State v. Houghtaling , 326 Conn. 330 ( 2017 )

 STATE OF CONNECTICUT v. RICHARD
A. HOUGHTALING
(SC 19510)
Rogers, C. J., and Palmer, Eveleigh, Espinosa, Robinson and D’Auria, Js.
Syllabus
Convicted, on a conditional plea of nolo contendere, of the crimes of posses-
sion of marijuana with the intent to sell and possession of more than
four ounces of marijuana, the defendant appealed to the Appellate Court,
claiming, inter alia, that the trial court improperly denied his motion to
suppress certain evidence that the police seized from property he owned
but leased to another individual, P, and his subsequent statement to the
police. While conducting a marijuana eradication operation, the police
observed numerous marijuana plants located on the property. During
their search of the property, the police noticed two men, including
P, inside a partially constructed greenhouse. After being administered
Miranda warnings, P indicated to the police that he was leasing the
property and gave the police consent to search it. Thereafter, the defen-
dant, who was driving a van with another occupant, pulled into the
driveway on the property, where unmarked police vehicles were parked,
and then backed out very quickly and departed. After pursuing the van,
the police questioned the defendant, handcuffed him, brought him and
the other occupant back to the property, and gave them Miranda warn-
ings. The defendant gave a statement to the police indicating that he
had purchased the home the prior year, that he leased it to P and that
he started helping P cultivate marijuana four to five months beforehand.
The Appellate Court affirmed the judgment of conviction, concluding
that the trial court properly denied the defendant’s motion to suppress
because he lacked a reasonable expectation of privacy in the property,
the police were justified in stopping the defendant and conducting an
inquiry as they had a reasonable and articulable suspicion that he had
engaged in criminal conduct, and the police had probable cause to arrest
him after they observed certain materials in the van similar to the
materials being used to construct the greenhouse. On the granting of
certification, the defendant appealed to this court. Held:
1. The Appellate Court correctly concluded that the defendant lacked stand-
ing to challenge the warrantless search of the property because he lacked
a subjective expectation of privacy therein: the defendant presented no
evidence establishing the frequency and nature of his visits to the prop-
erty or whether he retained the right to exclude others from all or part
of the property, or any evidence indicating that he stayed at the property
or otherwise continually used the property after leasing it to P, and the
only evidence that may have connected the defendant to the property
was a few pieces of mail and one personal item on the property, which
did not establish how often the defendant visited the property or the
nature of his relationship therewith; moreover, the defendant could not
prevail on his claim that he maintained a connection with the property
by participating in P’s marijuana grow operation, the defendant having
failed to present sufficient evidence to establish the extent of his involve-
ment with that operation.
2. The defendant could not prevail on his claim that his confession to the
police was the fruit of the unlawful stop of the defendant in his van
and his subsequent warrantless arrest: the police were justified in
detaining the defendant to further inquire about his relationship to the
property because they had a reasonable and articulable suspicion that
the defendant was connected with the marijuana grow operation, as
the police could have reasonably inferred from their experience and
knowledge of the grow operation, and from the defendant’s actions in
light of the circumstances, that he was at least aware of, if not directly
connected to, the activities occurring on the property; moreover, the
defendant’s interaction with the police after their stop of the van and
the fact that the van contained, in the plain view of the police officers,
materials resembling those used to build the greenhouse, which the
officers had previously observed was under construction, were sufficient
to establish probable cause to believe that the defendant was involved
with P’s marijuana grow operation and, thus, provided a basis on which
to arrest the defendant.
State v. Boyd (57 Conn. App. 176), to the extent that it requires a defendant,
in order to establish a subjective expectation of privacy in property, to
show facts sufficient to create the impression that his relationship with
the location was personal in nature, and was more than sporadic, irregu-
lar or inconsequential, and that he maintained the location and items
within it in a private manner at the time of the search, overruled.
Argued March 29—officially released July 25, 2017
Procedural History
Substitute information charging the defendant with
the crimes of possession of marijuana with the intent
to sell and possession of more than four ounces of
marijuana, brought to the Superior Court in the judicial
district of Windham, geographical area number eleven,
where the court, Riley, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the
defendant was presented to the court on a conditional
plea of nolo contendere; judgment of guilty, from which
the defendant appealed to the Appellate Court, Gruen-
del, Beach and Alvord, Js., which affirmed the judgment
of the trial court, and the defendant, on the granting of
certification, appealed to this court. Affirmed.
Richard Emanuel, with whom, on the brief, was
David V. DeRosa, for the appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Anne Mahoney, state’s
attorney, and Matthew Crockett, senior assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. The primary issue in this certified appeal
is whether the defendant, Richard Houghtaling, pre-
sented evidence sufficient to establish his subjective
expectation of privacy in a residence he had leased to a
third party. After the police found numerous marijuana
plants during a search at the residence, the officers
located and stopped the defendant and later arrested
him. After his arrest, the defendant admitted he was
aware of, and had provided some unspecified assistance
with, the grow operation. The state later charged the
defendant with certain drug related offenses. The defen-
dant moved to suppress evidence gathered during the
search and his subsequent statements to the police as
the fruits of a warrantless and illegal search of the
property, which he owned but had leased to a third
party, Thomas Phravixay. He also claimed that the
police had illegally stopped and arrested him. The trial
court denied the defendant’s motion, and he subse-
quently entered a conditional plea of nolo contendere.
The Appellate Court affirmed the defendant’s convic-
tion; see State v. Houghtaling, 155 Conn. App. 794, 830,
111 A.3d 931 (2015); and we granted certification to
appeal. State v. Houghtaling, 317 Conn. 919, 919–20,
118 A.3d 62 (2015). Because we agree with the Appellate
Court that the defendant lacked standing to challenge
the search, and that his detention and subsequent arrest
were lawful, we affirm the judgment of the Appellate
Court.
