factual findings
will not be disturbed unless clearly erroneous and the
trial court’s legal conclusion regarding the applicability
of the emergency doctrine in light of these facts will
be reviewed de novo. . . . Conclusions drawn from
[the] underlying facts must be legal and logical. . . .
We 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 they entered the [dwelling] . . . .’’ (Internal quo-
tation marks omitted.) State v. Ryder, 301 Conn. 810,
820–21, 23 A.3d 694 (2011), quoting State v. Fausel, 295
Conn. 785, 793, 993 A.2d 455 (2010).
This court has further explained as follows: ‘‘A finding
of fact will not be disturbed unless it is clearly erroneous
in view of the evidence and pleadings in the whole
record . . . . As we have noted previously, however,
when a question of fact is essential to the outcome
of a particular legal determination that implicates a
defendant’s constitutional rights, and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence. . . . [W]here the legal conclusions
of the court are challenged, [our review is plenary,
and] 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 . . . .’’
(Citations omitted; internal quotation marks omitted.)
State v. Mullins, 288 Conn. 345, 362–63, 952 A.2d 784
(2008).
‘‘Notwithstanding our responsibility to examine the
record scrupulously, it is well established that we may
not substitute our judgment for that of the trial court
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony. . . . Questions of whether to
believe or to disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . We
must defer to the trier of fact’s assessment of the credi-
bility of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Citations omitted; internal quotation marks
omitted.) Id., 365.
On the basis of the foregoing, we acknowledge that,
if, upon examination of the testimonial record, the
reviewing court discovers but one version of the rele-
vant events upon which both the state and the defendant
agree, and such agreement exists both at trial and on
appeal, the reviewing court may rely on that version of
events in evaluating the propriety of the trial court’s
determinations and determining whether the trial
court’s factual findings are supported by substantial
evidence. In a case where the trial court has concluded
that the police action at issue was justified and the
undisputed version of events reflected in the transcript
was adduced by the state through testimony of the
police officers who were involved, a reviewing court’s
reliance on that version of events is particularly appro-
priate. If the officers’ own testimony as to what
occurred is internally consistent and uncontested by
the defendant but, in fact, undercuts the trial court’s
ruling in favor of the state, a reviewing court would be
remiss in failing to consider it.4
In the present case, even if we were to agree with
the dissent and the Appellate Court that there is one
undisputed version of events in the record, we disagree
that the version of events culled from the officers’ own
testimony undercuts the trial court’s ruling in favor of
the state. To the contrary, we conclude that a careful
examination of the facts in the present case demon-
strates that there is nothing to support the conclusion
that the findings were clearly erroneous. Instead, we
conclude that the trial court’s findings were supported
by substantial evidence and that the trial court stated
its rationale for its findings and reasonably reached
its conclusions from the evidence presented. See id.
(applying scrupulous review to trial court’s decision on
motion to suppress).
On appeal to this court, the state argues that, contrary
to the determination of the Appellate Court, the trial
court properly denied the defendant’s motion to sup-
press because the police were authorized to enter the
defendant’s home without a warrant pursuant to the
emergency exception to the warrant requirement. Spe-
cifically, the state asserts that the Appellate Court
improperly concluded that the trial court’s factual find-
ings that the defendant’s cell phone number was not
available to Barcello at the time of the perceived emer-
gency and could not have been obtained by him due to
the immediacy of the situation were clearly erroneous.
The state also claims that the Appellate Court improp-
erly concluded that the factual findings of the trial court,
properly viewed in the light most favorable to the trial
court’s ruling, supported its conclusion that an emer-
gency existed. In response, the defendant asserts that
the Appellate Court properly applied the ‘‘scrupulous
review’’ standard and gave appropriate deference to the
factual findings of the trial court. The defendant also
asserts that the Appellate Court properly concluded
that the trial court’s finding that the defendant’s cell
phone number was not available to police was clearly
erroneous. Further, the defendant claims that the Appel-
late Court properly found, or could have found, that
the legal conclusion of the trial court that the war-
rantless entry by the police was justified was not sup-
ported by the factual findings of the trial court. We agree
with the state and, accordingly, reverse the judgment of
the Appellate Court.
The state first claims that the Appellate Court improp-
erly determined that some facts found by the trial court
were clearly erroneous—namely, that Barcello did not
have the defendant’s cell phone number available to him
at the time he made the decision to enter the defendant’s
residence and that Barcello did not have time to get
the cell phone number due to the ‘‘immediacy of the
situation.’’ (Internal quotation marks omitted.) State v.
DeMarco, supra, 124 Conn. App. 449–50. We agree.
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings. . . . In reviewing factual find-
ings, [w]e do not examine the record to determine
whether the [court] could have reached a conclusion
other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Internal quotation marks omitted.)
State v. Ray, 290 Conn. 602, 631, 966 A.2d 148 (2009).
The trial court determined as follows: ‘‘While the
defendant argues that telephone contact could have
been made prior to entry, the evidence indicated other-
wise given the immediacy of the situation. [Cobb] had
specifically indicated that he did not have the defen-
dant’s cell phone number with him when he made the
check. Although telephone contact was made with the
defendant later in the day, the evidence and the reason-
able inferences therefrom indicate that this information
was not available to Barcello at the time of the perceived
emergency. The court specifically credits Barcello’s tes-
timony in this regard.’’
