State v. Saturno , 322 Conn. 80 ( 2016 )

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STATE OF CONNECTICUT v. DONALD SATURNO
(SC 19602)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued April 5—officially released July 19, 2016
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom were Paul J. Ferencek, senior assistant
state’s attorney, and, on the brief, Richard J. Colangelo,
Jr., state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. 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
one count of manufacturing a bomb in violation of Gen-
eral 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
motion to suppress certain evidence discovered follow-
ing 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
defendant contends that the administrative search war-
rant 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 unlaw-
ful because excessive force was used during its execu-
tion. We disagree with the defendant’s claims and,
accordingly, affirm the judgment of the trial court.
The record reveals the following undisputed facts and
procedural history. The defendant lived in an apartment
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
complaint indicating that the building had several entry
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
department presented an application for an administra-
tive search warrant (application) to a judge of the Supe-
rior Court. The application included an affidavit signed
by two inspectors from the health department, 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 apart-
ment 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 offi-
cers 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 numer-
ous health, fire, and safety violations. Because the appli-
cation 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,
fenced area enclosing a staircase that led to a basement
door. One of the police officers used a tool to break
the lock on the fence, descended the stairs, and knocked
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 con-
ducted 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
contain any explosive material, but did include hex nuts
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
search warrant to search the premises for items related
to bomb making. Pursuant to this criminal search war-
rant, the police officers seized the suspected pipe bomb,
three computers, and other items related to bomb mak-
ing. Additionally, a second criminal search warrant was
issued to search the hard drives of the seized comput-
ers, which resulted in the discovery of child por-
nography.6
The defendant thereafter moved to suppress the
seized items on the ground that an administrative search
warrant does not authorize the entry of police officers
into a private residence and that a criminal search war-
rant 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 rul-
ing, the trial court concluded that the administrative
search warrant in the present case satisfied the proba-
ble cause standard for a targeted administrative inspec-
tion and that the police officers had only a ‘‘passive’’
presence during the execution of the administrative
search warrant.
The defendant then entered pleas of nolo contendere
to one count of manufacturing a bomb in violation of
§ 53-80a and one count of possession of child pornogra-
phy in the first degree in violation of § 53a-196d (a) (1),
conditioned on his right to appeal the denial of his
motion to suppress. 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
quotation marks omitted.) State v. Buckland, 313 Conn.
205, 212, 96 A.3d 1163 (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
factual findings of the trial court. Our review, therefore,
is limited to a determination of whether the trial court’s
legal conclusions—that the administrative search war-
rant was properly issued and that the subsequent search
was properly executed—were legally and logically
correct.
Before addressing the merits of the parties’ claims,
we begin by setting forth certain constitutional provi-
sions relevant to regulatory inspections conducted pur-
suant to city ordinances. ‘‘The fourth amendment to
the United States constitution, which is made applicable
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 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. . . . 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
held that the fourth amendment applies to searches and
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]t is surely anomalous to say that the individual
and his private property are fully protected by the
[f]ourth [a]mendment only when the individual is sus-
pected of criminal behavior. . . . Therefore, adminis-
trative searches of residences must comply with the
fourth amendment.’’8 (Citations omitted; internal quota-
tion marks omitted.) Bozrah v. Chmurynski, 303 Conn.
676, 683–85, 36 A.3d 210 (2012).
I
The defendant first claims that the trial court improp-
erly denied his motion to suppress the evidence that
formed the basis for the charges against him because
the Superior Court judge who issued the administrative
search warrant lacked authority.9 We disagree. A review
of the provisions in chapter 368e of the General Stat-
utes, 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, review his claim pursuant to State v. 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
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Wright, 319 Conn. 684, 688, 127 A.3d 147 (2015);
see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015) (modifying third prong of Golding). Because the
record is adequate for review, and the defendant’s claim
that the issuance of the administrative search warrant
without authority violated his right against unreason-
able searches and seizures is of constitutional magni-
tude, 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
to obey a legal order given by a director of health, 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.’’ (Empha-
sis added.)
The use of the term ‘‘his warrant’’ necessarily implies
that an administrative search warrant was contem-
plated by the legislature as a means of enforcing public
health ordinances. The term ‘‘his warrant’’ is not defined
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
understanding of the term as expressed in a dictionary.’’
(Internal quotation marks omitted.) Studer v. Studer,
320 Conn. 483, 488, 131 A.3d 240 (2016).
The term ‘‘warrant’’ is defined with substantial simi-
larity 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 administra-
tion of justice . . . .’’ See also Merriam Webster’s Colle-
giate Dictionary (11th Ed. 2011) (same). The American
Heritage College Dictionary (4th Ed. 2002) similarly
defines ‘‘warrant’’ as, inter alia, a ‘‘judicial writ authoriz-
ing 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 pub-
lic health.
