State v. Gant

Berdon, J., with whom Katz, J.,

joins, dissenting. I am troubled by the majority opinion. On appeal, the state raises for the first time the claim that there existed exigent circumstances to justify the search of the room where the defendant, Leonard Gant, was being detained. The trial court refused to suppress the evidence of the gun, not on the ground of exigent circumstances, but on the basis that the defendant did not have standing to contest the search, and, in the alternative, it was a valid search incident to a lawful arrest.

I recognize that exigent circumstances may justify the warrantless entry into a home and a search of the premises. See State v. Geisler, 222 Conn. 672, 690-92, 610 A.2d 1225 (1992). Such intrusive conduct, however, is limited to “ ‘situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly ....’” State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983). “The United States Supreme Court has upheld such entry where it appears that there was a compelling need for official action and no time to secure a warrant. Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978) (warrantless entry of burning commercial building); Warden v. Hayden, [387 U.S. 294, 301, 87 *75S. Ct. 1642, 18 L. Ed. 2d 782 (1967)] (warrantless entry of home in hot pursuit of armed robber); Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963) (warrantless and unannounced entry of dwelling to prevent imminent destruction of evidence).” (Emphasis added.) State v. Guertin, supra, 448. Furthermore, “unnecessary police-created exigencies are not legitimate exceptions to the warrant requirement.” Id., 453. “The three general categories which the [United States Supreme Court] has identified as emergency situations are those involving (1) danger to human life; (2) destruction of evidence and (3) flight of a suspect.” Id., 448. In the present case, the only basis for the warrantless search under exigent circumstances was danger to human life.

“[G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. Good v. Dauphin County Social Services, 891 F.2d 1087, 1094 (3d Cir. 1989). The police, in order to avail themselves of this exception, must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings .... People v. Mitchell, 39 N.Y.2d 173, 178, 347 N.E.2d 607, 383 N.Y.S.2d 246, cert. denied, 426 U.S. 953, 96 S. Ct. 3178, 49 L. Ed. 2d 1191 (1976). It is an objective and not a subjective test. The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. State v. Klauss, 19 Conn. App. 296, 302, 562 A.2d 558 (1989); see State v. Guertin, [supra, 190 Conn. 453] (adopting objective test for warrantless felony arrest exigency analysis); see also United States v. Zabare, 871 F.2d 282, 291 [(2d Cir.), cert. denied, 493 U.S. 856, 110 S. Ct. 161, 107 L. Ed. 2d 119 (1989)] (test *76for determining whether a warrantless entry was justified by exigent circumstances is an objective one).” (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 691-92.

Furthermore, we have noted that “ ‘[wjhen there are reasonable alternatives to a warrantless search, the state has not satisfied its burden of proving exigent circumstances.’ ” State v. Guertin, supra, 190 Conn. 449, quoting State v. Schonagel, 189 Conn. 752, 763, 459 A.2d 106 (1983), vacated and remanded for further consideration, 465 U.S. 1002, 104 S. Ct. 990, 79 L. Ed. 2d 224, appeal withdrawn on remand, 192 Conn. 652, 473 A.2d 300 (1984). Otherwise, the exigent circumstances exception would be so open-ended as to make the warrant requirement meaningless.

Although we make a de novo review of whether the emergency doctrine is applicable, we base that determination upon “the subordinate facts found by the trial court . . . .” State v. Geisler, supra, 222 Conn. 693-94; State v. Joyce, 229 Conn. 10, 27 n.10, 639 A.2d 1007 (1994); State v. Schonagel, supra, 189 Conn. 762. The trial court in this case did not make any factual finding that would support the conclusion that an emergency existed. Therefore, I would remand this matter to the trial court so that it could hold a hearing and determine whether exigent circumstances justified the warrantless search by the police. See State v. Ellis, 227 Conn. 902, 902-903, 630 A.2d 73 (1993); State v. Patterson, 227 Conn. 448, 455, 629 A.2d 1133 (1993); State v. Cobbs, 198 Conn. 638, 643-44, 504 A.2d 513 (1986).

Accordingly, at this time, I would not reach the remaining issues. I respectfully dissent.