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11-2094-CR
IN THE

United States Court of Appeals
FOR THE SECOND CIRCUIT

UNITED STATES
v.

OF

AMERICA,
Appellant,

LEROY PRESSLEY,
Defendant-Appellee. On Appeal from the United States District Court for the District of Connecticut (New Haven)

BRIEF FOR DEFENDANT-APPELLEE
Donald Cretella ZINGARO & CRETELLA, LLC 1087 Broad Street Bridgeport, Connecticut 06604 203-367-0442
and

David Vincent DeRosa LAW OFFICES OF DAVID V. DEROSA 42 Terrace Avenue P.O. Box 992 Naugatuck, Connecticut 06770 203-729-4246
Attorneys for Defendant-Appellee

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE FACTS AND STATEMENT OF THE CASE . . . . . . . . . . . . . 4 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 I. THE DISTRICT COURT DECISION THAT THAT NORWALK POLICE OFFICER DID PROVIDE SPECIFIC, ARTICULABLE, AND OBJECTIVE FACTS TO JUSTIFY THE DETENTION AND INVESTIGATION OF PRESSLEY FOR TRESPASSING BUT NOT FOR DRUG DEALING IS CONSISTENT WITH UNITED STATES SUPREME COURT PRECEDENT BECAUSE THE DETENTION WAS UNLAWFUL AS IT WAS PROLONGED BEYOND THE TIME NECESSARY TO DETERMINE IF THE DEFENDANT WAS TRESPASSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 AS AN ALTERNATE GROUNDS FOR AFFIRMANCE, THIS COURT SHOULD SUPPRESS THE EVIDENCE FROM SEARCH WITHOUT A WARRANT BECAUSE THE INITIAL DETENTION FOR TRESPASSING WAS UNLAWFUL BECAUSE THE DEFENDANT’S TWO COUSINS REPORTED TO POLICE THAT THEY PERMITTED THE DEFENDANT ACCESS TO THE HOUSING COMPLEX, AND THE DEFENDANT WAS LICENSED TO BE ON THE PROPERTY DISPELLING ANY REASONABLE POLICE SUSPICION THE DEFENDANT WAS TRESPASSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

II.

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III.

AS AN ALTERNATE GROUNDS FOR AFFIRMANCE, EVEN IF THE USE OF A NARCOTICS DETECTION DOG IS PERMISSIBLE AND MAY GIVE THE OFFICER THE RIGHT TO HAVE THE DOG SEARCH THE CAB OF THE VEHICLE NEAR WHERE THE DOG ALERTED TO NARCOTICS, WHEN THE NARCOTICS DETECTION DOG DETECTED NOTHING IN THE CAB, THE NORWALK POLICE OFFICER NEVER HAD PROBABLE CAUSE TO CONTINUE THE SEARCH FOR NARCOTICS OR OTHER CONTRABAND, INCLUDING WEAPONS, INSIDE THE VEHICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 THE NARCOTICS SEIZED FROM THE INVENTORY OF THE VEHICLE AT THE NORWALK POLICE STATION WAS PRETEXT FOR AN INVESTIGATION, AND THERE IS NO VALID REASON ONCE THE CAR WAS IMPOUNDED, THAT THE NORWALK POLICE COULD SEARCH THE CAR WITHOUT A WARRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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TABLE OF AUTHORITIES Page Cases  Arizona v. Gant, 129 S. Ct 1710 (2009) ......................................................13, 35, 37 California v. Acevedo, 500 U.S. 565 (1991) ........................................................... 39 Elkins v. United States, 364 U.S. 206 (1960) .......................................................... 12 Florida v. Royer, 460 U.S. 491 (1983) .................................................................... 19 Illinois v. Caballes, 543 U.S. 405 (2005)..........................................................passim Katz v. United States, 389 U.S. 347 (1967) ............................................................. 13 Pennsylvania v. Labron, 518 U.S. 938 (1996) ......................................................... 39 People v. Cox, 202 Ill.2d 462, 782 N.E.2d 275 (2002) ....................................passim State v. McDaniel, 104 Conn. App. 627 n. 2 (2007) ............................................... 32 State v. Morocho, 93 Conn. App. 205 (2006).......................................................... 34 Terry v. Ohio, 391 U.S. 1 (1968) ......................................................................passim United States v. Diaz, 25 F.3d 392 (6th Cir. 1994) ................................................. 36 United States v. Gant, 129 S. CT 1710 (2008) ........................................................ 35 United States v. Glover, 957 F.2d 1004 (2d Cir. 1992) ........................................... 39 United States v. Hester, 589 F.3d 86 (2d Cir. 2009) .........................................19, 20 United States v. Place, 462 U.S. 696 (1968).....................................................passim United States v. Thompson, 29 F.3d 62 (2nd Cir 1994) .......................................... 40

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Statutes  Connecticut General Statute § 1-2z ......................................................................... 33 Connecticut General Statute § 53a-100(b)............................................................... 33 Connecticut General Statute § 53a-107 .......................................................31, 32, 33 Connecticut General Statute § 53a-107(a)(1) .......................................................... 31 U.S. Const., Amend IV ............................................................................................ 12

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PRELIMINARY STATEMENT This is an interlocutory appeal from the District Court (Burns, J.) decision to suppress as evidence the fruits of an unlawful search of Mr. Pressley’s vehicle in violation of his rights under the 4th Amendment of the United States Constitution. The Government as this Court to decide “[w]hether the Fourth Amendment requires reasonable suspicion of narcotics-related activity to justify a dog sniff during a lawful seizure of a person for trespass.” The analysis is premised on the notion that under United States Supreme Court precedent, a use of a narcotics detection dog as an investigative technique is not subject to the strictures of seizure or detention under Terry v. Ohio, 391 U.S. 1, 22 (1968) because, for Fourth amendment purposes, a dog detection of narcotics is not a search at all but a non event, and the Government is essentially free to use the dog at its whim. United States Supreme Court precedent, however, suggests that the Fourth Amendment jurisprudence has and continues to maintain the Terry v. Ohio framework and the District Court was correct in its decision that Fourth Amendment jurisprudence does not allow the police to hold a defendant for trespassing and then unreasonably prolong the investigation of the trespassing for the arrival of a narcotics detection dog and the dog’s handler to search the vehicle as happened in this case. Illinois v. Caballes, 543 U.S. 405, 407 (2005); United States v. Place, 462 U.S. 696, 707-710