The defendant nevertheless claims that § 19a-220
does not authorize an administrative search warrant.
The defendant asserts that, unlike General Statutes § 29-
305,10 which the Appellate Court has concluded autho-
rizes the issuance of administrative search warrants for
a suspected violation of a municipal fire code, § 19a-
220 does not specifically reference a right of inspection
or of entry onto private property. See State v. Burke, 23
Conn. App. 528, 529–32, 582 A.2d 915 (1990) (concluding
that General Statutes [Rev. to 1987] § 29-305 was consti-
tutional as applied to inspection for fire code violations
conducted by local fire marshal pursuant to administra-
tive 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 per-
suaded.
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 regula-
tion . . . to enable people to live together in close asso-
ciation, 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.
This court has, therefore, recognized that the promul-
gation of municipal health and safety ordinances is a
proper exercise of the state’s police powers. We con-
clude that § 19a-220 codifies that police power. When
read in conjunction with the aforementioned dictionary
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 ‘‘exe-
cute the same.’’ This explicit grant of authority amounts
to a recognition of the state’s inherent police power to
protect the health and safety of the public and 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
not authorize the issuance of administrative search war-
rants. In fact, an examination of related statutes reveals
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 frus-
trate 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, §§ 146-
5 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
of residential properties for violations of the city’s hous-
ing 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 issu-
ance of a restraining order, rather than an administra-
tive search warrant.13 We disagree.
The defendant’s interpretation is contrary to the plain
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’’ sup-
ports the conclusion that the legislature intended § 19a-
220 to constitute a broad grant of authority to the judges
of the Superior Court, a grant that reasonably includes
the power to issue administrative search warrants as a
means of enforcing local housing ordinances.14 It seems
logical to believe that the legislature intended to autho-
rize city officials to take reasonable steps, such as
obtaining an administrative search warrant, to fulfill
their inspection obligations under the city’s ordinances.
We conclude that the plain language of § 19a-220 autho-
rizes 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 inspec-
tion 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
the Stamford Code of Ordinances and was refused entry
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 con-
tends 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
prompted by individual complaints singling out a partic-
ular 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 safe-
guard citizens from rash and unreasonable interfer-
ences with privacy and from unfounded charges while
simultaneously providing fair leeway for enforcing the
law in the community’s protection.’’ (Internal quotation
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
within the knowledge of the zoning officer and of which
that officer has reasonably trustworthy information that
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,
the inspection in the present case was made in response
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
a higher standard of probable cause than that necessary
to support a criminal search warrant in the context of
administrative searches.
Having concluded that Bozrah controls, we turn to
the defendant’s contention that the health department’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
of probable cause, and mindful of the fact that [r]eason-
able 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 proba-
ble cause finding. . . . We therefore review the issu-
ance 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] war-
rant . . . [if] the affidavit at issue presented a substan-
tial factual basis for the magistrate’s conclusion that
probable cause existed. . . . Finally, [i]n determining
whether the warrant was based [on] probable cause,
we may consider only the information that was actually
before the issuing judge at the time he or she signed
the warrant, and the reasonable inferences to be drawn
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
probable cause to believe that a crime has been commit-
ted 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 reasonable caution in the belief that the action 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 follow-
ing 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
assessed as a two-family residence. As a result of having
received this complaint and having reviewed the city
records, the health department believed that the prop-
erty was being operated in violation of an ordinance
prohibiting the operation of a ‘‘multiple dwelling’’ with-
out an operating license. See Stamford Code of Ordi-
nances, 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
and cited to § 146-5 of the Stamford Code of Ordinances,
which authorizes the health department to conduct
inspections of residential properties to ensure compli-
ance 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, and three different address
numbers on the building. These facts were ‘‘sufficient
to cause a reasonable person to believe that conditions
constituting a violation’’ of the city’s housing code could
be found on the property. Bozrah v. Chmurynski,
supra, 303 Conn. 693. Accordingly, we reject the defen-
dant’s claim that there was no probable cause to support
the issuance of the administrative search warrant.
