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State v. Terzian

Supreme Court of Rhode Island

June 23, 2017

Boghos Terzian.

         Providence County Superior Court P2/07-4007AG, Robert D. Krause Associate Justice

          For State: Jane M. McSoley Department of Attorney General

          For Defendant: Matthew S. Dawson, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Maureen McKenna Goldberg, Associate Justice

          This case came before the Supreme Court on February 8, 2017, on appeal by the defendant, Boghos Terzian (defendant or Terzian), from judgments of conviction entered in the Superior Court following a jury trial. The defendant was convicted on three counts of assault with a dangerous weapon and one count of carrying a pistol without a license. Before this Court, the defendant contends that the Superior Court justice erred in denying his motion to suppress evidence seized by police during a warrantless search of his home. For the reasons set forth herein, we vacate the judgments of conviction.

         Facts and Travel

         This case turns on whether a warrantless entry into defendant's home, after he was placed in the custody of the Providence police, followed by a search and warrantless seizure of a firearm and a can of pepper spray, pass constitutional scrutiny. In considering whether the search exceeded the bounds of reasonableness, we confine our analysis to the evidence presented at the pretrial suppression hearing in Superior Court, upon which the Superior Court justice based his decision denying the motion to suppress.

          In the late evening hours of July 31, 2007-nearly ten years ago-the Providence police received a 9-1-1 call indicating that gunshots had been fired in the Pumgansett Street area of the city.[1] Patrolman Scott Zambarano (Patrolman Zambarano) responded to the call and was dispatched to the parking lot of a Walgreens located approximately one-half mile from Pumgansett Street. Upon his arrival, Patrolman Zambarano was approached by a man who identified himself as Vito.[2] Vito informed Patrolman Zambarano that defendant, who "lived on Pumgansett Street, " had "shot his back window out and beat up his girlfriend." Patrolman Zambarano, accompanied by his supervisor, Sgt. Roger Aspinall (Sgt. Aspinall), and numerous police officers, in several marked cruisers, responded to defendant's home-a single-family dwelling located at 19 Pumgansett Street. According to the officers, when they arrived at the scene, the smell of gunpowder was still in the air and the officers noticed shards of broken glass scattered around the street. The officers mistakenly went to the house next door. Patrolman Zambarano subsequently knocked on the front door of 19 Pumgansett and was met by defendant, who exited the house to speak to the officers. He appeared to the officers to be "highly intoxicated." The defendant stated that there had been a "rift" in front of the house caused by "Spanish kids from the project[s]." The patrolman stated that, at some point during the conversation, defendant became "uncooperative" and "belligerent." The defendant was seated in a police cruiser until he was identified by Vito as the person with the firearm; he was then placed in handcuffs and returned to the cruiser.

          Patrolman Zambarano testified that Stephanie Kruwell (Stephanie), who identified herself as defendant's fiancée, and her daughter, Samantha Kruwell (Samantha), [3] emerged from the house. Samantha informed Patrolman Zambarano that she had been in a fight with her boyfriend and that someone had been pepper-sprayed during the altercation. Patrolman Zambarano testified that he asked the women whether there were any guns inside the house, and Stephanie initially responded in the negative; but she then volunteered that "there were guns in the house" and that the officers could go inside and search. Patrolman Zambarano did not inquire of defendant or Stephanie as to who lived in the house. The officer testified that he assumed that Stephanie and Samantha lived in the house and did not ask her for permission to enter the home, nor did he ask Samantha where she lived. Significantly, when the Superior Court justice pointedly asked Patrolman Zambarano to state the factors that led him to conclude that Stephanie lived in the house, before he entered, he responded, "Just assumption, I guess, your Honor."

         Patrolman Zambarano testified that the officers "responded inside the house, and Stephanie pointed out where the gun was in the house." He stated that Stephanie "pointed out a bureau, " with clothes "stacked on top of the bureau and [she said that] the gun would be under the clothes on the bureau." Patrolman Zambarano testified that he proceeded to look where she pointed and "found a gun placed in a holster on top of the bureau underneath the clothing." The witness also testified that the officers searched the area where the gun was found and discovered .38-caliber bullets "on a bureau or in a bureau next to the gun" in defendant's bedroom. However, the police did not seize the firearm at this time. Rather, the Bureau of Criminal Identification (BCI) was summoned to 19 Pumgansett Street to photograph the evidence; additional detectives entered the home and took photographs of both the firearm in defendant's bedroom and a can of pepper spray that had been discovered in the trash bin.

