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STATE OF CONNECTICUT v. RICHARD A.
HOUGHTALING
(AC 35720)
Gruendel, Beach and Alvord, Js.
Argued November 21, 2014—officially released March 17, 2015
(Appeal from Superior Court, judicial district of
Windham, geographical area number eleven, Riley, J.)
David V. DeRosa, with whom, on the brief, was Aus-
tin B. Johns, for the appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Patricia M. Froehlich,
state’s attorney, and Matthew A. Crockett, assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Richard A. Houghtaling,
appeals from the judgment of conviction following his
conditional plea of nolo contendere1 to one count of
possession of marijuana with intent to sell in violation
of General Statutes § 21a-277 (b) and one count of pos-
session of more than four ounces of marijuana in viola-
tion of General Statutes § 21a-279 (b). The plea followed
the trial court’s denial of the defendant’s motion to
suppress evidence seized from a property the defendant
owned, statements made by the defendant and others,2
and the fruits of the allegedly unlawful search and sei-
zure and unlawfully obtained statement. On appeal, the
defendant claims that the court’s denial of his motion to
suppress was improper because (1) he had a reasonable
expectation of privacy in the area searched, including
the home and the area surrounding it, (2) his fourth
amendment rights were violated by the warrantless
search3 conducted by the statewide narcotics task
force, (3) the police lacked a reasonable and articulable
suspicion to conduct a motor vehicle stop of the van
operated by the defendant and his resulting arrest was
unsupported by probable cause, and (4) the defendant’s
statement given to police was involuntary.
The following facts were found by the court. On
August 9, 2010, a marijuana eradication operation was
being conducted by the statewide narcotics task force
in the northeastern part of the state. The operation
included members of the task force positioned in a
Massachusetts Air National Guard helicopter and a
ground team conducting raids. In the early afternoon,
officers in the helicopter observed what they believed
to be a large crop of marijuana being grown in the
area of 41 Raymond Schoolhouse Road in Canterbury
(property). The officers in the helicopter provided the
ground team with the coordinates, and the officers in
the ground team approached the property. Several offi-
cers were on the ground, driving separate, unmarked
vehicles. They drove down the narrow, dirt driveway,
near which was posted a ‘‘no trespassing’’ sign. The
officers stopped in front of an open, steel gate, parked
their vehicles, walked toward the house, and knocked
at the front door. After no one answered, the officers
walked around the side of the home. The officers saw
a pool area containing dozens of marijuana plants. They
walked toward a greenhouse, which had no side walls.
As they approached, they saw two men inside the green-
house, which contained marijuana plants. The two men,
identified as Thomas Phravixay4 and Sisouk Phravixay,
were given Miranda5 warnings. Phravixay indicated to
officers that he was renting the home. Shortly there-
after, Phravixay provided written consent to search.
At some point after encountering the two men, offi-
cers returned to their vehicles. Matthew Moskowitz, a
member of the Bristol Police Department assigned to
the statewide narcotics task force, radioed that a white
van had entered the driveway, turned around and left
quickly.6 Moskowitz and Officer Mark Wiener, a mem-
ber of the state police assigned to the statewide narcot-
ics task force, followed the van and observed it parked
on the side of the road. The officers approached the
van with their weapons drawn and asked the occupants,
later identified as the defendant and William Eichen,
the defendant’s brother-in-law, why they had turned
into the property and then left. The defendant explained
that he went to the property to visit a friend, but that
he left because he did not recognize the vehicles. The
officers then looked into the back of the van and saw
lumber and irrigation piping, which they believed to be
consistent with the construction of the greenhouse on
the property. The defendant and Eichen were then han-
dcuffed and transported to the property, where they
were advised of their Miranda rights. Although initially
reluctant to speak, the defendant gave a statement after
the officers provided him with information, including
that Phravixay had consented to a search, the evidence
the officers had seen so far, that officers had found
mail with the defendant’s name on it, and that he was
‘‘going to jail.’’ The defendant stated that he had pur-
chased the home one year ago and had decided to
rent it to Phravixay because he could not afford the
mortgage payment. He also said that Phravixay paid
him ‘‘periodically for the rent,’’ and that he had decided
to help Phravixay cultivate marijuana about four or five
months ago.
The defendant filed a motion to suppress on July 3,
2012, and the state filed an objection on December 19,
2012. A hearing was held on January 31, 2013, at which
the defendant did not testify. The court issued a written
memorandum of decision denying the defendant’s
motion to suppress on March 6, 2013. The defendant
subsequently entered a conditional plea of nolo conten-
dere to one count of possession of marijuana with intent
to sell and one count of possession of more than four
ounces of marijuana, and was sentenced to five years
imprisonment, suspended after four years, with five
years of probation. This appeal followed.
I
STANDING
The defendant first claims that the court incorrectly
determined that he lacked standing to challenge the
search of the property.7 He specifically argues that he
had a reasonable expectation of privacy in the property
searched such that the warrantless search violated his
rights under the fourth amendment to the United States
constitution and article first, § 7, of the constitution of
Connecticut.8 We are not persuaded.
Two Part Test
We first set forth the applicable law surrounding
standing to contest an allegedly illegal search. ‘‘The
touchstone to determining whether a person has stand-
ing to contest an allegedly illegal search is whether that
person has a reasonable expectation of privacy in the
invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99
S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229
Conn. 10, 20, 639 A.2d 1007 (1994). Absent such an
expectation, the subsequent police action has no consti-
tutional 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 pri-
vacy 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, 237 Conn. 81, 92, 675 A.2d 866 (1996).
‘‘Furthermore, [t]he defendant bears the burden of
establishing the facts necessary to demonstrate a basis
for standing . . . and the trial court’s finding [on the
question of standing] will not be overturned unless it
is legally or logically inconsistent with the facts found
or involves an erroneous rule of law.’’ (Citation omitted;
internal quotation marks omitted.) State v. Boyd, 57
Conn. App. 176, 184, 749 A.2d 637, cert. denied, 253
Conn. 912, 754 A.2d 162 (2000); see also State v. Mitchell,
56 Conn. App. 561, 566, 744 A.2d 927 (defendant has
burden of proving that he had reasonable expectation
of privacy in premises), cert. denied, 253 Conn. 910,
754 A.2d 162 (2000). ‘‘The right of privacy is personal
to the party seeking to invoke it, and thus cannot be
left to the court’s speculation.’’ State v. Michael D., 153
Conn. App. 296, 310, 101 A.3d 298, cert. denied, 314
Conn. 951, 103 A.3d 978 (2014).
Subjective Expectation of Privacy
To evaluate whether a defendant has demonstrated
a subjective expectation of privacy in a location, our
courts employ the following test: ‘‘a defendant must
show facts sufficient to create the impression that (1)
his relationship with the location was personal in
nature, (2) his relationship with the location was more
than sporadic, irregular or inconsequential, and (3) he
maintained the location and the items within it in a
private manner at the time of the search.’’ State v. Boyd,
supra, 57 Conn. App. 185; see also State v. Braswell,
145 Conn. App. 617, 642, 76 A.3d 231 (‘‘[e]vidence of
the defendant’s relationship with the location is neces-
sary to establish a reasonable expectation of privacy’’),
cert. granted on other grounds, 310 Conn. 939, 79 A.3d
892 (2013).
The trial court made several factual findings in
determining that the defendant did not exhibit a subjec-
tive expectation of privacy in the property. The court
found that Phravixay lived at the property, stored pos-
sessions there, and ‘‘paid rent periodically’’ to the defen-
dant. The court found that the defendant neither stored
possessions at the property nor lived there, and that
he lived approximately two hours away in Danbury.
Further, noting that the defendant had not introduced
any facts to suggest that the rental agreement had ended
at the time of the search, the court concluded that the
defendant did not have a reasonable expectation of
privacy in the property.