III
The defendant next contends that his rights under
article first, § 7, of the Connecticut constitution19 were
violated because the administrative search warrant was
improperly issued in an ex parte proceeding. We under-
stand 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
scope of the rights afforded by the Connecticut constitu-
tion in comparison to the federal constitution. ‘‘It is
[well established] that federal constitutional and statu-
tory law establishes a minimum national standard for
the exercise of individual rights and does not inhibit
state governments from affording higher level of protec-
tion for such rights. . . . In determining the contours
of the protections provided by our state constitution,
we employ a multifactor approach that we first adopted
in [State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992)]. The factors that we consider are (1) the
text of the relevant constitutional provisions; (2) related
Connecticut precedents; (3) persuasive federal prece-
dents; (4) persuasive precedents of other state courts;
(5) historical insights into the intent of [the] constitu-
tional [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]
factor is relevant in all cases.’’ (Citations omitted; inter-
nal 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 article first, § 7, affords greater protection than the
fourth amendment to the federal constitution, under
which an administrative search warrant may be granted
during an ex parte proceeding. See Marshall v. Bar-
low’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 consti-
tution closely resembles the language of the fourth
amendment to the federal constitution. . . . That lin-
guistic similarity undermines the defendant’s con-
tention that the state constitution provides a greater
opportunity to challenge the legality of a search than the
federal constitution. The similarity denotes a common
source and, thus, [supports] a common interpretation
of the provisions.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Davis, 283
Conn. 280, 306–307, 929 A.2d 278 (2007). The defendant
does not identify any specific textual differences
between article first, § 7, of the Connecticut constitu-
tion and the fourth amendment to the federal constitu-
tion. 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
of this court and the Appellate Court, we begin by exam-
ining 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
to authorize ex parte judicial orders in [enforcing zoning
regulations] is an issue appropriately addressed by the
General Assembly, rather than this court.’’ Id., 695 n.11.
As previously noted in this opinion, this court con-
cluded 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 foot-
note 15 of this opinion. This court explained: ‘‘[I]f proba-
ble 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. Chmuryn-
ski, supra, 303 Conn. 694. As a result, this court held
that the trial court had properly exercised ‘‘its equitable
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
functions as a search warrant. The result in both cases
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 . . . proba-
ble 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 hear-
ing offers greater safeguards’’ than a search warrant
because it ‘‘is an adversary proceeding that affords both
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 read-
ing 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 defen-
dant 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). In this opinion, we have also determined that § 19a-
220 authorizes the health department to seek an admin-
istrative search warrant in order to enforce city ordi-
nances pertaining to health. See part I of this opinion.
Furthermore, as previously explained in this opinion,
the Appellate Court has concluded that § 29-305 autho-
rizes the issuance of administrative warrants to search
for municipal fire code violations. See Rutka v. Meri-
den, 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 posi-
tion in the present case.
In accordance with the third Geisler factor, we now
examine relevant federal precedents. In Marshall v.
Barlow’s, Inc., supra, 436 U.S. 316–17, the United States
Supreme Court emphasized that, in the absence of con-
sent, a federal agency’s enforcement of its administra-
tive inspection scheme must proceed within the
framework of the fourth amendment warrant proce-
dure. 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 with-
out 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
issuance of ex parte warrants would be constitutional.23
See id., 320 n.15 (noting that regulation expressly per-
mitting 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,
the United States Court of Appeals for the Ninth Circuit
has explained as follows: ‘‘[I]n [administrative] search
warrant cases, a neutral and detached magistrate will
have had the opportunity to examine the reasonable-
ness 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 lat-
ter.’’ (Footnote omitted.) In re Establishment Inspec-
tion 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 Con-
necticut has reasoned as follows: ‘‘Nothing in [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 proba-
ble 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 regu-
lation 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, 70 N.C. App. 681, 688,
321 S.E.2d 440 (1984) (noting that ‘‘[e]x parte warrants
are authorized by the regulations governing OSHA’’ and
‘‘have been approved by most federal courts which have
considered the question’’), appeal dismissed, 313 N.C.
327, 329 S.E.2d 385 (1985); Seattle v. McCready, 124
Wn. 2d 300, 311, 877 P.2d 686 (1994) (en banc) (rejecting
landlords’ contention that administrative search war-
rant was invalid because it was issued ex parte); Cran-
well v. Mesec, 77 Wn. App. 90, 108 n.18, 890 P.2d 491(rejecting property owner’s ‘‘contention that adminis-
trative 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 occu-
pant 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
the defendant greater protection than the federal consti-
tution 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 con-
stitution, 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 fac-
tor does not support the defendant’s claim.
Finally, with respect to the sixth Geisler factor,
namely, contemporary economic or sociological under-
standings, the defendant relies upon a treatise authored
by a law school professor, Wayne R. LaFave. This trea-
tise comments that Camara ‘‘could have better pro-
tected 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
by this reasoning and, instead, conclude that the imposi-
tion of an adversarial hearing requirement under the
circumstances of the present case would be detrimental
to the public interest.