         Sergeant Aspinall also testified at the suppression hearing; he said that he was the officer in charge that evening and participated in the search. This witness testified that his first encounter with Stephanie was at the house after defendant had been handcuffed and placed in the cruiser. He testified that, as he approached the house, he encountered a white male subject, later identified as Nathan Spardello, in the front doorway. Because Sgt. Aspinall "didn't like the way [Nathan] was standing above" him on the step, he had Nathan come down the stairs and "passed him on to a patrol officer, " who was nearby, to be patted down. According to Sgt. Aspinall, Stephanie then "responded to the doorway." She stood inside the doorway, while he was "talking to her from the outside." Although the witness recalled that there may have been some pit bulls in the home, this was not "an issue since I was outside of the house." He testified that he "asked [Stephanie] specifically what had gone on this evening in front of her house." Stephanie told the sergeant that white girls were in a fight in front of her house, at which point, the sergeant returned to the cruiser where defendant was situated, to try to clarify what had transpired. At that point, he learned from a radio call that pepper spray may have been used in the incident. According to the sergeant's testimony, he wanted to talk to Stephanie again, so he returned to the doorway and "[o]pen[ed] the screen door to get her attention." According to the sergeant, Stephanie invited him in. The sergeant admitted that he did not ask Stephanie if she lived in the house, but he "assumed" that she lived there. He testified that, during their conversation, Stephanie was taking care of a young child who was "running around the house, and she was trying to take care of that while talking to me." Although he did not have much contact with Samantha, he recalled that she was also watching the child, who was "going in and out of the house."

         Sergeant Aspinall indicated that, when he asked Stephanie if there was pepper spray in the house, her response was no, but that "we could look around." According to the sergeant, at that point in the investigation, they were looking for pepper spray. Sergeant Aspinall testified that he immediately went to the trash bin, opened the lid, and discovered the can of pepper spray on top of the trash. He then confronted Stephanie, stating, "I know there's a firearm in this house. Could you tell me where the gun is?" According to the witness, Stephanie responded, "Yes. I'll go get it for you." Sergeant Aspinall stopped her and told her that "she could point it out to [Patrolman Zambarano] so that he could grab it." Patrolman Zambarano accompanied Stephanie into the bedroom and notified Sgt. Aspinall that there was a firearm in defendant's bedroom. Sergeant Aspinall called in BCI detectives to take photographs. After the BCI detectives entered the home and took photographs of the weapon, it was seized. There was no warrant. Throughout this period of time, defendant-who was the owner of the house and in whose bedroom the gun had been found-was in the back seat of a police cruiser; at no point did the officers ask defendant for consent to enter his home and to search the dwelling; nor did the officers consider utilizing a consent to search form. When Sgt. Aspinall was asked whether he sought permission to search the house or whether Stephanie offered, Sgt. Aspinall responded, "I believe she offered."

         Stephanie testified at the suppression hearing and disputed this sequence of events. She testified that she does not live at 19 Pumgansett Street, but rather is a resident of North Providence. However, on July 31, 2007, at approximately 9 p.m., she was with defendant at his home when suddenly she heard a "ruckus going on in front of the house" and noticed a large light being shined into the windows of the home. The defendant went outside to investigate and, after he did not return for a period of time, Stephanie went outside and found him handcuffed in the back seat of a police cruiser. Stephanie testified that the officers never asked her what happened, nor did they ask her whether there were any firearms in the house, or whether they could enter the home; rather, the officers "tried to walk right in the house." Stephanie testified that she informed the officers that they could not go into the home because there were dogs on the premises and "[t]he dogs bite, " and one of the officers responded, "[p]ut the dogs away before I shoot them." The officers entered the home and began to look around. According to Stephanie, one of the officers looked through the kitchen area, including the trash bin, and found the pepper spray; he then walked toward what she described as the spare bedroom. The officer pointed to the closed door of the spare bedroom and asked what was behind the door. The officer then opened the door, went inside, and looked around. The officer then pointed toward the next closed door, asking what was behind it. Stephanie replied that it "was [defendant's] bedroom." The officer entered defendant's bedroom and "went through a few drawers, laundry basket, [and] moved clothing that was on top of an armoire." Stephanie denied ever leading the policemen into defendant's bedroom and pointing out the location of a firearm. Samantha also recounted a similar series of events-that the officers entered the home without permission and "were searching through [defendant's] room."