At the suppression hearing, during cross-examination
by defense counsel, Barcello testified as follows:
‘‘Q. Would you agree, then, if that was your concern
that you undertook some investigation to find out
whether or not for instance [the defendant] was work-
ing, to see if whether he was supposed to be in the
house or out of the house?
‘‘A. The preliminary investigation was to, and what I
did, was to find out if he was around; whether he was
working, whether he was visiting relatives, not specifi-
cally is he inside the house, is he home, or is he not
home.
‘‘Q. You’re saying you had a specific concern that he
might be in the house, correct?
‘‘A. Yes.
‘‘Q. Now, based on that, do you recall whether or not
you undertook an investigation prior to going in, prior
to deciding to go in the house to see if he was in there—
‘‘A. Yes.
‘‘Q. Did you undertake an investigation to find out
where he might be?
‘‘A. I think it’s a two part question. On the start of
the investigation to see if he was there. The specifics,
whether he’s there or not, I’m not sure. I’m just—I’m
trying to find out if there is a person inside that house
or if that person is not there. You know, have they—I
believe one of the questions that I had asked one of
the neighbors have you seen him and have you seen
him recently, for—to let me know whether he’s inside
the house or not inside the house.
‘‘Q. And you don’t know whether at that point you
also ascertained whether or not he was a working man?
‘‘A. I don’t know. It was a Sunday, so I wasn’t—it’s—
to me it wasn’t as critical.
‘‘Q. And it wasn’t critical for you to see if anybody
had a contact number for him to try to see—find out
where he was?
‘‘A. I probably did some type of preliminary investiga-
tion, but I don’t remember if I asked for his cell phone,
or a relative’s or whatever. I asked, which is normal
course of business, to find out where—is he around,
can anyone get a hold of him, and if you can’t get
a hold of him is he inside this house or not inside
this house.
‘‘Q. Right, and the phone call inquiry—the [cell] phone
number inquiry, that’s something you would have done
before you made a decision to go in the house and see
if he’s in there?
‘‘A. If I personally had a [cell] phone number for
somebody who I believe was inside the house or not
inside the house I would attempt myself to contact that
person to see if they were there if I had that information
in front of me.
‘‘Q. And if you didn’t have the [cell] phone number
you would attempt to get the [cell] phone number before
you went in, right?
‘‘A. Probably, yes.
‘‘Q. Before you determined that it was an absolute
necessity that you go in, right?
‘‘A. In a lot of cases, yes. It’s, you know, when things
are happening rather quickly you do a quick investiga-
tion and then you got to determine the safety of the
person. And the quick investigation revealed that he
was not there, that there was a possibility, a probability
of him being in there with the mail and with the cars
being parked there, and my general concern at the time
is his safety or anyone else who might be in there.’’
On continued cross-examination, Barcello testified
as follows:
‘‘Q. And you would have done it without having ascer-
tained, number one, whether you could have obtained
[the defendant’s] telephone number to call him?
‘‘A. At that point in time I’m not sure if I had obtained
the [cell] phone number or had not obtained the [cell]
phone number. At the point of the decision to enter I
know that I had made—I had tried to find out if he was
available, if he was inside or outside or had anyone
seen him, and based on, in my mind, nobody seeing
him, based on mail being in the mailbox and overflow-
ing, based on vehicles parked on the front lawn along
with notices that other people had put on [there] from
weeks ago I would assume that he was in there.5
‘‘Q. And so—so at that point you went in not—you
didn’t think it was important, before you went in, to
try to see if you can call inside the house?
‘‘A. I don’t know if we had a [cell] phone number at
that time.
‘‘Q. You didn’t ascertain any of this is what I’m saying
before you made the decision to go in?
‘‘A. I—under normal circumstances and under rou-
tine like a routine investigation I would make those
attempts before I entered somebody’s personal private
property. I would entertain all those avenues before I’d
make the entry.
‘‘Q. But in this case you didn’t?
‘‘A. I don’t know. I don’t remember if I did or did not
have that information at that time. My normal course
of business would be to do something like that.’’ (Foot-
note added.)
On the basis of the foregoing testimony, making every
reasonable presumption in favor of the trial court’s
ruling as we are required to do, we conclude that there
was sufficient evidence in the record to support the
trial court’s finding that the defendant’s cell phone num-
ber was unavailable to Barcello at the scene.
The state next claims that the Appellate Court
improperly concluded that the trial court’s finding that
Barcello could not obtain the defendant’s cell phone
number because of the immediacy of the situation was
also clearly erroneous. We disagree. The evidence also
established that when Cobb arrived at the defendant’s
home, he knew that the defendant did not respond
to two notices left at his property by animal control
approximately ten days before and had not returned
calls to his cell phone. Cobb considered this lack of
response by the defendant to be unusual because the
defendant normally responded to such notices. Upon
arrival at the premises, Cobb saw the defendant’s silver
Honda pickup, which he knew the defendant usually
drove and observed that the notices were still on the
truck and on the porch. A neighbor told Cobb that he
had not seen the defendant ‘‘for several days’’ and mail
was piling up in the mailbox and overflowing onto the
ground. Cobb also noticed a ‘‘horrible smell’’ coming
from the home, a smell which he had never smelled
before. When Cobb knocked on the front door, the door
became ajar and he noticed ‘‘feces all over the floor’’ and
heard dogs barking. On the basis of those observations,
Cobb called the Stamford police.