First, in Bozrah v. Chmurynski, supra, 303 Conn. 682,
we concluded that ‘‘notwithstanding the trial court’s
characterization of its order as a temporary injunction,’’
the trial court’s order that the municipality could search
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 pur-
pose of protecting the health and welfare of the public.25
Second, we disagree with the defendant’s character-
ization of the violation at issue in this case as ‘‘a rela-
tively 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
cause to believe that an illegal apartment could be found
on the premises. As a result, that judge could have
reasonably concluded that the health department would
find more serious violations on the property, and issued
a warrant that authorized a search for fire safety, hous-
ing, 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 serious fire 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 pro-
vide heat in unheated apartment led to children’s injur-
ies when water from kettle spilled on them).
Furthermore, illegal apartments may not have an ade-
quate 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 exi-
gent circumstances and emergency exceptions to fourth
amendment warrant requirement).
Lastly, we emphasize that, in the present case, the
health department sent two notices of inspection to the
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 pro-
cess. Rather, the health department made reasonable
efforts to place the property owner on notice of its need
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. Accord-
ingly, we reject this claim.
IV
Lastly, the defendant claims that his rights under the
fourth amendment to the United States constitution
were violated because one of the police officers accom-
panying 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 reason-
ableness. 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 war-
rants, like criminal warrants, can be executed by means
of reasonable force’’ [emphasis added]). It is well estab-
lished that ‘‘[e]xcessive or unnecessary destruction of
property in the course of a search may violate the
[f]ourth [a]mendment . . . .’’ United States v. Rami-
rez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191(1998). The United States Supreme Court has recog-
nized, however, that ‘‘officers executing search war-
rants 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 car-
rying out a search is not favored, but it does not neces-
sarily violate the [f]ourth [a]mendment; the standard is
reasonableness . . . . Destruction of property that is
not reasonably necessary to effectively execute a search
warrant may violate the [f]ourth [a]mendment.’’ [Cita-
tions omitted; internal quotation marks omitted.]). In
determining whether an officer’s actions were reason-
able during a particular search, a court must balance
‘‘the nature and quality of the intrusion on the individu-
al’s [f]ourth [a]mendment interests against the counter-
vailing 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
officials had a legitimate interest in inspecting the prop-
erty to determine whether there were any illegal apart-
ments. See part III of this opinion. In the present case,
after making unsuccessful attempts to obtain the prop-
erty owner’s consent to inspect, the health department
obtained a valid administrative search warrant sup-
ported 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 offi-
cials could determine whether there was an illegal
apartment in the basement, as alleged in the application,
was to break the lock on the fence enclosing the stair-
case 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
to the basement from the interior of the building. Conse-
quently, they searched for an exterior entrance to the
basement and located the aforementioned fenced area
in the backyard. Thus, the police officer had good rea-
son to damage the lock, as this action was necessary
to carry out the search effectively.
Second, the intrusion on the defendant’s fourth
amendment rights was minimal. The police officer 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
informed the defendant about the administrative search
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,
weighing the purpose of the search—to inspect for con-
ditions that may potentially endanger the inhabitants
of the building—against the extent of the property dam-
age—a broken fence lock—we conclude that the man-
ner 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 sei-
zures.’ ’’ (Footnote omitted.) Dalia v. United States,
supra, 441 U.S. 257.
The defendant’s final contention is that the adminis-
trative search should have ended when the city officials
found an illegal apartment on the upper floors of the
building. We are not persuaded. The application
requested the authority to search the premises ‘‘to posi-
tively determine how many units [were] in the dwelling’’
and specifically alleged that there was a ‘‘possible illegal
[basement].’’ Furthermore, it was reasonable for the
city officials to believe, upon discovery of an illegal
apartment on the upper floors of the building, that there
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 com-
ported with the fourth amendment’s overarching
requirement of reasonableness.
Therefore, we conclude that the trial court properly
denied the defendant’s motion to suppress the evidence
seized as a result of the search conducted pursuant to
the administrative search warrant.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD, ESPINOSA and ROBINSON, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh was
not present when the case was argued before the court, he has read the
briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
1
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere condi-
tional on the right to take an appeal from the court’s denial of the defendant’s
motion to suppress . . . the defendant after the imposition of sentence may
file an appeal within the time prescribed by law provided a trial court has
determined that a ruling on such motion to suppress . . . would be disposi-
tive of the case. The issue to be considered in such an appeal shall be
limited to whether it was proper for the court to have denied the motion
to suppress . . . .’’
We note that, while the trial court accepted the defendant’s pleas of nolo
contendere, it did not determine whether its ruling on the defendant’s motion
to suppress was dispositive of the case as contemplated by § 54-94a. In
order to cure this technical defect, this court issued an order, sua sponte,
requiring the trial court to consider that issue. The trial court subsequently
determined that its ruling on the motion to suppress was dispositive, thereby
satisfying the requirements of § 54-94a. See State v. Janulawicz, 95 Conn.