First Boyd Factor
We now consider the defendant’s claims under appli-
cable law. The defendant, conceding that ‘‘ownership
of the property alone does not establish standing,’’
argues that he had a personal relationship with the
property. He claims that he was ‘‘a co-occupant on the
property, and not just an absentee landlord . . . .’’
First, the defendant argues that he owned the property
and leased it to Phravixay for a monthly rent at a rate
that was less than his monthly mortgage payment,
which he claims suggests cotenancy.9 Second, he claims
that he received and stored items on the premises, but
he only mentions an aeration system found at the prop-
erty but addressed to him in Danbury. Third, he claims
that because he received mail at the property, he was
there frequently.
Notwithstanding the defendant’s arguments, the per-
sonal nature of his relationship to the property was not
sufficiently developed through the evidence or testi-
mony at the hearing. His arguments on appeal are thus
unsupported by the record.
The fact that Phravixay paid monthly rent that was
less than the defendant’s monthly mortgage payment,
without more, provides no support for the claim that
the defendant was a cotenant. The defendant did not
present evidence indicating in what manner he retained
the rights, if at all, to use the premises despite Phravi-
xay’s rental of the property.10 See State v. Brown, 198
Conn. 348, 358, 503 A.2d 566 (1986) (no evidence pre-
sented that defendant’s rental of garage included both
bays or relative rights of others to use garage or
driveway).
With regard to the claim that the defendant received
and stored items on the premises, the defendant cites
only to an aeration system. The defendant acknowl-
edges that the aeration system was addressed to him
in Danbury, but he argues that it was used on the prop-
erty. Cf. State v. Zindros, 189 Conn. 228, 240, 456 A.2d
288 (1983) (considering, in determining whether defen-
dant had subjective expectation of privacy in premises,
that defendant testified he had personal property inside
building which he claimed to be worth more than
$6000), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79
L. Ed. 2d 244 (1984). Douglas Hall, a sergeant with the
statewide narcotics task force, testified that other than
the mail found in the kitchen, he could not think of
any other personal items within the home that were
identifiable to the defendant.
The only evidence adduced at the hearing with regard
to mail was Hall’s testimony that he believed there was
‘‘some mail’’ in the kitchen with the defendant’s name
on it, and Moskowitz’ testimony that he found mail
in the mailbox with the defendant’s name on it. The
defendant suggests that the officers’ observation of the
mail shows that he was at the property frequently, but
he offered no testimony or evidence to support this con-
tention.
Second Boyd Factor
The defendant additionally argues that his relation-
ship with the property was more than sporadic, irregu-
lar or inconsequential. He argues that he ‘‘actively
participated in home improvement in the enclosed yard
surrounding the house,’’ a claim that he supports with
only the fact of his possession of ‘‘material to repair
the greenhouse . . . .’’11 He claims that this shows he
was at the property on a regular basis. Additionally, in
his reply brief, he claims that ‘‘there is as much indica-
tion he slept at the property as the Phravixay broth-
ers did.’’
The defendant’s claims that he actively participated
in home improvement in the enclosed yard and that the
property ‘‘was a place he . . . spent time at and possi-
bly slept at’’ are entirely unsupported by facts in the
record.12 Cf. State v. Kennedy, 20 Conn. App. 354, 359–
60, 567 A.2d 841 (1989) (review of record revealed that
defendant, grandson of homeowner, had established
expectation of privacy in basement garage, noting fac-
tors including that he had made repairs around house),
cert. denied, 214 Conn. 805, 573 A.2d 317 (1990).
Third Boyd Factor
The defendant claims that his ‘‘considerable efforts
to preserve [the] property as private’’ demonstrate his
subjective expectation of privacy in the property. The
defendant mentions the ‘‘sparsely populated area’’ in
which he purchased the property, the location of the
residence on the property, a posted no trespassing sign,
and a gate as examples of his efforts to keep the prop-
erty private. The state contends that ‘‘[t]hese attributes
do not reveal the defendant’s actual expectation of pri-
vacy in the property, when he leased it to another per-
son, left no personal possessions there, and resided
nearly two hours away.’’ (Emphasis omitted.) We agree
with the state.
The relevant inquiry is whether the defendant exhib-
ited a subjective expectation of privacy at the time of
the search. The third Boyd factor addresses whether
the defendant ‘‘maintained the location and the items
within it in a private manner at the time of the search.’’
State v. Boyd, supra, 57 Conn. App. 185; see also State
v. Mooney, 218 Conn. 85, 110, 588 A.2d 145 (resolving
question of whether defendant had reasonable expecta-
tion of privacy in duffel bag and cardboard box at time
of search), cert. denied, 502 U.S. 919, 112 S. Ct. 330,
116 L. Ed. 2d 270 (1991); State v. Brown, 129 Conn.
App. 552, 557, 19 A.3d 1282 (noting, in determining
expectation of privacy, testimony of resident of apart-
ment that ‘‘at the time of the search the defendant would
stay at her house three to four times a week with her
permission’’), cert. denied, 302 Conn. 914, 27 A.3d 372
(2011). The defendant did elicit testimony from Hall
that he believed a ‘‘no trespassing’’ sign and a gate were
located on the property. The defendant’s statement to
police, however, indicated that shortly after buying the
house about one year ago, he could not afford the mort-
gage and so he began renting the house to Phravixay.
Without more, it is unclear when the gate and sign were
installed, who installed these two items, and for whose
privacy were they installed. Overall, the defendant
failed to show how these two features, which he claims
were suggestive of an effort to maintain the property
as private, were indicative of his own expectation of
privacy, rather than the expectation of Phravixay, the
resident of the leased premises.13
The defendant did not testify at the hearing, and there
was no testimony that he had exhibited a subjective
expectation of privacy in the property.14 See State v.
Harris, 122 Conn. App. 521, 527, 3 A.3d 82 (2010) (noting
defendant did not testify and conceded that no testi-
mony was presented that he held subjective expectation
of privacy in hallway closet); cf. State v. Harris, 10
Conn. App. 217, 223, 522 A.2d 323, 327 (1987) (noting
defendant did not testify but that other testimony indi-
cated that bedroom searched was under exclusive con-
trol of defendant, and because it was conceded by state
to be defendant’s bedroom, defendant had reasonable
expectation of privacy there).15 The defendant called
one witness, Master Sergeant Patrick Torneo, who was
posted in the helicopter on the day of the search. The
defendant did not elicit any testimony from Torneo
that could support his burden to show that he had a
reasonable expectation of privacy in the area
searched.16 Accordingly, we determine that the court
did not err in denying the defendant’s motion to sup-
press the evidence obtained from the search of the
property because the defendant failed to establish a
reasonable expectation of privacy in the property.17
II
CLAIMS ARISING FROM MOTOR VEHICLE STOP
The defendant next claims that the motor vehicle
stop of the van driven by the defendant and the resulting
arrest were unconstitutional.18 We consider each in turn.
Motor Vehicle Stop
The defendant claims that the motor vehicle stop was
not supported by a reasonable and articulable suspicion
that he was engaged in criminal activity.19 We disagree
with the defendant’s claim.
We first note ‘‘our standard of review of a trial court’s
findings and conclusions in connection with a motion
to suppress. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [When] 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 court’s [ruling]
. . . .’’ (Internal quotation marks omitted.) State v.
Jones, 113 Conn. App. 250, 266, 966 A.2d 277, cert.
denied, 292 Conn. 901, 971 A.2d 40 (2009).
