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State v. Newton
STATE OF CONNECTICUT v. DENNIS NEWTON
(AC 47587)
Alvord, Clark and Westbrook, Js.
Syllabus
Convicted, following a conditional plea of nolo contendere, of the crimes of possession of narcotics with intent to sell and criminal possession of a firearm, the defendant appealed. The defendant had been charged on the basis of evidence discovered during a parole search of his residence, and substances seized during the search were field tested by law enforcement officers for the presence of narcotics. He claimed, inter alia, that the trial court improperly denied his motion to suppress on the ground that he lacked standing. Held:
The trial court properly denied the defendant’s motion to suppress the evidence seized during the search on the ground that he lacked standing, as the court’s legal conclusion with respect to the fourth amendment challenge to the search of the residence was legally and logically correct because it was supported by its finding that the defendant, who had agreed to the conditions of his parole, did not have an expectation of privacy in his residence during the search.
This court declined to review the defendant’s claim that the trial court abused its discretion by denying his motion to compel, as the denial of a motion to compel disclosure is not one of the issues set forth in the statute (§ 54-94a) governing an appeal from a judgment rendered following a plea of nolo contendere.
The trial court properly denied the defendant’s pretrial motion to dismiss the narcotics charges against him for insufficient evidence, as the court determined that probable cause existed on the basis of the positive field tests.
Argued February 9—officially released August 11, 2026
Procedural History
Substitute information charging the defendant with
two counts of the crime of possession of narcotics with
intent to sell and one count of the crime of criminal possession of a firearm, brought to the Superior Court in the judicial district of Waterbury, geographical area number four, where the court, Papastavros, J., denied the
defendant’s motions to compel disclosure and to suppress;
thereafter, the court, Grispin, J., denied the defendant’s motion to dismiss; subsequently, the defendant was
presented to the court, Klatt, J., on a conditional plea of nolo contendere to one count of possession of narcotics
State v. Newton
with intent to sell and one count of criminal possession
of a firearm; judgment of guilty in accordance with the
plea; thereafter, the state entered a nolle prosequi as to one count of possession of narcotics with intent to sell,
and the defendant appealed to this court. Affirmed.
Nicole Van Lear, deputy assistant public defender, for
the appellant (defendant).
Meryl R. Gersz, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Don E. Therkildsen, Jr., and Michael Riley, supervisory
assistant state’s attorneys, for the appellee (state).
Opinion
ALVORD, J. Following a conditional plea of nolo contendere made pursuant to General Statutes § 54-94a, the
defendant, Dennis Newton, appeals from the judgment
of conviction of one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) (1) (A) and one count of criminal possession of a firearm
in violation of General Statutes § 53a-217 (a) (1). The
conditional plea followed the trial court’s denial of the
defendant’s motion to dismiss for insufficient evidence,
which was preceded by the court’s denials of his motion to compel disclosure and motion to suppress. On appeal, the
defendant claims that the court (1) improperly denied his
motion to suppress on the ground that he lacked standing; (2) abused its discretion in denying his motion to
compel disclosure; and (3) improperly denied his motion
to dismiss on the ground that the state presented sufficient evidence to establish probable cause. We affirm
the judgment of conviction.
On March 15, 2024, the state recited the following facts
prior to the court’s acceptance of the defendant’s plea of nolo contendere. On December 27, 2021, the Waterbury
Police Department, in conjunction with the Department of Correction’s Division of Parole and Community
Services (Division of Parole and Community Services)
conducted a parole search on a Waterbury residence.
State v. Newton
The defendant was the target of the search. While at the
residence, law enforcement secured the defendant and
found in a bedroom of the residence a bag containing
cocaine, a scale, and an operable firearm. At the time of
the search, the defendant was a convicted felon and not
eligible to possess a firearm.
The following procedural history is relevant to our
review of this appeal. The defendant was arrested on
December 27, 2021, and was charged in a long form
information with two counts of possession of narcotics
with intent to sell in violation of § 21a-277 (a) (1) (A), which were to be tried to a jury. He also was charged
with criminal possession of a firearm in violation of
§ 53a-217 (a), which was severed from the possession of
narcotics counts and was to be tried to the court. The
defendant filed pretrial motions, including a motion to
suppress in May 2022 and a motion to compel disclosure
in August 2022, both of which the court, Papastavros,
J., denied. On February 20, 2024, the defendant filed
a pretrial motion to dismiss the possession of narcotics charges for insufficient evidence, which the court,
Grispin, J., denied without prejudice. Shortly thereafter, on March 15, 2024, the defendant filed and the court,
Klatt, J., accepted a plea of nolo contendere on one of
the charges of possession of narcotics and the charge of
criminal possession of a firearm conditioned on the right
to take an appeal pursuant to § 54-94a. The state nolled
the remaining charge of possession of narcotics. On the
same day, the court sentenced the defendant to a term
of incarceration of three years, two years of which were
the mandatory minimum. Additional procedural history
will be set forth as necessary.
I
The defendant first claims that the court improperly
denied his motion to suppress on the ground that he
did not have standing.1 In support of this claim, the
1
As will be addressed in this opinion, we recognize the trial court’s use of the term “standing” as a shorthand employed by courts when considering whether a defendant challenging the constitutionality of a
State v. Newton
defendant advances several arguments, most of which
concern his general contention that the court misapplied
the relevant law. We are not persuaded.
