State of Connecticut v. John Santiago, 224 Conn. 494

F. X. Hennessy, J. The principal issue in this case is whether the defendant’s warrantless arrest in the doorway to his home, which is accessed by crossing a porch, violated the fourth amendment to the United States constitution. The state charged the defendant, John Santiago, by substitute information with threatening in violation of General Statutes § 53a-62, possession of narcotics in violation of General Statutes § 21a-279 (a), and possession of drug paraphernalia in violation of General Statutes § 21a-267.

The defendant moved to suppress the evidence seized at the time of his arrest arguing that his arrest was illegal under the fourth amendment. After a hearing, the trial court, Koletsky, J., denied the defendant’s motion. The defendant thereafter entered a plea of nolo contendere to the second and third counts conditioned on his right to appeal the trial court’s ruling. He subsequently was sentenced to a four year term of imprisonment. His sentence was suspended and he was placed on probation for four years with special conditions.

The defendant appealed to the Appellate Court, which reversed the judgment of the trial court. State v. Santiago, 26 Conn. App. 481, 602 A.2d 40 (1992). We thereafter granted the state’s petition for certification to appeal. We reverse the judgment of the Appellate Court. The following facts are not disputed. On March 25, 1989, in response to a report that the defendant had threatened a neighbor with a handgun, a New London police officer went to the housing complex where the defendant resided. After interviewing a neighbor and another person, the officer located the defendant’s apartment and knocked on the door.

The defendant opened the door, stood directly in the doorway and spoke with the officer. The defendant denied threatening the neighbor and refused to allow the officer to search his apartment. The officer then asked the defendant to remain where he was while the officer went to consult with his supervisor. After weighing the witnesses’ and the defendant’s accounts of the incident, the police officer decided to arrest the defendant for threatening. When the officer returned to the defendant’s apartment, the door was still wide open and the defendant was still standing in the doorway.

The officer arrested the defendant for threatening. During a subsequent search of the defendant’s person, the police recovered a pipe containing the residue of narcotics. The defendant moved to suppress the evidence seized at the time of his arrest claiming that it was removed from his person after he had been arrested in violation of his rights under the fourth amendment. The trial court, concluding that the arrest was proper because it was based on speedy information and probable cause, denied the defendant’s motion.

The defendant appealed to the Appellate Court, which emphasized that the area in front of the defendant’s apartment was a porch, and concluded that as such it “is intrinsically associated with both the sanctity of the home and the privacies of life.” State v. Santiago, supra, 489. The Appellate Court held, therefore, that the porch was within the zone of fourth amendment protection and accordingly reversed the judgment of the trial court. Id., 490.

We granted certification limited to three issues: (1) “Was the Appellate Court correct in not ruling that a defendant standing in the doorway of his home is in a public place, and may be arrested without a warrant?” (2) “Was the Appellate Court correct in holding that a porch is a part of the home, and is subject to fourth amendment protections?” (3) “Was the Appellate Court incorrect in reversing the trial court’s factual finding that the defendant was in his doorway and instead engaged in fact finding to determine that the defendant was on a porch which was an extension of his home?” State v.

Santiago, 221 Conn. 920, 608 A.2d 686 (1992). We disagree with the Appellate Court’s resolution of the first and second issues and reverse its judgment. I The state first contends that the Appellate Court improperly ruled that, because the defendant was taken into custody while standing in the doorway of his home, he was illegally arrested. We agree. General Statutes § 54-lf (

a) authorizes police officers to arrest an individual without a warrant, “for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . .” Additionally, a warrantless misdemeanor arrest must be supported by probable cause. State v. Elliot, 153 Conn. 147, 152-53, 215 A.2d 108 (1965); State v. Kaplan, 20 Conn. App. 183, 186, 565 A.2d 11 (1989).