App. 569, 573 n.2, 897 A.2d 689 (2006).
2
We note that some of the statutes and municipal regulations at issue in
the present case refer to the director of the health department. See, e.g.,
General Statutes § 19a-207. In the interest of simplicity, all references to
the health department hereinafter include the director.
3
Section 146-34 (A) of the Stamford Code of Ordinances provides in
relevant part: ‘‘No person shall operate a multiple dwelling . . . unless he
holds a valid, current, unrevoked operating license issued by the Director
of Health . . . .’’
‘‘Multiple dwelling’’ is defined as ‘‘[a]ny dwelling containing three . . .
or more dwelling units.’’ Stamford Code of Ordinances, c. 146, art. II, § 146-
1 (B). ‘‘Dwelling unit’’ is, in turn, defined as ‘‘[a]ny room or group of rooms
located within a dwelling and forming a single habitable unit with facilities
which are used, arranged or designed to be occupied for living, sleeping,
cooking and eating.’’ Id.
4
In addition to Beauchette and Whynes, these officials included a land
use inspector, a zoning enforcement officer, and an assistant fire marshal.
In the interest of simplicity, we hereinafter refer to these individuals collec-
tively as the city officials.
5
The records of the city assessor indicated that the property was owned
by William Hertle Properties, LLC, in the care of Debra Saturno-Galang.
Beauchette testified at the suppression hearing that the defendant was one
of the lessees of the property at the time of the search.
6
We note that the validity of the two criminal search warrants is not at
issue in this appeal. The question of whether the evidence seized from the
defendant’s apartment should be suppressed turns solely upon the validity
of the administrative search.
7
The defendant subsequently appealed from the trial court’s ruling on his
motion to suppress pursuant to § 54-94a, and we transferred the appeal to
this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
8
We note that neither party disputes that the inspection of the defendant’s
apartment for violations of the city’s housing code constitutes a ‘‘search’’
within the meaning of the fourth amendment. Nor does either party contend
that any of the well established exceptions to the warrant requirement
applies to the inspection at issue in the present case.
9
The state relies on common-law authority for the issuance of the adminis-
trative search warrant and, at oral argument before this court, seemed to
concede the absence of statutory authority. We, however, are not bound by
this concession. See LeConche v. Elligers, 215 Conn. 701, 708 n.7, 579 A.2d
1 (1990).
10
General Statutes § 29-305 provides in relevant part: ‘‘(a) Each local fire
marshal and the State Fire Marshal, for the purpose of satisfying themselves
that all pertinent statutes and regulations are complied with, may inspect
in the interests of public safety all buildings, facilities, processes, equipment,
systems and other areas regulated by the Fire Safety Code and the State
Fire Prevention Code within their respective jurisdictions. . . .
‘‘(d) Upon receipt by the local fire marshal of information from an authen-
tic source that any other building or facility within the local fire marshal’s
jurisdiction is hazardous to life safety from fire, the local fire marshal shall
inspect such building or facility. In each case in which the local fire marshal
conducts an inspection, the local fire marshal shall be satisfied that all
pertinent statutes and regulations are complied with, and shall keep a record
of such investigations. Such local fire marshal or a designee shall have the
right of entry at all reasonable hours into or upon any premises within the
local fire marshal’s jurisdiction for the performance of the fire marshal’s
duties except that occupied dwellings and habitations, exclusive of common
use passageways and rooms in tenement houses, hotels and rooming houses,
may only be entered for inspections between the hours of 9:00 a.m. and
5:00 p.m., except in the event of any emergency requiring immediate attention
for life safety, or in the interests of public safety. . . .’’ (Emphasis added.)
11
General Statutes § 19a-207 provides in relevant part: ‘‘The local director
of health or his authorized agent or the board of health shall enforce or
assist in the enforcement of the Public Health Code and such regulations
as may be adopted by the Commissioner of Public Health. Towns, cities
and boroughs may retain the power to adopt, by ordinance, sanitary rules
and regulations, but no such rule or regulation shall be inconsistent with
the Public Health Code as adopted by said commissioner. . . .’’ (Emphasis
added.) Furthermore, General Statutes § 7-148 (c) (7) (A) (i) authorizes
municipalities to ‘‘[m]ake rules relating to the maintenance of safe and
sanitary housing . . . .’’