The evidence further demonstrated that when Bar-
cello arrived, he conducted a preliminary investigation
to determine the defendant’s whereabouts. Barcello
was unable to determine the defendant’s whereabouts
and, based on the facts that nobody had seen him, the
mail was accumulated in the mailbox and overflowing,
vehicles were parked on the front lawn, including the
vehicle the defendant usually drove, and that notices
that were placed there weeks ago were still in place,
Barcello believed that the defendant was inside of the
residence. Barcello also testified that there was a putrid
smell coming from the home, which was unidentifiable,
but could have been ammonia.6
The evidence further demonstrated that, after making
these findings and conducting an initial investigation
of the property, Barcello contacted the Stamford Fire
Department for immediate assistance because he was
unable to identify the odor emanating from the home
and was worried about the safety of his officers and
the community. The evidence further showed that the
Stamford Fire Department responded promptly using
their lights and sirens while responding and entered
the dwelling quickly after arrival. A lieutenant in the
Stamford Fire Department, who also responded to the
defendant’s home, testified that he ‘‘had not determined
the cause of the odor, and [that] it could have been
fatal or life threatening.’’ The Stamford firefighters who
entered the defendant’s home wore protective gear and
used a special monitor to determine the nature and
source of the odor in order to alert them to any gases
that were of an explosive nature.
On the basis of the foregoing evidence, we cannot
conclude that the delays caused by the officers in
investigating and then seeking backup and assistance
from the Stamford Fire Department to protect their
safety negate the trial court’s finding that the immediacy
of the situation prevented Barcello from obtaining the
defendant’s cell phone number. Indeed, the fact that
there may have been an ammonia odor present would
heighten the awareness of a police officer who would
reasonably believe an emergency may exist. Also, the
fact that the door was open would suggest to a reason-
able officer that something was amiss in the house.
Therefore, we conclude that the Appellate Court
improperly concluded that the trial court’s findings that
Barcello did not have the defendant’s cell phone number
available to him at the time he made the decision to
enter the defendant’s residence and that he could not
obtain it because of the immediacy of the situation were
clearly erroneous.
In concluding that the factual finding that Barcello did
not have the defendant’s cell phone number available
to him at the time he made the decision to enter the
defendant’s residence was clearly erroneous, the Appel-
late Court acknowledged that Barcello did not physi-
cally possess the defendant’s cell phone number prior
to entering the defendant’s home. State v. DeMarco,
supra, 124 Conn. App. 447. Nevertheless, the Appellate
Court concluded that the cell phone number was avail-
able to him because it was at the animal control office
and there were other animal control employees in that
office on the date in question. Id., 447–48. The Appellate
Court concluded, therefore, that ‘‘Cobb could have
readily obtained the defendant’s cell phone number by
calling the animal control office.’’ Id., 448. The Appellate
Court further used the principle applied in probable
cause cases that ‘‘it is not the personal knowledge of
the arresting officer, but the collective knowledge of
the law enforcement organization at the time of the
arrest that must be considered’’ in order to conclude
that the trial court’s finding that the cell phone number
was unavailable to Barcello was clearly erroneous.
(Internal quotation marks omitted.) Id., quoting State
v. Batts, 281 Conn. 682, 698, 916 A.2d 788, cert. denied,
552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007).
We disagree that it is appropriate to apply the collective
knowledge doctrine in the present case so as to require
the police officers at the scene to contact animal control
and obtain the defendant’s cell phone number prior
to entry.
‘‘The emergency doctrine allows law enforcement
officers to enter and secure premises without a warrant
when they are responding to a perceived emergency.
[United States v. Cervantes, 219 F.3d 882, 888 (9th Cir.
2000)]; see also Mincey v. Arizona, 437 U.S. 385, 392,
98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (noting that
[nu]merous state and federal cases have recognized that
police may respond to emergency situations without a
warrant) . . . . The emergency doctrine is based on
and justified by the fact that, in addition to their role
as criminal investigators and law enforcers, the police
also function as community caretakers. [United States
v. Cervantes, supra, 889]; see also [Mincey v. Arizona,
supra, 392] (noting that the [c]ourt did not question the
right of the police to respond to emergency situations);
Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523,
37 L. Ed. 2d 706 (1973) (discussing the community care-
taking function of police officers).’’ (Internal quotation
marks omitted.) United States v. Stafford, 416 F.3d
1068, 1073 (9th Cir. 2005). Imposing upon law enforce-
ment officers who are responding to an emergency situ-
ation the obligation to contact the police station and
obtain information that may be contained in a police
file, or in the present case, and animal control office
file, is not consistent with the purpose of the emer-
gency exception.7
Indeed, the Fourth Circuit Court of Appeals rejected
a similar claim where a property owner claimed that
the officer should have asked the dispatcher for his
home telephone number and attempted to call him
before entering. In concluding that such a course of
action was not constitutionally required, the Fourth
Circuit reasoned as follows: ‘‘Whether in retrospect this
course of action might have been preferable is not dis-
positive: [t]he fact that the protection of the public
might, in the abstract, have been accomplished by less
intrusive means does not, by itself, render the search
unreasonable.’’ (Internal quotation marks omitted.)
Hunsberger v. Wood, 570 F.3d 546, 556 (4th Cir. 2009),
cert. denied, 559 U.S. 938, 130 S. Ct. 1523, 176 L. Ed.