The following additional procedural history is relevant
to our review of this claim. In May 2022, the defendant
filed a motion to suppress “tangible evidence seized during any search of [his] person or property.” At the beginning of the hearing on the motion to suppress held on
August 16, 2022, defense counsel stated, “I would call
Officer [Jennifer] Desena as a witness to show standing.” On direct examination, Desena testified that she
was the defendant’s parole officer between February and
December 2021, that the defendant lived at his mother’s
apartment, that his mother served as his parole sponsor, that a search of the apartment was conducted on
December 27, 2021, and that drugs and a firearm were
recovered during the search.
When asked on cross-examination whether a sponsor
of a parolee “has to agree to waive their expectation of
privacy and allow you to search their home,” Desena
responded, “Yes.” Also during cross-examination, the
prosecutor introduced as an exhibit the Statement of
Understanding and Agreement Conditions of Parole form
(parole agreement) signed by the defendant, and asked
Desena to read the fifth condition, which stated: “I will
submit to a search of my person, possessions, vehicle,
residence, business or other area under my control at
any time, announced or unannounced, with or without
cause, by parole or its agent to verify my compliance with the conditions of my parole.” The prosecutor then asked
Desena, “[D]oes [the defendant] waive—pursuant to [the
search condition] you just read—all of his expectation of
privacy for being searched?” Desena responded, “Yes.”
Thereafter, defense counsel argued that the defendant “had an expectation of privacy in his home.” The
search possesses the requisite reasonable expectation of privacy in the area searched. See Byrd v. United States, 584 U.S. 395, 410, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (2018); State v. Houghtaling, 326 Conn. 330, 341, 163 A.3d 563 (2017), cert. denied, 584 U.S. 949, 138 S. Ct. 1593, 200 L. Ed. 2d 776 (2018).
State v. Newton
prosecutor responded by asserting that parolees “have
very little, if any, expectation of privacy” and that, by
signing the search condition, the defendant had “waiv[ed]
[his] expectation of privacy in [his] person, in [his] possessions, in [his] home where [he] is living. When he
waives that expectation of privacy, he waives his fourth
amendment protection.” Defense counsel countered that
the defendant’s “expectation of privacy is diminished,
but it exists.”
The court found that the defendant signed the parole
agreement containing the search condition and that the
defendant’s sponsor, his mother, agreed to have her
apartment searched as a condition of her sponsorship.
The court then stated: “Having made these findings, the
court further finds that this defendant/parolee, [the
defendant], did not have an expectation of privacy at his
residence on the day of the search. He waived any expectation of privacy by agreeing to the terms of his parole.
He had no fourth amendment protection under Samson
[v. California, 547 U.S. 843, 846, 126 S. Ct. 2193, 165
L. Ed. 2d 250 (2006)]. Therefore, [the defendant] does
not have standing to challenge this search. That is the
order of the court.”
We next set forth the relevant legal principles and
standard of review governing the defendant’s claim. “The
fourth amendment to the United States constitution . . .
provides . . . [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . The capacity to claim the protection of the fourth amendment does not depend
upon a property interest, permanency of residence, or
payment of rent but upon whether the person who claims
fourth amendment protection has a reasonable expectation of privacy in the invaded area. . . .
“To receive fourth amendment protection against
unreasonable searches and seizures, a defendant must
have a legitimate expectation of privacy in the [subject
of the search]. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications. . . .
State v. Newton
To determine whether a defendant has a reasonable expectation of privacy in an invaded place, we follow the test
laid out by the United States Supreme Court in Katz v.
United States, [389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.
2d 576 (1967)]. . . . The Katz test has both a subjective
and an objective prong: (1) whether the [person contesting the search] manifested a subjective expectation of
privacy with respect to [the invaded premises or seized
property]; and (2) whether that expectation [is] one that
society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . The burden of proving the existence of a reasonable expectation of privacy
rests [with] the defendant. . . .
“It is well settled that [w]hen reviewing a trial court’s
denial of 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 . . . . [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights . . . and the credibility of witnesses is not the primary issue, our customary deference to the
trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial
court’s factual findings are supported by substantial
evidence. . . . [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
[trial court’s] memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v.
Jacques, 332 Conn. 271, 278–79, 210 A.3d 533 (2019).
Also relevant to our review of this claim is the United
States Supreme Court’s holding in Samson v. California,
supra, 547 U.S. 846. In Samson, the petitioner was on
parole when an officer conducted a suspicionless search
of his person. Id., 846–47. The court recognized that,
under California law, “every prisoner eligible for release on state parole ‘shall agree in writing to be subject to
search or seizure by a parole officer or other peace officer
State v. Newton
at any time of the day or night, with or without a search
warrant and with or without cause.’ Cal. Penal Code
Ann. § 3067 (a) (West 2000).” Id., 846. The court considered “whether a condition of release can so diminish or
eliminate a released prisoner’s reasonable expectation of
privacy that a suspicionless search by a law enforcement
officer would not offend the [f]ourth [a]mendment.”
