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Date: 07-15-2016
Case Style: STATE OF CONNECTICUT v. DONALD SATURNO
Case Number: SC 19602
Judge: Dennis G. Eveleigh
Court: The Connecticut Supreme Court
Plaintiff's Attorney: Robert J. Scheinblum, senior assistant state’s attorney,
Paul J. Ferencek, senior assistant state’sattorney, Richard J.Colangelo,
Jr., state’s attorney
Defendant's Attorney: Lisa J. Steele, assigned counsel
Description: The defendant, Donald Saturno, appeals from the judgments of conviction rendered by the trial court following his conditional pleas of nolo contendere, pursuant to General Statutes § 54-94a,1 to onecountofmanufacturingabombinviolationofGeneral Statutes § 53-80a and one count of possession of child pornography in the first degree in violation of General Statutes § 53a-196d (a) (1). The defendant entered these pleas after the trial court’s denial of his motiontosuppresscertainevidencediscoveredfollowing the execution of an administrative search warrant at his apartment. On appeal, the defendant contends that the trial court improperly denied his motion to suppress because the administrative search warrant was invalid and improperly executed. Specifically, the defendantcontendsthat theadministrativesearchwarrant was invalid because it was: (1) issued without authority; (2) not supported by probable cause; and (3) improperly issued during an ex parte proceeding. The defendant further contends that the search was unlawful because excessive force was used during its execution. We disagree with the defendant’s claims and, accordingly, affirm the judgment of the trial court. Therecordrevealsthefollowingundisputedfactsand proceduralhistory.Thedefendantlivedinanapartment located in the basement of a building in the city of Stamford (city). That building was zoned and assessed by the city as a two-family residence. After receiving a complaintindicatingthatthe buildinghadseveralentry doors and three mailboxes, the city’s Department of Health and Social Services (health department)2 attempted to conduct an inspection, but was refused entry by the defendant. After two additional attempts to inspect the building proved unsuccessful, the health departmentpresentedan applicationforanadministrativesearchwarrant(application)toajudgeoftheSuperior Court. The application included an affidavit signed bytwoinspectorsfromthehealthdepartment,Marjorie Beauchette and Renford Whynes, stating that they had probable cause to believe that an illegal apartment existed in the building in violation of § 146-34 (A) of the Stamford Code of Ordinances.3 The application noted, in particular, the possibility of an illegal apartment in the basement. The Superior Court judge reviewed the application in an ex parte proceeding, determined that probable cause existed, and issued the administrative search warrant. Subsequently, pursuant to the health department’s standard policy, Beauchette scheduled a date for the execution of the administrative search warrant by a team comprised of various city officials4 and two officers from the Stamford Police Department. During the inspection, the city officials observed that the first and second floors of the building contained a total of three
apartments. In addition, the city officials noted numeroushealth,fire,andsafetyviolations.Becausetheapplication alleged the potential existence of an illegal apartment in the basement, and because there was no apparent entrance to the basement from the interior of the building, the city officials searched for an exterior entrance. In the backyard, they discovered a locked, fencedareaenclosingastaircasethatledtoabasement door. One of the police officers used a tool to break thelockonthefence,descendedthestairs,andknocked on the basement door. After a considerable period of time, the defendant opened the basement door and identified himself as the property owner.5 The police officers informed the defendant about the administrative search warrant and asked him to secure his dogs. The police officers conducted a cursory safety check of the threshold area of the basement and then permitted the city officials to enter the basement while the police officers waited outside. One of the city officials observed what he believed to be a pipe bomb and informed one of the police officers of what he had seen. After inspecting the object, the police officer evacuated the premises and contacted the bomb squad. Upon arrival, the bomb squad X-rayed the object and determined that it did not containanyexplosivematerial,butdidincludehexnuts and other metallic material consistent with shrapnel. The bomb squad also conducted a protective sweep of the basement and observed items in plain view that were consistent with bomb making. Consequently, the police officers obtained a criminal searchwarranttosearchthe premisesforitemsrelated to bomb making. Pursuant to this criminal search warrant,thepoliceofficersseizedthesuspectedpipebomb, threecomputers, andotheritems relatedto bombmaking.Additionally,asecondcriminalsearchwarrantwas issued to search the hard drives of the seized computers, which resulted in the discovery of child pornography.6 The defendant thereafter moved to suppress the seizeditemsonthegroundthatanadministrativesearch warrant does not authorize the entry of police officers into a private residence and that a criminal search warrant pursuant to General Statutes § 54-33a could not properly issue in this case. Following an evidentiary hearing, the trial court issued a ruling from the bench denying the defendant’s motion to suppress. In so ruling, the trial court concluded that the administrative search warrant in the present case satisfied the probablecausestandardforatargetedadministrativeinspection and that the police officers had only a ‘‘passive’’ presence during the execution of the administrative search warrant. Thedefendantthenentered pleasofnolocontendere to one count of manufacturing a bomb in violation of