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(1968). Under those conditions, the use of a dog without a warrant to search a vehicle violates the Fourth Amendment. Id. In addition, there are alternate grounds for affirmance of the dismissal of the indictment. First alternate ground is that the defendant initial seizure was unlawful as he was not trespassing, as there was testimony that the Norwalk Police discovered that the defendant was visiting his cousin, Tammy Morales, at the time of his seizure under Terry v. Ohio. As illustrated below, under Connecticut law, this is adequate to demonstrate an absence of an essential element or the trespassing statute. Consequently, as the intial seizure of the defendant was unlawful, all actions by the Norwalk Police after the fact were also unlawful. The Second ground for affirmance is that even if the use of the narcotics dog did not require a warrant, the only place that an officer may search is those places and persons where a dog’s conduct reasonably interpreted indicates it detected narcotics. The Government analysis fails to note that although a search by a narcotic’s detecting dog is a “nonevent,” the United States Supreme Court’s vision of a police search of the area the dog detects narcotics are restricted or localized to the portions of the place or items where the dog detects narcotics. Place, 462 U.S. at 707. First, the dog alerting for drugs does not permit the police to search for narcotics in the whole vehicle, but only at the exact place the dog alerts it found narcotics. Thus, assuming that the dog positive indication on the exterior of the

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vehicle permitted the police to open the cab to have the dog search the interior of the vehicle, once the dog failed to give a positive indication of the existence of narcotics, there was no legitimate basis for the police to manually search the cab of the vehicle without a warrant. In addition, the Government ignores that the dog may have been mislead by another source for the narcotics smell. The drug sniffing dog have a positive indication only in the front passenger side of the vehicle and the license plate where the police testified another individual was working on the car just before the police encountered him with the defendant. The police never spoke with or searched the man working on the car to determine if he was the source of the positive indication for narcotics. Once the dog was placed in the cab of the vehicle and did not make a positive alert for drugs, the use of the dog’s senses to detect narcotics was at an end and subsequent search of the cab by police was one in which they did not have probable cause. Consequently, the weapon was properly suppressed as fruits of an illegal search. The final grounds for affirmance of the narcotics charge is that the discovery of drugs was not based on the reasonable interpretation of the dog’s conduct in this case. Rather, the drugs that the police did discover in the truck was only after the vehicle was impounded and searched manually. The discovery of drugs was not the result of the positive alert by the dog. Instead, the impounding of the vehicle

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after finding a weapon and conducting an “inventory search” without a warrant also was properly suppressed as violating the defendant’s Fourth Amendment Constitutional Rights. These undisputed facts suggest an alternate grounds to affirm this conviction, because even if the use of a drug detecting dog is a extension of the officer’s sense of smell under the Fourth Amendment, the government must demonstrate that the dog’s positive alert resulted in discovery of narcotics in the location the dog give a positive indication. Otherwise, the dog’s positive indication the illegitimate role of providing the police with an excuse for an unlawful manual searches of the defendant and his property in violation of his Fourth Amendment of the United States Constiution. STATEMENT OF THE FACTS AND STATEMENT OF THE CASE Counsel for the Defendant brought this matter before this Court by Motion to Dismiss the Indictment due to evidence illegally seized in violation of Mr. Pressley’s right under the 4th Amendent of the United States Constitution. A Suppression hearing began before the Court (Burns, J.) on February 3, 2011. The Government first witness was Mark Suda, a Norwalk Police Officer who works both as investigator for the Special Service Unit and part of the Alcohol, Tobacco, and Firearms Task Force (herinafter ATF). 2/3/2011T, p. 14. The Officer’s duties with the ATF entailed investigating all crimes with gun-

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related activities including assisting patrol officers in investigating gun related activities. Id, 15. On August 18, 2010, Officer Suda and his fellow officer were in an unmarked Ford Explorer Expedition in the greater south Norwalk area checking all of the “hot spots.” Id, 15-16. The Officers went to the Roodner Court Housing Complex because there had been violence there in recent weeks, and it was known as an open-air drug market for both walk-up and drive up narcotics sale. Id, 16. According to the Officer Suda, there were numerous unspecified complaints by unspecified persons of loitering and trespassing at the complex. Id, 16. Officer Suda and his fellow officers drove in front of building number 21, when Officer Suda noticed a Black Acura parked in front of Building 21. Id, 17. Officer Suda recognized the two men near the car, one Calixto Figueroa fixing a headlight of the car and the defendant, Leroy Pressley sitting in the car. Id. Officer Suda then turned to his fellow officers and indicated that Leroy Pressley was trespassing at the Roodner Court Housing Complex. Id, 18. Mr. Suda explained that “Mr. Pressley has been arrested prior, for criminal trespass in the complex, and he was also warned a few months prior, by me and fellow special service officers not to be in the complex, and he was issued a verbal warning, and he said he fully understood.” Id, 18. The Officer indicted that the Housing Authority has polices and procedures that “if you don’t live there basically can’t go

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into the complex unless you’re either visiting somebody or basically escorted with a resident.” Id. The Officer did not know if Mr. Pressley was on probation, and was not aware of any condition, protective order, or restraining order that would prohibit Mr. Pressley from being at that housing complex. Id, 41-42. The Officer, however, acknowledged on cross examination that if Mr. Pressley was with a resident he would not be trespassing and that he did not go to this complex to seek out trespassers, but narcotics related activity. Id, 44-45. Officer Suda recognized the defendant, and stopped the vehicle. Id, 18. The Officer exited his car in his raid gear clearly indicating he was Norwalk Police and approached Mr. Pressley in his car. Id, 20. Mr. Pressley exited the vehicle and was standing right next to it. Id. When the Officer asked what Mr. Pressley was doing at the housing complex, he indicated he was visiting his cousin Tonya Smeriligio in the area of Building 20 or 19. Id, 20. The Officer testified that he has received information from credible and reliable police informants and residents of the complex as to the defendant being a narcotic dealer. Id, 21. The Government cited a police report from July 10, 2010 in which two males were selling crack cocaine at the Roodner Court Housing Complex by buildings 11 and 12 describing both males, naming them, providing the vehicles they used, and indicating how they

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operate. Id, 22.1 That, however, was not the reason for the initial automobile stop, rather Mr. Pressley was stopped because he was trespassing. Id, 48. Officer Suda, however, opted not to arrest Calixto Figueroa who was fixing the light on the car even though he was also trespassing. Id, 55. There never was any evidence of any drug transaction or smell of narcotics by a person in this case to justify a search of this vehicle for narcotics. Officer Sula testified that, based on the information about the defendant’s criminal history, the Officer conducted a pat down of the defendant for officers’ safety, and found no weapons or contraband. Id, 20-21, 23. Officer Suda then asked Mr. Pressley if he could search the vehicle, and Mr. Pressley refused to permit the Officer to do so. Id, 23. The Officer then notes that bystanders and a crowd began to form around the vehicle. Id. At that point, Officer Suda stated that he radioed for Officer Peterson with his narcotics detection dog and a marked police vehicle. Id, 24. When the government asked why he did this the Officer responded “[s]o the K-9 unit could perform a narcotics detection search of the vehicle.” Id. Officer Suda waited 10 minutes for the K-9 Unit, and the crowd around the vehicle became more agitated. Id. Officer Peterson arrived with Police Service Dog Rainer. Id, 25. Without the consent of Mr. Pressley, the Officer

If the Norwalk Police had all this information, then one would think they would petition a Court for a search warrant of the alleged suspects and their vehicles. 7