The record reveals the following facts relevant to this
appeal. On August 9, 2010, the Statewide Narcotics Task
Force (task force)—comprised of federal, state, and
local law enforcement officers—was conducting a mari-
juana eradication operation in the northeast corner of
the state. The operation was comprised of two spotters
who were patrolling the area in a helicopter and a
ground team consisting of several members. The task
force had performed marijuana eradication missions
earlier in the day, and, shortly after noon, the helicopter
team notified the ground team of a suspected large crop
of marijuana at 41 Raymond Schoolhouse Road in the
town of Canterbury (property). From the air, the spot-
ters were able to see dozens of marijuana plants within a
fenced-in pool area behind the house, as well as several
plants along the outside of the fence. The ground team
arrived at the property approximately thirty minutes
later in separate, undercover and unmarked vehicles,
which bore no resemblance to police vehicles.
The property consisted of 5.6 acres and was largely
surrounded by dense forest. The only means of ingress
and egress was a narrow dirt driveway more than 100
feet long and lined with trees on both sides. There were
signs marked ‘‘No Trespassing’’ posted on trees along
the driveway, and, about halfway down the driveway,
there was a metal gate that could block the driveway
but that was not closed. The ground team parked their
vehicles in front of the gate, donned protective vests,
which identified them as police officers, and proceeded
to the front door of the house on foot. As the members
of the ground team approached the home, they saw
no occupant vehicles or persons, smelled nothing, and
heard nothing. The officers knocked on the front door
but received no answer.
The ground team then left the front door and pro-
ceeded toward the back door. The air team had told
the ground team that, if they continued around the side
of the house, they would see ‘‘a whole lot of marijuana
right out in the open.’’ Before reaching the back door,
the officers saw a pool area with dozens of marijuana
plants inside and additional plants surrounding the area.
The officers then continued to search the property,
including a greenhouse located behind the pool, near
the rear of the property. As the police approached the
greenhouse, they noticed it was still under construction.
The ends of the structure had no side walls, and there
were piles of lumber on the ground nearby. Inside the
greenhouse, the police were able to see numerous mari-
juana plants and two men, one of whom was later identi-
fied as Phravixay.
Both of the men were given Miranda1 warnings and
agreed to answer questions. Phravixay told the officers
he was renting the home and later gave the officers
written consent to search the property. The search ulti-
mately revealed more than 1000 marijuana plants.
While two members of the ground crew were
returning to their vehicles to obtain an evidence kit,
they noticed a white van pull into the driveway of the
property, where the unmarked police vehicles were
parked, and then reverse back into the street and depart
‘‘[v]ery quickly.’’ The helicopter team also spotted the
van enter the driveway and radioed the ground team
to alert all of the officers concerning the van’s presence.
The officers were suspicious of the van, believing that
its occupants might be involved in the marijuana grow
operation, and decided to pursue the van. By the time
the police got into a car, headed up the driveway after
the van, and arrived out on the road, the van was already
parked at the side of the road, approximately one tenth
of one mile away, facing back toward the driveway.
The officers drove to the location where the van was
parked, exited their vehicle, and approached the van.
The officers had drawn their weapons for their safety
because, as the trial court noted, those involved in drug
dealing often possess firearms. The van was occupied
by two males—the defendant was in the driver’s seat
and another person sat in the passenger seat. Upon
determining that the occupants of the van posed no
threat, the officers holstered their weapons and asked
the defendant for identification. When the officers
asked the defendant why he had pulled into the drive-
way and then left abruptly, he stated that he was going
to visit a friend but left when he saw that the driveway
was full of cars he did not recognize. As the trial court
found, the defendant’s answers to the officers’ ques-
tions were evasive, and, although he claimed to be vis-
iting a friend, he would not name the friend. While the
police were questioning the defendant, they were able
to observe from outside the van that it contained lumber
and irrigation piping similar to that which was used to
construct the greenhouse. The officers then handcuffed
the defendant and the passenger, and brought them
back to the property.
Upon arriving back at the property, the police advised
the defendant of his Miranda rights. The defendant at
first refused to speak with the police but then agreed
to once the officers told him that Phravixay had con-
sented to their search of the property, that they had
found mail with the defendant’s name on it in the house
and in the mailbox, and that Phravixay had identified
the defendant as the homeowner and the person who
leased the property to him. The defendant told the offi-
cers he had purchased the home in the prior year but
could not afford the mortgage payments, so, to help
cover his expenses, he leased the property to Phravixay,
whom he had known for several years. The defendant
said Phravixay had paid rent only periodically, and the
defendant had been helping Phravixay cultivate mari-
juana for the previous four or five months to ‘‘recoup
some of [his] money.’’ Although the defendant said he
was helping with the cultivation, he stated that, ‘‘up
until [that day, he] didn’t realize the extent of the grow
operation. I own my own business and didn’t really
think much of what was going on at the house . . . .’’
The defendant initially was charged with numerous
drug related offenses,2 and he moved to suppress ‘‘(1)
all evidence seized by law enforcement officers in con-
nection with the warrantless search and seizure con-
ducted at [the] property on August 9, 2010; (2) all
statements made by [the defendant] and others, includ-
ing . . . Phravixay, as a result of the illegal search and
seizure; and (3) the fruits of any and all other evidence
obtained, derived or developed as a result of the illegal
search and seizure and illegally obtained statements
. . . .’’ The defendant claimed that the court must sup-
press this evidence because the police had violated his
fourth amendment rights when they failed to obtain a
warrant before searching the property and when they
detained him in his van, which he claims was done
without reasonable suspicion that he had engaged in
criminal activity.