§ 53-80aandonecountofpossessionofchildpornography in the first degree in violation of § 53a-196d (a) (1), conditioned on his right to appeal the denial of his motion tosuppress. See General Statutes§ 54-94a. This appeal followed.7 Additional facts will be set forth as necessary. At the outset, we set forth the standard of review. ‘‘[O]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. 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 . . . .’’ (Internal quotationmarksomitted.)State v.Buckland,313Conn. 205,212, 96A.3d1163(2014), cert.denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d 837 (2015). In the present case, neither the state nor the defendant challenges the factualfindingsofthetrialcourt.Ourreview,therefore, islimitedtoadeterminationofwhetherthetrialcourt’s legal conclusions—that the administrative search warrantwasproperlyissuedandthatthesubsequentsearch was properly executed—were legally and logically correct. Before addressing the merits of the parties’ claims, we begin by setting forth certain constitutional provisionsrelevant toregulatoryinspections conductedpursuant to city ordinances. ‘‘The fourth amendment to theUnitedStatesconstitution,whichismadeapplicable to the states through the fourteenth amendment . . . provides that [t]he 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. . . . A search for purposes of the [f]ourth [a]mendment occurs when a reasonable expectation of privacy is infringed. . . . In Camara [v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)], the United States Supreme Court heldthatthefourthamendmentappliestosearchesand seizures in the civil as well as the criminal context. . . . Rejecting the notion that an individual’s fourth amendment protections are merely peripheral in the context of a regulatory inspection, the Supreme Court stated,[i]tissurelyanomaloustosaythattheindividual and his private property are fully protected by the [f]ourth [a]mendment only when the individual is suspected of criminal behavior. . . . Therefore, administrative searches of residences must comply with the fourthamendment.’’8 (Citationsomitted;internalquotationmarksomitted.)Bozrah v.Chmurynski,303Conn. 676, 683–85, 36 A.3d 210 (2012).
I Thedefendantfirstclaimsthatthetrialcourtimproperly denied his motion to suppress the evidence that formed the basis for the charges against him because theSuperiorCourtjudge whoissuedtheadministrative searchwarrantlackedauthority.9Wedisagree.Areview of the provisions in chapter 368e of the General Statutes, which governs municipal health authorities, reveals that General Statutes § 19a-220 provides an enforcement mechanism for the health department. As a preliminary matter, we note that the defendant failed to raise this claim before the trial court. We, therefore,reviewhisclaimpursuanttoStatev.Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). ‘‘Under Golding, a defendant may prevail on an unpreserved claim only if the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived thedefendantofafairtrial;and(4)ifsubjecttoharmless erroranalysis,thestatehasfailedtodemonstrateharmlessnessoftheallegedconstitutionalviolationbeyonda reasonable doubt.’’ (Internal quotation marks omitted.) Statev.Wright,319Conn.684,688,127A.3d147(2015); see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifyingthird prongof Golding).Because the recordisadequateforreview,andthedefendant’sclaim that the issuance of the administrative search warrant without authority violated his right against unreasonable searches and seizures is of constitutional magnitude, our inquiry focuses on whether the violation alleged by the defendant exists and deprived him of a fair trial. Section 19a-220 provides: ‘‘When any person refuses toobeyalegalordergivenbyadirectorofhealth,health committee or board of health, or endeavors to prevent it from being carried into effect,a judge of the Superior Court may issue his warrant to a proper officer or to an indifferent person, therein stating such order and requiring him to carry it into effect, and such officer or indifferent person shall execute the same.’’ (Emphasis added.) Theuse oftheterm‘‘his warrant’’necessarilyimplies that an administrative search warrant was contemplated by the legislature as a means of enforcing public healthordinances.Theterm‘‘hiswarrant’’isnotdefined in this statute or related provisions. ‘‘In the absence of a definition of terms in the statute itself, [w]e may presume . . . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understandingofthetermasexpressedinadictionary.’’