Id., 847. The court acknowledged that, “[o]n th[e] continuum [of state-imposed punishments], parolees have
fewer expectations of privacy than probationers, because
parole is more akin to imprisonment than probation is
to imprisonment.” Id., 850.
Turning to the facts, the court in Samson noted that
“the parole search condition under California law . . . was clearly expressed to [the] petitioner.” (Citations omitted; internal quotation marks omitted.) Id., 852. The court
then examined “the totality of the circumstances pertaining to [the] petitioner’s status as a parolee, an established variation on imprisonment . . . including the plain terms
of the parole search condition” and concluded “that [the]
petitioner did not have an expectation of privacy that
society would recognize as legitimate.” (Citation omitted; internal quotation marks omitted.) Id. The court
found “salient” the fact that the search condition was
“clearly expressed” to the petitioner, noting that “[h]e
signed an order submitting to the condition and thus
was unambiguously aware of it.” (Internal quotation
marks omitted.) Id. Notwithstanding its determination
that the petitioner did not have a reasonable expectation of privacy, the court proceeded to assess the state’s interest in supervising parolees and reducing recidivism,
and, thereafter, concluded that “the [f]ourth [a]mendment does not prohibit a police officer from conducting
a suspicionless search of a parolee.” Id., 857.
In the present case, the defendant argues that the court
misapplied the law, asserting that its “reliance on Samson to deny standing directly conflicts with Samson’s
holding, which was decided on reasonableness grounds
State v. Newton
and involved a careful balancing of the particular interests involved.” We are not persuaded.
Prior to balancing the interests involved, the court in
Samson determined that the petitioner did not have an
expectation of privacy that society would recognize as
legitimate. Samson v. California, supra, 547 U.S. 852.
In reaching this determination, the court considered
the petitioner’s parole status and the plain terms of the
search condition he signed. Id. Like the petitioner in
Samson, the defendant in the present case had a diminished expectation of privacy by way of his parole status.
Additionally, the court found that the defendant signed
and initialed his conditions of parole, which provided
in part, “I will submit to a search of my person, possessions, vehicle, residence, business or other area under
my control at any time, announced or unannounced,
with or without cause, by parole or its agent to verify my compliance with the conditions of my parole.” The court
further noted that, in order to serve as the defendant’s
parole sponsor, the defendant’s mother was required to
agree to a search of her house, where he was living. After making these findings, the court determined that, under
Samson, the defendant did not have an expectation of
privacy and denied the motion to suppress. In light of
the court’s findings and analysis, we cannot find that
it deviated from Samson in its determination that the
defendant did not have an expectation of privacy.
Although the defendant correctly points out that the
court did not balance the interests of the state and the
defendant, we do not find that such an analysis was necessary because the court had found that the defendant did
not have an expectation of privacy. “To receive fourth
amendment protection against unreasonable searches
and seizures, a defendant must have a legitimate expectation of privacy in the [subject of the search].” State
v. Jacques, supra, 332 Conn. 278. In the absence of an
expectation of privacy, the defendant could not claim
State v. Newton
protection under the fourth amendment; therefore, the
court did not have to proceed further with its analysis.2
Under the same line of argument, the defendant contends that “the trial court erroneously relied on Samson
for the proposition that no parolee anywhere has standing to challenge any warrantless search.” In considering this argument, we find instructive the concurring
opinion in State v. Jacques, supra, 332 Conn. 305 (Kahn,
J., concurring), which considered whether a defendant
on parole would have had an expectation of privacy in
his apartment. The concurring opinion provided that,
“[a]lthough probationers and parolees are subject to a
degree of impingement upon privacy that would not be
constitutional if applied to the public at large . . . the law requires that such greater intrusions occur pursuant
to a rule or regulation that itself satisfies the [f]ourth [a]mendment’s reasonableness requirement . . . . For
this reason, the particular scope of a parolee’s reasonable expectation of privacy depends on the conditions of
parole.” (Citations omitted; internal quotation marks
omitted.) Id., 304 (Kahn, J., concurring). In addition
to Samson, the concurring opinion referenced United
States v. Robertson, 239 F. Supp. 3d 426, 448 (D. Conn.
2017), appeal withdrawn, Docket No. 17-1845, 2017
WL 6326976 (2d Cir. August 25, 2017),3 to support its
2
The defendant contends that the Samson “court’s finding of reasonableness was driven by particular governmental interests animating the California statute that are not present here.” We note, however, that courts, including this one, have considered the dual interests of state governments generally in promoting rehabilitation and reintegration, as well as public safety. See United States v. Knights, 534 U.S. 112, 121, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001); see also State v. Romero, 199 Conn. App. 39, 54, 235 A.3d 644 (recognizing “the state’s dual interests in facilitating the defendant’s rehabilitation and protecting society from any future criminal violations” in context of conditions of probation, in which defendant agreed to submit to searches of his residence), cert. denied, 335 Conn. 955, 238 A.3d 731 (2020).
3
The concurring opinion summarized United States v. Robertson, supra, 239 F. Supp. 3d 426, as follows: “[T]he court rejected the government’s contention that the defendant’s status on federal supervised release functioned as a forfeiture of all his constitutional rights to the sanctity of his home. The court looked to the defendant’s conditions
State v. Newton
conclusion that “[t]he relevant case law makes clear that
the standard and specific conditions of the defendant’s
release would define the scope of the defendant’s reasonable expectation of privacy in his home . . . .” State v.