2d 113 (2010); see also State v. Myers, 601 P.2d 239,
245 (Alaska 1979) (rejecting respondents’ claim that
‘‘officers’ failure to attempt to contact the theatre owner
prior to entering the building rendered the entry unrea-
sonable’’). We recognize that ‘‘the business of [police
officers] and firemen is to act, not to speculate or medi-
tate on whether the report is correct. People could well
die in emergencies if police tried to act with the calm
deliberation associated with the judicial process.’’
Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.),
cert. denied, 375 U.S. 860, 84 S. Ct. 125, 11 L. Ed. 2d
86 (1963).8
In the present case, the trial court found that Cobb
had tried to contact the defendant in the prior few
weeks and had not been successful, including being
unable to reach the defendant on his cell phone. Fur-
thermore, the trial court also found that a neighbor told
Cobb that he had not seen the defendant in several
days and an overflowing mailbox and prior notices from
animal control were visible when the officers arrived
at the scene. Moreover, the trial court also found that
the house was in such a filthy condition that the officers
could not see through the windows and that there was
a ‘‘putrid smell emanating from the house.’’ On the basis
of these findings, we decline to apply the collective
knowledge doctrine to conclude that the officers were
required to obtain the defendant’s cell phone number
from animal control and attempt to contact him prior
to entering the home.9 Accordingly, we conclude that
the trial court’s finding that the defendant’s cell phone
number was unavailable to Barcello and could not be
obtained is not clearly erroneous.
Moreover, it is important to note that the dissent and
the Appellate Court place great emphasis on the fact
that the police officers did not attempt to contact the
defendant by cell phone. Indeed, the dissent states ‘‘the
warrantless search in the present case was objectively
unreasonable in view of the officers’ failure to make
any effort to reach the defendant on his cell phone, a
call that would have obviated any possible concern
about the perceived need for the warrantless intrusion
into the defendant’s home.’’ We disagree. There is abso-
lutely nothing in the evidence to support this statement.
We have no idea whether the police officers would have
been able to reach the defendant if they did try to call
him prior to entering his residence. In fact, the evidence
demonstrates that the animal control office had
attempted to reach the defendant on his cell phone in
the previous weeks and was unable to do so. Moreover,
it is this type of speculation that we must reject when
evaluating warrantless searches under the emergency
doctrine. See State v. LaFleur, 307 Conn. 115, 182, 51
A.3d 1048 (2012) (Palmer, J., dissenting) (‘‘this court
regularly eschews [speculation] as inherently unreliable
and thus unworthy of reliance for any reason’’).
Having concluded that the findings of fact by the trial
court were not clearly erroneous, we examine whether
the trial court ‘‘properly concluded that it was objec-
tively reasonable for the police to believe that an emer-
gency situation existed when they entered the
[dwelling].’’ State v. Colon, 272 Conn. 106, 142, 864 A.2d
666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102,
163 L. Ed. 2d 116 (2005).
‘‘It is axiomatic that the police may not enter the
home without a warrant or consent, unless one of the
established exceptions to the warrant requirement is
met. Indeed, [p]hysical entry of the home is the chief
evil against which the wording of the fourth amendment
is directed.’’ (Internal quotation marks omitted.) State
v. Ryder, supra, 301 Conn. 821; see also Payton v. New
York, 445 U.S. 573, 585–86, 100 S. Ct. 1371, 63 L. Ed.
2d 639 (1980); State v. Aviles, 277 Conn. 281, 292, 891
A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166
L. Ed. 2d 69 (2006); State v. Guertin, 190 Conn. 440,
447, 461 A.2d 963 (1983).
‘‘[I]t is clear that a search conducted without a war-
rant issued upon probable cause is per se unreasonable
. . . subject only to a few specifically established and
well-delineated exceptions. . . . Searches conducted
pursuant to emergency circumstances are one of the
recognized exceptions to the warrant requirement
under both the federal and state constitutions.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Fausel, supra, 295 Conn. 794. ‘‘[T]he fourth amend-
ment does not bar police officers, when responding
to emergencies, from making warrantless entries into
premises and warrantless searches when they reason-
ably believe that a person within is in need of immediate
aid. . . . The extent of the search is limited, involving
a prompt warrantless search of the area to see if there
are other victims or if a killer is still on the premises.
. . . The police may seize any evidence that is in plain
view during the course of the search pursuant to the
legitimate emergency activities. . . . Such a search is
strictly circumscribed by the emergency which serves
to justify it . . . and cannot be used to support a gen-
eral exploratory search.’’ (Internal quotation marks
omitted.) State v. Geisler, 222 Conn. 672, 691, 610 A.2d
1225 (1992).
It is well established in Connecticut that the test for
the application of the doctrine is objective, not subjec-
tive, and looks to the totality of the circumstances. See
State v. Aviles, supra, 277 Conn. 293; State v. Guertin,
supra, 190 Conn. 453. Specifically, ‘‘the state actors
making the search must have reason to believe that life
or limb is in immediate jeopardy and that the intrusion
is reasonably necessary to alleviate the threat. . . .
The police, in order to avail themselves of this excep-
tion, must have valid reasons for the belief that an
emergency exists, a belief that must be grounded in
empirical facts rather than subjective feelings . . . .
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.) State v.