(Internal quotation marks omitted.) Studer v. Studer, 320 Conn. 483, 488, 131 A.3d 240 (2016). The term ‘‘warrant’’ is defined with substantial similarity in a number of dictionaries. Webster’s Third New International Dictionary (2002) defines ‘‘warrant’’ as, inter alia, ‘‘a precept or writ issued by a . . . magistrate authorizing an officer to make an arrest, a seizure, or a search or to do other acts incident to the administration of justice . . . .’’ See also Merriam Webster’s Collegiate Dictionary (11th Ed. 2011) (same). The American Heritage College Dictionary (4th Ed. 2002) similarly defines‘‘warrant’’as,interalia,a‘‘judicialwritauthorizing an officer to make a search, seizure, or arrest or to execute a judgment . . . .’’ Applying the dictionary definition of ‘‘warrant’’ indicates that the legislature intended § 19a-220 to authorize the issuance of an administrative search warrant for suspected violations of local ordinances pertaining to the protection of public health. The defendant nevertheless claims that § 19a-220 does not authorize an administrative search warrant. Thedefendantassertsthat,unlikeGeneralStatutes§ 29305,10 which the Appellate Court has concluded authorizestheissuanceofadministrativesearchwarrantsfor a suspected violation of a municipal fire code, § 19a220 does notspecifically reference a rightof inspection or of entry onto private property.See State v. Burke, 23 Conn.App.528,529–32,582A.2d915(1990)(concluding thatGeneralStatutes[Rev.to1987]§ 29-305wasconstitutionalasappliedtoinspection forfirecodeviolations conductedbylocalfiremarshalpursuanttoadministrative search warrant), cert. denied, 218 Conn. 906, 588 A.2d 1383 (1991); see also Rutka v. Meriden, 145 Conn. App. 202, 211 n.9, 75 A.3d 722 (2013). We are not persuaded. The promulgation and enforcement of local health ordinances constitute a valid exercise of the state’s police power. See DeMello v. Plainville, 170 Conn. 675, 678–79, 368 A.2d 71 (1976). This court has previously explained that ‘‘[t]he abatement of nuisances and the enforcement of the public health code by municipal health officials . . . [is] authorized by [what is now § 19a–220] . . . . The promulgation of public health . . . codes and the regulation and abatement of uses of property and nuisances [that] threaten the health and safety of the general public constitute legitimate subjects for the exercise of the state’s police power. This power comprehends a system of internal regulation . . . to enable people to live together in close association, preserving to each his individual rights and privileges but so controlling them that their enjoyment is reasonably consistent with the enjoyment of like rights and privileges by others.’’ (Internal quotation marks omitted.) Id. ‘‘The police power regulates the use of property or impairs the rights in property,
because the free exercise of these rights is detrimental to public interest.’’ (Internal quotation marks omitted.) Id., 679. Thiscourthas,therefore,recognizedthatthepromulgation of municipal health and safety ordinances is a proper exercise of the state’s police powers. We conclude that § 19a-220 codifies that police power. When readinconjunctionwiththeaforementioneddictionary definitions, § 19a-220 expressly authorizes a judge of the Superior Court to issue an administrative search warrant and requires ‘‘a proper officer’’ or ‘‘indifferent person’’ to ‘‘carry’’ that warrant ‘‘into effect’’ and ‘‘executethesame.’’Thisexplicitgrantofauthorityamounts to a recognition of the state’s inherent police power to protect thehealth and safetyof the publicand provides an enforcement mechanism for the same. Contrary to the defendant’s contention, the absence of express language concerning a right of inspection or entry does not justify the inference that § 19a-220 does notauthorizetheissuanceofadministrativesearchwarrants.Infact,anexaminationofrelatedstatutesreveals that General Statutes § 19a-20711 authorizes the city to adopt ordinances to promote the health and well-being of the public, so long as those ordinances do not frustrate the achievement of the state’s objectives in this field. Pursuant to this authority, the city authorized the health department to inspect residential properties located within the city in order to ensure that they are maintained in accordance with the city’s housing code. See Stamford Code of Ordinances, c. 146, art. I, §§ 1465 and 146-6.12 Therefore, we conclude that the health department has the statutory authority, pursuant to § 19a-207, to adopt regulations requiring the inspection ofresidentialpropertiesforviolationsofthecity’shousing code, and that § 19a-220 provides the means for the enforcement of the health department’s inspection orders. Lastly, the defendant contends that if § 19a-220 applies, the statutory language contemplates the issuance of a restraining order, rather than an administrative search warrant.13 We disagree. Thedefendant’sinterpretationiscontrarytotheplain language of § 19a-220. There is nothing in the language of the statute to indicate that the legislature intended to restrict the scope of § 19a-220 to the issuance of restraining orders. Instead, the term ‘‘his warrant’’ supportstheconclusionthatthelegislatureintended§ 19a220toconstituteabroadgrantofauthoritytothejudges of the Superior Court, a grant that reasonably includes the power to issue administrative search warrants as a meansofenforcinglocalhousingordinances.14 Itseems logical to believe that the legislature intended to authorize city officials to take reasonable steps, such as obtaining an administrative search warrant, to fulfill theirinspectionobligationsunderthecity’sordinances.