We next set forth the applicable law surrounding the
constitutionality of motor vehicle stops. ‘‘Pursuant to
Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968)], a police officer has the authority, under
the fourth amendment to the United States constitution,
to stop the operator of a car if the officer has a reason-
able and articulable suspicion that the operator has
engaged in illegal conduct. . . . Reasonable and articu-
lable suspicion is an objective standard that focuses
not on the actual state of mind of the police officer, but
on whether a reasonable person, having the information
available to and known by the police, would have had
that level of suspicion. . . . The police officer’s deci-
sion . . . must be based on more than a hunch or spec-
ulation. . . . In justifying the particular intrusion the
police officer must be able to point to specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that
intrusion.’’ (Citation omitted; internal quotation marks
omitted.) State v. Ocasio, 112 Conn. App. 737, 744, 963
A.2d 1109, cert. denied, 292 Conn. 904, 973 A.2d 106
(2009). ‘‘What constitutes a reasonable and articulable
suspicion depends on the totality of the circumstances.’’
(Internal quotation marks omitted.) State v. Jones,
supra, 113 Conn. App. 260. ‘‘On appeal, [t]he determina-
tion of whether reasonable and articulable suspicion
exists rests on a two part analysis: (1) whether the
underlying factual findings of the trial court are clearly
erroneous; and (2) whether the conclusion that those
facts gave rise to such a suspicion is legally correct.’’
(Internal quotation marks omitted.) State v. Arokium,
143 Conn. App. 419, 428, 71 A.3d 569, cert. denied, 310
Conn. 904, 75 A.3d 31 (2013).
The court denied the defendant’s motion to suppress
evidence seized from the van, finding that the officers
possessed a reasonable and articulable suspicion to
conduct a motor vehicle stop. The court credited the
officers’ testimony at the hearing and found that ‘‘[t]he
defendant’s flight, coupled with police knowledge that
someone entering on the property might be involved
in the grow operation, and the defendant’s subsequent
parking of the van adjacent to the property, furnished
a reasonable and articulable basis of suspicion on which
officers could, at the very least, question the driver of
the vehicle about his presence there.’’
The defendant argues that merely driving onto the
driveway, backing up, and parking on the street cannot
be sufficient to establish a reasonable suspicion that
he was engaged in criminal activity, and he also points
to the lack of evidence that he had committed any traffic
violation. ‘‘[A]n investigative stop can be appropriate
even where the police have not observed a violation
because a reasonable and articulable suspicion can
arise from conduct that alone is not criminal.’’ (Internal
quotation marks omitted.) State v. Clark, 297 Conn. 1,
10, 997 A.2d 461 (2010); see State v. Lipscomb, 258
Conn. 68, 71 and n.3, 779 A.2d 88 (2001) (police had
reasonable and articulable suspicion to stop motor vehi-
cle despite not observing motor vehicle violation, where
officers observed behavior consistent with soliciting
prostitute). ‘‘We do not consider whether the defen-
dant’s conduct possibly was consistent with innocent
activity but, rather, whether the rational inferences that
can be derived from it reasonably suggest criminal activ-
ity to a police officer.’’ State v. Madison, 116 Conn.
App. 327, 336, 976 A.2d 15, cert. denied, 293 Conn. 929,
980 A.2d 916 (2009).
This court has previously upheld the validity of motor
vehicle stops where there has been no indication of
a motor vehicle violation, but where the surrounding
circumstances have justified the stop. In State v. Rice,
172 Conn. 94, 98–99, 374 A.2d 128 (1976), the court
determined that police had a reasonable and articulable
suspicion to stop a motor vehicle departing from a
driveway, where police were responding to a call
reporting a serious crime involving a gun early in the
morning when few cars were on the roads.20 In the
present case, Hall testified that by the time the defen-
dant pulled into the driveway, police had already (1)
been made aware by the air team that there existed on
the property ‘‘a whole lot of marijuana right out in
the open,’’ (2) viewed the extensive marijuana grow
operation occurring on the property, including in the
pool area and the partially constructed greenhouse, and
(3) encountered the two men who were working inside
the greenhouse, one of whom indicated to police that
he was tending to marijuana. Hall testified that the
police were going to their vehicles to get items in prepa-
ration for the search, for which Phravixay had provided
consent, when the radio transmission concerning the
van occurred. Moskowitz, who observed the van and
made the radio transmission, testified that ‘‘[w]e
believed at that point in time [that the driver] was part
of the investigation.’’
First, the court did not err in considering the defen-
dant’s entering onto the property while the police were
investigating the large marijuana grow operation as a
factor contributing to reasonable suspicion. ‘‘The
nature of the crime under investigation, the degree of
suspicion, the location of the stop, the time of day, the
reaction of the suspect to the approach of police are
all facts which bear on the issue of reasonableness.’’
(Internal quotation marks omitted.) State v. Miller, 137
Conn. App. 520, 539, 48 A.3d 748, cert. denied, 307 Conn.
914, 54 A.3d 179 (2012). ‘‘[P]roximity in time and place
of the stop to the crime is highly significant in the
determination of whether an investigatory detention
is justified by reasonable and articulable suspicion.’’
(Internal quotation marks omitted.) State v. Hernandez,
87 Conn. App. 464, 471, 867 A.2d 30, cert. denied, 273
Conn. 920, 871 A.2d 1030 (2005); see also State v. Kim-
ble, 106 Conn. App. 572, 598, 942 A.2d 527 (noting defen-
dant’s ‘‘unexplained presence at the scene’’ in analysis
of reasonable and articulable suspicion), cert. denied,
287 Conn. 912, 950 A.2d 1289 (2008). The defendant
himself notes that ‘‘the aerial photographs entered into
evidence . . . demonstrate that this was an isolated
property . . . .’’ It was thus reasonable for the court
to consider the defendant’s presence at the isolated
property, which was the site of a large marijuana grow
operation, as a factor in the reasonable suspicion
analysis.
Second, the defendant’s actions in backing out of the
driveway and leaving quickly were considered properly
by the trial court as contributing to a reasonable and
articulable suspicion that the defendant may have been
involved in criminal activity. ‘‘[R]eviewing courts . . .
must look at the totality of the circumstances of each
case to see whether the detaining officer has a particu-
larized and objective basis for suspecting legal wrong-
doing. . . . This process allows officers to draw on
their own experience and specialized training to make
inferences from and deductions about the cumulative
information available to them that might well elude an
untrained person.’’ (Citation omitted; internal quotation
marks omitted.) United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750–51, 151 L. Ed. 2d 740 (2002).
The court recognized that ‘‘multiple officers testified
about the expedited manner in which the work van
departed.’’ Moreover, the officer’s explanation as to
why leaving the property quickly would arouse police
suspicion was drawn from his training and experience.
Moskowitz testified that ‘‘[b]ecause of our training and
experience with the way people typically are affiliated
with these organizations, if they see things that are not
in [the] order in which they left them, they will typically
err on the side of safety and flee the area believing that
law enforcement has caught onto their business.’’ It is
inaccurate for the defendant to argue that the officer
‘‘articulated no inferences of deductions from his train-
ing and experience to justify a stop . . . .’’
Regarding the defendant’s contention that he ‘‘was
not fleeing at the time of the stop,’’ we do not find
the court’s consideration of the manner in which the
defendant departed the property clearly erroneous.21
The court’s finding that the defendant fled had adequate
support in Moskowitz’ testimony. Moskowitz testified
that he ‘‘noticed the white van pull in the driveway and
then immediately back out and start to flee the area.’’
When asked to characterize the manner in which the
van departed the driveway, he said, ‘‘[v]ery quickly.’’
Hall additionally testified that ‘‘it came across the radio
that a van had pulled into the driveway and was high-
tailing it out of there, was pretty much how they put
it.’’ ‘‘[U]nprovoked flight upon noticing the police’’ may
properly be considered as a factor contributing to a
reasonable and articulable suspicion of criminal behav-
ior. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct.
673, 145 L. Ed. 2d 570 (2000). ‘‘[W]hen an officer, without
reasonable suspicion or probable cause, approaches an
individual, the individual has a right to ignore the police
and go about his business. . . . But unprovoked flight
. . . by its very nature, is not ‘going about one’s busi-
ness’; in fact, it is just the opposite.’’ (Citations omitted.)