Fausel, supra, 295 Conn. 795. ‘‘The reasonableness of
a police officer’s determination that an emergency
exists is evaluated on the basis of facts known at the
time of entry.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Blades, 225 Conn. 609, 619,
626 A.2d 273 (1993). ‘‘[T]he emergency doctrine relies
on an objective test wherein the reasonableness of the
officer’s belief is assessed on a case-by-case basis. . . .
The three general categories that the courts have identi-
fied as justifying the application of the doctrine are
danger to human life, destruction of evidence and flight
of a suspect.’’ (Citation omitted; internal quotation
marks omitted.) State v. Aviles, supra, 294.
‘‘Moreover, this court previously held that ‘we do not
read [prior case law] to require direct evidence of an
emergency situation . . . .’ State v. Colon, supra, 272
Conn. 147; see also State v. Ortiz, [95 Conn. App. 69,
83, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d
94 (2006)] (‘[t]he fact that a person in need of assistance
was not present in the apartment does not in any way
detract from the objectively reasonable interpretation
of the facts that were before the police officers in their
haste to render whatever assistance was necessary’); 3
W. LaFave, [Search and Seizure (4th Ed. 2004)] § 6.6
(a), pp. 452–53 (This standard ‘must be applied by refer-
ence to the circumstances then confronting the officer,
including the need for a prompt assessment of some-
times ambiguous information concerning potentially
serious consequences. As one court usefully put it, the
question is whether ‘‘the officers would have been dere-
lict 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.’).’’ State v. Fausel,
supra, 295 Conn. 800.
‘‘Direct evidence of an emergency is not required
because the emergency exception to the warrant
requirement arises out of the caretaking function of
the police. It has been observed that [t]he police have
complex and multiple tasks to perform in addition to
identifying and apprehending persons committing seri-
ous criminal offenses; by design or default, the police
are also expected to reduce the opportunities for the
commission of some crimes through preventive patrol
and other measures, aid individuals who are in danger
of physical harm, assist those who cannot care for them-
selves, resolve conflict, create and maintain a feeling
of security in the community, and provide other services
on an emergency basis. . . . 3 W. LaFave, supra, § 6.6,
p. 451. As this court previously has noted, the emer-
gency doctrine is rooted in the community caretaking
function of the police rather than its criminal investiga-
tory function. We acknowledge that the community
caretaking function of the police is a necessary one in
our society. [I]t must be recognized that the emergency
doctrine serves an exceedingly useful purpose. Without
it, the police would be helpless to save life and property,
and could lose valuable time especially during the initial
phase of a criminal investigation. . . . Constitutional
guarantees of privacy and sanctions against their trans-
gression do not exist in a vacuum but must yield to
paramount concerns for human life and the legitimate
need of society to protect and preserve life . . . . State
v. Blades, supra, 225 Conn. 619; see also Brigham City
v. Stuart, [547 U.S. 398, 406, 126 S. Ct. 1943, 164 L. Ed.
2d 650 (2006)] ([t]he role of a peace officer includes
preventing violence and restoring order, not simply ren-
dering first aid to casualties; an officer is not like a
boxing [or hockey] referee, poised to stop a bout only
if it becomes too one-sided).’’ (Internal quotation marks
omitted.) State v. Fausel, supra, 295 Conn. 800–801.10
In the present case, the facts found by the trial court
support the trial court’s conclusion that, under the total-
ity of the circumstances, a reasonable officer would
have believed that an emergency existed inside the
defendant’s home. We briefly review the following facts
contained within the record. On October 11, 2007, Cobb
had visited the defendant’s home, left a notice on the
front door and a notice on the windshield of an automo-
bile that the defendant typically drove, which was
parked on the premises. The notice directed the defen-
dant to contact the animal shelter. During that visit,
a neighbor informed Cobb that he had not seen the
defendant in several days. Further, attempts to reach
the defendant by telephone at that time were unsuccess-
ful. Despite previously responding to such notices, the
defendant never responded to the notices left on Octo-
ber 11, 2007. Ten days later, Cobb conducted a further
follow-up at the defendant’s home. When he
approached the defendant’s home, he saw the notice
that had been placed on the defendant’s door on Octo-
ber 11, 2007, lying on the floor of the front porch and the
other notice still on the windshield of the automobile,
which the defendant typically drove. Cobb also noticed
that the defendant’s mailbox was overflowing with cur-
rent and dated mail. The neighbor once again said he
had not seen the defendant in several days. Cobb could
hear dogs barking inside the house and smelled a strong,
‘‘horrible odor’’ emanating from the defendant’s home.
Cobb testified that, despite responding to the defen-
dant’s home on other occasions in response to com-
plaints about the smell, this was a smell he had never
smelled before. Cobb knocked on the door, which
became ajar, and there was no response. Cobb called
for backup.
Thereafter, Barcello and other officers arrived. The
officers did a perimeter check of the house, noted a
number of automobiles on the premises and things in
disarray. The officers attempted to look in the windows,
but the windows were so dirty that visual observation
of the interior was not possible. After completing a
preliminary investigation, Barcello determined that a
person or persons could be in danger in the house and
that the unidentified odor presented a safety concern.