Weconcludethattheplainlanguageof§ 19a-220authorizes the issuance of an administrative search warrant for suspected violations of local ordinances pertaining to the protection of public health when a property owner or occupant refuses to obey an order of inspection given by the health department.15 In the present case, the health department sent two notices of inspection to the listed property owner in accordance with the standards set forth in § 146-5 of theStamfordCodeofOrdinancesandwasrefusedentry onto the premises on the scheduled inspection dates. Because the property owner and the defendant failed to obey the health department’s order of inspection, the trial court had the authority pursuant to General Statutes § 19a-220 to issue an administrative search warrant to carry out the health department’s order. Accordingly, we conclude that the defendant has failed to satisfy Golding’s third prong and that, therefore, his constitutional claim must fail. II The defendant next contends that, even if this court were to conclude that § 19a-220 provides authority for the issuance of an administrative search warrant, the warrant in the present case was invalid because the Superior Court judge that issued it failed to apply the proper legal standard. Specifically, the defendant contends that an application for an administrative search warrant that targets a particular property must satisfy a standard of probable cause ‘‘more rigor[ous] than would be applied to a search warrant . . . in a criminal proceeding.’’16 We are not persuaded. This court has previously decided the standard of probable cause that is applicable to administrative inspections that target a particular property. In Bozrah v. Chmurynski, supra, 303 Conn. 687–88, this court declined to apply the ‘‘diluted probable cause standard for administrative searches’’ set forth in Camara v. Municipal Court, supra, 387 U.S. 538–39,17 to a zoning inspection that targeted a single property in response to a complaint regarding that property and adopted the traditional standard of probable cause used in criminal cases. This court explained that Camara’s ‘‘relaxed showing of probable cause was limited to routine and area wide inspections and does not necessarily extend to all administrative searches, including those promptedbyindividualcomplaintssinglingoutaparticular dwelling.’’ (Emphasis in original.) Bozrah v. Chmurynski, supra, 688. This court further reasoned that ‘‘a targeted administrative search demands a more particularized showing of probable cause than the relaxed version in Camara in order to properly safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges while simultaneously providing fair leeway for enforcing the lawinthecommunity’sprotection.’’(Internalquotation
marks omitted.) Id., 692. Thus, this court held that ‘‘before a court may issue an order permitting a zoning enforcement officer to enter and search a particular property, there must be a preliminary showing of facts withintheknowledgeofthezoningofficerandofwhich thatofficerhasreasonablytrustworthyinformationthat are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property.’’ Id., 692–93. Bozrah clearly controls the standard of probable cause to be applied in the present case. As in Bozrah, theinspectioninthepresentcasewasmadeinresponse to a complaint, rather than in the course of a periodic or area inspection program, and it targeted a specific property. The defendant has failed to cite, and our research has not revealed, any legal authority requiring ahigherstandardofprobablecausethanthatnecessary to support a criminal search warrant in the context of administrative searches. Having concluded that Bozrah controls, we turn to thedefendant’scontentionthatthehealthdepartment’s application did not contain sufficient facts to support a finding that there was probable cause to believe the building contained more than two apartments. We disagree. The law regarding probable cause and the standards for upholding the issuance of a search warrant are well settled. ‘‘It is well established that a search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’’ (Internal quotation marks omitted.) Id., 685. ‘‘[B]ecause of our constitutional preference for a judicial determination ofprobablecause,andmindfulofthefactthat[r]easonable minds may disagree as to whether a particular [set of facts] establishes probable cause . . . we evaluate the information contained in the affidavit in the light most favorable to upholding the issuing judge’s probable cause finding. . . . We therefore review the issuance of a warrant with deference to the reasonable inferences that the issuing judge could have and did draw . . . and we will uphold the validity of [the] warrant . . . [if] the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. . . . Finally, [i]n determining whether the warrant was based [on] probable cause, wemayconsideronlytheinformationthatwasactually before the issuing judge at the time he or she signed the warrant,and thereasonable inferencesto bedrawn therefrom.’’18 (Citations omitted; internal quotation marks omitted.) State v. Shields, 308 Conn. 678, 691, 69 A.3d 293 (2013), cert. denied, U.S. , 134 S. Ct. 1040, 188 L. Ed. 2d 123 (2014). ‘‘Traditionally, probable cause requires some show
ing of individualized suspicion beyond mere common rumor or report, suspicion, or even strong reason to suspect . . . . For instance, in the criminal context, a judicial officer may issue a warrant upon a finding of probablecausetobelievethatacrimehasbeencommitted and that the items sought are likely to be found at the place specified in the warrant. . . . Anything less than a finding that the facts available to the officer at the moment of the seizure or the search warrant a man of reasonablecaution in thebelief that theaction taken was appropriate . . . would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . . And simple good faith on the part of the arresting officer is not enough. . . . If subjective good faith alone were the test, the protections of the [f]ourth [a]mendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police.’’ (Citations omitted; internal quotation marks omitted.) Bozrah v. Chmurynski, supra, 303 Conn. 686. The application in the present contained the following facts, attested to by Beauchette and Whynes. The health department received a complaint alleging that there were several entry doors and three mailboxes on the outside of the building, which was zoned and assessedasatwo-familyresidence.Asaresultofhaving received this complaint and having reviewed the city records, the health department believed that the property was being operated in violation of an ordinance prohibiting the operation of a ‘‘multiple dwelling’’ without an operating license. See Stamford Code of Ordinances, c. 146, art. II, § 146-34 (A); see also footnote 3 of this opinion. Consequently, the health department mailed a notice of inspection to the listed property owner. The notice provided a specific date and time for the inspection andcitedto§ 146-5oftheStamfordCodeofOrdinances, which authorizes the health department to conduct inspections of residential properties to ensure compliance with the city’s housing code. On the scheduled inspection date, the defendant refused to permit entry onto the property. The following week, the health department attempted to inspect the property without notice, but was unable to do so. A second notice of inspection was subsequently mailed to the property owner. On the scheduled inspection date, Beauchette and Whynes attempted to inspect the property, but again were unable to do so. While they were at the premises, however, Beauchette and Whynes noted that there were three mailboxes, three entrances, and three separate addresses listed on the building. Applying the probable cause standard for a targeted administrative inspection, as set forth in Bozrah, to the facts of the present case, we conclude that the
application provided a substantial factual basis for a finding that there was probable cause to believe the building was being operated as a ‘‘multiple dwelling’’ in violation of § 146-34 (A) of the Stamford Code of Ordinances. Beauchette and Whynes alleged in the application that they had personally observed three mailboxes,three entrances,andthree differentaddress numbers on the building. These facts were ‘‘sufficient to cause a reasonable person to believe that conditions constitutingaviolation’’ofthecity’shousingcodecould be found on the property. Bozrah v. Chmurynski, supra, 303 Conn. 693. Accordingly, we reject the defendant’sclaimthattherewasnoprobablecausetosupport the issuance of the administrative search warrant. III The defendant next contends that his rights under article first, § 7, of the Connecticut constitution19 were violatedbecausetheadministrativesearchwarrantwas improperlyissuedinanexparteproceeding.Weunderstand the defendant’s claim to be that, although the federal constitution may allow for the issuance of administrative search warrants in ex parte proceedings in certain contexts, the state constitution does not unless there is an emergency or the property owner cannot be located. We disagree.20 The defendant’s claim requires us to examine the scopeoftherightsaffordedbytheConnecticutconstitution in comparison to the federal constitution. ‘‘It is [well established] that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit stategovernmentsfromaffordinghigherlevelofprotection for such rights. . . . In determining the contours of the protections provided by our state constitution, weemployamultifactorapproachthatwefirstadopted in [State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992)]. The factors that we consider are (1) the textoftherelevantconstitutionalprovisions;(2)related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms. . . . In addition, as we previously have noted, these factors may be inextricably interwoven, and not every [such] factorisrelevantinallcases.’’(Citationsomitted;internal quotation marks omitted.) State v. Kelly, 313 Conn. 1, 14–15, 95 A.3d 1081 (2014). The defendant claims that these factors collectively support the conclusion that articlefirst, § 7,affords greaterprotection thanthe fourth amendment to the federal constitution, under whichanadministrativesearchwarrantmaybegranted during an ex parte proceeding. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 319–20, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). We address each factor in turn.
As to the first Geisler factor, namely, the relevant constitutional text, ‘‘this court repeatedly has observed that the language of article first, § 7, of the state constitution closely resembles the language of the fourth amendment to the federal constitution. . . . That linguistic similarity undermines the defendant’s contention that the state constitution provides a greater opportunitytochallengethelegalityofasearchthanthe federal constitution. The similarity denotes a common source and, thus, [supports] a common interpretation oftheprovisions.’’(Citationsomitted;footnoteomitted; internal quotation marks omitted.) State v. Davis, 283 Conn. 280,306–307, 929A.2d 278(2007). Thedefendant does not identify any specific textual differences between article first, § 7, of the Connecticut constitution and the fourth amendment to the federal constitution. Therefore, the first Geisler factor does not weigh in favor of the defendant’s state constitutional claim. Turning to the second Geisler factor, the decisions ofthiscourtandtheAppellateCourt,webeginbyexamining Bozrah v. Chmurynski, supra, 303 Conn. 676, upon which the defendant heavily relies. In Bozrah, this court did not directly address the issue of whether an ex parte administrative search was valid because the issue before the court was limited to ‘‘the propriety of an injunction to search for zoning violations . . . .’’ Id., 696 n.12. This court further noted that ‘‘whether a statutory procedure akin to § 54-33a should be enacted toauthorizeexpartejudicialordersin[enforcingzoning regulations] is an issue appropriately addressed by the General Assembly, rather thanthis court.’’ Id., 695 n.11. As previously noted in this opinion, this court concluded in Bozrah that, because there was no statute authorizing the issuance of search warrants in zoning cases, there was no adequate remedy at law for a city to enforce its zoning ordinances. Id., 694; see also footnote15ofthisopinion.Thiscourtexplained:‘‘[I]fprobable cause were shown and the injunctive relief were nevertheless denied, the municipality would be unable to enforce its zoning ordinances in spite of sufficient evidence that a zoning violation or threatened violation existed on a particular property.’’ Bozrah v. Chmurynski, supra, 303 Conn. 694. As a result, this court held thatthetrialcourthadproperlyexercised‘‘itsequitable power to issue an injunction to effect the same result as a warrant.’’21 (Emphasis added.) Id., 681. In so holding, this court stated that ‘‘an injunction issued upon a finding of probable cause adequately serves the purposes of the warrant requirement.’’ Id., 695. ‘‘[A]n order authorizing a search and enjoining an individual from interfering with or hindering a search functionsasasearchwarrant.Theresultinbothcases is the same: once a judicial officer sanctions a search, the property owner’s right to withhold consent to the search disappears. Additionally, the burden of proof is