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Peterson began an exterior check of the car, and the Dog indicated at the front passenger door and the quarter panel and at the front license plate. Id, 27. The Officer took this as an indication that there was an odor of narcotics. Id. Then Officer Peterson and the dog did an interior search of the car, and the dog did not find anything in the vehicle. Id, 28. Now, without the consent of the driver of the car and without a positive indication of narcotics in the car, Officer Suda and Officer DePanfilis began to search the vehicle. Id, 28. Officer Suda believed he had probable cause to search the vehicle based upon the police service dog’s indication of narcotics upon sniffing the exterior of the car. Id. After searching the vehicle, Officer Suda found a .38 caliber Smith & Wesson 5 shot handgun in the glove compartment that he took into his possession. Id, 30. When the crowd saw that the Officer had a gun, it became agitated. Id. At that point, Officer Suda instructed another Officer to arrest the defendant. Id, 31. After that, Officer Suda indicated that the crowd started to become more hostile asking why they were arresting Mr. Pressley. Id, 31-32. At that point, Officer Suda instructed Officer DePanfilis to drive the black Acura to police headquarters. Id, 32. The reason given for this course of conduct was for Officer safety. Id, 32. When pressed for why the Officer took the car rather than returning it to the owner, he indicated it was to take possession of the vehicle for asset

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forfeiture reasons and to search the vehicle further where the officer safety was not endangered. Id, 37-38. Then, instead of seeking a warrant after this unusual seizure of this vehicle to continue a search, the Norwalk police continued a warrantless search of the vehicle. Id, 61-62. This search may or may not have been in accordance with Norwalk Police Department motor vehicle inventory policy, which exists to safe guard any property of the owner and the person operating the vehicle to insure that there is no complaint that the police stole something. Id, 33. What is clear is that the “inventory” of this vehicle was a pretense for a investigatory search for illegal items at the police station. Id, 62.The inventory included the handgun, $596.00 in small bills, 31.08 grams of crack cocaine, and 9 glassine envelopes of heroin. Id, 34. Mr. Pressley’s friend and owner of the vehicle Tonya Smeriglio came into police headquarters and indicated the gun the police discovered was not hers. Id, 39. On redirect, it became amply clear that the entire course of events testified to in this case was pretext to arrest their target, Mr. Pressley. Officer Suda testified he focused on the defendant because he received information from a confidential informant that after a man names Gavin Hammett was arrested, Mr. Pressley took over the crack cocaine trade.2 Id, 67. Given there was ample opportunity to take a statement from the confidential informant, place the defendant under surveillance, Again, if the Police had this information, why did it not seek a search warrant. 9
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and attain a warrant, the Government has done little to explain why the Norwalk Police did not attain a court ordered search warrant. The next witness called was Officer Peterson that discussed the training of the Black German Shepherd police dog Rainor, and to discuss the mechanics and biology of the dog’s olfactory senses. Id, 71 Officer Peterson was assigned to the K-9 unit in May of 2010 and he is among four officers in Norwalk that work for that unit. Id, 72-73. Officer Peterson trained at the Police Academy in Meriden with Frank Rita who was the Master trainer. Id, 73. Officer Peterson testifies that the dog, Rainor, was green or inexperienced at the time he received him as he was only 10 months old. Id, 73. The dog was certified to detect cocaine, marijuana, and heroin but not ordinance like a gun or it bullets. Id, 75-76. The dog tracks the scent and when it finds it, it is rewarded with a towel. Id, 77-79. Officer Peterson testified that there have been times when police dog Rainor has indicated he sniffed drugs and no drugs were found, but that it is rare for drugs to be present and the dog not alert. Id, 80. In fact, the dog may alert when drugs are found in a different spot from where the dog indicated. Id. The Officer testified that the dog’s ability to detect is affected by the weather, by the exhaust from an automobile, and the temperature that may impact the scent. Id, 80-81. The Officer testified that the dog was 80% accurate. Id, 88-89. In fact, even though there were narcotics found in the trunk of the vehicle, the dog never indicated that narcotics were there and

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Officer Peterson could not explain the failure. Id, 88-89. The dog’s ability to detect narcotics in a specific location is hardly full proof and is far from precise.. On the night of August 18, 2010, Officer Suda summoned Officer Peterson and his K-9 unit police dog Rainor to search the vehicle for narcotics. Id, 82-83. The defendant would not give Officer Peterson consent to search the inside of the vehicle and the Officer correctly indicated that he could not search the inside of the vehicle without probable cause. Id, 82-83. The Officer testified he conducted the search with the dog and the dog indicated the presence of a smell at the front quarter panel, under the passenger’s mirror of the passenger door and at the front license plate. Id, 84-86. After that, Officer Peterson advised Officer Suda of what the dog indicated, and Officer Peterson put the dog inside the car without the person’s permission on the theory that Officer Peterson has probable cause to search the vehicle. Id, 86-87. The dog, however, made no indications in the car cab itself that the dog found drugs. Id, 88. On cross examination, defense counsel suggests that the source of the narcotics may be Calixto Figueroa, the man who was fixing the headlight and the person that the Officers opted not to arrest. Id, 91. Officer Peterson was unaware that this second man was present before he had the dog conduct a search. Id, 98. When asked if the Officer thought he had probable cause to enter the vehicle despite there being a second man that could have been the source of the narcotics

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smell, a person that was working on the car just prior to the dog search, Officer Peterson stated he did. Id, 99. The Government never attempted to clarify Officer Peterson’s testimony. The Government then rests. Id, 100. The defense calls Officer Brandon Collins to the stand. Id. Officer Collins has spoken with two women: Tonya Smeriglio and Tammy Morales. Id, 101 - 102. Although Officer Collins did not personally speak to the two women in this case, he was present with Officer Sixto did, and was aware that Tammy Morales stated to her that the defendant was visiting her at her home in the Roodner Court Housing Project. Id, 104-5. This same statement was repeated in her police report. Thus, the defendant was not or at least believed he was not trespassing. APPLICABLE LAW The Fourth Amendment of 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” U.S. Const., Amend IV. The United States Supreme Court has observed that the Fourth Amendment embodies the principle that “wherever an individual may harbor a reasonable ‘expectation of privacy,’… he is entitled to be free from unreasonable government intrusion.” Terry v. Ohio, 392 U.S. 1, 9 (1968). But, “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960). Thus, “searches conducted

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outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); See also Arizona v. Gant, 129 S. Ct 1710, 1716 (2009). The Courts have made a very clear distinction between the use of a narcotics detecting dog as an investigative technique that is not offensive to the brief investigatory stop of Terry v. Ohio, 391 U.S. 1, 22 (1968). The leading case on the Fourth Amendment implication of using a narcotic detecting dog on an automobile is found in Illinois v. Caballes, 543 U.S. 405 (2005). In that case, the United States Supreme Court found, when the police are otherwise without a suspicion of narcotics trafficking, the use of narcotics detecting dog was not a search under the Fourth Amendment in most circumstances, but that if the defendant was unlawfully detained for an extended period of time to have a narcotics dog search a vehicle, the search becomes unlawful. Id, 407-408. See United States v. Place, 462 U.S. 696, 709-10 (1986) (Detaining luggage on an investigative stop for 90 minutes was an unreasonable search). But, a dog sniff that results in a positive identification for narcotics but does not result in immediate discover in a manual search may give the police grounds to seek a warrant, but it does not give the police grounds to conduct an independent manual search.