At the hearing on the motion to suppress, the state
called four police officers to testify about their actions
and observations during the search and seizure. The
defendant called no witnesses. After the witnesses had
testified, the state argued that the defendant had failed
to establish his subjective expectation of privacy
because all of his personal property was in the city of
Danbury, where he lived with his wife and family, and
the defendant had failed by any other conduct to demon-
strate a subjective expectation of privacy in the prop-
erty where the search occurred. Defense counsel
responded by arguing that the defendant’s ownership
of the property alone was sufficient to establish stand-
ing. He argued that the state was trying to get around
this fact by making a ‘‘hyper-technical argument on
standing . . . .’’
The trial court agreed with the state and denied the
defendant’s motion to suppress the evidence seized
from the search of the property and the defendant’s
statements to the police. The trial court concluded that
the defendant had failed to establish that he had a
subjective expectation of privacy in the property. The
court also found that the police possessed a reasonable
and articulable suspicion sufficient to justify stopping
the defendant’s van after he entered and quickly exited
the driveway. Lastly, the trial court concluded that the
officers had probable cause to arrest the defendant.
The defendant then entered a conditional plea of
nolo contendere.3
The defendant appealed to the Appellate Court from
the judgment of conviction, claiming that the trial
court’s denial of his motion to suppress was improper
because ‘‘(1) he had a reasonable expectation of privacy
in the area searched, including the home and the area
surrounding it, (2) his fourth amendment rights were
violated by the warrantless search conducted by the
. . . task force, [and] (3) the police lacked a reasonable
and articulable suspicion to conduct a motor vehicle
stop of the van operated by the defendant, and his
resulting arrest was unsupported by probable cause
. . . .’’ (Footnote omitted.) State v. Houghtaling, supra,
155 Conn. App. 797. The Appellate Court rejected all
of these claims. Id., 800, 808, 818, 823.
Specifically, the Appellate Court concluded that the
defendant’s first two claims failed because he lacked
a reasonable expectation of privacy.4 Id., 808. The
Appellate Court determined that the defendant failed
to establish his subjective expectation of privacy
because he did not sufficiently develop his personal
relationship with the property at the suppression hear-
ing. See id., 803. The defendant argued that he was a
cooccupant of the property and cited three facts to
support this contention: (1) he leased the property to
Phravixay for less than his monthly mortgage payment;
(2) he received and stored items on the premises; and
(3) he received some mail at the property. Id.
The Appellate Court determined that the fact that
Phravixay’s rent was less than the defendant’s mortgage
established nothing about the manner in which he
retained rights to use the property, or if he retained
them at all. Id. Moreover, although the defendant
claimed that he received and stored property on the
premises, he identified only a single item of his at the
property—an aeration system addressed to him at his
Danbury residence. Id., 804. The court did not find that
the presence of a single piece of property established
that the defendant was a cotenant. See id. Finally, the
Appellate Court concluded that the presence of ‘‘ ‘some
mail’ ’’; id.; did not establish that the defendant lived at
the property or otherwise was there frequently. See id.
The Appellate Court also concluded that the police
possessed a reasonable and articulable suspicion that
the defendant had engaged in criminal conduct. Id., 818.
The Appellate Court determined that, on the basis of
the totality of the circumstances, including the spatial
and temporal link between the Terry5 stop and the
investigation of the felony in progress (the marijuana
grow operation), as well as the defendant’s act of enter-
ing and quickly leaving the property, the police were
justified in stopping the defendant. Id., 813–16, 818. The
Appellate Court also determined that the police had
probable cause to arrest the defendant after they
observed lumber and irrigation piping in the van similar
to the materials being used to construct the greenhouse,
demonstrating a probable connection between the
defendant and the marijuana operation at the property.
Id., 821–23.
The defendant appealed to this court from the judg-
ment of the Appellate Court, and we granted certifica-
tion on the following issues: (1) ‘‘Did the Appellate
Court properly determine that the defendant did not
have standing (a reasonable expectation of privacy) to
challenge a search of residential premises that he
owned but had leased at the time of the search?’’ State
v. Houghtaling, supra, 317 Conn. 920. (2) ‘‘If the answer
to the first question is in the negative, were all subse-
quent actions of the police—the Terry stop of the vehi-
cle, the warrantless arrest, and the defendant’s confes-
sion—the fruits of one or more preceding illegalities?’’
Id. (3) ‘‘If the answer to the first question is in the
affirmative, did the Appellate Court properly determine
that the Terry stop and warrantless arrest of the defen-
dant were lawful, and that the resulting confession was
lawfully obtained?’’ Id. We answer the first question in
the affirmative, do not reach the second question, and
answer the third question in the affirmative. We thus
affirm the judgment of the Appellate Court.
When 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 plead-
ings 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 constitu-
tional rights, [however] 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
. . . .’’ (Internal quotation marks omitted.) State v. Ken-
drick, 314 Conn. 212, 222, 100 A.3d 821 (2014). Accord-
ingly, although we must defer to the trial court’s factual
findings, determining whether those findings establish
standing is a question of law, over which we exercise
plenary review. See, e.g., State v. Gonzalez, 278 Conn.
341, 348, 898 A.2d 149 (2006).
I
The defendant first claims that the Appellate Court
incorrectly determined that he lacked standing to chal-
lenge the warrantless search of the property because
he lacked a subjective expectation of privacy therein.
We disagree.
A
The fourth amendment to the United States constitu-
tion protects individuals from unreasonable searches
and seizures.6 ‘‘The right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be vio-
lated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particu-
larly describing the place to be searched, and the per-
sons or things to be seized.’’ U.S. Const., amend. IV.
The rights guaranteed by the fourth amendment are
personal rights, and, therefore, only one ‘‘ ‘whose own
protection was infringed by a search and seizure’ ’’ may
enforce those rights. Rakas v. Illinois, 439 U.S. 128,
138, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). To challenge
a search as unreasonable, a defendant must have stand-
ing. To establish standing, a defendant must show that
he possesses a reasonable expectation of privacy in the
area searched. See, e.g., State v. Boyd, 295 Conn. 707,
718, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224,
131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011).