Jacques, supra, 332 Conn. 305 (Kahn, J., concurring).
The concurring opinion posited that, if the search “would
have complied with the defendant’s parole conditions at
the time of his arrest—whatever those may have been—it
did not constitute an invasion of his reasonable expectation of privacy.” Id., 306.
We agree with the principle stated in the concurring
opinion in Jacques that the scope of a parolee’s reasonable expectation of privacy in an area depends on the conditions of parole. In the present case, the court considered not only the defendant’s parole status, but also the condition in which he agreed to submit to searches “at any
time, announced or unannounced, with or without cause,
by Parole or its agent to verify my compliance with the
conditions of my parole.” In his reply brief, the defendant further argues that the search condition he signed is standard to parole and, thus, it is presumed that the court’s
“holding would apply broadly to all parolees.” We find
this argument unconvincing because, even if the search
condition is standard across parole agreements, it does
not follow that all searches of parolees are standard, as
there may be instances in which a search fails to comply
with the terms of the search condition. In that situation, the parolee would not have been made unambiguously
aware of the search because it fell outside the parameters specified in the search condition’s terms and, thus, the
parolee would maintain an expectation of privacy as it
concerns the search condition. The parolee’s ability to
of supervised release, which provided only that [t]he defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer. . . . The court reasoned that the conditions of release did not extend to the police officers who were unaccompanied by a probation officer when they searched the defendant’s apartment.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Jacques, supra, 332 Conn. 304–305 (Kahn, J., concurring).
State v. Newton
invoke his fourth amendment protections, therefore,
would not be limited by signing the search condition,
as was the case here. Accordingly, we disagree with the
defendant’s contention that the court’s holding stands
for the broad proposition that no parolee can challenge
a warrantless search.
The defendant next argues that the holding in Samson
“is extremely limited, and arguably not applicable at all
to this case due to the material differences in circumstances underlying the court’s reasoning and holding.”
The defendant seeks to distinguish Samson on two bases.
We disagree with both contentions.
First, the defendant argues that Samson “is specific
to suspicionless searches conducted under the authority of a statute, [whereas] the search condition here is
under no such authority.” Although the search condition assessed by the court in Samson was authorized by
a California statute, we are not convinced that this fact
contributed to the court’s holding. As noted, the court
in Samson considered “the totality of the circumstances
pertaining to [the] petitioner’s status as a parolee . . . including the plain terms of the parole search condition” and concluded “that [the] petitioner did not have
an expectation of privacy that society would recognize
as legitimate.” (Citations omitted; internal quotation
marks omitted.) Samson v. California, supra, 547 U.S.
852. In its assessment of the relevant circumstances,
the court did not identify the statute authorizing the
search condition as impacting its consideration of the
petitioner’s expectation of privacy.
Moreover, without reference to an authorizing statute, courts, including this one, have found that a search
condition diminished a probationer’s reasonable expectation of privacy while advancing the state’s interests,
ultimately concluding that a warrantless search of a
residence based on reasonable suspicion was lawful. See
United States v. Knights, 534 U.S. 112, 119–21, 122
S. Ct. 587, 151 L. Ed. 2d 497 (2001) (probation condition significantly diminished petitioner’s expectation
State v. Newton
of privacy, while furthering state’s interests, leading to conclusion that intrusion on probationer’s significantly
diminished privacy interests was reasonable when only
reasonable suspicion existed); see also State v. Romero,
199 Conn. App. 39, 53–54, 235 A.3d 644 (“[t]he defendant’s probation search condition diminished his reasonable expectation of privacy and furthered the state’s dual interests in facilitating the defendant’s rehabilitation
and protecting society from any future criminal violations by him”), cert. denied, 335 Conn. 955, 238 A.3d
731 (2020). We recognize that these holdings concern
warrantless searches of probationers with diminished
expectations of privacy, rather than searches of parolees
with no expectation of privacy, as the case is here. We,
however, cannot ascertain, nor does the defendant offer
legal authority to demonstrate, why a probationer’s
search condition does not have to be authorized by statute for it to either reduce a probationer’s expectation
of privacy or lessen the cause required to search, but a
parolee’s search condition does. Accordingly, we are not
persuaded that the lack of a statute or regulation authorizing the defendant’s search condition necessitates the
conclusion that the search of his residence ran afoul of
the fourth amendment.
Second, the defendant seeks to distinguish Samson by
asserting that the text of the California statute presented a material difference in that it defines “the scope of the condition and necessary safeguards against arbitrary
searches.” We note, however, that the search condition in
the present case similarly limits searches to those necessary “to verify . . . compliance with the conditions of . . . parole.” This condition, which limits searches to those
conducted for purposes of verifying parole compliance,
necessarily would prohibit searches that are arbitrary or
conducted for purposes of harassment. Accordingly, we
reject the defendant’s efforts to distinguish Samson.4
The defendant additionally argues that the court incorrectly “applied the reasonable expectation of privacy test
4
As it concerns the application of Samson, the defendant further asserts that, “[u]nlike Samson and Knights, [the defendant’s] conditions
State v. Newton
from Katz to determine that [the defendant] did not have
standing.” He argues that the reasonable expectation of
privacy standard applies “[o]nly when [a defendant] is
vicariously asserting the property rights of another or
when the search involves an area not specifically protected by the fourth amendment” and that “[t]he Katz
test has no place here because the search occurred in [the defendant’s] home,” which is “an area protected by the
plain text of the fourth amendment.” The defendant
further argues that whether the search was reasonable
in light of the defendant’s “diminished expectation of
privacy and the governmental interests involved . . . are
not questions of standing.”