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ARGUMENT I. The District Court decision that that Norwalk Police Officer did provide specific, articulable, and objective facts to justify the detention and investigation of Pressley for trespassing but not for drug dealing is consistent with United States Supreme Court precedent because the detention was unlawful as it was prolonged beyond the time necessary to determine if the defendant was trespassing. The Government misconstrues the interplay between the permissible use of the narcotics detection dog and the defendant’s rights under the Fourth Amendment of the United States Constitution to be free of a warrantless search. Specifically, it fails to address the central premises of the District Court decision that the Norwalk police exceeded the lawful scope of their authority to a brief and minimally invasive investigation of criminal activity when they lack the precise information necessary to give them probably cause to arrest. Terry v. Ohio, 391 U.S. 1, 22 (1968). JA, 191-94. Specifically, the District Court found that the Norwalk Police did not provide a “specific, articulable and objective facts to justify their detention and investigation of Pressley for narcotics.” JA, 195. This is supported by a record where there was no evidence of narcotics present, no statements made by the defendant to police that would give a reasonable and articulable suspicion that he was involved in drug trafficking, and certainly no reason to expand the scope and duration of an investigation to narcotics, which included the use of a narcotics detecting dog, because the expansion of the duration of the trespassing investigation what was reasonable. Id. In short, the Norwalk 14

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Police exceeded the bounds of reasonableness demanded by the Fourth Amendment when they detained Mr. Pressley and conducted a search of his vehicle without his permission. Id. The Government raises on appeal that the District Court erred in finding that the Police violated the Fourth Amendment because “under Caballes, a dog sniff is not a search under the Fourth Amendment.” Government’s Brief, p. 19. The Government stated that the District Court “did not discuss – or even cite – the controlling Supreme Court precedent on the question of dog sniffs: Illinois v. Caballes, 543 U.S. 405 (2005).” Government’s Brief, p. 12. The Government, however, fundamentally misconstrues the roll of dog sniffs, as an investigative technique, arguing that Police may employ this technique without restriction. In fact, dog sniff is an investigation technique that must comply with the Terry v. Ohio framework, just as the District Court decided in this case. The Fourth Amendment jurisprudence does not permit an investigation for narcotics, by a dog sniff or otherwise, beyond the time necessary to determine if the defendant was trespassing. Place, 462 U.S. at 709-10, Caballes, 543 U.S. at 408. There are limitations on the manner in which law enforcement may gather evidence using narcotics detecting dog, such as when the defendant was unlawfully detained. Caballes, 543 U.S. at 408. The Government is correct that under United States Supreme Court precedent, “a canine sniff by a well-trained narcotics-

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detection dog as ‘sui generis’ [with official conduct that does not compromise any legitimate interest in privacy that is not a search subject to the Fourth Amendment] because it ‘discloses only the presence or absence of narcotics, as a contraband item.” (internal citations omitted) Caballes, 543 U.S. at 408-409. But, in Caballes, the United States Supreme Court made clear that “[a] seizure that is justified solely by the interest in issuing a warning ticket to a driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Id. 409. This statement reaffirms the central framework of Terry v. Ohio, 392 U.S. 1 (1968) and is consistent with United States v. Place, 462 U.S. 696 (1983) that analyze the use of detecting dog as a Terry issue. The United States Supreme Court cites to People v. Cox, 202 Ill.2d 462, 782 N.E.2d 275 (2002) as an example of a case where “the use of a dog and the subsequent discovery of contraband were the product of an unconstitutional seizure” which again analyzed the case under Terry v. Ohio. Id, 407-8. The United States Supreme Court states that “a similar result [to People v. Cox, 202 Ill.2d 462 (2003)] would be warranted in this case [Illinois v. Caballes, 543 U.S. 405 (2005)] if the dog sniff had been conducted while respondent was being unlawfully detained.” Id, 408. In order to appreciate the distinction the United States Supreme Court draws between a the two cases, this Court should review the facts of both. The facts of People vs. Cox, as recited by the Illinois Supreme Court, are these:

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On July 18, 1998, at approximately 2:21 a.m., Officer Matt McCormick of the Fairfield police department stopped defendant's vehicle because it did not have a rear registration light. At the time of the stop, Officer McCormick called Deputy Dave Zola and asked him to bring his canine, Tango, to the scene. Officer McCormick did not smell cannabis in defendant's vehicle, nor did he have other reasons to request Deputy Zola's assistance at the scene. Deputy Zola arrived approximately 15 minutes later, while Officer McCormick was writing the traffic ticket. Deputy Zola walked Tango around defendant's vehicle, and Tango alerted to the presence of drugs. The officers had defendant step out of the vehicle. Officer McCormick searched the vehicle and found "possible cannabis seeds and residue" on the floorboard. Deputy Zola then conducted a "pat down" search of defendant and found cannabis on her person. The officers arrested defendant for possession of less than 2.5 grams of a substance containing cannabis. People vs. Cox, 202 Ill.2d 462, 464-65 (2002). The facts of the case before the United States Supreme Court were as follows: Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcoticsdetection dog. When they arrived, respondent's car was on the shoulder of the road and respondent was in Gillette's vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent's car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes. Illinois v. Caballes, 543 U.S. 405, 405 (2005). The United States Supreme Court approved the Illinois Supreme Court’s suppression of the narcotics in Cox because the defendant was detained beyond the time necessary to issue a traffic ticket but 17

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found no basis to suppress the narcotics in Caballes because the entire stop, which included a traffic investigation and search of the trunk for narcotics after the narcotics dog alerted, was less than 10 minutes. Id, 407-08. The difference between the two fact patterns is that in Cox the dog and handler are called to the scene of the traffic stop by the officer that made the initial stop for no apparent reason whereas in Caballes the canine officer heard the call of the initial police officer stopping the defendant and then responded to the scene independently. In addition, the total stop in Caballes to conduct an investigation of the ticket, dog sniff, and find the narcotics was under 10 minutes, an intrusion the United States Supreme Court found reasonable, whereas the traffic stop in Cox was approximately 15 minutes, a time the Illinois and United States Supreme Court found unreasonable seizure to issue a traffic stop ticket because it is “prolonged beyond the time reasonably required” to issue the traffic ticket. Id, 408; Cox, 202 Ill. at 469; See also Cox, 202 Ill. 474-74 (Thomas dissenting) (Majority decision is that traffic stops over 15 minutes, the detention is illegal unless the State can justify the length of the detention). Just as the District Court did in this case, the Illinois Supreme Court began its analysis with Terry v. Ohio, stating that the United States Supreme Court has a limited exception to the traditional probable cause requirement which permits the police to briefly detain a person for questioning if the officer reasonably believes 18