To determine whether a person has a reasonable
expectation of privacy in an invaded place or seized
effect, that person must satisfy the Katz test. See Katz
v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L.
Ed. 2d 576 (1967) (Harlan, J., concurring). 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 exis-
tence of a reasonable expectation of privacy rests [with]
the defendant.’’ (Internal quotation marks omitted.)
State v. Jackson, 304 Conn. 383, 395, 40 A.3d 290 (2012).
In analyzing the subjective prong of the Katz test,
we look for actions or conduct demonstrating that the
defendant sought to preserve the property or location
as private. See, e.g., Smith v. Maryland, 442 U.S. 735,
740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); see also
State v. Boyd, 57 Conn. App. 176, 185, 749 A.2d 637
(‘‘a subjective expectation of privacy rests on finding
conduct [through which a defendant] has demonstrated
an intention to keep activities or things private and free
from knowing exposure to others’ view’’), cert. denied,
253 Conn. 912, 754 A.2d 162 (2000). Although this prong
is the ‘‘subjective’’ portion of the test, it does not rest
solely on the defendant’s actual beliefs. See Smith v.
Maryland, supra, 741 n.5 (stating that, in some cases,
normative inquiry rather than subjective expectations
inquiry is proper); O. Kerr, ‘‘Katz Has Only One Step:
The Irrelevance of Subjective Expectations,’’ 82 U. Chi.
L. Rev. 113, 114–15 (2015) (the subjective prong of Katz
test was originally more akin to question of waiver—
meant to summarize precedents on exposure to third
parties—rather than question regarding defendant’s
actual belief). ‘‘The first part of the Katz test requires
only . . . [a person’s] conduct [to] have demonstrated
an intention to keep activities and [property] . . . pri-
vate, and that he did not knowingly expose [it] to the
open view of the public.’’ (Internal quotation marks
omitted.) 1 W. LaFave, Search and Seizure (5th Ed.
2012) § 2.1 (c), p. 585; see also United States v. Taborda,
635 F.2d 131, 137 (2d Cir. 1980).
The trial court found that the defendant had failed
to establish a subjective expectation of privacy in the
property but also concluded that, even if he did, it was
not one that society would recognize as reasonable. The
Appellate Court determined that the defendant lacked a
subjective expectation of privacy and therefore did not
examine the objective prong of the Katz test. See State
v. Houghtaling, supra, 155 Conn. App. 807–808.
To evaluate whether the defendant met his burden
of establishing a subjective expectation of privacy, the
Appellate Court relied on the three factor test set in
Boyd. See id., 802–808. Specifically, the court in Boyd
declared that a defendant ‘‘must show facts sufficient
to create the impression that (1) his relationship with
the location was personal in nature, (2) his relationship
with the location was more than sporadic, irregular or
inconsequential, and (3) he maintained the location and
the items within it in a private manner at the time of
the search.’’ State v. Boyd, supra, 57 Conn. App. 185.
We have not recently had occasion to review a deci-
sion that turns solely on the first, subjective prong of
the Katz test, and specifically have not had occasion
to consider whether the factors discussed in Boyd
appropriately measure a particular defendant’s subjec-
tive expectation of privacy. Although we agree with the
Appellate Court’s ultimate conclusion, upon reviewing
these factors, and understanding that the Appellate
Court panel appropriately considered itself bound by
its own precedent in Boyd, we disagree with Boyd’s
three factor test as articulated and thus overrule Boyd
to the extent that it requires a defendant to meet its
three factor test to establish his or her subjective expec-
tation of privacy. We take this occasion to clarify the
proper method of evaluating a defendant’s subjective
expectation of privacy.7
This court has not previously adopted a rigid test for
determining a subjective expectation of privacy, and
we decline to do so now. See, e.g., State v. Davis, 283
Conn. 280, 324, 929 A.2d 278 (2007) (‘‘the [reasonable
expectation of privacy] test offers no exact template
that can be mechanically imposed upon a set of facts
to determine whether . . . standing is warranted’’
[internal quotation marks omitted]); cf. O. Kerr, ‘‘Four
Models of Fourth Amendment Protection,’’ 60 Stan. L.
Rev. 503, 506 (2007) (‘‘[t]he [United States] Supreme
Court has not and cannot adopt a single test for when
an expectation is ‘reasonable’ because no one test effec-
tively and consistently distinguishes the more trouble-
some police practices that require [f]ourth [a]mend-
ment scrutiny from the less troublesome practices that
do not’’).
Our continuing decision not to adopt a rigid test for
determining a defendant’s subjective expectation of pri-
vacy stems from the fact that the Boyd factors are
unsupported by relevant precedent. The court in Boyd
cited United States v. Gerena, 662 F. Supp. 1218, 1235
(D. Conn. 1987), as support for its three factor test.8
State v. Boyd, supra, 57 Conn. App. 185. In Gerena,
the District Court began by articulating a generalized
requirement for establishing a subjective expectation
of privacy: ‘‘The defendant must show that he or she
personally sought to preserve the particular location,
and its contents, as private.’’ United States v. Gerena,
supra, 1234. The District Court then went on to describe
what would become the Boyd factors: ‘‘A defendant
satisfies [the subjective] prong of the test by alleging
facts sufficient to create the impression that his or her
relationship with the location was personal in nature;
was more than sporadic, irregular, or inconsequential;
and that the defendant maintained the location and the
items within it in a private manner at the time of the
search.’’ Id., 1235. The District Court cited no precedent
to support the use of these factors, let alone a reason
why they would apply in every case. See generally id.