Id., 125. In addition to outright flight, ‘‘[n]ervous, evasive
behavior is a pertinent factor in determining reasonable
suspicion. . . . Furthermore, when an individual sud-
denly changes his course of conduct upon seeing the
police, such conduct tends to support a reasonable sus-
picion that the individual may be involved in criminal
activity.’’ (Citation omitted; internal quotation marks
omitted.) State v. Mann, 271 Conn. 300, 324, 857 A.2d
329 (2004), cert. denied, 544 U.S. 949, 125 S. Ct. 1711,
161 L. Ed. 2d 527 (2005).22
In addition to observing the defendant quickly leave
the property, the officers, when they left to try to locate
the van, discovered it about one-tenth of a mile down
the road, parked ‘‘facing back toward the residence as
if it had turned around.’’ Having heard testimony that
the defendant pulled into a property used for a signifi-
cant marijuana grow operation, in a location that the
defendant himself characterized as ‘‘a sparsely popu-
lated area of the state,’’ backed out of the driveway
and left quickly upon noticing the police,23 presumably
turned around, and parked one-tenth of a mile down
the road facing back toward the property from which
he had just departed quickly, it was not clearly errone-
ous for the court to have determined that police reason-
ably could have concluded that the defendant was not
merely going about his business, but that he was indeed
engaged in evasive behavior that could rise to the level
of flight.
We recognize that this case presents a close question
as to whether a reasonable and articulable suspicion
existed that the driver had engaged in criminal conduct.
We find it significant, however, that the officers were
engaged in the investigation of an evident ongoing fel-
ony at the time they conducted an investigatory stop
of the van so that there was a direct and immediate
spatial and temporal link between the apparent felony
and the defendant’s presence in the van. The investiga-
tion of this evident felony in progress leads us to con-
clude that the situation presented is distinguishable
from those cases in which it has been determined that
the police lacked a reasonable and articulable suspi-
cion. For example, in State v. Peterson, 153 Conn. App.
358, 376, 101 A.3d 337, cert. granted, 314 Conn. 947,
103 A.3d 980 (2014),24 this court determined that police
lacked reasonable suspicion despite the defendant’s
presence at the home of a suspected drug dealer, reli-
able information that the defendant was engaged in the
sale of marijuana, and observation of the defendant
on a previous occasion engaging in behavior that was
consistent with drug sales. We noted that ‘‘any suspicion
of ongoing crime was necessarily founded in conjecture
or the police’s subjective notions of the defendant’s
propensity to engage in criminal behavior.’’ (Emphasis
added.) Id.
In State v. Oquendo, 223 Conn. 635, 641, 613 A.2d
1300 (1992), our Supreme Court determined that police
lacked a reasonable suspicion to stop a man carrying
a duffel bag and wearing a thick jacket on a warm
night, which an officer stated that burglars often wear
to protect themselves when breaking windows. The
court noted that ‘‘[a]lthough burglaries had been
reported in the general area . . . [the officer] had not
received any report that a burglary had been committed
in that area on the evening of [the stop].’’ Id., 655; see
also State v. Milotte, 95 Conn. App. 616, 622–23, 897
A.2d 683 (2006) (noting that ‘‘[t]here were no recent
reports of crimes in the area, and [the officer] knew
that the vehicle and its owner were not wanted by the
authorities,’’ in determining that officer lacked reason-
able suspicion to stop defendant mainly on basis of her
belief he was trying to avoid her because of time of
day and fact that he traveled on streets and made stops
at locations with which she believed he had no connec-
tion), appeal dismissed, 281 Conn. 612, 917 A.2d 25
(2007). In State v. Donahue, 251 Conn. 636, 646–47, 742
A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct.
299, 148 L. Ed. 2d 240 (2000), the court deemed unper-
suasive the state’s argument justifying a stop on the
basis of an increase in crime in the area, among other
factors, including driving in a deserted area late at night
and making an abrupt turn into an empty, unlit parking
lot of a closed business.
We understand the facts in the present case to provide
a more compelling argument that the officers possessed
a reasonable suspicion than the facts in our precedent
concluding otherwise. We consider the facts of this case
to be more in line with those precedential decisions
where our standards for reasonable suspicion were sat-
isfied, including State v. Januszewski, 182 Conn. 142,
149, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101
S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), in which our
Supreme Court upheld the determination that police
possessed a reasonable suspicion to conduct an investi-
gatory stop after observing two persons in the front
seat of an automobile parked in a commuter parking
lot during the day and where the occupants exhibited
plainly furtive conduct as an officer approached.
Considering the totality of the circumstances, we
agree with the court that the stop of the van was sup-
ported by a reasonable and articulable suspicion that
the defendant was engaged in criminal activity.
Probable Cause to Arrest
The defendant argues that even if the initial stop was
justified, the police lacked probable cause to arrest
him.25 In support of his argument, the defendant claims
that ‘‘[Moskowitz, one of the arresting officers] had not
been to the greenhouse in the initial sweep.’’ He thus
argues that ‘‘Officer Moskowitz never discovered any-
thing based on his personal knowledge to justify
detaining [the defendant].’’
‘‘On appeal, a court’s factual findings underlying its
probable cause determination are subject to review
under the clearly erroneous standard. . . . We accord
plenary review, however, to the determination that the
facts as found amount to probable cause.’’ (Citation
omitted.) State v. Robinson, 105 Conn. App. 179, 191,
937 A.2d 717 (2008), aff’d, 290 Conn. 381, 963 A.2d 59
(2009). ‘‘However, [w]e [will] give great deference to
the findings of the trial court because of its function
to weigh and interpret the evidence before it and to pass
upon the credibility of witnesses.’’ (Internal quotation
marks omitted.) State v. Arline, 74 Conn. App. 693,
699–700, 813 A.2d 153, cert. denied, 263 Conn. 907, 819
A.2d 841 (2003).
‘‘A police officer may arrest a person without a war-
rant when the officer has probable cause to believe that
the person has committed or is committing a felony.
. . . The determination of whether probable cause
exists under the fourth amendment to the federal consti-
tution, and under article first, § 7, of our state constitu-
tion, is made pursuant to a totality of circumstances
test. . . . With respect to warrantless arrests . . . the
trial court, in determining whether the arrest is sup-
ported by probable cause, is required to make a practi-
cal, nontechnical decision whether, under all the
circumstances . . . there is a fair probability that the
defendant had committed or was committing a felony.
. . . Moreover, it is also important to note that [t]he
quantum of evidence necessary to establish probable
cause exceeds mere suspicion, but is substantially less
than that required for conviction.’’ (Citations omitted;
internal quotation marks omitted.) State v. Thomas, 98
Conn. App. 542, 554, 909 A.2d 969 (2006), cert. denied,
281 Conn. 910, 916 A.2d 53 (2007). ‘‘Actions and things
observed by an experienced law enforcement officer
may have more significance to him in determining
whether the law is being violated at a given time and
place than they would have to a layman . . . and such
experience is entitled to at least some weight on the
ultimate question of probable cause.’’ (Internal quota-
tion marks omitted.) Id., 555.
The court credited the officers’ testimony that after
stopping the vehicle, they asked the defendant why he
had been to the home and that he provided evasive
answers, claiming ‘‘to be visiting a friend, but did not
name him.’’ The contents of the van, including materials
Moskowitz identified as lumber and irrigation piping,
were visible to the officers. The court concluded that
‘‘[i]n the present case, the materials in the back of the
van, which were in plain view, connected the defendant
and Eichen to the grow operation. Although the incrimi-
nating character of the lumber and piping is not immedi-
ately apparent in a vacuum, they were observed by
Moskowitz, who was familiar with the grow operation
at the home. At that time, officers had probable cause
to arrest the defendant.’’