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that the person has committed or is about to commit, a crime. Cox, 202 Ill.2d at 466 citing Terry v. Ohio, 392 U.S. 1, 22 (1968); See also JA, 191-92. As in the District Court decision, “[t]he conduct constituting the stop under Terry must have been justified at its inception, the police officer’s actions must be reasonably related in scope to the circumstances which justify the interference in the first place.” Cox, 202 Ill.2d at 467-68; JA, 193. The Illinois Supreme Court quotes the United States Supreme Court’s dicta that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Id, 467 quoting Florida v. Royer, 460 U.S. 491, 500 (1983). In deciding Cox the Illinois Supreme Court focused on the Officer that initiated the traffic stop calling another Officer to the scene to search the vehicle with a narcotics detecting dog. Cox, 202 Ill.2d at 468-469. As the District Court did in this case, the Illinois Supreme Court found that the initial arrest was proper but that a dog sniff of defendant’s vehicle was not justified as an unreasonably prolonged expansion of the investigation. Id, 469; See JA, 194. The Government suggests that the District Court did not find that “law enforcement officers delayed or extended the trespassing investigation to accommodate the drug dog’s arrival and the dog sniff.”3 Government Brief, p. 23.

The Government cites United States v. Hester 589 F.3d 86 (2d Cir. 2009) to argue that the defendant, through undersigned counsel, failed to raise a challenge 19

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The Government simply is mistaken on its reading of the decision. The District Court properly found that a Terry stop commenced when the defendant was frisked for weapons and was “seized.” JA, 191-92. The District Court then found as follows: Considering the circumstances of the encounter as a whole and viewing the facts through the eyes of a reasonable and cautious police officer, the Court finds that the officers had reasonable suspicion that Pressley was trespassing at the Complex based on specific and articulable facts of his prior trespasses and thus were justified in detaining him for the time to confirm or dispel that suspicion. This is not the case, however, with regard to their claim of reasonable suspicion that he was dealing drugs. The officer have simply not to the duration of the detention below and therefore has waived that argument on appeal. First, the argument on its face is without merit because the District Court and counsel below are bound by the legal orders and legal precedent of the Circuit Court and Supreme Court above it, the Circuit Court generally is not bound to consider only the arguments raise below unless the defendant make an affirmative waiver. Second, the issue in Hester was about a waiver of the rights to appeal that is part and parcel of a plea agreement that the Government enters with defendants on a routine basis and that the Second Circuit Court of Appeals routinely enforces. United States v. Hester, 589 F.3d at 88-89. In Hester, the defendant waived all appellate rights but negotiated for and obtained a reservation to again argue a Motion to Dismiss the Indictment. Id, 94 This Court took issue with the defendant’s argument that having signed a waiver and having obtained this reservation of appellate rights from the District Court and the Government, the defendant did not raise precisely what he had raised below as he promise in the agreement. Id. The Court considered the new line of argument on appeal as improper as violating the spirit of the waiver and reservation agreed to in the District Court.. At the time of the filing of this Motion to Dismiss, the defendant had not entered a plea agreement with a waiver, and prevailed on an suppression motion for which the Government had the burden of persuasion. Therefore, Hester does not apply to this case, and there is no Appellate principle that restricts the defendant from arguing and applying the law of United States of America, be constitutional, statutory, or common law, to this case. 20

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provided specific, articulable and objective facts to justify their detention and investigation of Pressley for narcotics. And because the scope of that investigation, including canine sniff of the car, was not reasonably related or carefully tailored to the legitimate basis for the stop – namely, trespass – the officers exceeded the bounds of reasonableness demanded by the Fourth Amendment when they detained and conducted that investigation. Moreover, there is nothing in record showing that, during the initial questioning of Pressley regarding his suspected trespass, the officer developed a reasonable, articulable suspicion that he was involved in drug trafficking that would warrant expanding the scope and duration of the stop. JA, 194. Thus, contrary to the assertion of the Government, the District Court found exactly what the United States Supreme Court stated was permissible in Caballes, that the duration of a trespassing investigation may not be unduly expanded to accommodate the Norwalk Police Officers use of a narcotics dog sniff of the vehicle because the detention of Mr. Pressley was “prolonged beyond the time required to complete” a trespassing investigation. Caballes, 543 U.S. at 407. So not only did the District Court address the duration claim but the District Court’s analysis is completely consistent with Caballes and United States Supreme Court precedent. Law enforcement officers unreasonably delayed or extended the trespassing investigation to accommodate the drug dog’s arrival and the dog sniff. Illinois v. Caballes, 543 U.S. 405, 407-08 (2005); United States v. Place, 462 U.S. 696, 707710 (1983); People vs. Cox, 202 Ill.2d 462, 466-469 (2002). In this case, Officer Sula testified that he noticed Mr. Pressley who was trespassing on the property, got

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out of his vehicle, approached Mr. Pressley, and began a field interview about his trespassing at Roodner Court. 2/3/2011T, p. 18 – 20. At that point, the Officer conducted a pat down search for weapons for officer safety and found no weapons or contraband. Id, 20-21. Mr. Pressley refused to permit the police to search the car. Id, 23. At that point, the Officer testified that a crowd was gathering around where Mr. Pressley and the Officers were. Id, 23. Officer Sula then testified that he called for a K9 unit to the scene to perform narcotics detection and a “couple more marked units.” Id, 24. The Officer then testified that K9 unit arrived under ten minutes to the scene. Id. In that time, Officer Suda testified the crowd became heavier and was a little agitated. Id. The K9 Officer then arrived and approached Mr. Pressley for permission to use the dog on the car, which was refused. Id, 25. Officer Peterson then walked the dog around the car where it indicated the presence of narcotics, and then placed the dog in the cab where it did not indicate the presence of narcotics. Id, 26-27. Then, Officer Suda and Officer De Panfilis searched the interior of the car manually because Officer Suda claimed Norwalk police had probable cause due to the narcotics dog given a positive indication on the outside of the vehicle. Id, 28-29. Under the circumstances as recited by Officer Suda, the District Court reasonable concluded that the length of the trespassing investigation was unreasonably long, which the District Court found that Officer Suda stated did not conclude until he found a weapon in the car at which he