The defendant’s principal contention, which is that the
court improperly applied the reasonable expectation of
privacy standard to the search of his own residence, is
contradicted by our courts’ consistent application of that standard when determining whether a defendant has a
cognizable fourth amendment interest, even when the
challenged search or seizure involves an area specifically referenced in the text of the fourth amendment. See, e.g., State v. Jacques, supra, 332 Conn. 278 (applying Katz
standard and concluding that defendant had reasonable
expectation of privacy in apartment leased by defendant
that police searched while defendant was incarcerated on
unrelated charges); State v. Pink, 274 Conn. 241, 260,
875 A.2d 447 (2005) (warrantless strip search of inmate
did not violate fourth amendment because inmate had
no reasonable expectation of privacy); State v. Santiago,
224 Conn. 494, 504, 619 A.2d 1132 (1993) (warrantless
arrest of defendant in open doorway of his home did not
violate fourth amendment because defendant had no
of special parole were not expressed to him until after his sentence of special parole was already imposed”; therefore, the “defendant does not have the ability to be on notice of even the existence of the condition prior to its imposition.” (Emphasis in original.) He alleges that “[t]he issue of having a ‘choice’ in accepting search conditions was a significant consideration in Samson and Knights.” Having reviewed those cases, we are not persuaded that the timing of when the condition was expressed, nor the petitioner’s ability to choose to sign the conditions were factors in those decisions.
State v. Newton
reasonable expectation of privacy while standing in that
area); State v. Reddick, 207 Conn. 323, 333–34, 541
A.2d 1209 (1988) (defendant had reasonable expectation
of privacy in basement of two-family home at which he
resided and, therefore, warrantless search of basement
violated fourth amendment); State v. Romero, supra, 199
Conn. App. 54 (defendant on probation had diminished
expectation of privacy in hotel room in which he resided
in light of conditions of probation, such that warrantless search of room did not violate fourth amendment).
Indeed, the Supreme Court in Samson applied the reasonable expectation of privacy test in concluding that
the petitioner did not have an expectation of privacy in
his person—an area explicitly protected by the fourth
amendment.
To the extent that the defendant argues that the court
incorrectly used the term “standing” in its analysis of
whether the defendant had a reasonable expectation of
privacy, we find this argument to be no more availing.
Although the United States Supreme Court generally
“has eschewed referring to the question of whether a
person has a reasonable expectation of privacy in a place
or object search as implicating notions of standing”;
(internal quotation marks omitted) State v. Gonzalez,
278 Conn. 341, 347 n.10, 898 A.2d 149 (2006), citing
Rakas v. Illinois, 439 U.S. 128, 139–40, 99 S. Ct. 421,
58 L. Ed. 2d 387 (1978); courts have continued to employ
that term when considering whether a defendant challenging the constitutionality of a search possessed the
requisite reasonable expectation of privacy in the area
searched. See Byrd v. United States, 584 U.S. 395, 410,
138 S. Ct. 1518, 200 L. Ed. 2d 805 (2018) (noting that,
although “[f]ourth [a]mendment standing . . . is not
distinct from the merits and is more properly subsumed
under substantive [f]ourth [a]mendment doctrine . . .
[t]he concept of standing in [f]ourth [a]mendment cases
can be a useful shorthand for capturing the idea that a
person must have a cognizable [f]ourth [a]mendment
interest in the place searched before seeking relief for
an unconstitutional search” (citation omitted; internal
State v. Newton
quotation marks omitted)); see also State v. Houghtaling, 326 Conn. 330, 341, 163 A.3d 563 (2017) (“To challenge a search as unreasonable, a defendant must have
standing. To establish standing, a defendant must show
that he possesses a reasonable expectation of privacy in
the area searched.”), cert. denied, 584 U.S. 949, 138 S.
Ct. 1593, 200 L. Ed. 2d 776 (2018); State v. Kinch, 168
Conn. App. 62, 76, 144 A.3d 509 (defendant failed to
satisfy “burden of proving the existence of a reasonable
expectation of privacy in the area of the vehicle searched” and, thus, “lacked standing to challenge the legality of
that search”), cert. denied, 323 Conn. 930, 151 A.3d 383
(2016). Indeed, our Supreme Court has held that, if a
court properly applies the Katz reasonable expectation of
privacy test, it is immaterial that the trial court framed the inquiry as a matter of fourth amendment “standing”
rather than as part of the merits of the fourth amendment
claim. See State v. Gonzalez, supra, 347 n.10, 354 (noting that trial court’s use of term “ ‘standing’ ” in denying motion to suppress “does not change our inquiry,”
and concluding that trial court properly denied motion
to suppress on basis that defendant lacked reasonable
expectation of privacy).5
The defendant next argues that “the court also erred in
finding that, when [the defendant] signed his conditions
of parole form, he consented to all searches, depriving
him of standing to challenge any search at any time.”