the same under either procedural vehicle . . . probable cause is necessary to justify any . . . search for zoning violations [pursuant to General Statutes § 8-12] that targets a single residence.’’ (Emphasis added.) Id., 693. Although this court noted that ‘‘an injunction hearing offers greater safeguards’’ than a search warrant becauseit‘‘isanadversaryproceedingthataffordsboth parties the opportunity to be heard,’’ nowhere in our decision did we suggest that an adversarial hearing was required prior to the issuance of a judicial order authorizing an administrative search.22 Id., 696. A reading of Bozrah, therefore, makes evident that, had there been statutory authority for the issuance of an ex parte warrant to enforce the zoning inspection in that case, and had the city sought that remedy, the trial court’s issuance of an ex parte warrant would have been proper. The defendant essentially claims that, upon being denied entry onto the property, the health department was required to seek an injunction to enjoin the defendant from refusing to consent to an inspection of the property, as occurred in Bozrah v. Chmurynski, supra, 303 Conn. 680. He reasons that a request for injunctive relief would provide the property owner or occupant an opportunity to raise defenses and argue as to why an inspection should not be permitted at the injunction hearing prior to the execution of the search. We disagree. Unlike the situation in Bozrah, the present case does not involve an inspection for zoning violations, but rather an inspection for violations of the city’s housing code, which is enforced by the health department. See Stamford Code of Ordinances, c. 146, art. II, § 146-34 (A).Inthisopinion,wehavealsodeterminedthat§ 19a220authorizesthehealthdepartmenttoseekanadministrative search warrant in order to enforce city ordinances pertaining to health. See part I of this opinion. Furthermore, as previously explained in this opinion, the Appellate Court has concluded that § 29-305 authorizes the issuance of administrative warrants to search for municipal fire code violations. See Rutka v. Meriden, supra, 145 Conn. App. 211 n.9; State v. Burke, supra, 23 Conn. App. 531–32. Thus, we conclude that state precedent does not support the defendant’s position in the present case. In accordance with the third Geisler factor, we now examine relevant federal precedents. In Marshall v. Barlow’s,Inc.,supra,436U.S.316–17,theUnitedStates Supreme Court emphasized that, in the absence of consent, a federal agency’s enforcement of its administrative inspection scheme must proceed within the framework of the fourth amendment warrant procedure. Relying on its prior decision in Camara, the Supreme Court held in Barlow’s, Inc., that a provision of the federal Occupational Safety and Health Act
(OSHA), 29 U.S.C. § 651 et seq., was unconstitutional ‘‘insofar as it purport[ed] to authorize inspections without warrant or its equivalent.’’ Marshall v. Barlow’s, Inc., supra, 324–25. In so holding, the court indicated that, although it did not exist at the time, a regulation promulgated under OSHA expressly authorizing the issuanceofexpartewarrantswouldbeconstitutional.23 See id., 320 n.15 (noting that regulation expressly permitting federal agency to seek ex parte warrant or its equivalent ‘‘would appear to be as much within the [federal agency’s] power as the regulation currently in force’’). Furthermore, several other federal courts have upheld the validity of ex parte administrative search warrants under the federal constitution. For instance, theUnitedStatesCourtofAppealsfortheNinthCircuit has explained as follows: ‘‘[I]n [administrative] search warrant cases, a neutral and detached magistrate will have had the opportunity to examine the reasonableness of the proposed search. Such an inquiry focuses on the information in the possession of those seeking the warrant rather than on the actual conduct of the party to be searched. Thus, an adequate inquiry can be conducted without the direct participation of the latter.’’ (Footnote omitted.) In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 729 (9th Cir. 1989). Furthermore, the United States Court of Appeals for the Tenth Circuit has stated that Barlow’s, Inc., ‘‘clearly recognized the power and authority of a federal district court to issue ex parte search or entry orders for federal . . . purposes . . . .’’ Matter of Carlson, 580 F.2d 1365, 1375 (10th Cir. 1978). Finally, the United States District Court for the District of Connecticuthasreasonedasfollows:‘‘Nothingin[Barlow’s, Inc.] suggests the impropriety of an ex parte warrant application. Indeed, the implication is to the contrary. . . . [The federal agency] here relies on evidence of an existing violation for which the court has found probable cause. This is sufficient to authorize the warrant and the inspection pursuant to it.’’ (Citation omitted.) In re Stanley Plating Co., 637 F. Supp. 71, 73 (D. Conn. 1986).24 As to the fourth Geisler factor, our research of sister state precedents reveals that several state courts have held that the fourth amendment does not prohibit the issuance of an administrative search warrant after an ex parte hearing. See, e.g., In re Inspection of Titan Tire, 637 N.W.2d 115, 121 (Iowa 2001) (noting that Supreme Court’s statement of approval regarding regulation expressly authorizing ex parte administrative warrants to search for OSHA violations in Barlow’s, Inc., ‘‘meant that [ex parte administrative warrants] passed the reasonableness requirement of the [f]ourth [a]mendment’’); Brooks v. Butler,70N.C. App.681,688, 321 S.E.2d 440 (1984) (noting that ‘‘[e]x parte warrants areauthorizedbytheregulationsgoverningOSHA’’and