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arrested the defendant for trespassing and firearms violation. JA, 189-190 n. 5. See also 2/3/2011T, p. 47. The length of trespassing investigation was unreasonably extended in duration to accommodate the narcotics investigation. In Cox the stop to give a traffic ticket and have the car searched took 15 minutes and that was “unreasonable” both for the United States Supreme Court and the Supreme Court of Illinois. According to the District Court, the defendant was seized once the police patted him down as he was no longer free to leave. From that time the Norwalk police patted the defendant down for weapons they did the following: asked Mr. Pressley to search the car which was refused, called the dog and K9 unit to the scene of crime that took 10 minutes, Officer Peterson again asked Mr. Pressley if the dog can search the car which was again refused, went to get the dog out of the police cruiser, walked the dog around the car where it indicated, placed the dog inside the cab where it did not indicate, placed the dog back in police car, and then opted to do a manual search where they found a weapon. Although the Officer did not testify as to the duration of the investigation, the District Court was correct in its factual finding that it took longer than necessary to determine if Mr. Pressley was trespassing. JA 192-93. Moroever, Officer Sula’s testimony about the gathering of a crowd suggests that a substantial amount of time had passed between the initiations of the investigation, the calling of the police dog to the

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scene, have the dog conducting a sniff, and conducting a manual search. Although the amount of time was not delinated, it is clear that the District Court was correct that it was in excess of what was reasonable to conduct a trespassing investigation and a far cry from the 10 minutes traffic stop that the United States Supreme Court approved as a reasonable Terry stop in Caballes. To the extent that the Government claims that the United States Supreme Court rejected the “scope” limitation for dog sniffs in Caballes and the defense presumes has, sub silento, overruled a portion of the seminal case of Terry v. Ohio, 392 U.S. 1, (1968) at least as far as drug dogs are concerned, this Court should reject this interpretation of Caballes. Government’s Brief, p. 18-19. What the Government fails to articulate, or at least appreciate, is that the time limitation the United States Supreme Court applies to the investigative technique of dog sniffs in Caballes and in cases like United States v. Place, 462 U.S. 696 (1983) are a specific application by the United States Supreme Court of the Terry “scope” requirement, not an abolishment of the “scope” requirement. Place, 462 U.S. at 707-10. Moreover, the Government’s interpretation of Justice Ginsburg dissent is not precedent on which the Government or this Court may rely. In addition Justice Ginsburg dissent is not a fair assessment of the majority opinion in Caballes or the state of the law. The Caballes decision, in many ways, is completely consistent with United States v. Place with the only difference being that the Court found the

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detention of the defendant and his car for 10 minutes to conduct a dog sniff in Caballes a reasonable Terry stop and the detention of luggage for 90 minutes to conduct a dog sniff in Place unreasonable Terry stop. The majority opinion never stated that the “scope” requirement was abolished and in fact indicated that the same result as Cox v. Illinois is warranted if those facts were to come before the United States Supreme Court. Caballes, 543 U.S. at 407-8. As illustrated above, the analysis in Cox was based upon Terry v. Ohio framework, and that Caballes, where properly read fits dog sniffs into the Terry framework. Thus, these decisions demonstrate that there are circumstances when a routine detention for traffic ticket or trespassing complaint may improperly evolve into a drug investigation by use of a narcotics detecting dog called to scene after the initiation of the traffic stop if the initial investigation is extended beyond the time necessary to conduct the initial investigation. As illustrated above, the best proxy for a District to determine if the legitimate detention for investigative purpose becomes unlawful if the amount of time necessary to conduct the trespassing investigation is objectively excessive to accommodate the narcotics investigation. The Government also claims that, on this record, it demonstrated that the trespassing investigation was ongoing when the dog sniffed the car. Government Brief, p. 25-27. In order to make this argument the Government must first

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establish that the District Court was clearly erroneous in a factual finding that Mr. Pressley “[t]he women said Pressley was there to visit them.” Id; See also JA 186 n.5. Arguable once the Ms. Morales tells the police that Mr. Pressley is visiting her, then “those statements would have dispelled the officers’ reasonable suspicion that Pressley was trespassing.” Government Brief, p. 21-22 n.5, and p. 26 n. 7. The Government notes Ms. Smeriglio and Ms. Morales spoke to Officer Jean Maxime Sixto4 indicating that Pressley was not trespassing suggesting there was no reasonable suspicion to continue to detain the defendant under Terry v. Ohio. The Government asks this Court to find that the District Court was “clearly erroneous” in making that finding. Government Brief, p. 21-22 n. 5. The Government asks for this even though the District Court took its finding directly from the testimony of Officer Collins, an Officer who was with Officer Sixto at the time the two women spoke to Officer Sixto. 2/3/2011T, p. 104-5. Officer Collins testified that he believed trial defense counsel Donald Cretella was correct in his assertion that these women told Officer Sixto that Mr. Pressley was there to visit the two women. Id, 104. That statement on the record, which went uncontested by the Government until this appeal, was the basis for the District Court’s assertion of fact in its decision. Since it is the District Court’s obligation to weigh the evidence

Officer Sixto was not presented by the Government or the Defendant, but her police report was placed in evidence

4

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and decide what is to be believed or not as “fact,” this Circuit Court is charged with not disturbing factual findings unless “clearly erroneous.” As the Government relies on a police report prepared by a witness it opted not to present when the witness the Defense presented asserted the opposite of what is indicated in the report, the District Court was free to choose to credit Officer Collins testimony and either give less weight or disregard statement made in Officer Sixto’s police report in whole or in part. The District Court’s carefully weighing of the evidence, therefore, in making this factual finding was not clearly erroneous. The factual record does not support the Government’s argument that it carried its burden by establishing by a preponderance of the evidence that “the police called and completed the dog sniff of the car before they finished their inquiry into the trespassing charge.” (emphasis in original) Government Brief, p. 26. The Government ignores the fact that the District Court also found that Officer Suda had called for narcotics detecting dog before, Mr. Pressley’s cousins, approached the police and claimed that Mr. Pressley was visiting them. JA, 190 n. 5; See also JA 145 (After 4 or 5 minutes of talking to Mr. Pressley, the two women approached law enforcement). Considering the evidence produced at the hearing, even though the Officer Suda claimed that the investigation of the trespassing was ongoing when they searched the car, first with a dog and then manually, an objective police officer would find that Officer Suda completed his trespassing