He asserts that the court “relied on [the defendant’s]
‘consent’ to hold that he did not have standing” and
that there is no record to “support necessary findings
of consent.”
Although the defendant briefs this argument within
his claim that the court improperly denied his motion
5
We also note that it was the defendant who introduced the term “standing” in the proceedings in the trial court. Immediately prior to arguing the defendant’s motion to suppress, defense counsel stated, “I’m prepared to make argument on standing” and then, in support of his argument, asserted that the defendant “had an expectation of privacy in his home.”
State v. Newton
to suppress, the record reveals that the court’s finding
regarding the defendant’s consent arose in a different
context: the finding he references was made in response
to argument made by the assistant attorney general, on
behalf of the Division of Parole and Community Services,
concerning motions to quash.6 Because the court did not
reference consent in connection with the motion to suppress but, rather, made a proper finding that the defendant did not have an expectation of privacy, we are not
persuaded that the court relied on a finding of consent
to determine that the defendant did not have standing.7
In light of the foregoing, we conclude that the court’s
legal conclusion with respect to the defendant’s fourth
6
The motions to quash were filed in response to subpoenas filed by the defendant as part of his discovery efforts. After hearing argument from all parties on the first motion to quash, the court made the following finding: “The defendant signed parole conditions on February 17, 2021, which included, but [was] not limited to a condition of parole that he submit to searches of his person, possession, residence, or any other area under his control, at any time, announced or unannounced, with or without cause by Parole. The [United] [States] Supreme Court has held in Samson v. California, [supra, 547 U.S. 843], that individuals, such as [the defendant], who are on parole or special parole, who sign parole conditions, consent to having their place of residence, including spaces under their control, to being searched. Further, Samson held that parolees have an extremely diminished, if any, ex[pecta]tion of privacy. Therefore, the parolee, in this case, [the defendant], has consented to the search in question. . . . Therefore, the motion to quash the subpoena as to the manual of the Department of Parole is granted.” As it concerned a separate motion to quash, the court provided, in part, “[t]he court finds that the defendant parolee has consented to this search by agreeing to the conditions of parole with a signature. Therefore, it is not relevant how a parole officer came to search his residence . . . . The motion to quash the subpoena as to disclosure of the confidential informant . . . is granted.”
7
The defendant also asserts that “the trial court’s finding that [the defendant] waived all his fourth amendment rights by signing the parole form is not even supported by its plain text,” arguing that “[t]he scope of search that is permissible under this alleged ‘consent’ form is far from a waiver of all of [the defendant’s] fourth amendment rights.” We are not convinced, as, again, the record reveals that the court did not make such a determination. Rather, after making the relevant findings, it concluded that “[the defendant] did not have an expectation of privacy at his residence on the day of the search. He waived any expectation of privacy by agreeing to the terms of his parole. He had no fourth
State v. Newton
amendment challenge to the search of his residence was
legally and logically correct, as it was supported by the
court’s proper finding that the defendant did not have
an expectation of privacy in his residence during the
search at issue.
II
The defendant next claims that the court abused its
discretion when it denied his motion to compel. The
state responds that this claim is not reviewable because
the defendant filed a conditional plea of nolo contendere
in accordance with § 54-94a. We agree with the state.
The following additional procedural history is relevant
to our resolution of this claim. On August 10, 2022, the
defendant filed a motion to compel disclosure pursuant
to Practice Book § 40-13A.8 On August 12, the court
held a hearing on the motion to compel and rendered a
decision denying the motion primarily on the ground
that the materials either were privileged or not subject
to disclosure under Practice Book § 40-14 (1).9
On March 15, 2024, the defendant signed a plea of nolo
contendere, which provided, inter alia, the following
amendment protection under Samson. Therefore, [the defendant] does not have standing to challenge this search.” The court did not suggest that the defendant waived his fourth amendment right but, rather, that he waived his expectation of privacy and, therefore, could not invoke protection under the fourth amendment. This conclusion aligns with the well settled legal principles concerning a defendant’s capacity to challenge a search discussed throughout this opinion.
8
Practice Book § 40-13A provides: “Upon written request by a defendant and without requiring any order of the judicial authority, the prosecuting authority shall, no later than forty-five days from receiving the request, provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were prepared concerning the offense charged, subject to the provisions of Sections 40-10 and 40-40 et seq.”
9
Practice Book § 40-14 provides in relevant part: “Subject to Sections 40-13 and 40-13A and except for the substance of any exculpatory material contained herein, Sections 40-11 through 40-14 do not authorize or require disclosure or inspection of: (1) Reports, memoranda or other internal documents made by a prosecuting authority or by law
State v. Newton
statement: “By signing this paper, I plead nolo contendere (no contest) and put myself on the clemency of the
court on the condition that I have the right to take an
appeal under section 54-94a of the General Statutes. I
understand that I can file an appeal of a motion to suppress or a motion to dismiss only if I do so within the time allowed by law and only if the trial court has determined
that a ruling on the motion would be dispositive of the
case.”