Therefore, Barcello called the Stamford Fire Depart-
ment for assistance. The Stamford Fire Department
responded, using their lights and sirens. Once at the
scene, the firefighters were still unsure of the source
and nature of the smell and thought it could be ‘‘life
threatening.’’ As a result, the firefighters utilized protec-
tive gear, including breathing apparatuses. While enter-
ing the defendant’s home, the firefighters also used a
special monitor to determine the nature and source of
the odor in order to alert them to any gases that were
of an explosive nature.
On the basis of these facts—namely, that the notices
were still there after ten days, that mail was piling up,
and that the same vehicles were at the premises—a
police officer, reasonably would have believed that an
emergency existed inside the defendant’s home. More-
over, the putrid, overwhelming odor that was different
than that which was present at the defendant’s home on
other occasions—together with the door being open—
supported a finding that an emergency situation existed
in connection with these other facts.11 The concern
regarding the threat to human safety relating to the
pervasive overwhelming bad odor emanating from the
house was amply demonstrated by the refusal of police
to enter the premises and their call for support from
properly equipped fire personnel.
Indeed, other courts have affirmed trial court findings
that an unidentified odor, in connection with other
facts, may justify police entry into the home. See, e.g.,
United States v. Presler, 610 F.2d 1206, 1209 (4th Cir.
1979) (defendant’s landlord had not seen him for some
time, unusual odor emanating from his room); People
v. McGee, 140 Ill. App. 3d 677, 681–82, 489 N.E.2d 439
(1986) (warrantless entry of residence authorized
because of uncertainty of what officers would find upon
entering residence based upon odor and general condi-
tion of house as seen through windows); People v. Mol-
nar, 288 App. Div. 2d 911, 732 N.Y.S.2d 788 (2001) (‘‘[i]t
was the duty of the police here to resolve the source
of the noxious odor ‘suggesting harm’ to the person or
persons inside defendant’s apartment’’), aff’d, 98 N.Y.2d
328, 774 N.E.2d 738, 746 N.Y.S.2d 673 (2002); Rauscher
v. State, 129 S.W.3d 714, 722 (Tex. App. 2004) (war-
rantless entry authorized under caretaking function due
to detection of foul unidentified odor); State v. York,
159 Wis. 2d 215, 217, 464 N.W.2d 36 (App. 1990) (couple
reported missing and foul odor, possibly decomposing
body, detected), review denied, 465 N.W.2d 656 (Wis.
1991). Accordingly, we conclude, contrary to the Appel-
late Court, that the trial court properly concluded that,
under the totality of the circumstances present in this
case, a police officer reasonably would have believed
that an emergency existed inside the defendant’s home.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion HARPER, VERTEFEUILLE and
ESPINOSA, Js., concurred.
* The listing of justicesa reflects their seniority status on this court as of
the date of oral argument. This appeal originally was argued before a panel
of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella,
Eveleigh and Harper. Thereafter, Justices Vertefeuille and Espinosa were
added to the panel and they read the record and briefs, and listened to a
recording of oral argument prior to participating in this decision.
1
General Statutes (Rev. to 2007) § 53-247 (a) provides: ‘‘Any person who
overdrives, drives when overloaded, overworks, tortures, deprives of neces-
sary sustenance, mutilates or cruelly beats or kills or unjustifiably injures
any animal, or who, having impounded or confined any animal, fails to give
such animal proper care or neglects to cage or restrain any such animal
from doing injury to itself or to another animal or fails to supply any such
animal with wholesome air, food and water, or unjustifiably administers
any poisonous or noxious drug or substance to any domestic animal or
unjustifiably exposes any such drug or substance, with intent that the same
shall be taken by an animal, or causes it to be done, or, having charge or
custody of any animal, inflicts cruelty upon it or fails to provide it with
proper food, drink or protection from the weather or abandons it or carries
it or causes it to be carried in a cruel manner, or fights with or baits, harasses
or worries any animal for the purpose of making it perform for amusement,
diversion or exhibition, shall be fined not more than one thousand dollars
or imprisoned not more than one year or both.’’ Hereinafter, unless otherwise
indicated, all references to § 53-247 (a) in this opinion are to the 2007 revision
of the statute.
2
Judge Beach dissented from the opinion of the Appellate Court, conclud-
ing that ‘‘the totality of the facts found by the trial court justified a warrantless
entry under the emergency . . . exception to the warrant requirement.’’
State v. DeMarco, 124 Conn. App. 438, 458, 5 A.3d 527 (2010).
3
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
4
We recognize that, as a general matter, merely because evidence is
uncontroverted does not mean that the trial court was required to accept
that evidence or give it weight in making its decision. Indeed, our model
civil jury instructions explicitly instruct fact finders that ‘‘[y]ou may believe
all of what a witness tells you, some of what a witness tells you, or none
of what a particular witness tells you. You need not believe any particular
number of witnesses and you may reject uncontradicted testimony if you
find it reasonable to do so.’’ (Emphasis added.) Connecticut Civil Jury
Instructions (4th Ed. 2008) instruction 2.5-1, available at http://www.jud.ct.-
gov/JI/civil/part2/2.5-1.htm (last visited April 2, 2014). Likewise, our model
criminal jury instructions also provide as follows: ‘‘In deciding what the
facts are, you must consider all the evidence. In doing this, you must decide
which testimony to believe and which testimony not to believe. You may
believe all, none or any part of any witness’s testimony.’’ Connecticut Crimi-
nal Jury Instructions (4th Ed. 2008) instruction 2.4-2, available at http://
www.jud.ct.gov/JI/criminal/part2/2.4-2.htm (last visited April 2, 2014).