The defendant challenges the court’s finding of proba-
ble cause by arguing that ‘‘Moskowitz indicated that he
had never seen the greenhouse until after [the defen-
dant] was in custody’’ and, thus, could not have con-
nected the lumber and irrigation piping in the van with
the construction of the greenhouse on the property. A
review of Moskowitz’ testimony reveals that he had
not been inside the greenhouse before he brought the
defendant back to the property, but Moskowitz never
indicated that he had not seen the greenhouse. Moskow-
itz testified that he had been behind the house prior
to pulling over the van. He also testified that he was
returning to his vehicle to obtain paperwork to present
to Sisouk Phravixay and Thomas Phravixay. It is undis-
puted that the greenhouse was visible from the rear of
the house, the two men initially were encountered in
the vicinity of the greenhouse, and the greenhouse
structure had no side walls. Moreover, Moskowitz testi-
fied that while he had the defendant pulled over: ‘‘I
observed tubing and construction equipment similar to
the tubing and construction equipment that was in the
rear of the house where the greenhouse was being con-
structed. We had asked him why he was leaving the
area; he said he was going to visit a friend and didn’t
understand why police were at the house, so he left. We
began to question him as to why he had the construction
equipment similar to the greenhouse equipment in his
van then.’’26
Accordingly, we conclude that the record supports
the inference that Moskowitz saw the lumber and irriga-
tion piping in the area of the greenhouse prior to con-
ducting the stop of the van. The court’s factual finding,
based on the evidence and reasonable inferences drawn
therefrom, was not clearly erroneous. See State v. Days,
89 Conn. App. 789, 797, 875 A.2d 59 (court’s finding
was supported by evidence and reasonable inferences
drawn therefrom), cert. denied, 275 Conn. 909, 882 A.2d
677 (2005).27
The record supports the inference that Moskowitz
saw the lumber and irrigation piping on the property
outside the greenhouse prior to conducting the investi-
gatory stop of the van. Moskowitz’ testimony estab-
lished that he ‘‘noticed the white van pull in the
driveway and then immediately back out and start to
flee the area.’’ Those observations having been demon-
strated by the record, we must now consider whether
the facts amounted to probable cause to believe that
the defendant had committed or was committing a fel-
ony. The officers’ testimony established that the defen-
dant provided evasive answers as to why he had been
to the property and left quickly. Their testimony further
established that the van the defendant was operating
contained lumber and irrigation piping, which was con-
sistent with the materials observed on the property that
were being used in the construction of the greenhouse
that housed components integral to the marijuana grow
operation. The defendant’s possession of these con-
struction materials viewed in light of the totality of the
circumstances supported the belief that the defendant
was involved in a drug related felony, specifically, the
marijuana cultivation occurring at the property. See
State v. Holloman, 20 Conn. App. 521, 527–28, 568 A.2d
1052 (items discovered in vehicle together with fact
that defendant matched description established proba-
ble cause to believe that defendant was person who
had robbed liquor store), cert. denied, 214 Conn. 805,
573 A.2d 317 (1990).
We thus conclude that the facts established a suffi-
cient nexus between the defendant and the marijuana
cultivation occurring at the property to establish proba-
ble cause for his arrest.
III
STATEMENT MADE TO POLICE
Last, the defendant argues that the court erred in
failing to suppress the statement he gave to police. The
defendant first challenges the factual finding of the
court that he was advised of his Miranda rights.28 The
defendant additionally contends that even if he had
been advised of his rights, (1) he did not waive his
Miranda rights and (2) his statement ‘‘was not a product
of a free and unconstrained choice . . . .’’
We note our standard of review. ‘‘The trial court’s
findings as to the circumstances surrounding [a] defen-
dant’s interrogation and confession are findings of fact
. . . which will not be overturned unless they are
clearly erroneous. . . . On the ultimate issue of volun-
tariness, however, we will conduct an independent and
scrupulous examination of the entire record to ascer-
tain whether the trial court’s finding is supported by
substantial evidence.’’ (Internal quotation marks omit-
ted.) State v. Linarte, 107 Conn. App. 93, 106, 944 A.2d
369, cert. denied, 289 Conn. 901, 957 A.2d 873 (2008).
Advisement of Miranda Rights
We first consider the defendant’s challenge to the
timing of the advisement of rights. The defendant claims
that the ‘‘police did not demonstrate that they gave as
required by Miranda the warning prior to questioning
him.’’ The court found that ‘‘[t]he state . . . produced
evidence from several officers that the defendant . . .
received [his] rights shortly after being brought back
to the home. Within the course of twenty-five minutes,
the defendant signed a notice and waiver of rights form
. . . a form consenting to the search and examination
of evidence in the home and his vehicle . . . and signed
a written statement . . . .’’ (Citations omitted.) The
court further noted that ‘‘[t]he prosecution has carried
its burden. The defendant was advised of his rights.’’
The defendant argues that Wiener ‘‘could not indicate
how long they had talked prior to taking the [defen-
dant’s] statement’’ and that his testimony is evidence
that the defendant was not advised of his Miranda
rights prior to questioning. Wiener testified that he read
the defendant his Miranda rights at 3:55 p.m. and that
he began taking the defendant’s statement at 4 p.m.
Wiener further testified that he was ‘‘not sure how long
we spoke for before I actually degraded it to paper.’’
Wiener’s testimony can properly be viewed as stating
that he was not sure how many minutes transpired,
after the defendant began his statement at 4 p.m., before
he began to memorialize the defendant’s words on
paper. This understanding is entirely consistent with
Wiener’s testimony that ‘‘I read him his rights. . . . And
then I went over the incident and I asked for his side
of the story after a little bit of conversation, and then
he provided me his side of the story and I put it on
paper . . . .’’ Accordingly, we conclude that the court’s
determination that the defendant was advised of his
rights is not clearly erroneous.
This conclusion is supported by evidence in the
record. In addition to Wiener’s testimony, Moskowitz
testified that ‘‘[w]e verbally read [his rights] to him prior
to questioning, and I believe that was at the residence
following us placing him in handcuffs.’’ The court did
not err in crediting the officers’ uncontroverted testi-
mony. See State v. Cabral, 275 Conn. 514, 532, 881
A.2d 247 (agreeing that evidence adduced at hearing
on motion to suppress supported court’s determination
that defendant was advised of Miranda rights prior
to speaking to police, where officer testified without
contradiction that he had so warned defendant), cert.
denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600
(2005); State v. Ortiz, 101 Conn. App. 411, 423, 922
A.2d 244 (court’s ‘‘factual findings were based on direct
testimony from the officers at the hearing that they had
advised the defendant of his rights, which the court
found credible’’), cert. denied, 283 Conn. 911, 928 A.2d
538 (2007).
Waiver of Miranda Rights
Having concluded that the court properly determined
that the defendant was advised of his rights prior to
giving his statement, we next consider the defendant’s
claim that he did not waive his right to remain silent. We
note at the outset of our discussion that the defendant’s
claim is narrowly drawn. With regard to the waiver
issue, he claims that the police did not obtain a ‘‘spe-
cific’’ waiver of his rights.29
The defendant claims that ‘‘it appears that the police
never did obtain a specific waiver, either orally or [in]
writing, of [the defendant’s] Miranda rights.’’ ‘‘To be
valid, a waiver must be voluntary, knowing and intelli-
gent. . . . The state has the burden of proving by a
preponderance of the evidence that the defendant vol-
untarily, knowingly and intelligently waived his
Miranda rights. . . . In considering the validity of a
waiver, we look to the totality of the circumstances of
the claimed waiver.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Azukas, 278 Conn. 266,
288, 897 A.2d 554 (2006). ‘‘Although we usually defer
to findings made by the trier of fact, such deference is
qualified in questions of this nature by the need to
examine the record scrupulously to ascertain whether
the factual findings were supported by substantial evi-
dence.’’ (Internal quotation marks omitted.) State v.