We conclude that the defendant’s claim is not reviewable because the defendant filed a conditional plea of nolo contendere in accordance with § 54-94a, which provides
in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere
conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion
to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by
law provided a trial court has determined that a ruling
on such motion to suppress or motion to dismiss would
be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper
for the court to have denied the motion to suppress or the motion to dismiss. . . .” (Emphasis added.) The court’s
denial of the defendant’s motion to compel disclosure
is not reviewable because it is not one of the issues set
forth in § 54-94a for appeal from a judgment on a plea of
nolo contendere. See State v. Jevarjian, 124 Conn. App.
331, 352–53, 4 A.3d 1231 (2010), appeal dismissed, 307
Conn. 559, 58 A.3d 243 (2012).10
III
The defendant’s final claim asserts that the court
improperly denied his pretrial motion to dismiss the
enforcement officers in connection with the investigation or prosecution of the case . . . .”
10
In his reply brief, the defendant asserts for the first time that this court should invoke its inherent supervisory authority to review his unreviewable claim “because these issues will very likely be raised again in the event of a remand and addressing the claim will ‘serve the
State v. Newton
narcotics charges for insufficient evidence, arguing that
the court failed to “review the evidence that existed at
that time and determine whether it was sufficient to
establish probable cause to justify proceeding with the
trial.” We disagree.
The following additional procedural history is relevant to our resolution of this claim. At the defendant’s
arraignment, held on December 28, 2021, the court,
Schuman, J., stated that it had read the police report and “[p]robable cause is found.” On February 20, 2024, the
defendant filed a motion to dismiss counts one and two
for insufficient evidence pursuant to General Statutes
§ 54-56 and Practice Book § 41-8 (5)11 because the state did not have in its possession results from the Connecticut
State Forensic Laboratory (state lab) “confirming that
the substances seized at the time of the arrest [were]
illegal or narcotics.” That same day, prior to the commencement of jury selection, defense counsel made the
following oral argument in support of the motion: “The
state has not furnished or obtained any results from any
chemical testing of the substances that they purport to
be drugs in this case. . . . There’s absolutely no evidence to present to a court or a jury that the substances seized were illegal. Without proper admissible testing of the
substances and in testimony of the results of those tests, the state is without sufficient evidence to bring this
claim.” The prosecutor responded that “those substances
were tested and probable cause was found.” Defense
counsel responded by stating that the ValTox testing and
important interests of judicial efficiency.’ ” “Generally, this court does not consider claims raised for the first time in a reply brief.” Perry v. State, 94 Conn. App. 733, 740 n.5, 894 A.2d 367, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). Even if the defendant’s request were proper, which is not our position, the defendant’s argument that we should address this claim in the interest of judicial efficiency is not applicable because we are not remanding this case for further proceedings.
11
Practice Book § 41-8 provides in relevant part: “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information . . . (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial . . . .”
State v. Newton
narcotic testing done by the Waterbury Police Department in the field would be subject to a Porter hearing and that they would be inadmissible. The court did not rule
on the motion to dismiss, instead reserving its decision
for the start of trial.
At the outset of the hearing on the motion to dismiss
held on February 23, 2024, defense counsel asked the
court to inquire of the state whether it had the state
lab’s results on what the state claimed to be controlled
substances. Defense counsel asserted that, if the state did not have the results, there was insufficient evidence to
bring the case to trial and the case should be dismissed.
The prosecutor responded that it believed there was probable cause to proceed and stated, “[A]t this particular
point, there is no evidence to be presented today because
we are not scheduled for evidence.” The court then noted
that “there’s already been a finding of probable cause to
proceed in this matter.” The prosecutor explained that
“[t]he state would not proceed forward based specifically
on the ValTox testing which gets us to probable cause,”
stating that the state did “not feel that that is sufficient to meet our burden.” The court then advised that, if
the state lab tests were not available when the trial was
scheduled to commence, the defendant could renew the
motion to dismiss and, if they are available, the court
would give defense counsel time to review those tests.
Defense counsel argued that “the state is alleging that
[the defendant] possessed with intent to sell controlled
substances with zero evidence, that a jury could consider, that they are controlled substances.” The court
recognized that defense counsel’s argument regarding
the insufficiency of the state’s evidence seemed to refer
to admissible evidence, i.e., evidence “a jury could consider,” and noted, “I’m not going to pass on the admissibility of evidence.” Defense counsel inquired again as
to whether the state had sufficient evidence to proceed,
to which the prosecutor responded, “[T]he state doesn’t
need sufficient evidence to prove [its] case until the day [it] put[s] it in front of the jury.” Shortly thereafter, the
State v. Newton
court denied the motion without prejudice and stated
that it could be renewed.12
We begin by setting forth the legal principles that
guide our review of this claim. Section 54-56 provides
that “[a]ll courts having jurisdiction of criminal cases
shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at
any time, upon motion by the defendant, dismiss any
information and order such defendant discharged if,
in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of
such information or the placing of the person accused
therein on trial.” “When assessing whether the state has
sufficient evidence to show probable cause to support
continuing prosecution [following a motion to dismiss
under § 54-56], the court must view the proffered proof,
and draw reasonable inferences from that proof, in the
light most favorable to the state. . . . The quantum of
evidence necessary to [overcome a motion to dismiss] . . . is less than the quantum necessary to establish proof
beyond a reasonable doubt at trial . . . . In [ruling on the defendant’s motion to dismiss], the court [must] determine whether the [state’s] evidence would warrant a person of reasonable caution to believe that the [defendant
had] committed the crime.” (Citations omitted; internal
quotation marks omitted.) State v. Pelella, 327 Conn. 1,
19, 170 A.3d 647 (2017).