         At the close of the hearing, the Superior Court justice concluded that the officers "did not ask for consent" to enter into the home, but that "[t]his is not really a consent-to-search case." Nor was the Superior Court justice of the opinion that he was confronted with an individual clothed with the apparent authority to consent to the entry and search of defendant's home, such that the seminal case of Illinois v. Rodriguez, 497 U.S. 177 (1990) applied to these facts. The Superior Court justice found that "in the first instance[, ]" the police were responding to an emergency situation and, therefore, "were lawfully at the premises." He rejected, as not credible, Stephanie's testimony that "the police barged into the house uninvited." Rather, he concluded that the police believed that Stephanie lived in the house, and "the credible evidence is that she invited them in, beckoned them to come in." The Superior Court justice also declared that the police "had not yet recovered a firearm and knew the firearm had to have been in the house." And, after Sgt. Aspinall found the pepper spray, it was clear that Stephanie had lied to the police, and it was therefore "proper and appropriate" for Sgt. Aspinall to ask "[w]here's the gun?, " "particularly when you have a three-year-old running around the house." The Superior Court justice determined that it was Stephanie who pointed to the area where the gun was found and that "the police would have been foolish and derelict in their duty not to be doing what they were [doing]." Citing this Court's opinion in State v. Portes, 840 A.2d 1131 (R.I. 2004), the Superior Court justice concluded as follows:

"[T]here were circumstances present in the case before me that certainly were exigent to the point where the cops had to find that gun, and knew there was a firearm. And, you have a youngster running around in the house. Shots had recently been fired, the gun was not accounted for and there had been a melee recently just before the cops arrived."

         The Superior Court justice denied defendant's motion to suppress; and, after a jury trial, defendant was convicted on three counts of assault with a dangerous weapon and one count of carrying a pistol without a license.[4] The defendant timely appealed his conviction to this Court.

          Standard of Review

         "When confronted with a decision denying a motion to suppress evidence, the Supreme Court accords deference to a trial justice's findings of historical fact." State v. Casas, 900 A.2d 1120, 1129 (R.I. 2006) (citing State v. Aponte, 800 A.2d 420, 424 (R.I. 2002)). However, when we are tasked with reviewing an alleged violation of a constitutional right, this Court undertakes a de novo review of the record in order to independently determine whether the rights of the accused have been violated. Id.; see also State v. Gonzalez, 136 A.3d 1131, 1145 (R.I. 2016) ("[W]hen this Court reviews 'an alleged violation of a defendant's constitutional rights, this Court must make an independent examination of the record to determine if [the defendant's] rights have been violated.'" (quoting State v. Harrison, 66 A.3d 432, 441 (R.I. 2013))).

         "When called upon to review a trial justice's denial of a motion to suppress on Fourth Amendment grounds, our task is to review the record to determine, based on the totality of the circumstances, whether the evidence sought to be suppressed was obtained in violation of the constitutional prohibition against warrantless searches and seizures." State v. Barkmeyer, 949 A.2d 984, 995 (R.I. 2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).


         Before this Court, defendant argues that the Superior Court justice erred in denying his motion to suppress the incriminating evidence obtained during a warrantless entry and subsequent search of his dwelling. The defendant disputes the existence of exigent circumstances and contends that the warrantless entry and search violated the Fourth Amendment to the United States Constitution and article 1, section 6 of the Rhode Island Constitution.

          Although acknowledging that the Superior Court justice rejected the theory that consent based upon apparent authority justified the search, the state nonetheless argues that we affirm the denial of the motion to suppress on the basis of apparent authority. The state contends that Stephanie had the apparent authority to invite the officers into the residence, and that therefore, this search was in compliance with the Fourth Amendment. In addition, the state argues that the Superior Court justice properly concluded that there were exigent circumstances-an emergency-which justified the warrantless search of defendant's home and seizure of the firearm from his bedroom.

         It has long been recognized that a warrantless entry by members of law enforcement into a person's home, whether for an arrest or a search, is prohibited by the Fourth Amendment, in the absence of one of the specific and carefully delineated exceptions to the warrant requirement. See Portes, 840 A.2d at 1136. The starting point for analyzing whether the evidence seized during the warrantless search of defendant's home is admissible under the Fourth Amendment must begin with a ...

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