Miller, supra, 137 Conn. App. 531. ‘‘[A]fter giving a
Miranda warning, police may interrogate a suspect who
has neither invoked nor waived his or her Miranda
rights. . . . [A] suspect who has received and under-
stood the Miranda warnings, and has not invoked his
Miranda rights, waives the right to remain silent by
making an uncoerced statement to the police.’’ Bergh-
uis v. Thompkins, 560 U.S. 370, 388–89, 130 S. Ct. 2250,
176 L. Ed. 2d 1098 (2010).
The defendant argues that his failure to initial the
bottom portion of the notice and waiver of rights form
indicates that he did not waive his Miranda rights.30
Declining to initial the statements, however, does not
automatically render the Miranda waiver invalid.
‘‘[Although a] defendant’s express written and oral
waiver is strong proof that the waiver is valid . . . the
failure to sign a form or give a written statement does
not necessarily indicate an involuntary waiver.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Gonzalez, 74 Conn. App. 580, 586, 814 A.2d 384, cert.
denied, 263 Conn. 915, 821 A.2d 771 (2003); id., 587
(defendant initialed form but refused to sign it); see
also State v. Shifflett, 199 Conn. 718, 732–33, 508 A.2d
748 (1986) (defendant waived right to remain silent by
making oral statements despite express refusal to sign
waiver portion of form).
The totality of the circumstances surrounding the
defendant’s waiver of his right to remain silent supports
the finding that the waiver was valid. The defendant
was advised of his rights, as evidenced by Wiener’s
testimony that he read the defendant his Miranda rights
directly from the notice and waiver of rights form and
that the defendant signed the form, indicating that he
had been advised of his rights. Wiener testified that
he then interviewed the defendant and transcribed the
defendant’s statement onto a written statement form.
The statement admitted the defendant’s involvement
in the grow operation. Wiener went over the warning
contained on the top of the form, which states that the
signer ‘‘make[s] the following statement, without fear,
threat, or promise.’’ Wiener testified that the defendant
was given an opportunity to review the statement before
signing the form. The defendant then signed the form.
Wiener testified that although the defendant was reluc-
tant to speak at first, at no time did the defendant give
any indication that he did not want to speak to him or
ask for a lawyer.31
Voluntariness of Statement
Finally, the defendant argues that police overbore
his will to resist, including by making comments that
coerced him to respond. We disagree and conclude
that the court properly determined that his statement
was voluntary.
‘‘In order to be voluntary a confession must be the
product of an essentially free and unconstrained choice
by the maker. . . . [T]he test of voluntariness is
whether an examination of all the circumstances dis-
closes that the conduct of law enforcement officials
was such as to overbear [the defendant’s] will to resist
and bring about confessions not freely self-determined
. . . . The ultimate question of whether a defendant’s
will has been overborne, thus resulting in an involuntary
statement in a particular case, involves, as noted, an
assessment of the totality of all the surrounding circum-
stances—both the characteristics of the accused and
the details of the interrogation.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Stephenson, 99
Conn. App. 591, 596–97, 915 A.2d 327, cert. denied, 282
Conn. 903, 919 A.2d 1037 (2007).
The defendant claims that his statement was involun-
tary based on the testimony of Wiener and Hall, which
he argues suggests coercion. Wiener testified that he
‘‘asked [the defendant] for his side. Basically, like, ‘This
is what we have here: you’re the homeowner, you
denied it, we had to chase you up the street to get you
to stop and now it’s up. I mean, we, you know, one
way or the other you’re going to jail. You can have your
side on paper or not. It’s up to you.’ And he did—he
was cooperative at that point.’’32 The court considered
these statements and concluded that ‘‘[t]he statements
by police . . . were mere investigative tactics and
were insufficient to overbear the defendant’s will.’’
‘‘[S]tatements by the police designed to lead a suspect
to believe that the case against him is strong are com-
mon investigative techniques and would rarely, if ever,
be sufficient to overbear the defendant’s will and to
bring about a confession to a serious crime that is not
freely self-determined . . . .’’ (Internal quotation
marks omitted.) State v. Doyle, 104 Conn. App. 4, 17,
931 A.2d 393, cert. denied, 284 Conn. 935, 935 A.2d 152
(2007); see also State v. Reyes, 81 Conn. App. 612, 617,
841 A.2d 237 (2004) (upholding determination defen-
dant’s statement was voluntary, finding officer’s state-
ment to defendant that ‘‘[he] better tell the truth or [he]
was going to do a lot of time in jail’’ was not coercive).
Accordingly, we agree with the court that the evidence
presented indicated that the officers’ conduct was not
sufficient to overbear the defendant’s will.
Having concluded that the statements of Hall and
Wiener did not render the defendant’s statement invol-
untary, we briefly note that the surrounding circum-
stances support the determination that the statement
was voluntarily given. The defendant does not offer any
other circumstances of the interrogation or characteris-
tics of himself that would encourage a finding that his
statement was involuntary.33 The defendant was not
detained for any significant period of time before being
interrogated, as the court found that the defendant
received his rights ‘‘shortly after being brought back to
the home.’’ The interrogation itself was relatively short
in duration, with the court noting that the defendant
signed the notice and waiver of rights form, a form
consenting to the search of the home and his vehicle,
and a written statement, all within twenty-five minutes.
See State v. Bell, 93 Conn. App. 650, 667, 891 A.2d 9
(2006) (detention for six hours before interview lasting
one and one-half hours not sufficient to render state-
ment involuntary). Moreover, testimony indicated that
the defendant was given an opportunity to review the
statement before he signed it. On the basis of our review
of the totality of the circumstances, we conclude that
the court properly determined that the defendant’s
statement was a product of his own free will.
Accordingly, we reject the defendant’s claim that the
court erred in denying his motion to suppress the state-
ment he made to police.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s plea was conditioned on his right to appeal from the
denial of his motion to suppress evidence in accordance with General Stat-
utes § 54-94a.
2
The defendant contends for the first time in his reply brief that the
court improperly denied his motion to suppress the statements of Thomas
Phravixay. ‘‘It is well established . . . that [an appellate] court will not
review claims that are raised for the first time in a reply brief.’’ Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 181 n.52, 84 A.3d 840 (2014). Accordingly, we deem this claim
waived.
3
See footnote 17 of this opinion.
4
As the trial court noted, the relevant facts and analysis concern Thomas
Phravixay, not Sisouk Phravixay. Thus, references in this opinion to Phravi-
xay refer to Thomas Phravixay only.
5
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
6
Although the court indicated that someone positioned in the helicopter
had radioed this information to the ground team, it is undisputed that
Moskowitz radioed the information.
7
The trial court and the defendant use the term ‘‘standing.’’ We observe
that ‘‘[c]ourts have questioned whether it serves any useful analytical pur-
pose to consider [the] principle [that fourth amendment rights are personal]
a matter of standing, distinct from the merits of a defendant’s [f]ourth
[a]mendment claim . . . [and have concluded] that the definition of [fourth
amendment] rights is more properly placed within the purview of substantive
[f]ourth [a]mendment law than within that of standing.’’ (Internal quotation
marks omitted.) State v. Kimble, 106 Conn. App. 572, 581, 942 A.2d 527,
cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008); see also Rakas v. Illinois,
439 U.S. 128, 138–40, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). We note that
‘‘[t]he inquiry under either approach is the same.’’ Rakas v. Illinois, supra,
139. Because the defendant frames his claims in terms of standing, we also
use that language.