12
Section 146-5 of the Stamford Code of Ordinances provides in relevant
part: ‘‘The Director of Health is hereby authorized and directed to make
periodic inspections by and with the consent of the owner, occupant or
person in charge, to determine the condition of dwellings . . . located
within [the] city, for the purpose of determining compliance with the provi-
sions of this chapter. . . .’’ Despite the fact that § 146-5 authorizes ‘‘periodic
inspections,’’ Beauchette testified at the suppression hearing that most of the
health department’s inspections are conducted in response to a complaint, as
was the case here.
Furthermore, although we note that the defendant correctly states that
there is no state statute that specifically sets forth the requirements for
the issuance of an administrative search warrant, the city, pursuant to its
authority under General Statutes § 19a-207, adopted a warrant procedure
that carefully limits the health department’s inspection authority in time,
place, and scope. See Stamford Code of Ordinances, c. 146, art. I, §§ 146-5
and 146-6. The health department, with the consent of the property owner
or occupant, is ‘‘authorized to enter, examine and survey between the hours
of 8:30 a.m. and 4:30 p.m.’’ or at another agreed upon time. Stamford Code
of Ordinances, c. 146, art. I, § 146-5. Ordinances further establish a notice
procedure whereby the health department is required, whenever practicable,
‘‘to provide reasonable advance notice’’ to the owners or occupants of the
residential building. Id. ‘‘Such inspection, examination or survey shall not
have for its purpose the undue harassment of said owner or occupant, and
such inspection, examination or survey shall be made so as to cause the
least amount of inconvenience to said owner or occupant, consistent with
an efficient performance of the [department’s] duties . . . .’’ Id. If the owner
or occupant fails to permit the health department access to the building on
the scheduled date for the purpose of conducting an inspection in accor-
dance with the standards set forth in § 146-5 of the Stamford Code of
Ordinances, the health department ‘‘shall not so enter until [it] presents a
duly issued search warrant’’ particularly describing the place to be searched.
Id., § 146-6 (A).
13
The defendant also contends that an application for a search warrant
must set forth the proper statutory authority under which the Superior
Court judge may issue the warrant. In making this argument, the defendant
highlights the fact that the application in the present case improperly refer-
enced § 54-33a, which authorizes the issuance of criminal search warrants
but does not authorize a search warrant for a suspected civil offense. The
defendant cites no legal authority and provides no legal analysis in support
of this claim and, therefore, we decline to review it. See Knapp v. Knapp,
270 Conn. 815, 823 n.8, 856 A.2d 358 (2004) (‘‘We consistently have held
that [a]nalysis, rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue properly. . . .
[A]ssignments of error which are merely mentioned but not briefed beyond
a statement of the claim will be deemed abandoned and will not be reviewed
by this court. . . . Where the parties cite no law and provide no analysis
of their claims, we do not review such claims.’’ [Internal quotation marks
omitted.]).
14
We note that this court has previously explained that § 19a-220 autho-
rizes a judge of the Superior Court, upon a showing of probable cause, to
issue a warrant for the arrest of an individual who violated an order of the
health district to repair a septic system that was leaking raw sewage. See
Brooks v. Sweeney, 299 Conn. 196, 212, 9 A.3d 347 (2010).
15
We note that this court concluded in Bozrah v. Chmurynski, supra, 303
Conn. 683, that ‘‘an injunction is an appropriate procedural vehicle through
which a municipality may seek judicial authorization to conduct a zoning
inspection’’ because there was no adequate remedy at law. This court noted
that ‘‘if a search for zoning violations [pursuant to General Statutes § 8-12]
does not anticipate the discovery of evidence of a criminal offense, § 54-
33a does not appear to apply and no other alternative remedy exists.’’ Id.,
695. Section 8-12 does not contain language similar to § 19a-220 pertaining
to the issuance of a ‘‘warrant.’’ Thus, we conclude that, unlike in the context
of zoning inspections pursuant to § 8-12, the health department has an
adequate remedy at law to enforce the city’s ordinances.
16
The defendant also claims that the administrative search warrant vio-
lated the fourth amendment’s ‘‘oath or affirmation’’ requirement because
the application was sworn to and signed before a notary public, rather than
before the issuing judge. We disagree.
The United States constitution does not ‘‘specif[y] a particular procedure
for evidencing whether probable cause has been supported by oath or
affirmation,’’ but rather ‘‘simply require[s] that probable cause, in fact, be
so supported.’’ State v. Colon, 230 Conn. 24, 29, 644 A.2d 877 (1994). Further-
more, the defendant concedes that there is no statutory authority imposing
such a requirement in the context of administrative searches. We, thus,
conclude that the fourth amendment’s ‘‘oath or affirmation’’ requirement
was satisfied when Beauchette and Whynes signed the application in the
presence of a notary public. See also United States v. Tortorello, 342 F. Supp.