‘‘havebeenapprovedbymostfederalcourtswhichhave considered the question’’), appeal dismissed, 313 N.C. 327, 329 S.E.2d 385 (1985); Seattle v. McCready, 124 Wn.2d300,311,877P.2d686(1994)(enbanc)(rejecting landlords’ contention that administrative search warrant was invalid because it was issued ex parte); Cranwell v. Mesec, 77 Wn. App. 90, 108 n.18, 890 P.2d 491 (rejecting property owner’s ‘‘contention that administrative search warrants cannot be issued ex parte’’), review denied, 127 Wn. 2d 1004, 898 P.2d 308 (1995). In the present case, the defendant has not cited, and our research has not revealed, a single case in which a court has concluded that a property owner or occupant is constitutionally required to receive notice and an opportunity to be heard in court before judicial authorization for an administrative search may be granted. Accordingly, we are not persuaded that the fourth factor weighs in favor of a determination that article first, § 7, of the Connecticut constitution affords thedefendantgreaterprotectionthanthefederalconstitution in this context. As to the fifth Geisler factor, concerning ‘‘whether the historical circumstances surrounding the adoption of article first, § 7, support the defendant’s claim to greater protections under that provision than are afforded by the federal constitution, we have stated that [t]he declaration of rights adopted in 1818 appears to have its antecedents in the Mississippi constitution of 1817, which in turn derived from the federal bill of rights and the Virginia declaration of rights of 1776. . . . The search and seizure provision in our 1818 constitution, then article first, § 8, closely resembles the fourth amendment to the United States constitution. Although its enumeration was changed to article first, § 7, when the 1965 constitution incorporated article first, § 4, into article seventh, its language has not been altered since its original adoption. . . . The language of article first, § 7, which was based upon the fourth amendment, was adopted with little debate. . . . Thus, the circumstances surrounding the adoption of article first, § 7, lend weight to the view that, in most cases, a practice permitted under the fourth amendment is permissible under article first, § 7.’’ (Internal quotation marks omitted.) State v. Williams, 311 Conn. 626, 634, 88 A.3d 534 (2014). The defendant fails to provide any historical insights into the intent of the framers that support his position. Accordingly, the fifth Geisler factor does not support the defendant’s claim. Finally, with respect to the sixth Geisler factor, namely,contemporaryeconomicorsociologicalunderstandings,thedefendantreliesuponatreatiseauthored by a law school professor, Wayne R. LaFave. This treatise comments that Camara ‘‘could have better protected the right of privacy by permitting the use of administrative warrants enforceable only after giving
the householder an opportunity to be heard in court.’’ 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th Ed. 2012) § 10.1 (d), p. 29. The treatise further concludes that ‘‘adversary proceedings in advance of inspection can be had without risk to the government interests being pursued.’’ Id., p. 28. For the reasons which follow, however, we are not persuaded bythisreasoningand,instead,concludethattheimposition of an adversarial hearing requirement under the circumstancesofthepresentcasewouldbedetrimental to the public interest. First,inBozrahv.Chmurynski,supra,303Conn.682, we concluded that ‘‘notwithstanding the trial court’s characterizationofitsorderasatemporaryinjunction,’’ thetrialcourt’sorderthatthemunicipalitycouldsearch the property over the objection of the defendants was an ‘‘appealable final judgment.’’ Appeals from judicial orders enjoining individuals from interfering with an administrative inspection would greatly delay the orderly progress of administrative inspection schemes. Consequently, such a delay would hinder enforcement of municipal ordinances that were enacted for the purposeofprotectingthehealthandwelfareofthepublic.25 Second, we disagree with the defendant’s characterization of the violation at issue in this case as ‘‘a relatively small problem.’’ A violation of this seemingly minor ordinance could lead to harmful results. In the present case, the judge who issued the administrative search warrant determined that there was probable causetobelievethatanillegalapartmentcouldbefound on the premises. As a result, that judge could have reasonablyconcludedthatthehealthdepartmentwould findmoreseriousviolationsontheproperty,andissued a warrant that authorized a search for fire safety, housing, and building code violations. For example, the maintenance of illegal apartments may result in the overburdening of the building’s electrical system and such apartments are often heated with space heaters and ovens.These practices present seriousfire hazards that can lead to significant property damage, injury, and death. See, e.g., Enis v. Ba-Call Building Corp., 639 F.2d 359, 363 (7th Cir. 1980) (tenant’s practice of boiling water in turkey kettle on kitchen stove to provide heat in unheated apartment led to children’s injuries when water from kettle spilled on them). Furthermore, illegal apartments may not have an adequate number of exits or operational smoke detectors, which could result in injurious consequences in the event of an emergency. See, e.g., Commonwealth v. Zhan Tang Huang, 87 Mass. App. 65, 66, 25 N.E.3d 315 (2015) (man and two small children living in illegal basement apartment that only had one exit and lacked operational smoke detectors died when fire broke out in building). While these situations do not rise to the level of an emergency or exigent circumstances, they demonstrate how delaying an administrative inspec
