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STATE OF CONNECTICUT v. YASHIRA A. ESPINO

(SC 20428)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn, Ecker and Vertefeuille, Js.*

Syllabus

Convicted, on a conditional plea of nolo contendere, of the crime of possession of a controlled substance with intent to sell, the defendant appealed,

claiming that the trial court improperly denied her motion to suppress

certain evidence that was seized after the police detained her, without

a warrant, in a vehicle in the parking lot of the apartment building in

which she lived while executing an unrelated search warrant on an

apartment in that building. More specifically, the defendant claimed that

the trial court incorrectly had concluded that the warrantless seizure

fell within the exception to the fourth amendment warrant requirement

that authorizes law enforcement officers executing a search warrant to

detain the occupants of the premises while a proper search is conducted

because, inter alia, she was not in the immediate vicinity of the premises

to be searched within the meaning of that exception. Held that the

exception to the warrant requirement on which the trial court relied in

denying the defendant’s motion to suppress was inapplicable, as the

defendant was not within the immediate vicinity of the premises to be

searched when she was detained by the police, and, accordingly, her

fourth amendment rights were violated, and the evidence obtained as

a result of the warrantless seizure should have been suppressed; because

the facts of this case and the issue presented on appeal were identical

to those in the companion case of State v. Rolon, (337 Conn. ), this

court’s reasoning in Rolon controlled the present case.

Argued June 5—officially released November 13, 2020**

Procedural History

Substitute information charging the defendant with

the crimes of possession of a controlled substance with

intent to sell, possession of a controlled substance, and

operation of a drug factory, brought to the Superior

Court in the judicial district of Hartford, where the

court, Gold, J., denied the defendant’s motion to suppress certain evidence; thereafter, the defendant was

presented to the court, Baldini, J., on a conditional

plea of nolo contendere to the charge of possession

with intent to sell; judgment of guilty in accordance

with the plea; subsequently, the state entered a nolle

prosequi as to the charges of possession of a controlled

substance and operation of a drug factory, and the

defendant appealed. Reversed; further proceedings.

Mark Rademacher, assistant public defender, for the

appellant (defendant).

Sarah Hanna, senior assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
Opinion

ECKER, J. This is a companion case to State v. Rolon,

337 Conn. , A.3d (2020), which we release

today. The defendant, Yashira A. Espino, appeals from

the judgment of conviction rendered by the trial court

following her conditional plea of nolo contendere to

the charge of possession of a controlled substance with

intent to sell in violation of General Statutes § 21a277 (a).1 On appeal, the defendant claims that she was

illegally detained, along with her codefendant, Richard

Rolon,2

in a car in the parking lot of a multiunit apartment building in violation of the fourth amendment to

the United States constitution because the police lacked

either a warrant or a reasonable, articulable suspicion

of criminal activity. She contends that the trial court

improperly denied her motion to suppress evidence

under these circumstances.3 The issue in this case, as

in the companion case, is whether the defendant’s

detention was permissible under the exception to the

fourth amendment’s warrant requirement articulated in

Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct.

2587, 69 L. Ed. 2d 340 (1981), and Bailey v. United

States, 568 U.S. 186, 193, 133 S. Ct. 1031, 185 L. Ed.

2d 19 (2013) (Summers exception), which permits the

police to detain ‘‘occupants’’ within the ‘‘immediate

vicinity’’ of a premises subject to a search warrant.

For the reasons explained in Rolon, we agree with the

defendant that the Summers exception is inapplicable

because she was not within the ‘‘immediate vicinity’’

of the apartment to be searched and, therefore, reverse

the trial court’s judgment.

The facts in the present case are identical to those

set forth in detail in our decision in State v. Rolon,

supra, 337 Conn. . It would serve no useful purpose

here to repeat those facts or the attendant legal analysis.

For the reasons explained in State v. Rolon, supra, ,

we conclude in the present case that the Summers

exception is inapplicable because the state failed to

adduce sufficient evidence to establish that Rolon and

the defendant were in the ‘‘immediate vicinity’’ of the

premises subject to a search warrant. See Bailey v.

United States, supra, 568 U.S. 195, 201 (declining to

extend Summers exception to occupants outside immediate vicinity of premises subject to search warrant,

reasoning that occupants ‘‘stopped or apprehended

away from the premises where the search is being conducted’’ do not ‘‘[pose] a real threat to the safe and

efficient execution of [the] search warrant’’). Because

the state does not claim that the warrantless seizure of

the defendant was justified by some other exception

to the fourth amendment’s warrant requirement, we are

compelled to conclude that the defendant’s rights under

the fourth amendment were violated and the evidence

obtained as a result of the warrantless seizure should

have been suppressed. See id., 202 (warrantless seizure
outside ‘‘the immediate vicinity of a premises to be

searched . . . must be justified by some . . . rationale’’ other than Summers exception).

The judgment is reversed and the case is remanded

with direction to grant the defendant’s motion to suppress.

In this opinion the other justices concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

** November 13, 2020, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 The defendant originally was charged with possession of a controlled

substance with intent to sell in violation of § 21a-277 (a), possession of a

controlled substance or more than one-half ounce of marijuana in violation

of General Statutes § 21a-279 (a) (1), and operation of a drug factory in

violation of § 21a-277 (c). Following the defendant’s conditional guilty plea

to possession of a controlled substance with intent to sell, the state entered

a nolle prosequi as to each of the remaining charges. The trial court sentenced

the defendant to seven years of imprisonment, execution suspended, and

three years of probation.

2 The defendant and Rolon both moved to suppress evidence obtained as

a consequence of the allegedly unconstitutional seizure. See footnote 3 of

this opinion. The trial court held a joint evidentiary hearing on the motions

to suppress and issued a single written memorandum of decision, in which

it denied both motions under Michigan v. Summers, 452 U.S. 692, 705, 101

S. Ct. 2587, 69 L. Ed. 2d 340 (1981), and Bailey v. United States, 568 U.S.

186, 193, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013). As the state acknowledges

in its brief, because the defendant and Rolon were detained simultaneously

in Rolon’s motor vehicle, and ‘‘there was simply no practical way that

law enforcement officers could detain Rolon without also detaining the

defendant,’’ there is no ‘‘distinction between the [warrantless seizure of the]

defendant and Rolon’’ under Summers and Bailey.

3 During the warrantless detention, the police discovered a marijuana

cigarette and narcotics packaging materials in plain view in Rolon’s motor

vehicle. As a result, the police obtained a search warrant for the defendant’s

apartment, where they found narcotics, narcotics packaging materials,

approximately five ounces of marijuana, and more than $20,000 in cash.

The defendant moved to suppress the foregoing evidence as the fruit of the

allegedly unconstitutional detention. See, e.g., State v. Jevarjian, 307 Conn.

559, 565 n.5, 58 A.3d 243 (2012) (‘‘fruit of the poisonous tree doctrine’’ is

‘‘an extension of the general exclusionary rule that specifically applies to

evidence derived indirectly from an unlawful search’’ or seizure (internal

quotation marks omitted)).