State v. Brown

Peters, C. J.

The principal issue in this appeal is whether the defendant had a reasonable expectation of privacy, protected by the fourth amendment to the United States constitution1 and article first, § 7, of the *350Connecticut constitution,2 in a rented two-car garage. After a trial to the jury, the defendant, Judson Brown, was convicted of larceny in the first degree, in violation of General Statutes (Rev. to 1979) §§ 53a-119 (2) and 53a-122 (a) (2),3 and of falsely reporting the theft of a motor vehicle, in violation of General Statutes § 14-198,4 and was sentenced to a total effective term of imprisonment of from four to eight years. He appeals from this conviction.

The jury could reasonably have found the following facts. On the evening of January 11, 1980, a New Haven police officer discovered a partially stripped, white 1974 Mercedes Benz automobile abandoned in a parking lot. It was owned and had earlier been reported stolen by the defendant. At the time of its discovery, the car was missing a number of parts, including its two front doors and its marker plates. The defendant subsequently retrieved the recovered vehi*351ele and filed a claim with his insurer, the Fireman’s Fund Insurance Company. After inspecting the car, the insurance company deemed it a total loss, paid the defendant its fair value, and took possession of the car and its title. When the insurance company subsequently had the car sold at auction, the defendant submitted the highest bid to repurchase the car, but never took possession of it. In October, 1980, the police discovered a number of the missing car parts in a garage rented by the defendant. The defendant was subsequently arrested and convicted of larceny.

On appeal from his conviction, the defendant raises two claims of error. He claims that: (1) the evidence presented was insufficient to support the verdict of guilty of larceny; and (2) the trial court should have granted his motion to suppress evidence seized from his rented garage pursuant to a warrant because the seizure was the result of an earlier illegal search. We find no error.

I

The defendant’s first claim of error is that the evidence presented at trial was insufficient to support the jury verdict of guilty of larceny in the first degree. The defendant was charged by information with violating General Statutes §§ 53a-119 (2) and 53a-122 (a) (2) by obtaining over $2000 from the Fireman’s Fund Insurance Company by fraud. The defendant concedes that there was sufficient evidence to establish that he had filed a claim with the Fireman’s Fund Insurance Company and that it in turn had issued checks payable to him in excess of $2000. He argues, however, that there was no evidence that he ever actually received either the checks or the money. Since obtaining the money is an essential element of the crime of larceny in the first degree, the defendant claims that his conviction on this count cannot stand. The defendant properly *352raised this claim before the trial court by a timely motion for acquittal which was denied.

Appellate review of such a claim requires us to undertake a two step analysis. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). In this analysis, we make no distinction in probative force between direct and circumstantial evidence. State v. Sinclair, supra; State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).

We conclude that the evidence presented was sufficient to support the jury’s verdict. At trial, the state presented the following evidence relevant to this issue. After the defendant’s 1974 Mercedes Benz automobile had been recovered with parts missing, the defendant retrieved it, brought it to his home and filed a claim with his insurer. In settlement of the claim, the insurance company declared the car a total loss and issued checks payable to the defendant and to the first lienholder on the car in the aggregate amount of $12,265.50, the fair market value of the car. After paying the defendant’s claim in full, the insurance company received title to the car from the defendant, took *353possession of the car, and, pursuant to its regular practice in such cases, turned it over to a salvage company.

In light of this evidence, we conclude that the trial court properly denied the defendant’s motion for acquittal. The jury could reasonably have concluded that the checks issued to the defendant had been received by him, and that he would not have turned over the car and its title to the insurance company if he had not received payment for it. The fact that other, more direct evidence on this issue might have been produced by the state, as the defendant suggests, does not in any way diminish the validity of the jury’s verdict. The jury considered the evidence as presented and drew a reasonable inference from it. Construed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury’s conclusion.