Rather, that court appears to have been articulating a
series of factors that were relevant in that particular
case, providing no reason to apply these factors outside
of Gerena.9
In addition to not truly reflecting an analysis
grounded in United States Supreme Court precedent,
we note several problems with the Boyd test. First, it
is written in the conjunctive, requiring that a defendant
satisfy all three prongs of the test to establish standing.
A defendant might fail to satisfy one of the prongs of
the test, even though he possesses a subjective expecta-
tion of privacy that is well recognized as reasonable.
Also, the first two prongs of the Boyd test are particu-
larly problematic.
For example, the first Boyd factor requires the defen-
dant to establish that ‘‘his relationship with the location
was personal in nature . . . .’’ State v. Boyd, supra, 57
Conn. App. 185. Although fourth amendment rights are
personal in nature; see, e.g., Rakas v. Illinois, supra,
439 U.S. 138; because the word ‘‘personal’’ is susceptible
to multiple meanings, Boyd’s requirement that the
defendant’s relationship with the location be personal
in nature is problematic. For example, Black’s Law Dic-
tionary defines personal as ‘‘[o]f or affecting a person,’’
and ‘‘[o]f or constituting personal property . . . .’’
Black’s Law Dictionary (10th Ed. 2014) p. 1325. The first
definition is overinclusive because defendants would
likely not seek to exclude evidence that has no bearing
on their case, and, therefore, any evidence sought to
be suppressed would be ‘‘affecting a person . . . .’’
Id. The second definition is underinclusive because an
illegal search need not have involved the defendant’s
personal property for the defendant to possess a privacy
interest. ‘‘[P]roperty rights are neither the beginning
nor the end of [the] [c]ourt’s inquiry into whether a
defendant’s [reasonable expectation of privacy has]
been violated by an illegal search.’’ (Internal quotation
marks omitted.) State v. Davis, supra, 283 Conn. 309.10
Additionally, this definition could exclude commercial
property, even though this court has held that a defen-
dant can have a reasonable expectation of privacy in
such property. See State v. Zindros, 189 Conn. 228, 229,
240–42, 456 A.2d 288 (1983) (holding that commercial
tenant possessed reasonable expectation of privacy in
space he had leased to use as restaurant), cert. denied,
465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).
The second prong of the Boyd test also presents
problems. That prong requires a defendant to show
that ‘‘his relationship with the location was more than
sporadic, irregular or inconsequential . . . .’’ State v.
Boyd, supra, 57 Conn. App. 185. The case law of this
state—as well as multiple federal cases—recognizes
several situations in which a defendant possesses a
reasonable expectation of privacy but in which that
same defendant would fail the subjective expectation
of privacy test under this second prong of Boyd. For
example, under Boyd, a person who travels to a new
city, rents a hotel room, drops off her bag in the room
and leaves for several days on an excursion could be
said to have a relationship with that room that is spo-
radic and irregular. Concluding that this relationship
was insufficient under Boyd, however, would be clearly
contrary to our case law establishing that a person who
rents a hotel room generally has a reasonable expecta-
tion of privacy in that room, as long as he or she intends
to return to it. Cf. State v. Jackson, supra, 304 Conn.
396–98 (defendant had no expectation of privacy in
hotel room or in personal effects therein when he left
room with no intent to return). The Boyd test could
also fail to recognize an overnight guest’s subjective
expectation of privacy; see Minnesota v. Carter, 525
U.S. 83, 89, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998);
because that guest’s presence might be sporadic, irregu-
lar, and inconsequential.
The third prong of Boyd also suffers from deficienc-
ies. It requires that the defendant have ‘‘maintained the
location and the items within it in a private manner at
the time of the search.’’ State v. Boyd, supra, 57 Conn.
App. 185. Although less problematic than the other two
prongs, the third prong can also fail to recognize a
reasonable expectation of privacy when one exists. For
example, in United States v. Vega, 221 F.3d 789 (5th
Cir. 2000), cert. denied sub nom. Ramon Vega v. United
States, 531 U.S. 1155, 121 S. Ct. 1105, 148 L. Ed. 2d
975 (2001), the police surrounded a home looking for
evidence of drug trafficking. See id., 794. When the
defendants noticed the police, one defendant ran out
through the back door, leaving it open. See id. The
government argued that, because the door was left
open, the house was exposed to public view and lost
its fourth amendment protection. See id., 796. Although
the court rejected the government’s contention; id.; if
it had applied the third factor of Boyd, its fourth amend-
ment analysis could have led to the opposite result.
For these reasons, we decline to adopt the Boyd test.
Although the factors enumerated in Boyd might, in a
particular case, be relevant to a court’s analysis, they
should not serve as an inflexible yardstick by which
the privacy interests of all criminal defendants are mea-
sured. Instead, we reaffirm that courts should properly
test a defendant’s subjective expectations by looking
for conduct demonstrating an intent ‘‘ ‘to preserve
[something] as private,’ ’’ and free from knowing expo-
sure to the view of others. Bond v. United States, 529
U.S. 334, 338, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000). 11
B
At the hearing on the motion to suppress, the defen-
dant failed to adduce sufficient evidence to establish
his intent to keep the property private and free from
knowing exposure to the view of others. Although the
defendant did establish that he owned the property, he
told the police he could not afford the payments and
had leased the house to Phravixay for months. At the
suppression hearing, the defendant did not present a
written lease or offer any testimony regarding the provi-
sions of the lease. Nor did he present sufficient evidence
that he maintained frequent contact with the property,
retained the right to exclude others or engaged in other
significant contact with the property.
When, as in the present case, a property owner has
leased that property to another person, the owner gen-
erally loses any expectation of privacy in the property.
A landlord is generally much less likely to possess a
reasonable expectation of privacy than an owner-occu-
pant. This is because, upon leasing the property, he
generally cedes control to the tenant, who can invite
others onto the property, potentially exposing his activi-
ties or contraband to them. See, e.g., United States v.