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investigation was over as soon as Mr. Pressley was patted down for weapons and was seized. There is no viable evidence that the Norwalk Police continued to actively investigate the trespassing after the pat down. Having recognized that the Mr. Pressley may not have been trespassing on the property in its Brief, Government Brief, p. 26 n. 7, the Government relies on Officer Sixto’s police report to argue that Officer Sixto’s interview with the two women was ongoing when the canine alerted to the presence of narcotics. Id. This means the determination as to whether the defendant was trespassing irrelevant as it was being investigated while at the same time that the police conducted the dog sniff. Government Brief, p. 27.5 This Court should reject the Government’s argument for two reasons. First, the amount of time it took to investigate the reasonable suspicion was too long for a reasonably prudent police officer to determine the defendant was trespassing. The Police could determine if the defendant was or was not trespassing rather quickly to support a finding of probable cause to arrest. As the Government itself illustrates, there were a number of factors that supported the arrest. Government Brief, p. 20. Second, there is little The Government has to have the Court accept that the trespassing investigation was more confusing than it was to make its case on the use of the narcotics detecting dog. If the Police determine the defendant was not trespassing, then the grounds for continuing the investigation end and there is no search of the vehicle. Whereas, if the police determine the defendant was trespassing, the grounds for the investigation again end precluding a continued search of the vehicle. So the Government is trying to make this investigation for trespassing more involved then it actual was to justify the narcotics search by the dog. 28
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evidence that the Police were proactively engaging in a determination of specific facts to dispel the notion that the defendant was not trespassing. Thus, there is no evidence presented that Officer Sixto selected the two cousins as witnesses to investigate the defendant’s claim that he was visiting Ms. Smerglio and Ms. Morales. In fact, given the police report, it seems these two approached the police, not the other way around. JA 145 and 156. In addition, the Government’s timeline of events is not supported by the record and this Court should accept the conclusion of the District Court that “[a]s the testimony and police reports establish, Officer Suda had already called for the canine unit to come and search the car for narcotics before Smerglio and Tammy Morales arrived at the scene and identified themselves as Pressley’s cousins and indicated that he was at the Complex visiting them.” JA, 189. There was no indication on this record that the trespassing investigation continued while the police awaited the arrival of the drug detecting dog. The District Court properly found that Norwalk Police’s conduct and arrest violated Mr. Pressley Fourth Amendments Rights to be free of an unlawful search and seizure. The District Court decision is well reasoned, consistent with United States Supreme and Second Circuit Court of Appeals precedent, and judiciously parses the events that took place that day. Given the evidence presented both below and now again on appeal, the District Court properly found the facts, applied

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the law, and exercised proper discretion. This Court should affirm the District Court decision to dismiss all charges. II. As an alternate grounds for affirmance, this Court should suppress the evidence from search without a warrant because the initial detention for trespassing was unlawful because the defendant’s two cousins reported to police that they permitted the defendant access to the housing complex, and the defendant was licensed to be on the property dispelling any reasonable police suspicion the defendant was trespassing. As the Government notes, the District Court in this case found that the officer’s had a reasonable suspicion that Mr. Pressley was trespassing at the Roodner Complex based on specific and articulable facts of his prior trespasses and were justified in detaining him. Government Brief, p. 20. The Government takes this position even though Norwalk Police knew that Mr. Pressley was visiting his cousin, Ms. Morales. Id, 21. The Government even concedes that it is possible that this Court may agree with this argument and that without a valid trespassing investigation, the Police had no basis to continue the narcotics investigation. Government Brief, p. 26 n. 7. Thus, if this Court finds that the Government should prevail on appeal, the defendant asserts that the evidence in this case should be suppressed because once Tammy Morales informed Officer Sixto and Officer Collins Mr. Pressley was visiting her, the officer’s reasonable suspicion that Mr. Pressley was trespassing was dispelled.

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Before a law enforcement officer may continue an investigation beyond the trespassing under Terry v. Ohio, there must first be a lawful seizure. The claim made by the Government in this case was that the defendant was trespassing at the Roodner Court Housing Project, and that police had probable cause to arrest. The defendant was arrested for violating Connecticut General Statute § 53a-107 which provides: (a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that such person is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or (2) such person enters or remains in a building or any other premises in violation of a restraining order issued pursuant to section 46b-15 or a protective order issued pursuant to section 46b-38c, 54-1k or 54-82r by the Superior Court; or (3) such person enters or remains in a building or any other premises in violation of a foreign order of protection, as defined in section 46b-15a, that has been issued against such person in a case involving the use, attempted use or threatened use of physical force against another person; or (4) knowing that such person is not licensed or privileged to do so, such person enters or remains on public land after an order to leave or not to enter personally communicated to such person by an authorized official of the state or a municipality, as the case may be. Connecticut General Statute § 53a-107. Although the police communicated an order that he not enter the Roodner Court Housing Project, this is not a case where the government produced a notice from the Norwalk Housing Authority that the defendant could not be on the property, only that there was a verbal warning from a police officer who is not an “authorized person” as Connecticut General Statute § 31

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53a-107(a)(1) as he is not an owner or official of the housing project that may limit access to the housing project. State v. McDaniel, 104 Conn. App. 627, 630 n. 2 (2007). A defendant is permitted access to the housing project by a person that lives there as a guest, as the owner of housing unit gives the defendant a license to visit her. Connecticut General Statute § 53a-107. In this case, there was evidence that the police learned in their investigation that the defendant was visiting Tammy Morales, a resident of the housing project, and the police eventually knew this after Mr. Pressley was seized but before the narcotics dog arrived. 2/3/2011, p. 104-5; See JA, 189 n. 5. Therefore, the defendant was licensed or privileged to be at the Roodner Court Housing Project, the Police eventually knew it, and he should have been released having no probable cause or even reasonable suspicion to arrest the defendant on the trespassing charge. The Government claims that in spite of Ms. Morales statements to Officer Sixto, the Norwalk Police continued to have a reasonable suspicion that Mr. Pressley was trespassing because Mr. Pressley never mentioned Ms. Morales to the police, Ms. Morales was not with him at the time the police arrived, and that the police had not finish interviewing Ms. Morales when the firearm was recovered. Government Brief, p, 21-22. As to the first argument, the defendant did mention he was visiting Tanya Smeriglio who lived near Roodner Court but omitted Tammy Morales. Then

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Officer Collins overheard Officer Sixto speak to Tammy Morales who stated the defendant was visiting her and her Ms. Smerglio at Roodner Court. 2/3/2010T, p. 104-5. So even if the defendant did not mention Mr. Morales possibly to avoid getting her in trouble, there was enough evidence to demonstrate to the Norwalk Police that the defendant was authorized to be there. The Government’s second argument about Mr. Pressley’s cousins being in his physical presence requires an interpretation of the license or privilege expressed in Connecticut General Statute § 53a-107. The Government is not correct in its interpretation of the license contemplated by the Connecticut legislature in the Trespassing statute. plain meaning of the language of the statute that “knowing that such person is not privilege or license to do so” has a more expansive meaning. See Connecticut General Statute § 1-2z. Although there is no case law with regards to the phrase “licensed or privileged to do so” in the Connecticut General Statutes, that same language is used in burglary statute, a crime which includes the concept of trespassing. The Connecticut Appellate Court has said: ‘A person "enters or remains unlawfully" in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.' (Emphasis [omitted].) General Statutes 53a-100 (b). . . . `A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein' (Emphasis added.) 25 Am.Jur.2d, Easements and Licenses 123. 33