II

The defendant’s next claim of error maintains that evidence seized from his rented garage pursuant to a search warrant should have been suppressed because the affidavit which supported the warrant had been tainted by an earlier illegal warrantless search. During the trial, the defendant moved to suppress this evidence.5 Testimony which preceded this motion established the following relevant facts. In August, 1980, a state police officer investigating a matter unrelated to the present case went to the defendant’s residence to interview him. At the time, the defendant was renting a second floor apartment in a two-family house. Another tenant lived in the first floor apartment. After *354receiving no answer at the front door, the police officer walked to the rear of the house and knocked on the back door. Again receiving no response, the police officer walked to a two-car garage on the property located approximately thirty feet behind the house. After calling out the defendant’s name and knocking on the garage door without receiving any response, the officer looked through one of the windows in the garage door to see if “there might have been somebody inside.” Although he saw no one there, he did notice “several white doors that appeared to be from a Mercedes and other auto parts.” The officer then left the premises. Approximately two months later, on October 21,1980, after further investigation, the police officer prepared an application for a search and seizure warrant to search the defendant’s garage. One fact used to establish probable cause in the application was the officer’s earlier observation of the white doors and auto parts in the defendant’s garage.6

The defendant argues that the police officer’s initial observation of the auto parts through the garage window violated the defendant’s reasonable expectation of privacy in the interior of the garage and thus constituted a warrantless search without justification. Because the probable cause supporting the warrant was based in part on this illegal search, the defendant argues that all tangible evidence seized pursuant to the warrant should have been suppressed. At trial, in denying the defendant’s motion to suppress this evidence, the trial court found that the defendant did not have a reasonable expectation of privacy in the garage. Such findings by a trial court will not be upset unless they *355are “legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case.” Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978).

For the defendant to prevail on his claim we must resolve three issues in his favor: (1) that the defendant had a reasonable, constitutionally protected expectation of privacy in the two-car garage; (2) that the police officer’s action in looking through the window violated that expectation and constituted an illegal search; and (3) that this illegality tainted the subsequent warrant. Because we conclude that the defendant cannot prevail on the first of these issues, we need not address the latter two.

The defendant’s claim that he had a constitutional right to suppression of incriminating evidence depends upon a showing that the challenged search by the police violated the defendant’s rights under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution. Because the constitutional prohibition against unreasonable searches and seizures affords protection only against invasions of reasonable expectations of privacy; Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Zindros, 189 Conn. 228, 236-39, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); our threshold inquiry is whether the defendant in fact possessed a reasonable expectation of privacy in the garage. Dow Chemical Co. v. United States, 749 F.2d 307, 311-12 (6th Cir. 1984); United States v. Bellina, 665 F.2d 1335, 1339 (4th Cir. 1981). Absent such an expectation, the subsequent police action has no constitutional ramifications.

*356The burden is on the defendant to prove that he had a reasonable expectation of privacy in the place that he alleges to have been unconstitutionally searched. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Rakas v. Illinois, supra, 130 n.1; United States v. Gomez, 770 F.2d 251, 253 (1st Cir. 1985); United States v. Torres, 720 F.2d 1506, 1510 (11th Cir. 1983); United States v. Bellina, supra, 1340; United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980); State v. Callari, 194 Conn. 18, 23, 478 A.2d 592, cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1984); State v. Ford, 71 N.C. App. 748, 751, 323 S.E.2d 358 (1984); Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204 (1980). To sustain his burden in this case, the defendant must prove first, that he had an actual subjective expectation of privacy in the garage and, second, that his expectation was reasonable under the circumstances. Rakas v. Illinois, supra, 143; Katz v. United States, supra; State v. Zindros, supra, 239.

Whether a defendant has established the reasonableness of his expectation of privacy requires a fact-specific inquiry into all the relevant circumstances. Oliver v. United States, 466 U.S. 170, 177-78, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374 (1931); State v. Zindros, supra, 239-40. Although “the Fourth Amendment protects people, not places”; Katz v. United States, supra, 351; expectations of privacy in some places are afforded greater constitutional legitimacy than in others. Oliver v. United States, supra, 180-81 (no expectation of privacy in open fields); United States v. Chadwick, 433 U.S. 1, 12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (lesser expectation of privacy in automobile); United States v. Bellina, supra, 1341 (lesser expectation of privacy in airplane). Privacy expectations are normally highest and are accorded the *357strongest constitutional protection in the case of a private home and the area immediately surrounding it. Oliver v. United States, supra, 178. Even in a private home, however, there is no absolute protection of privacy. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, supra. Objects or activities located within a home which are visible to others in areas expressly or impliedly open to the public are not accorded fourth amendment protection because any privacy expectation in such exposed areas would be unreasonable. Lorenzana v. Superior Court, 9 Cal. 3d 626, 629, 511 P.2d 33, 108 Cal. Rptr. 585 (1973); 1 LaFave, Search and Seizure (1978) § 2.3 (c), pp. 301-303.