Rios, 611 F.2d 1335, 1345 (10th Cir. 1979) (holding that
defendant’s ‘‘bare legal ownership’’ would not suffice
to establish standing absent ‘‘any indication that he
used the . . . home in such a way as to raise a legiti-
mate expectation of privacy’’). ‘‘[I]f the owner of certain
premises has leased them to another without reserving
any right of possession to himself, then it cannot be said
that a police intrusion into those premises encroaches
upon his expectation of privacy.’’ (Emphasis added.) 6
W. LaFave, supra, § 11.3 (a), p. 170.
If, however, the owner maintains a regular presence
at the property, retains the right to exclude others from
the property or otherwise exercises significant control
over the property, the owner might still possess a rea-
sonable expectation of privacy. For example, in State
v. Suco, 521 So. 2d 1100 (Fla. 1988), the Florida Supreme
Court held that a landlord who leased a single family
dwelling had standing when he retained a key to enter
for purposes of collecting rent, maintaining the prem-
ises, and making repairs, and regularly went to the
house, let himself in without announcing his presence,
and watched television with the tenant’s family. Id.,
1101–1102. Similarly, in State v. Casas, 900 A.2d 1120
(R.I. 2006), a defendant had a reasonable expectation
of privacy in the basement of an apartment building
owned by his wife because he collected rents, made
repairs and prohibited tenants from entering the base-
ment area, over which he retained control. Id., 1130.
In the present case, although it might have been possi-
ble for the defendant to establish standing, he presented
no evidence establishing the frequency and nature of
his visits to the property, or whether he retained a right
to exclude others from any or all of the property. Nor
did he produce any evidence indicating that he stayed
at the property or otherwise continuously used the
property after leasing it to Phravixay. He established
nothing but bare legal ownership. See United States v.
Rios, supra, 611 F.2d 1345.
The only other evidence perhaps connecting the
defendant to the property consisted of a few pieces of
mail and an aeration system addressed to the defendant
at his Danbury residence. None of these items, however,
established how often the defendant visited the prop-
erty or the nature of his relationship to the property,
and thus did not sufficiently establish his subjective
expectation of privacy. The defendant did not submit
the mail into evidence or even identify what type of
mail it was. As anyone who has ever changed residences
knows, a previous occupant’s mail might continue to
arrive for months, if not years, after that person has
moved. Without knowing the nature or the volume of
the correspondence, we cannot assume that it was sig-
nificant or anything other than junk mail. Additionally,
no evidence was offered about whether or how often
the defendant went to the property to retrieve the mail.
Similarly, the mere presence of a single piece of prop-
erty addressed to the defendant tells us nothing mean-
ingful about how the defendant used the property. The
defendant offered no evidence about how the aeration
system ended up at the property, or whether it was
ever used. Phravixay or a confederate could have driven
to the defendant’s home in Danbury to pick up the item
and deliver it to the property in Canterbury. Without
any testimony to establish how much property the
defendant purchased, or how it made its way from Dan-
bury to Canterbury, the presence of a single aeration
system cannot establish the defendant’s subjective
expectation of privacy in the property. Furthermore,
leaving a single piece of personal property establishes
nothing about the frequency of the defendant’s visits
to the property or the level of his involvement in the
grow operation.
The defendant argues that he nevertheless had a rea-
sonable expectation of privacy because he maintained
a connection with the property by participating in the
marijuana grow operation. We disagree. Even if a defen-
dant could establish a subjective expectation of privacy
through his participation in a criminal conspiracy,12 the
defendant still has not met his burden.13 The defendant
did not present sufficient evidence at the hearing to
establish what his involvement with the marijuana culti-
vation actually was. Although he cites his statement to
the police that, ‘‘about [four] to [five] months ago I
began to help [Phravixay] cultivate the marijuana,’’ the
defendant offers no evidence of what his ‘‘help’’ entailed
or how that ‘‘help’’ manifested a privacy interest in
the property.
Also, the defendant’s own statements to the police
suggest that his presence at the property was more
limited than he would now have us believe. When he
was arrested, the defendant told the police: ‘‘[u]p until
today I didn’t realize the extent of the grow operation.’’
This statement indicates that the defendant’s involve-
ment with the grow operation could not have been
extensive, further diminishing any significance of the
mail and aeration system, because even a brief visit and
cursory view of the property would have revealed an
extremely large grow operation containing more than
1000 plants, hundreds of which were inside the house.
Thus, the defendant has simply failed to establish a
subjective expectation of privacy. At the suppression
hearing, the defendant challenged the constitutionality
of the warrantless search solely on the basis of his
ownership of the property. As a result, the defendant
did not present sufficient evidence detailing his connec-
tion to the property or the grow operation that took
place there, if such evidence existed at all. Because the
defendant has failed to adduce any evidence that he
maintained a regular presence, was an overnight guest,
retained the right to exclude others, or had any other
significant connection to the property, he has failed to
establish a reasonable expectation of privacy. Under the
facts presented, the defendant ‘‘could not legitimately
expect that the [property] . . . would remain secure
from prying eyes, irrespective of whether those eyes
were private or governmental.’’ United States v. Rama-
puram, 632 F.2d 1149, 1156 (4th Cir. 1980), cert. denied,
450 U.S. 1030, 101 S. Ct. 1739, 68 L. Ed. 2d 225 (1981).
As such, we have no occasion to address the defendant’s
claim that the officers were not justified in entering the
property without a warrant.
II
The defendant next claims that, even if he lacked
standing to challenge the warrantless search of the
property, his confession to the police was the unlawful
fruit of the Terry stop and warrantless arrest. We dis-
agree and uphold the trial court’s conclusion that the
police possessed a reasonable and articulable suspicion
to stop the defendant and, later, had probable cause to
arrest him.