Even where there is probable cause to arrest a suspect on the speedy information of others, however, “the fourth amendment prohibits the police from making a warrantless . . . entry into a suspect’s home in order to make a routine . . . misdemeanor arrest.” State v. Brosnan, 221 Conn. 788, 795, 608 A.2d 49 (1992), citing Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), and State v. Gallagher, 191 Conn. 433, 437 n.4, 465 A.2d 323 (1983). In Pay-tan, the United States Supreme Court stated that “[t]he Fourth Amendment protects the individual’s privacy in a variety of settings.

In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home. . . . In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, supra, 589-90. It is undisputed in this case that the police had probable cause, based on speedy information, to arrest the defendant.

The relevant inquiry, therefore, is whether the threshold to the defendant’s house is public for the purposes of the fourth amendment to the United States constitution or whether it is entitled to the privacy afforded the home by the fourth amendment. The United States Supreme Court has decided this issue. In United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), the United States Supreme Court considered the legality of a warrant-less arrest of a defendant who was standing in her doorway when approached by the police.

In Santana, the defendant was standing directly in the threshold: “[0]ne step forward would have put her outside, one step backward would have put her in the vestibule of her residence.” Id., 40 n.1. As the police neared her house, she retreated into her home where the police arrested her. Id., 40. The defendant moved to suppress the evidence seized at the time of her arrest, claiming that the warrantless arrest in her home had been illegal.

The court held that because the defendant had been standing in the threshold of the doorway to her house, she had been in a public place and therefore had been legally arrested. Id., 42, citing United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). In determining that the open doorway was a public place, the court reasoned that “ ‘[w]hat a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.’ ” United States v. Santana, supra, 42, quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

The court further noted that the defendant “was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” United States v. Santana, supra, citing Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924). The reasoning in Santana is applicable to the federal constitutional issue raised in this case. It is undisputed that the defendant was standing in the doorway at the time of his arrest.

The record establishes that the defendant voluntarily came to the threshold in response to a knock on his door by a police officer. There is no claim that the officer forced his way into the defendant’s residence, or indeed that the officer in any manner concealed his identity from the defendant or otherwise coerced him into coming to his door. There is equally no claim that the defendant, while on his threshold, was not in full public view; the defendant’s doorway was only a few feet from the road, and visibility was not obstructed by the overhang from the first floor apartment, which covered the porch.

At the officer’s request, the defendant consented, for an indefinite period of time, to remain on his threshold, in full public view, while the officer consulted with his supervisor. The officer then returned to arrest the defendant while he was still standing on the threshold. As a result of a subsequent search, incriminating evidence was thereafter seized not from the defendant’s residence but from his person.

These undisputed facts place this case, as a matter of federal law, squarely within the precedent established by Santana unless Santana has been impliedly limited by the subsequent decision of the United States Supreme Court in Payton v. New York, supra. A majority of state and federal courts has concluded that no such limitation was intended, especially when, as in this case, there is no evidence of coercive or deceptive behavior on the part of the police. See, e.g., United States v. Sewell, 942 F.2d 1209, 1211-12 (7th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1567, 118 L. Ed. 2d 213 (1992); United States v.

Carrion, 809 F.2d 1120, 1127-28 (5th Cir. 1987); United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986); United States v. Al-Azzawy, 784 F.2d 890, 892-93 (9th Cir. 1985); United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984), cert. denied, 471 U.S. 1061, 105 S. Ct. 2126, 85 L. Ed. 2d (1985); People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980); Byrd v. State, 481 So. 2d 468, 472 (Fla. 1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2261, 90 L. Ed. 2d 705 (1986); People v. Morgan, 113 Ill. App. 3d 543, 447 N.E.2d 1025 (1983); Costillo v.

Commissioner of Public Safety, 416 N.W.2d 730, 732 (Minn. 1987). Justice Borden’s dissenting opinion nevertheless emphasizes the holdings in a minority of cases, such as United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991), United States v. McCraw, 920 F.2d 224 (4th Cir. 1990), Duncan v. Storie, 869 F.2d 1100 (8th Cir.), cert. denied, 493 U.S. 852, 110 S. Ct. 152, 107 L. Ed. 2d 110 (1989), and State v.

Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980), that conclude that a defendant does not surrender his reasonable expectation of privacy in his home merely by opening his door in response to a knock by the police. Under the analysis adopted by these cases, it is arguably a violation of the fourth amendment for the police to effectuate an arrest even when the defendant is in plain view on his own doorstep unless the defendant has manifested his acquiescence in the arrest. We need not decide today whether we should follow this minority line of cases.

We emphasize three facts that are conjointly dispositive to establish that the defendant had voluntarily relinquished any expectation of privacy at the time of his arrest: the police at no time set foot inside the defendant’s home; the defendant’s arrest did not immediately follow the defendant’s appearance on his doorstep after a knock on his door; and the defendant willingly remained on his doorstep at the request of the police.

Even in Berkowitz, the court held that the defendant would be deemed to have acquiesced in his arrest if he had not attempted to question his arrest, or to close the door, but had merely asked whether he might retrieve his coat from inside his home. United States v. Berkowitz, supra, 1385-86. The manifestations of acquiescence on the present record are clear. Far from attempting to close his door, the defendant unconditionally agreed to the request of the police officer that he remain standing in his doorway for at least several minutes.

The defendant was, moreover, not unaware of his legal rights: he had previously refused to permit the police to enter his home without a search warrant. Under United States v. Santana, supra, 42, “[wjhat a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” (Internal quotation marks omitted.) In the circumstances of this case, we conclude that Santana governs the validity of the defendant’s arrest and that his arrest was, therefore, not a violation of the fourth amendment.

II The state next claims that the Appellate Court should not have concluded that the defendant’s front porch was an extension of his home that sufficiently insulated the doorway from the public so as to make Santana inapplicable. We agree. The Appellate Court accepted the trial court’s conclusion that the area in front of the defendant’s doorway was a porch, and held that the presence of the porch per se entitled the defendant to fourth amendment protection within its confines. State v. Santiago, supra, 26 Conn. App. 489-90.

The court reasoned that “[a] porch is intrinsically associated with both the sanctity of the home and the privacies of life.” Id., 489. Therefore, “the defendant’s porch, in which he had exclusive possession, is as sacrosanct as the home itself for fourth amendment purposes.” Id., 489-90. We disagree. Under Santana, the relevant inquiry is whether the defendant, while in the doorway, exposed himself to the public. If he was exposed to the public despite the intervening porch, he was not in an area where he had a reasonable expectation of privacy.

If the defendant did not have a reasonable expectation of privacy, he is not protected by the guarantees of the fourth amendment. See Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990); Katz v. United States, supra. The defendant’s porch did not obstruct the public’s view of or access to the defendant while he stood in the doorway. Moreover, the record discloses no attempt by the defendant to make the porch a private area.

Because the defendant, by standing in the doorway, “was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if [he] had been standing completely outside [his] house,” he had no reasonable expectation of privacy. United States v. Santana, supra, 42. The simple fact that there is a porch or stoop in front of a house does not make the threshold a place entitled to fourth amendment protection.

If, standing in the threshold of one’s home, an individual is visible to and accessible to the public, he or she can be legally arrested without a warrant under the fourth amendment to the United States constitution. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court. In this opinion Peters, C. J., and Callahan, J., concurred. The defendant claims a violation of the federal constitution only, abandoning any argument pertaining to the Connecticut constitution.

Accordingly, our analysis will be confined to the requirements of the fourth amendment to the United States constitution. The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The state nolled the misdemeanor charge of threatening.

The place of the search is not indicated in the record and it is not at issue in this appeal. We need not pursue the third issue because our examination of the record and the opinion of the Appellate Court makes it clear that the decision of the Appellate Court did not depart from the findings of fact of the trial court. The Appellate Court accepted the trial court’s factual finding that the defendant had been standing in his doorway at the time of his arrest; State v. Santiago, 26 Conn.

App. 481, 484, 602 A.2d 40 (1992); but concluded, as a matter of law, that the threshold was a part of his home, for constitutional purposes, in light of the undisputed fact that the area in front of the defendant’s apartment was a porch. The officer’s testimony described the area in front of the defendant’s apartment as both a “cement stoop” and a “porch area.”