1029, 1035 (S.D.N.Y. 1972) (‘‘The requirement of an ‘[o]ath or [a]ffirmation’
attesting to the probable cause does not include a requirement that it be
administered by or in the presence of the issuing magistrate. . . . The
requirement in the law of the oath of a responsible public officer to the
showing of the probable cause was to make the affiant legally responsible
for any statements of fact relied upon by the [j]udge who issues the warrant.
. . . Clearly, this objective is accomplished when the affidavit is sworn to
before an office notary public as well as when administered by or in the
presence of the magistrate.’’ [Citations omitted.]), aff’d, 480 F.2d 764 (2d
Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973).
17
‘‘[T]he Supreme Court held in Camara . . . that inspections that are
part of a general administrative plan for the enforcement of a statutory
scheme are reasonable within the meaning of the fourth amendment if
reasonable legislative or administrative standards for conducting an area
inspection demonstrate a valid public interest. . . . Particularized suspicion
for choosing an individual residence within the area searched is unnecessary.
. . . In other words, probable cause to inspect a particular location may
be based on a showing that the premises was chosen pursuant to a general
administrative plan for the enforcement of a statute derived from neutral
sources.’’ (Citations omitted; emphasis in original; internal quotation marks
omitted.) Bozrah v. Chmurynski, supra, 303 Conn. 687.
18
The defendant contends that the trial court improperly considered evi-
dence beyond that in the application. Our review of the transcript of the
trial court’s ruling on the defendant’s motion reveals that the trial court did
not specify what facts it was relying on when it determined the existence
of probable cause and there is no indication that the trial court relied on
facts outside of the application. Furthermore, it is evident that the trial
court was focused upon the issue of the police presence during the execution
of the warrant, rather than on the existence of probable cause. We limit
our review to the four corners of the application and conclude that it contains
sufficient facts to support a finding of probable cause.
19
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.’’
20
The defendant concedes that his claim is unpreserved, but again seeks
Golding review. See State v. Golding, supra, 213 Conn. 239–40. Because the
record is adequate for review and the defendant’s claim is of constitutional
magnitude, we agree that the defendant is entitled to review. For the reasons
we discuss subsequently in this opinion, however, we conclude that the
defendant’s claim fails to satisfy the third prong of Golding because the
alleged constitutional violation does not exist and the record does not
establish that the trial court’s actions deprived him of a fair trial. Id.21
We note that, although this court in Bozrah v. Chmurynski, supra, 303
Conn. 683, 693, held that ‘‘an injunction is an appropriate procedural vehicle
through which a municipality may seek judicial authorization to conduct a
zoning inspection,’’ it reversed the judgment of the trial court granting the
injunction because the trial court did not apply the proper standard of
probable cause in issuing its order. See part II of this opinion.
22
As the defendant highlights in his brief, we stated in Bozrah v. Chmuryn-
ski, supra, 303 Conn. 697, ‘‘that the conditions that constitute zoning viola-
tions are, in general, continuing conditions, thereby rendering an immediate
ex parte hearing unnecessary.’’ This statement merely indicates that the
issuance of an ex parte warrant was not necessary under the circumstances
before the court. Contrary to the defendant’s contention, it does not suggest
that the issuance of an administrative search warrant in an ex parte proceed-
ing would be improper in other contexts.
23
The court rejected the federal agency’s argument that the efficient
administration of OSHA would be impeded by the advance notice and delay
that would be associated with the imposition of a warrant requirement in
cases where an inspector has been denied entry. Marshall v. Barlow’s, Inc.,
supra, 436 U.S. 316–20. Notably, the court further stated that it was not
‘‘immediately apparent why the advantages of surprise would be lost if,
after being refused entry, procedures were available for the [federal agency]
to seek an ex parte warrant . . . without further notice to the establishment
being inspected.’’ Id., 319–20.
Since the United States Supreme Court’s decision in Barlow’s, Inc., the
regulations promulgated under OSHA have been amended to expressly
authorize an ex parte warrant procedure. See 29 C.F.R. § 1903.4 (d) (defining
‘‘compulsory process’’ to mean ‘‘the institution of any appropriate action,
including ex parte application for an inspection warrant or its equivalent’’).
The regulation expressly provides that ‘‘[e]x parte inspection warrants shall
be the preferred form of compulsory process in all circumstances where
compulsory process is relied upon to seek entry to a workplace under this
section.’’ Id.24
The defendant correctly notes that federal cases upholding the issuance
of ex parte administrative warrants arise primarily in the context of OSHA
inspections. See, e.g., Trinity Marine Products, Inc. v. Chao, 512 F.3d 198,
208 (5th Cir. 2007); Donovan v. Red Star Marine Services, Inc., 739 F.2d
774, 784 (2d Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1355, 84 L.