tion, when there is probable cause to believe a housing code violation exists on the property, could potentially lead to disastrous results. See State v. Kendrick, 314 Conn. 212, 226–31, 100 A.3d 821 (2014) (explaining exigentcircumstancesandemergencyexceptionstofourth amendment warrant requirement). Lastly, we emphasize that, in the present case, the healthdepartmentsenttwonotices ofinspectiontothe property owner and attempted to inspect the property on those scheduled dates. The health department also made another attempt to inspect the property without notice and was unable to do so. Thus, this was not a case where the health department, upon receipt of a complaint, resorted immediately to the warrant process. Rather, the health department made reasonable effortstoplacethepropertyowneronnoticeofitsneed to inspect the property prior to seeking a warrant.26 Considering all of the Geisler factors, we conclude that the defendant’s rights under article first, § 7, of the Connecticut constitution were not violated. Accordingly, we reject this claim. IV Lastly, the defendant claims that his rights under the fourth amendment to the United States constitution wereviolatedbecauseoneofthepoliceofficersaccompanying the city officials exercised ‘‘excessive force’’ when he broke the lock on the fence in order to access the basement door.27 In response, the state contends that the police officer acted reasonably when he broke the lock in order to enable the city officials to enter the basement and conduct their inspection.28 Officers executing a valid search warrant are still bound by the fourth amendment standard of reasonableness. See Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) (stating that ‘‘the manner in which a warrant is executed is subject to later judicial review as to its reasonableness’’); see also Trinity Marine Products, Inc. v. Chao, 512 F.3d 198, 202 (5th Cir. 2007) (stating that ‘‘administrative warrants,likecriminalwarrants,canbeexecutedbymeans ofreasonableforce’’[emphasisadded]).Itiswellestablished that ‘‘[e]xcessive or unnecessary destruction of property in the course of a search may violate the [f]ourth [a]mendment . . . .’’ United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998). The United States Supreme Court has recognized, however, that ‘‘officers executing search warrants on occasion must damage property in order to perform their duty.’’ Dalia v. United States, supra, 258; see also Richardson v. Henderson, 651 So. 2d 501, 504 (La. App. 1995) (‘‘The destruction of property in carrying out a search is not favored, but it does not necessarily violate the [f]ourth [a]mendment; the standard is reasonableness . . . . Destruction of property that is
notreasonablynecessarytoeffectivelyexecuteasearch warrant may violate the [f]ourth [a]mendment.’’ [Citations omitted; internal quotation marks omitted.]). In determining whether an officer’s actions were reasonable during a particular search, a court must balance ‘‘the nature and quality of the intrusion on the individual’s[f]ourth [a]mendmentinterestsagainst thecountervailing governmental interests at stake.’’ (Internal quotation marks omitted.) Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). We now apply this balancing test to the facts of the present case. First, as previously noted in this opinion, the city officialshadalegitimateinterestininspectingtheproperty to determine whether there were any illegal apartments. See part III of this opinion. In the present case, after making unsuccessful attempts to obtain the property owner’s consent to inspect, the health department obtained a valid administrative search warrant supported by adequate probable cause. See part II of this opinion. Evidence adduced at the suppression hearing supports the conclusion that the only way the city officials could determine whether there was an illegal apartmentinthebasement,asallegedintheapplication, was to break the lock on the fence enclosing the staircase that led to the basement. During their inspection of the first and second floors of the building, the city officials observed that there was no apparent entrance tothebasementfromtheinteriorofthebuilding.Consequently, they searched for an exterior entrance to the basement and located the aforementioned fenced area in the backyard. Thus, the police officer had good reason to damage the lock, as this action was necessary to carry out the search effectively. Second, the intrusion on the defendant’s fourth amendment rightswas minimal. The policeofficer here broke a single lock on a fence that enclosed a staircase that led to an exterior entrance to the basement. Once he opened the fence’s gate, the police officers then descended the stairs and knocked on the basement door. After knocking, the police officers and the city officials waited a considerable period of time before the defendant opened the door. The police officers informedthedefendantabouttheadministrativesearch warrant and asked him to secure his dogs before they conducted a cursory safety check of the threshold area of the basement. There is no evidence in the record that the police officers or the city officials had a less intrusive means of entering the basement. Accordingly, weighingthepurposeofthesearch—toinspectforconditions that may potentially endanger the inhabitants ofthebuilding—againsttheextentofthepropertydamage—a broken fence lock—we conclude that the manner in which the entry was accomplished was reasonable.
The defendant, nevertheless, contends that the administrative search warrant did not authorize the police officers to use force while accompanying the city officials during the execution of the warrant. We disagree. As the United States Supreme Court has stated, ‘‘[n]othing in the language of the [United States constitution] or in this [c]ourt’s decisions interpreting that language suggests that . . . search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant— subject of course to the general [f]ourth [a]mendment protection ‘against unreasonable searches and seizures.’ ’’ (Footnote omitted.) Dalia v. United States, supra, 441 U.S. 257. The defendant’s final contention is that the administrativesearchshouldhaveendedwhenthecityofficials found an illegal apartment on the upper floors of the building. We are not persuaded. The application requestedtheauthoritytosearchthepremises‘‘topositivelydeterminehowmanyunits[were]inthedwelling’’ andspecificallyallegedthattherewasa‘‘possibleillegal [basement].’’ Furthermore, it was reasonable for the city officials to believe, upon discovery of an illegal apartmentontheupperfloorsofthebuilding,thatthere might be an additional apartment in the basement. The defendant fails to cite to any authority, and we know of none, that would support a conclusion that the city officials, upon discovering that there was an illegal apartment in the building, were prohibited from determining the extent of the housing code violation. Accordingly, we conclude that the execution of the administrative search warrant in the present case comported with the fourth amendment’s overarching requirement of reasonableness.
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