A
The law in this area is well settled. ‘‘A stop pursuant
to Terry v. Ohio, [392 U.S. 1, 21–22, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968)], is legal if three conditions are
met: (1) the officer must have a reasonable suspicion
that a crime has occurred, is occurring, or is about to
occur; (2) the purpose of the stop must be reasonable;
and (3) the scope and character of the detention must
be reasonable when considered in light of its purpose.
. . . The United States Supreme Court has further
defined reasonable suspicion for a traffic stop as requir-
ing some minimal level of objective justification for
making the stop. . . . Because a reasonable and articu-
lable suspicion is an objective standard, we focus not
on the actual state of mind of the police officer, but on
whether a reasonable person, having the information
available to and known by the police, would have had
that level of suspicion.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Cyrus, 297 Conn. 829,
837, 1 A.3d 59 (2010). What constitutes a reasonable
and articulable suspicion depends on the totality of the
circumstances. See, e.g., State v. Lipscomb, 258 Conn.
68, 77, 779 A.2d 88 (2001). ‘‘Moreover, [w]e do not con-
sider whether the defendant’s conduct possibly was
consistent with innocent activity . . . .’’ (Internal quo-
tation marks omitted.) State v. Peterson, 320 Conn. 720,
733, 135 A.3d 686 (2016).
‘‘On appeal, [t]he determination of whether a reason-
able and articulable suspicion exists rests on a two part
analysis: (1) whether the underlying factual findings of
the trial court are clearly erroneous; and (2) whether
the conclusion that those facts gave rise to such a suspi-
cion is legally correct.’’ (Internal quotation marks omit-
ted.) State v. Cyrus, supra, 297 Conn. 837–38.
Several facts known to the officers establish that
they were justified in detaining the defendant to further
investigate his presence on and rapid departure from
the property. First, the trial court credited the officers’
testimony that someone entering the property might be
involved in the grow operation. ‘‘While it is well settled
that an individual’s mere presence at a location known
for criminal activity is not sufficient, without more,
to support a reasonable suspicion . . . the individual’s
presence in such a location can be a relevant articulable
fact in the Terry reasonable suspicion calculus.’’ (Cita-
tions omitted.) State v. Peterson, supra, 320 Conn. 734.
In the present case, the record demonstrates that the
defendant was not stopped simply because he was in
the wrong place at the wrong time. The defendant was
not just passing through a high crime area. Rather, he
entered a remote property containing a very large and
sophisticated marijuana grow operation and rapidly
exited the driveway—an action that the police could
have reasonably inferred the defendant took in
response to seeing an unfamiliar and unexpected sight.
He then drove a short distance down the road and
turned around, parking the van facing back toward the
property. The officers’ experience and their knowledge
of the ongoing grow operation could have reasonably
led them to infer that the defendant was at least aware
of, if not directly connected to, the activities occurring
on the property. This gave the officers a reasonable
and articulable suspicion sufficient for them to briefly
detain the defendant and inquire about his relationship
to the property.
The defendant contends that the only reason he was
stopped was that he pulled his van into the driveway
and quickly exited.14 The defendant, however, overlooks
several of the trial court’s findings. First, the defendant
did not simply enter an empty driveway and turn
around; he entered a driveway that led to a huge mari-
juana grow operation. That driveway was filled with
cars he could not have recognized.15 Upon arriving on
the scene and pulling in behind vehicles unfamiliar to
him, the defendant rapidly exited the driveway. The
defendant concedes that the property is rural and iso-
lated. This makes it less likely that the defendant coinci-
dentally pulled into this particular driveway to turn
around, particularly when considering that he drove
down the road approximately one tenth of one mile
before turning around and parking the van on the side
of the road, facing toward the property. We agree with
the trial court that these facts provided the officers
with a reasonable and articulable suspicion that the
defendant was somehow connected to the grow
operation.
B
The defendant also claims that his arrest following
the Terry stop was not supported by probable cause. We
conclude that it was. ‘‘Probable cause, broadly defined,
comprises such facts as would reasonably persuade an
impartial and reasonable mind not merely to suspect
or conjecture, but to believe that criminal activity has
occurred.’’ (Internal quotation marks omitted.) State v.
Johnson, 286 Conn. 427, 435, 944 A.2d 297, cert. denied,
555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). ‘‘The
quantum of evidence necessary to establish probable
cause exceeds mere suspicion, but is substantially less
than that required for conviction. Our cases have made
clear that [t]here is often a fine line between mere
suspicion and probable cause, and [t]hat line necessar-
ily must be drawn by an act of judgment formed in light
of the particular situation and with account taken of
all the circumstances. . . . Furthermore, when we test
the quantum of evidence supporting probable cause, it
is not the personal knowledge of the arresting officer
but the collective knowledge of the law enforcement
organization at the time of the arrest [that] must be
considered.’’ (Citations omitted; internal quotation
marks omitted.) State v. Dennis, 189 Conn. 429, 431–32,
456 A.2d 333 (1983).
Applying these principles to the present case, we
conclude that the facts known to the officers gave them
probable cause to arrest the defendant. When the offi-
cers had initially approached the defendant, they asked
him for his license and registration, and the reason for
his presence at the home. The officers later testified
that the defendant’s answers were evasive and that he
would not name the friend he was allegedly there to
visit; the trial court credited this testimony. This interac-
tion occurred immediately after the defendant had
driven the van directly to, but departed ‘‘[v]ery quickly’’
from, the property, which was the site of a massive
marijuana grow operation. Additionally, the trial court
credited an officer’s testimony that the van contained,
in plain view of the officers, lumber and irrigation piping
resembling the materials used in the greenhouse, which
task force members observed was under construction.
The presence of these materials and the attendant cir-
cumstances were sufficient to establish probable cause
to believe that the defendant was involved with the
grow operation, giving them grounds to arrest the
defendant.16
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
The defendant initially was charged with the production and preparation
of a controlled substance without a license, possession of more than four
ounces of marijuana, the sale of illegal drugs, and the operation of a drug
factory.