8
The defendant does not set forth a separate claim, accompanied by an
independent analysis, under the Connecticut constitution. In his appellate
brief, the defendant claims that the Connecticut constitution provides similar
protection. We, therefore, do not address this claim separately. See State
v. Fields, 265 Conn. 184, 190 n.8, 827 A.2d 690 (2003) (‘‘We have repeatedly
apprised litigants that we will not entertain a state constitutional claim unless
the defendant has provided an independent analysis under the particular
provisions of the state constitution at issue. . . . Without a separately
briefed and analyzed state constitutional claim, we deem abandoned the
defendant’s claim . . . .’’ [Internal quotation marks omitted.]).
9
The defendant additionally claims that the fact that the officers asked
him for consent to search the property indicates that the officers themselves
believed that he had an expectation of privacy in the property. Douglas
Hall, a sergeant with the statewide narcotics task force, testified that after
they found out that the defendant owned the home, ‘‘at that point, even
though it really wasn’t necessary in doing so, we ended up obtaining a
consent to search from him as well.’’ Thus, we cannot conclude from the
officer’s testimony that the police believed that the defendant had an expecta-
tion of privacy in the home.
10
We note that the court considered both the fact that the defendant
owned the property and that he rented it to Phravixay in concluding that
even if the defendant had exhibited a subjective expectation of privacy in
the property, it is not one that society is willing to recognize as reasonable
on the basis of the statutory rights of tenants. See General Statutes § 47a-
16 (restricting circumstances under which landlord may enter dwelling unit
rented to tenant). Because we agree with the court’s conclusion that the
defendant did not establish a subjective expectation of privacy in the prop-
erty, we need not reach the question of whether the expectation of privacy
is one that society would deem reasonable.
11
The defendant additionally argues that his ‘‘comments made in an admis-
sion to the police, and on which the prosecution relies to inculpate him
. . . amount to an evident expectation of privacy in the property.’’ We
observe that ‘‘[p]rivacy expectations do not hinge on the nature of defen-
dant’s activities—innocent or criminal.’’ United States v. Fields, 113 F.3d
313, 321 (2d Cir.), cert. denied, 522 U.S. 976, 118 S. Ct. 434, 139 L. Ed. 2d
334 (1997); id., 320 (defendant possessed reasonable expectation of privacy
in apartment where he prepared crack cocaine for resale, because even
though he did not live there or stay overnight there, ‘‘[h]e had a key . . .
paid $125 per week for the privilege of using the apartment, made use of
it on 40 or 50 occasions, could bring guests and, with minor restrictions,
could come and go as he pleased, even if [the resident] was not present’’).
Although the defendant in this case did admit to ‘‘help[ing] Tom [Phravixay]
cultivate the marijuana,’’ he also stated that he ‘‘didn’t realize the extent of
the grow operation’’ and ‘‘didn’t really think much of what was going on at
the house . . . .’’ Without more, his statement is insufficient to establish a
subjective expectation of privacy.
12
Moskowitz testified: ‘‘[T]he subject that we had detained on the property
had said that he was renting the home from the homeowner, who he pointed
out when we brought [the defendant] onto the property and said: That’s
him; he owns the house.’’ There was no evidence presented as to the amount
of time the defendant spent at the property, nor was there any evidence
presented that he had slept at the property. Moreover, there was testimony
of only one, small bed in the house and that one of the two men first
encountered in the greenhouse ‘‘indicated that he was the person that resided
there . . . .’’
13
The defendant argues that ‘‘[w]hether he was active in keeping the
property private from people from the road or whether he purchased a
property that was made private by a previous owner, the effect is the same
on the expectation of privacy.’’ He further argues that ‘‘there is no evidence
that the tenants did anything to make the property as private as the [task
force] found it when they entered the property . . . .’’ These arguments
prove unavailing in light of our case law holding that it is the defendant’s
burden to prove that he had a reasonable expectation of privacy in the
property searched, rather than the state’s burden to prove otherwise. State
v. Mitchell, supra, 56 Conn. App. 566.
14
The defendant relies heavily on State v. Zindros, supra, 189 Conn.
246–47, and United States v. Botsch, 364 F.2d 542, 543 (2d Cir. 1966), cert.
denied, 386 U.S. 937, 87 S. Ct. 959, 17 L. Ed. 2d 810 (1967), to support his
argument that he had a reasonable expectation of privacy in the property
searched. The defendant’s argument with respect to these cases conflates
the analysis applicable to whether an individual possesses the authority to
consent to a search of an area with the analysis applicable to whether a
defendant possesses a reasonable expectation of privacy in an area. It is
not necessary for a court to reach the validity of consent unless the defendant
has established that he possessed a reasonable expectation of privacy in
the area searched. See State v. Zindros, supra, 244 (‘‘[t]he 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’’ [internal quotation marks omitted.]).
15
The defendant finally argues that ‘‘it is good policy to find standing to
curb unlawful and counterproductive police actions.’’ We note that the
United States Supreme Court has explained that ‘‘since the exclusionary
rule is an attempt to effectuate the guarantees of the [f]ourth [a]mendment
. . . it is proper to permit only defendants whose [f]ourth [a]mendment
rights have been violated to benefit from the rule’s protections.’’ (Citation
omitted.) Rakas v. Illinois, supra, 439 U.S. 134; see also State v. Jevarjian,
307 Conn. 559, 566, 58 A.3d 243 (2012) (‘‘the application of the exclusionary
rule, a remedial measure intended to protect against fourth amendment
violations, would be inappropriate in the absence of a showing of some
such infringement of the defendant’s own fourth amendment rights’’).
16
The defendant noted that he intended to call another officer who did
not respond to his subpoena, but he stated that he intended to question
him on an unrelated matter.
17
Because we determine that the defendant did not establish that he had
a reasonable expectation of privacy in the property such that he could
contest the search, we do not address his argument that the greenhouse
was part of the curtilage and that the warrantless search did not fit under
any exception to the warrant requirement. In State v. Brown, supra, 198
Conn. 359 n.9, our Supreme Court determined that the defendant’s claim
that a garage was part of the curtilage and thus protected by the fourth
amendment failed because the court already had determined that the defen-
dant did not possess a reasonable expectation of privacy in the garage. ‘‘The
common law concept of curtilage . . . does not provide a separate basis
for fourth amendment protection. It simply refers to areas immediately
surrounding the home in which expectations of privacy are normally the
greatest. . . . The focus remains the reasonable expectation of privacy
which an individual possesses in the area. Our finding that the defendant
failed to establish that he had a reasonable expectation of privacy in the
garage defeats his claim regardless of how it is labeled.’’ Id.
18
The defendant cites to State v. Lamme, 216 Conn. 172, 579 A.2d 484
(1990), a case in which our Supreme Court interpreted article first, § 9, of
the Connecticut constitution. Because the defendant does not set forth a
separate claim, accompanied by an independent analysis, under the Connect-
icut constitution, we do not address this claim separately. See footnote 8
of this opinion.
19
‘‘When considering the validity of a [stop pursuant to Terry v. Ohio,
[392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], our threshold inquiry
is twofold. . . . First, we must determine at what point, if any, did the
encounter between [the police officer] and the defendant constitute an
investigatory stop or seizure. . . . Next, [i]f we conclude that there was such
a seizure, we must then determine whether [the police officer] possessed a
reasonable and articulable suspicion at the time the seizure occurred.’’
(Internal quotation marks omitted.) State v. Rodriguez, 121 Conn. App. 250,
255, 994 A.2d 691, cert. denied, 297 Conn. 918, 996 A.2d 278 (2010). Because
neither party appears to challenge the court’s finding that ‘‘the defendant
was seized for Terry purposes when the officers blocked the defendant’s
vehicle with their car and approached with guns drawn,’’ we consider
whether the officers possessed a reasonable and articulable suspicion at
that time.