It is well established that ‘‘[o]rdinarily the trial court has discretion to
reject even uncontested evidence, on the theory that the fact finder is
uniquely well situated to make determinations of witness credibility.’’ Willow
Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 623, 717 A.2d 1211
(1998); see also Gianetti v. Norwalk Hospital, 266 Conn. 544, 560–61, 833
A.2d 891 (2003) (trial court was free to reject plaintiff’s uncontradicted
testimony); Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666
(1988) (‘‘[t]he [fact finder] is under no obligation to credit the evidence
proffered by any witnesses . . . even if that evidence is uncontroverted’’
[citations omitted]); C. Tait & E. Prescott, Connecticut Evidence (4th Ed.
2008) § 6.27.8, p. 349 (‘‘The trier of fact is entitled to believe or disbelieve
any testimony. . . . The fact that certain evidence is not controverted does
not mean that it must be credited.’’ [Citation omitted.]).
5
The dissent asserts that ‘‘if the police have ready access to the cell phone
number of the person who is the object of their concern, attempting to
contact that person would be among the very first things, if not the very
first thing, that a reasonable police officer would do.’’ (Emphasis in original.)
We disagree. Although the dissent may not approve of the steps taken by
the officers in the present case, it is not our role as an appellate court to
dictate the appropriate steps and questions that police should use while
investigating. ‘‘Whether in retrospect this course of action might have been
preferable is not dispositive: [t]he fact that the protection of the public
might, in the abstract, have been accomplished by less intrusive means does
not, by itself, render the search unreasonable.’’ (Internal quotation marks
omitted.) Hunsberger v. Wood, 570 F.3d 546, 556 (4th Cir. 2009), cert. denied,
559 U.S. 938, 130 S. Ct. 1523, 176 L. Ed. 2d 113 (2010). To the extent
that the dissent may not believe Barcello’s testimony that he conducted
a preliminary investigation pursuant to his usual routine, such credibility
determinations are not appropriate for our review. Notwithstanding our
responsibility to examine the record scrupulously, it is well established that
we may not substitute our judgment for that of the trial court when it
comes to evaluating the credibility of a witness. State v. Mullins, supra, 288
Conn. 365.
6
Ammonia is a compound of nitrogen and hydrogen that forms ‘‘a colorless
gas with a penetrating, pungent-sharp odor in small concentrations which,
in heavy concentrations, produces a smothering sensation when inhaled’’
that ‘‘burns with a greenish-yellow flame.’’ Van Nostrand’s Encyclopedia of
Chemistry (G. Considine ed., 5th Ed. Rev. 2005) pp. 82–83.
7
The dissent states that ‘‘[t]here simply is no legitimate reason not to
apply the [collective knowledge] doctrine to warrantless searches, like the
one in the present case, based on a purported emergency, because it is
reasonable to expect investigating officers who are working together to
share important information about their investigation, provided, of course,
that it is feasible to do so under the circumstances. . . . The majority’s
contrary conclusion is simply indefensible.’’ We disagree. The legitimate
reason not to apply the collective knowledge doctrine to a search like the
one in the present case is that it takes away the ability of the police to act
quickly in an emergency situation. Moreover, the cases cited by the dissent
are distinguishable because in those cases the collective knowledge doctrine
was used in support of allowing a search under the emergency doctrine
when the knowledge of the police department as a whole supported a finding
of an emergency when the emergent nature of the situation was not apparent
at the scene. See State v. Lemieux, 726 N.W.2d 783, 789 (Minn. 2007) (war-
rantless search of home lawful based on collective knowledge of police
department conducting investigation into homicide); Oliver v. United States,
656 A.2d 1159, 1166 n.14 (D.C. 1995) (finding warrantless search of home
during kidnapping investigation lawful in part because information pos-
sessed by some officers could be imputed to officers at scene to further
their belief that emergency existed that may not have been readily apparent
at scene). It makes sense that we would want to support the community
caretaking function of police by allowing officers to communicate informa-
tion that may alert one officer responding to a situation that there may be
other factors that constitute an emergency that may not be apparent to the
officer who responds. On the other hand, it would frustrate the purpose of
the emergency doctrine to require officers who are first responders to a
scene that reasonably appears to be an emergency to contact the police
department to see if there are facts known to other officers or in the
department’s files that negate what they see in person at the scene. Doing
so may cause officers to lose valuable time. As courts have recognized in
analogous situations, ‘‘[t]he reasonableness of a particular officer’s actions
is to be judged from the perspective of a reasonable officer at the scene,
rather than with the advantage of hindsight, and allowances must be made
for the fact that officers must make quick decisions under tense, uncertain,
and rapidly changing circumstances.’’ Zayas v. State, 972 S.W.2d 779, 790
(Tex. App. 1998); see also id., 789–90 (officer acted reasonably in handcuffing
defendant at beginning of investigatory detention because he was sole offi-
cer, defendant did not comply with directions, and officer did not know
whether other suspects were there). The other two cases cited by the dissent
for this proposition can also be readily distinguished. First, the citation to
United States v. Russell, 436 F.3d 1086, 1094–95 (9th Cir. 2006), is to the
concurring and dissenting opinion in that case. The majority in Russell
upheld the search on the basis that an emergency existed. Id., 1090–93. In
disagreeing with the majority’s conclusion, the concurring and dissenting
opinion asserted that the collective knowledge doctrine should apply so as
to find that no emergency existed. Id. The majority, however, did not address
this issue. Accordingly, Russell is not useful to our analysis in the present
case. Second, the quotation from Mitchell v. State, 294 Ark. 264, 270, 742
S.W.2d 895 (1988), proffered by the dissent actually comes from the court’s
discussion of whether there was probable cause to believe that an offense
has been or is being committed within the home, not its discussion of
whether an emergency situation existed so as to warrant entry into the
home. Accordingly, we conclude that the dissent’s reliance on this case law
is misplaced.