This court has explained that, “[w]here a motion to
dismiss an information against an accused is made prior
to trial, only probable cause sufficient to justify the
continued prosecution need be established. The probable
cause determination is, simply, an analysis of probabilities. . . . The determination is not a technical one, but is 12
Earlier in the hearing, the court told defense counsel, “[A]t this point in time if the state does not have that evidence, how the state chooses to proceed will be up to them. . . . I’m going to assume that if they don’t have that evidence that then, at the close of their case, you would be filing . . . a request for a directed verdict. I will allow you to renew your motion to dismiss. But, again, I’m not going to engage in a trial within a trial at this point in time.”
State v. Newton
informed by the factual and practical considerations of
everyday life on which reasonable and prudent [persons],
not legal technicians, act. . . . The existence of probable cause does not turn on whether the defendant could
have been convicted on the same available evidence. . . .
Furthermore, we have concluded that proof of probable
cause requires less than proof by a preponderance of the
evidence. . . . To establish probable cause, the state was not required to present evidence as to each of the elements of the offense in a form that would be admissible
at a later trial. In State v. Kinchen, [243 Conn. 690,
702–703, 707 A.2d 1255 (1998)], our Supreme Court
found information contained in a written police report
sufficient to establish probable cause to justify the continued prosecution of a defendant.” (Internal quotation
marks omitted.) State v. Russo, 221 Conn. App. 729,
741–42, 303 A.3d 279 (2023), cert. denied, 348 Conn.
938, 307 A.3d 273 (2024).
The defendant argues that “the presumptive field tests
. . . were not sufficient, on their own, to establish probable cause.” In support of his argument, he relies on this court’s holding in State v. Gayle, 64 Conn. App. 596,
602, 781 A.2d 383, cert. denied, 258 Conn. 920, 782
A.2d 1248 (2001). As the state points out, however, the
defendant’s reliance on Gayle is misplaced for two reasons. First, the issue in Gayle was whether the evidence
presented at trial established guilt beyond a reasonable
doubt. Id., 602. Conversely, the present matter concerns
a pretrial motion to dismiss, for which the state only
needed to proffer evidence establishing probable cause.
Second, in Gayle, the state offered only the testimony
of a fourteen year old with no specialized knowledge to
prove the character of the substance. Id., 601–602. In
this matter, the state proffered field tests of the drugs
conducted by law enforcement officials.
Our Supreme Court, in State v. Singleton, 274 Conn.
426, 440–42, 876 A.2d 1 (2005), considered whether
field tests presented sufficient evidence in the context
of a probation revocation hearing. There, the court held
State v. Newton
that “the evidence of the field test, in conjunction with
the corroborating evidence, was sufficient to establish
the nature of the substance by a preponderance of the
evidence.”13 Id., 442. Additionally, other courts, in evaluating whether evidence supported probable cause to
arrest, have recognized that “[a] reasonably trustworthy
field test that returns a ‘positive’ result for the presence of cocaine is a sufficient basis for probable cause.” Green v. Webster, 359 Fed. Appx. 249, 251 (2d Cir. 2010); see
also United States v. Uricoechea-Casallas, 946 F.2d 162,
166 (1st Cir. 1991) (agents had probable cause to arrest
where field test of white powder indicated presence of
cocaine and defendant did not deny ownership).
Unlike Singleton, in which the state’s burden of proof
was preponderance of the evidence, the field tests in this case were proffered by the state only to establish probable cause. “[P]roof of probable cause requires less than proof by a preponderance of the evidence.” (Internal quotation
marks omitted.) State v. Russo, supra, 221 Conn. App.
742. In his appellant brief, the defendant concedes that
“all but one of the [field test] results were positive for the presumptive presence of narcotics.” In viewing this
evidence in the light most favorable to the state, we conclude that the court properly determined that there was
probable cause on the basis of the positive field tests.14
The judgment is affirmed.
In this opinion the other judges concurred.
13
The court declined to decide whether a “field test alone would be sufficient to establish, beyond a reasonable doubt, that the substance tested was crack cocaine.” State v. Singleton, supra, 274 Conn. 442.
14
The defendant posits that “it is clear from the record that the trial court’s determination was not dependent on the field test results” and that it “based its denial . . . solely on the state’s assertion that they would have the results at some point . . . .” Our thorough review of the record reveals that the court was made aware of and considered the field tests. On February 20, 2024, after hearing argument on the motion to dismiss, the court declined to rule on the motion, but acknowledged “that [the substances] were [ValTox] tested and there’s other methodology which, if [the state] chose to pursue they still could proceed today on that charge.”