The search whose constitutionality is questioned in this case occurred in a garage in the proximity of a two-family house. Reasonable expectations of privacy are necessarily diminished in multi-family homes and multiunit buildings, by virtue of the presence in common areas of other tenants and their visitors; United States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985); 1 LaFave, supra, pp. 306-309; but such expectations are not entirely extinguished. On the contrary, we recognize that, even in a multi-unit building, an individual tenant may have a constitutionally cognizable expectation of privacy in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others. See United States v. Holland, supra, 255-56 (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant’s exclusive control); United States v. Arboleda, supra, 991 (apartment dweller’s legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So. 2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his *358apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access).

In the present case, however, the defendant has failed to sustain his burden of establishing that he had a legitimate privacy interest in the rented, two-car garage. The garage was rented by the defendant in conjunction with his rental of the second floor of the appurtenant two-tenant house. The defendant presented no evidence to show that his use of this garage was exclusive or that he exercised sole control oyer it. He established only that he rented the garage and that he had access to it.7 There was no evidence that his rental included both bays of the garage. There was likewise no evidence whatsoever concerning the relative rights of the landlord, of the first floor tenant, or of visitors to use the garage or the driveway leading up to it. Similarly, there was no evidence concerning the ownership *359of the car seen in the garage.8 In short, there was no evidence presented to establish that the defendant could reasonably have expected that objects placed in the garage would remain private.9

In denying the defendant’s motion to suppress the seized auto parts, the trial court found that the defendant did not enjoy a reasonable expectation of privacy in the garage. In view of the defendant’s failure to establish that he was entitled to the exclusive use and control of the garage, we conclude that the trial court did not err in denying the defendant’s motion.

There is no error.

In this opinion Shea, Santaniello and Callahan, Js., concurred.

The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

At the time of the offense, General Statutes § 53a-119 (2) provided: “Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to .... (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.”

At the time of the offense, General Statutes § 53a-122 (a) (2) provided: “larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when ... (2) the value of the property or service exceeds two thousand dollars.”

General Statutes § 14-198 provides: “false report. A person who knowingly makes a false report of the theft or conversion of a vehicle to a police officer or to the commissioner shall be fined not more than five hundred dollars or imprisoned not more than six months or both.”

We reject the state’s argument that the defendant waived his right to make this claim because he had failed to object to earlier testimony by the police officer concerning the circumstances of his observation of the interior of the garage. See State v. Girolamo, 197 Conn. 201, 207-208, 496 A.2d 948 (1985).

The warrant application refers to a view of the garage by the police officer on September 4,1980, at which time he spoke to the defendant. It does not contain a reference to the view in August, 1980, which is at issue here. In view of our disposition of this claim, there is no reason to address the discrepancy.

At oral argument before this court, defense counsel repeatedly stated that the record established that the defendant had the exclusive use of the garage. A review of the record provides no support for this claim. Counsel referred the court to testimony by the owner of the apartment house and garage:

“Q. . . . Mr. Brazzell, do you own a property at 51 Frank Street in New Haven?

“A. Yes, I do.

“Q. And what [does] that property consist of?

“A. It consists of a two-car garage, a two-family house.

“Q. Do you rent that property?

“A. Yes, I do.

“Q. And to whom do you rent it?

“A. To Judson Brown.”

Additionally, later testimony by the police officer revealed that, in September, 1980, the defendant “told me he had access to the garage.”

In view of testimony that someone other than the defendant occupied the first floor of the apartment house, the above statements can best be described as ambiguous. The trial court reasonably could have concluded that this evidence falls far short of establishing that the defendant had sole and exclusive use of both bays of the two-car garage.

The police officer testified that, when he looked into the garage in August, he saw a “vehicle.” However, he stated that he did not know who owned it. There was no further testimony concerning the ownership of this particular vehicle.

The defendant also claims that his rights were violated because the garage was part of the curtilage of the house and thus entitled to special fourth amendment protection. The common law concept of curtilage, however, 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. Curtilage has been defined “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). 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.