Ed. 2d 377 (1985); Rockford Drop Forge Co. v. Donovan, 672 F.2d 626, 629
(7th Cir. 1982); Matter of Keokuk Steel Castings, 638 F.2d 42, 45 (8th Cir.
1981); Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 989–90 (9th Cir.
1980). The defendant claims that the present case is distinguishable from
those involving OSHA inspections because an OSHA violation could be
concealed if the subject of the search received notice. Specifically, the
defendant contends that evidence of municipal housing code violations is
either of a continuing nature that cannot be concealed or could only be
concealed by the desired remedial action, thus rendering an immediate
ex parte hearing unnecessary. The defendant asserts, therefore, that the
efficiency of inspections for violations of the city’s housing code would not
be impeded by the imposition of a requirement that an adversarial hearing
be conducted in the event a property owner or occupant denies consent.
We consider the situation presented in the present case to be similar in
context to cases involving OSHA inspections. In both situations officials
are authorized by statute to inspect private property for regulatory violations.
Furthermore, we are not persuaded by the defendant’s argument distinguish-
ing OSHA violations from city housing code violations. Contrary to the
defendant’s contention, not all evidence of OSHA violations may be easily
concealed. See Marshall v. Barlow’s, Inc., supra, 436 U.S. 316 (noting that
‘‘dangerous conditions outlawed by [OSHA] include structural defects that
cannot be quickly hidden or remedied’’); see, e.g., 29 C.F.R. §§ 1910.36(design and construction requirements for exit routes); 29 C.F.R. § 1910.23(guarding floor and wall openings); 29 C.F.R. §§ 1910.160 (fixed extinguish-
ing systems). Therefore, we find federal cases interpreting the OSHA inspec-
tion provisions to be a relevant source of persuasive authority.
25
We further note that the fact that General Statutes § 51-286b authorizes
the initiation of criminal prosecutions for ‘‘any . . . municipal housing or
health law’’ bolsters our understanding that § 19a-220 authorizes the issuance
of ex parte administrative search warrants to expedite the resolution of
such matters. See General Statutes § 51-286b (‘‘[t]he assistant state’s attorney
or deputy assistant state’s attorney assigned to handle housing matters may
initiate prosecutions for violations of any state or municipal housing or
health law, code or ordinance either upon the affidavit of an individual
complainant or upon complaint from a state or municipal agency responsible
for the enforcement of any law, code or ordinance concerning housing
matters’’); see also General Statutes § 47a-68 (6) (defining housing matters
as ‘‘[a]ll actions involving one or more violations of any state or municipal
health, housing, building, electrical, plumbing, fire or sanitation code, includ-
ing violations occurring in commercial properties, or of any other statute,
ordinance or regulation concerned with the health, safety or welfare of any
occupant of any housing’’).
26
We note that, while there is no evidence that the defendant himself
received notice of the scheduled inspections, the application specifically
identified the defendant as the individual who refused to permit entry to
the health department on the first scheduled inspection date. Therefore, the
defendant was aware of at least one of the health department’s attempts
to inspect.
27
The defendant has also alleged violations of state constitutional rights
in regard to his claim of excessive force, but he has failed to provide an
independent analysis of them as required by State v. Geisler, supra, 222
Conn. 684–86. Contrary to the defendant’s contention, his analysis under
Geisler with respect to his previous claim that the issuance of the administra-
tive search warrant in an ex parte proceeding was constitutionally improper
does not satisfy this requirement. See part III of this opinion. ‘‘We have
repeatedly apprised litigants that we will not entertain a state constitutional
claim unless the defendant has provided an independent analysis under the
particular provisions of the state constitution at issue. . . . Without a sepa-
rately briefed and analyzed state constitutional claim, we deem abandoned
the defendant’s claim.’’ (Internal quotation marks omitted.) State v. Santos,
318 Conn. 412, 414 n.1, 121 A.3d 697 (2015). Accordingly, we analyze the
defendant’s excessive force claim under the federal constitution only.
28
The state contends that although the defendant raised this claim during
oral argument on his motion to suppress evidence, the trial court did not
explicitly rule on it and, thus, the defendant’s claim is unpreserved. See
Practice Book § 60-5. We disagree. The trial court denied the defendant’s
motion to suppress and concluded that the police presence during the
execution of the administrative search warrant was ‘‘passive’’ and ‘‘not
intrusive in any way.’’ We can infer from our review of the transcript of the
trial court’s ruling on the defendant’s motion to suppress that all claims
presented by the defendant in support of his motion were denied. Thus, we
conclude that the defendant’s claim was adequately preserved and, accord-
ingly, we address it.