3
The defendant pleaded guilty to possession of marijuana with the intent
to sell, and possession of more than four ounces of marijuana.
4
The Appellate Court relied on the three part test set forth in State v.
Boyd, 57 Conn. App. 176, 185, 749 A.2d 637, cert denied, 253 Conn. 912, 754
A.2d 162 (2000). See State v. Houghtaling, supra, 155 Conn. App. 802–808.
Although we agree with the Appellate Court’s ultimate conclusion, we con-
clude that the factors the court in Boyd considered do not properly measure
a defendant’s subjective expectation of privacy. See part I B of this opinion.
5
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
6
‘‘The fourth amendment’s protection against unreasonable searches and
seizures is made applicable to the states through the due process clause of
the fourteenth amendment to the United States constitution. See, e.g., Mapp
v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).’’ State v.
Kelly, 313 Conn. 1, 8 n.3, 95 A.3d 1081 (2014).
7
We note that Boyd’s three factor test has been employed in only five
Connecticut cases. In fact, only this case was decided solely on the basis
of the subjective prong of the Katz test. See State v. Houghtaling, supra,
155 Conn. App. 802–808. The courts in all of the other cases either relied
on the objective prong only, or on both the subjective and objective prongs
of the Katz test, to reject the defendants’ claims. See State v. Braswell,
145 Conn. App. 617, 642, 76 A.3d 231 (2013) (no objectively reasonable
expectation of privacy), aff’d, 318 Conn. 815, 123 A.3d 835 (2015); State v.
Pierre, 139 Conn. App. 116, 128 and n.7, 54 A.3d 1060 (2012) (same), aff’d,
311 Conn. 507, 88 A.3d 489 (2014); State v. Lester, Superior Court, judicial
district of Litchfield, Docket No. CR-09-131899 (January 19, 2011) (no subjec-
tive or objective expectation of privacy); State v. Kelly, Superior Court,
judicial district of Ansonia-Milford, Docket No. CR-06-61742 (January 8,
2009) (same).
8
The court also cited State v. Mooney, 218 Conn. 85, 96–97, 588 A.2d 145,
cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991), in support
of its three factor test. State v. Boyd, supra, 57 Conn. App. 185. Mooney,
however, dealt with the objective prong of the Katz test, not the subjective
prong, and specifically disavowed mechanistic tests to determine whether
a defendant had a legitimate expectation of privacy. See State v. Mooney,
supra, 97.
9
Only two cases cite to this standard, namely, United States v. Abreu,
730 F. Supp. 1018, 1026 (D. Colo. 1990), aff’d, 935 F.2d 1130 (10th Cir.), cert.
denied, 502 U.S. 897, 112 S. Ct. 271, 116 L. Ed. 2d 224 (1991), and Boyd.
10
We note that property rights may be the beginning and the end of a
fourth amendment analysis when the police have physically intruded on a
person’s residence. See Florida v. Jardines, U.S. , 133 S. Ct. 1409,
1417, 185 L. Ed. 2d 495 (2013). In the present case, however, the defendant
has presented no evidence that he resided at the property where the
search occurred.
11
We note that, before announcing the three pronged test, the court in
Boyd identified the proper standard for evaluating a defendant’s subjective
expectation of privacy: ‘‘A subjective expectation of privacy rests on finding
conduct that has demonstrated an intention to keep activities or things
private and free from knowing exposure to others’ view.’’ State v. Boyd,
supra, 57 Conn. App. 185. Additionally, the trial court in the present case
did not rely on Boyd’s three factor test but, instead, used a test substantially
similar to the one we reaffirm today. Applying the latter test, the trial court
concluded at the suppression hearing that the defendant did not present
evidence establishing his subjective expectation of privacy.
12
Because the defendant has not presented any facts establishing the
extent of his participation in the marijuana grow operation, we leave this
question for another day.
13
The defendant cites numerous cases, including United States v. Vega,
supra, 221 F.3d 789, and United States v. Washington, 573 F.3d 279 (6th
Cir. 2009), to support his contention that his use of the property to cultivate
marijuana established standing. The defendant misreads these cases. In Vega,
the Fifth Circuit Court of Appeals concluded that the defendant possessed an
expectation of privacy in the property where he resided despite his use of
the property for illegal purposes, not because he used the property for illegal
activities. See United States v. Vega, supra, 797. Likewise, in Washington,
the court held that the defendant’s criminal activity did not eliminate his
reasonable expectation of privacy, which derived from his status as an
overnight guest in the apartment. See United States v. Washington, supra,
283–84. In both of these cases, therefore, independent bases supported the
defendant’s standing; it did not derive from the criminal activity itself. The
defendant in the present case has not established an independent basis for
his claim of standing.
14
The defendant challenges only one of the trial court’s factual findings.
Specifically, he claims that it was unreasonable for the trial court to conclude
that the defendant was fleeing from the police because there is no evidence
to support an inference that the defendant ever saw the police or was
otherwise aware that the vehicles on the property belonged to law enforce-
ment. We need not resolve this issue because we find that, even if the
defendant was not fleeing from the police, the police possessed a reasonable
and articulable suspicion and thus were justified in stopping the defendant.
15
Sergeant Douglas Hall of the task force testified that the officers were
driving undercover vehicles with ‘‘no resemblance to police vehicles.’’
16
The defendant also argues that his statement to the police, made subse-
quent to his arrest, should be suppressed. His arguments are all premised
on his contention that the search of the property and the Terry stop were
illegal, and that the officers lacked probable cause to arrest him. Because
we conclude that (1) the defendant is without standing to challenge the
search, (2) the Terry stop was legal, and (3) the officers had probable cause
to arrest him, we are left with no other circumstances that would support
a finding that his statement was involuntary.