8
We do not intend to suggest that police officers need never attempt
to contact a homeowner before making entry pursuant to the emergency
exception to the warrant requirement. Such a determination necessarily
must depend on the facts of the case, including the nature of previous
communications with the defendant and how quickly entry must be effectu-
ated to address the emergency. Under the facts of the present case, however,
although entry was not possible immediately, it is clear that animal control
had a history with the defendant and that typically the defendant responded
to notices left by animal control. The fact that the defendant called animal
control, unbeknownst to Cobb, the day after the first notice was left, demon-
strates that Cobb’s view of the defendant’s conduct was correct. Therefore,
the fact that the notices, which were left approximately ten days before,
were still outside and seemingly ignored made it more likely that an emer-
gency existed inside the home.
9
Further, we note that Cobb, who had visited the house on prior occasions,
described the ‘‘putrid smell’’ as follows:
‘‘Q. Could you identify what type of smell it was?
‘‘A. It was really hard to say, not a smell that I really smelled before. I
could tell it may have been feces, or thought it may have been feces, but
it was a strong smell mixed with an ammonia smell.
‘‘Q. And could you identify the source at all, in particular, where the smell
was coming from?
‘‘A. Yes. I knew it was coming from the door that had opened as I knocked.
I also noticed that there was feces all over the floor there . . . .’’
Barcello described the odor as follows:
‘‘Q. And what was—can you describe the odor?
‘‘A. It was a strong pungent odor not a normal scent in the air.’’
Mercado described the odor as follows:
‘‘Q. Can you describe that odor?
‘‘A. Honestly, I can’t even describe it. It’s just—it’s just [an] odor I have
never smelt it before. It was just [a] really foul and strong stench.’’
Finally, Troy Jones, a firefighter with the Glenbrook Fire Department,
described the odor as follows:
‘‘Q. And what type of odor was coming from the building?
‘‘A. It was a pungent odor.’’
This testimony further supports our conclusion that there was substantial
evidence in the record to support the trial judge’s decision that an emergency
situation was properly perceived by the police at the time of entry.
10
The Appellate Court attempted to distinguish the facts of the present
case from those in which this and other courts have found warrantless
searches to be justified under the emergency doctrine on the grounds that
‘‘[t]he police did not respond to the defendant’s home as a result of an
alarm, there was no evidence that a violent criminal offender might be hiding
in the house, no evidence of a break-in and no signs of a struggle or blood or
any other indication of a potentially dangerous situation.’’ State v. DeMarco,
supra, 124 Conn. App. 452–53. As we have explained previously in this
opinion, however, this court has repeatedly recognized that ‘‘[d]irect evi-
dence of an emergency is not required because the emergency exception
to the warrant requirement arises out of the caretaking function of the
police.’’ State v. Fausel, supra, 295 Conn. 800.
Similarly, the dissent claims that ‘‘the present case bears a striking resem-
blance to State v. Vargas, 213 N.J. 301, 63 A.3d 175 (2013), in which the
New Jersey Supreme Court recently concluded on very similar facts that a
search was not justified under the emergency exception to the warrant
requirement.’’ We disagree with the dissent’s reliance on Vargas. In Vargas,
the issue was ‘‘whether the community-caretaking doctrine authorizes the
police to conduct a warrantless entry and search of a home to check on
the welfare of a resident in the absence of the resident’s consent or an
objectively reasonable basis to believe that there is an emergency.’’ State
v. Vargas, supra, 305. The New Jersey Supreme Court ultimately concluded
that the trial court properly held ‘‘that the community-caretaking doctrine
standing alone, without exigent circumstances, could not justify the war-
rantless search of Vargas’s apartment . . . .’’ Id., 328. It is important to note,
however, that the New Jersey Supreme Court’s conclusion was premised on
the fact that ‘‘the state concede[d] [that] the facts in [Vargas] would not
permit the invocation of either the exigent-circumstances or emergency-aid
exceptions to the warrant requirement because no emergency spurred the
police into action.’’ Id., 312. On the basis of the state’s concession in Vargas,
the New Jersey Supreme Court’s analysis in that case is of little use in the
present case where the precise issue is whether the facts permit the invoca-
tion of the exigent circumstances exception to the warrant requirement.
11
We note that the dissent bolsters its argument with reference to the
amount of time it took to notify the defendant that the police were looking
for him, and, thereafter, how long it took him to appear at his house. We
evaluate the situation, as the trial court did, at the time the police entered
the house, based upon the totality of the circumstances at that time in order
to make a determination if a police officer reasonably would have believed
that an emergency existed. A resort to circumstances that occurred subse-
quent to that time would not be prudent and would distort the analysis.