20
In another case, State v. McMullen, 2 Conn. App. 537, 541–42, 480 A.2d
594 (1984), the defendant’s vehicle was the only car on the street after
midnight, heading in the direction away from the location toward which
police were traveling to respond to a silent alarm. This court, despite conclud-
ing that ‘‘there was nothing suspicious about the vehicle,’’ stated that ‘‘signifi-
cant facts, and deductions therefrom, implicated it in a less direct manner.’’
Id., 542. The Rice and McMullen courts recognized that the circumstances
presented in those cases were different from cases involving motor vehicle
stops conducted on the basis of ‘‘peculiarities in [the vehicle’s] operation’’;
id., 541–42; ‘‘a course of patently suspicious behavior’’ by the defendant, or
where the defendant had been ‘‘singled out by an informant . . . .’’ State
v. Rice, supra, 172 Conn. 98. Both courts, however, determined that the
surrounding circumstances rendered the stop reasonable.
21
This argument regarding lack of flight appears to be the defendant’s
only challenge to the court’s factual findings underlying its determination
that police possessed a reasonable and articulable suspicion. Pursuant to
our standard of review, we consider whether this factual finding is
clearly erroneous.
22
Even if not rising to the level of flight, the behavior could still properly
be considered in the reasonable suspicion analysis as evasive behavior. In
State v. Benton, 304 Conn. 838, 851, 43 A.3d 619 (2012), our Supreme Court
considered a defendant’s challenge as to whether his behavior of uttering
an expletive, standing on his pedals to accelerate, and veering his bicycle
in a different direction when uniformed police officers stepped into the
roadway could be a proper factor in the reasonable suspicion analysis. The
defendant argued that ‘‘his act of veering was an ambiguous response to
police presence and could reasonably be construed as an innocent maneuver
required to avoid the physical obstacle posed by the police.’’ Id., 850. The
court considered that these behaviors ‘‘could, at the very least, be reasonably
construed as nervous, evasive behavior, which is a pertinent factor in
determining reasonable suspicion.’’ (Internal quotation marks omitted.) Id.,
851. The court concluded that these behaviors when combined with the
knowledge that ‘‘the defendant’s companions unambiguously reversed direc-
tion and rode away upon spotting the police officers’’; id.; made it ‘‘objectively
reasonable for the officers to conclude that the defendant was fleeing from
them . . . .’’ Id., 852; cf. State v. Hammond, 257 Conn. 610, 625, 778 A.2d
108 (2001) (no flight where defendant simply walked away from
approaching police).
23
It is not unreasonable to infer that the defendant recognized the unusual
presence at the secluded property as law enforcement, as supported by the
court’s notation in its memorandum of decision that ‘‘[t]here were numerous
cars in the driveway, and police officers were wearing protective vests
emblazoned with the letters of their respective enforcement organizations.’’
24
Our Supreme Court has granted review in Peterson and will consider:
‘‘Did the Appellate Court properly determine that the totality of the circum-
stances did not provide sufficient reasonable and articulable suspicion for
police to detain the defendant?’’ State v. Peterson, 314 Conn. 947, 103 A.3d
980 (2014).
25
The defendant further argues that the ‘‘arrest of the [defendant] was
without probable cause that was untainted by an illegal search . . . .’’ To
the extent that the defendant challenges his arrest as unsupported by proba-
ble cause on the basis of his argument that the knowledge of the lumber
and irrigation piping was gained by way of an illegal warrantless search of
the property, his claim is defeated by the determination previously made
that he did not have a reasonable expectation of privacy in the area searched.
‘‘[T]he Supreme Court has long held that a reasonable expectation of privacy
in the subject of a search is a prerequisite for fourth amendment protection.’’
(Citation omitted; footnote omitted; internal quotation marks omitted.) State
v. Gonzalez, 278 Conn. 341, 348–49, 898 A.2d 149 (2006); see State v. Pierre,
139 Conn. App. 116, 128–29, 54 A.3d 1060 (2012) (declining to address
defendant’s claim that statement should be suppressed as ‘‘fruit of the
poisonous tree,’’ where defendant did not have reasonable expectation of
privacy in area searched and thus could not challenge as fruit of poisonous
tree statement made after police discovered gun and marijuana), aff’d, 311
Conn. 507, 88 A.3d 489 (2014); see also footnote 14 of this opinion.
26
This testimony by Moskowitz was supported by Hall’s testimony, in
which he stated that the officers conducting the investigatory stop of the
van ‘‘recognized materials inside the—from looking in the van, that clearly
looked like the same materials which were being used to construct the
greenhouse that the two individuals were in.’’
27
The defendant further argues that because there was no evidence of
communication among the officers as to the nature of the building materials
located near the greenhouse, the court erred in relying on the collective
knowledge doctrine. Having determined that the court’s factual finding that
the ‘‘lumber and piping . . . were observed by Moskowitz, who was familiar
with the grow operation at the home,’’ was not clearly erroneous, it is
unnecessary to consider the collective knowledge of the police.
28
The court determined that ‘‘[t]he defendant does not dispute that he
was advised of his [rights under Miranda v. Arizona, 384 U.S. 436, 478–79,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].’’ The defendant argues on appeal
that ‘‘there is a serious question based on [the] record whether the Miranda
rights were ever given to [the defendant] prior to the custodial interrogation’’
and superficially makes the additional claim, without further analysis, that
it ‘‘became unclear as to when the Miranda rights were given, if at all.’’
The trial record reveals that the defendant did not challenge whether his
Miranda rights were given. In his motion to suppress evidence, the defendant
conceded that ‘‘[o]nce back at the property, law enforcement officers advised
[the defendant] of [his] Miranda rights.’’ Moreover, the defendant does not
dispute that he signed the notice and waiver of rights form. We thus consider
the defendant’s challenge to contest the timing of the advisement of rights.
29
The defendant does not argue that he did not understand his Miranda
rights. See State v. Azukas, 278 Conn. 267, 288, 897 A.2d 554 (2006) (‘‘It is
useful to begin our analysis by noting that the defendant does not claim
that he did not understand his Miranda rights. Rather, he makes the narrow
claim that he never waived them.’’ [Emphasis in original.]); State v. Reynolds,
152 Conn. App. 318, 354, 97 A.3d 999 (noting that defendant did not challenge
fact that he received and understood Miranda warning and that he therefore
‘‘acted with full understanding of what rights were available to him following
the Miranda warning’’), cert. denied, 314 Conn. 934, 102 A.3d 85 (2014).
30
The bottom portion of the notice and waiver of rights form states: ‘‘I
waive these rights as indicated by placing my initials after one or more of
the following statements.’’ When asked by the court why the bottom portion
of the form was not initialed by the defendant, Wiener testified: ‘‘It might
have been an oversight that he didn’t put his initials here, or maybe I didn’t
ask him to initial it, but I read the form in its entirety.’’
31
Hall and Moskowitz also testified that the defendant did not say that
he did not want to talk.
32
The defendant additionally points to Hall’s testimony in which Hall
stated: ‘‘I don’t think he ever actually said he didn’t want to talk. . . .
[I]nitially, he was lying to us and playing games as to him knowing anyone
there or being present, and then once—once he was confronted with the
fact that we knew he was lying to us, that he actually owned the house, he
decided, he—at least, in our opinion, at that point—wanted to start being
honest with us.’’ Hall then stated that this occurred ‘‘[p]robably close to the
time that he signed his rights, so it would have been around 4 o’clock.’’
33
We again note that the defendant’s claim is narrowly drawn. He does
not argue that he did not understand or that he had any trouble communicat-
ing with the officers. See State v. Wright, 76 Conn. App. 91, 108, 818 A.2d
824 (2003) (considering totality of circumstances, including that ‘‘[a]t no
time did the defendant reveal that he did not understand his circumstances
or that he had difficulty communicating with the officers’’), cert. denied,
267 Conn. 911, 840 A.2d 1175 (2004).
State v. Houghtaling
Combined Opinion