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Generally, a license to enter premises is revocable at any time by the licensor. Id., 128. It is exercisable only within the scope of the consent given. (internal citations omitted) State v. Morocho, 93 Conn. App. 205, 218 (2006). So the scope of the license is largely defined by the licensor, and not by the law or the police officer’s interpretation of the law. So in this case, there was evidence that Tammy Morales allowed the defendant to visit her at home and gave him a license to be on the property. 2/3/2011T, p. 104-5. This is typical of a license a relative or friend would give another relative or friend. Generally, this means that the defendant would be permitted to move around the premises with or without the friend’s or relative’s presence. The fact that the police investigation was not over was addressed supra as the record is inconsistent on the Government’s assertion that Ms. Morales was being interviewed when the gun was discovered. The testimony of Officer Collins contradicted the police report of Officer Sixto. Consequently, the defendant was privileged to be on the property and did not necessarily need to be in the presence of Tammy Morales. Once the police were made aware that the defendant was not trespassing, the continued seizure of the defendant to conduct a narcotics investigation became unlawful and the seizure cannot give rise to ground to extend the Terry stop to search the vehicle. This is particularly true after the defendant explicitly stated that

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he would not permit the Officers to search the vehicle under his control. Since the police not have probable cause to arrest the defendant for trespassing, they had no legitimate reason to search his vehicle under the Fourth Amendment by dog sniff, personal inspection, or otherwise. III. As an alternate grounds for affirmance, even if the use of a narcotics detection dog is permissible and may give the Officer the right to have the dog search the cab of the vehicle near where the dog alerted to narcotics, when the narcotics detection dog detected nothing in the cab, the Norwalk Police Officer never had probable cause to continue the search for narcotics or other contraband, including weapons, inside the vehicle. Once the search of the inside of the cab of the vehicle was conducted, police dog Rainor did not alert for narcotics, the police did not have probable cause to continue to search the vehicle. 2/3/2011, 86-87. The police dog Rainor indicated that there was a scent at the front license plate and the quarter panel of the vehicle, that may have given Officer Peterson a right for the dog to search the inside cab of the vehicle because a dog sniff is not a “search” prohibited by the Fourth Amendment. United States v. Place, 462 U.S. 696, 707 (1983); Caballes, 543 U.S. at 408-410. Although the police may use a dog to discover contraband or narcotics, Caballes, 543 U.S. at 408, a search by a police officer of the cab of a vehicle after a dog give a positive indication of narcotics on the outside of the vehicle but a negative indication inside the cab of the vehicle violates the Fourth Amendment. United States v. Gant, 129 S. CT 1710, 1716 (2008).

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The Government has failed to demonstrate that the dog had a record for accuracy. See e.g United States v. Diaz, 25 F.3d 392, 393-394 (6th Cir. 1994). It is well established that a dog is not infallible. Caballes, 543 U.S. at 410 (Souter, dissenting). In this very case, the dog was inconsistent with its results and not reliable in its search. The Officer reported the dog was only correct 80% of the time, and that it did not detect narcotics in the trunk when there were narcotics there. 2/3/2011T, p. 88-90. So by Officer Peterson’s own admission, the police dog Rainor was not infallible and Officer Peterson could not give a scientific explanation for the dog’s failure to detect narcotics. Id, 89. That alone should preclude the use of the evidence from the police dog Rainor for any purpose. The Government’s argument that it has probable cause to search the entire vehicle is not correct because Officer Peterson’s interpretation of his dog’s conduct may not have been correct. It is very well possible that the source of narcotics that police dog Rainor alerted to were not from the interior of the car at all, but from a scent of narcotics around the car. Officer Peterson testified that the alerts outside the car are not to narcotics themselves, but to the odor. 2/3/2011T, p. 77-78, 89. In this case, there was evidence that a second individual, Calixto Figureo, working on the front outside of the car could have been the source of the odor of narcotics in the front of the car. 2/3/2011T, p. 17, 98. The Officers’ opted to neither interview, stop, or search Mr. Figureo, so the Court will never know if had narcotics on him

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or that he was the source of the narcotics scent. Id, 97-98. What is clear is that the Officers never found narcotics at the places where the dog alerted at the exterior of the car and not in the interior of the car suggesting that the odor came from some place else other than the car. It would be troubling indeed if a police dogs alert to the odor of narcotics around a vehicle and does not alert to them inside the cab of the vehicle that the police could then use that as the pretext of probable cause to search the entire vehicle for narcotics and other contraband. There must be some relationship between the alert the dog makes and the subsequent manual search by the police for the search to be reasonable under the Fourth Amendment. This Court should reject the government’s argument below that once a dog sniff results in an alert, that the police officers have probable cause to search the whole vehicle for narcotics, and should suppress the weapon discovered in the vehicle. 2/3/2011, p. 108. To so hold would eviscerate the United States Supreme Court holding in Gant v. Arizona, 129 S. Ct. 1710 (2009) limiting the search of a vehicle when a person is arrested for trespassing, and searched for guns or narcotics which are unrelated to the crime. Moreover, the defense takes issue with the assertion that if a dog alerts, it does not matter where around the car the dog alerts because police have probable cause to subsequently to search any where in the vehicle. 2/3/2011T, p. 108. This is not consistent with the case law. In both Price and Caballes, the facts before the

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United States Supreme Court were that the dog indicated narcotics were in a piece of luggage in Price and in the trunk of a car in Caballes where the narcotics were subsequently discovered. When the dog alerted in this case, Officers in this case searched the cab of the vehicle and found no narcotics and the Officers only found narcotics later in the trunk after they impounded the car. Thus, if the police dog’s alert of narcotics without the discovery of the narcotics in the cab, the presumption on which these cases are base is that where the dog alerts is where the narcotics will be found. Any police search outside the area where the dog indicated there was a scent is a violation of the Fourth Amendment. IV. The narcotics seized from the inventory of the vehicle at the Norwalk Police Station was pretext for an investigation, and there is no valid reason once the car was impounded, that the Norwalk Police could search the car without a warrant. The Government claims that the search of the defendant’s vehicle at the police station without a warrant was permissible. First, both in its Memorandum of Law and at oral argument, the Government claims that under the automobile exception, it can impound the vehicle and do a warrantless search. Memo of Law, p. 10-11 Second, that the police were engaged in a lawful inventory of the vehicle. Memo of Law, p. 11-14 Both claims are without merit. First, there is no reason that once the defendant was arrested and a police narcotics dog alerted for narcotics around the vehicle, that the Norwalk Police should not seek a warrant to search the vehicle. In the cases relied on by the 38

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Government cited in its memorandum at the trial level, the concern was that the car would move or disappear before a warrant may be obtained. That concern did not exist here. Once the Norwalk Police impounded the car, it was not readily mobile, a requirement for an after the fact search of the vehicle under the Automobile Exception. Pennsylvania v. Labron, 518 U.S. 938, 939 (1996), California v. Acevedo, 500 U.S. 565, 569 (1991). Since the police had the dog sniff alert as a basis to impound the vehicle and seek a warrant, there was no basis for a warrantless search. Second, the claim that the Norwalk Police were inventorying a vehicle seized as a result of an arrest for trespassing rather than as a pretext to continue the investigation for narcotics is disingenuous and has no merit. The police impounded the vehicle because they believed that it contained narcotics because of the alert by the narcotics dog. It is well established in this circuit that "once the narcotics dog `hit on' [the defendant's] bags, the police had probable cause to obtain a search warrant." (emphasis added) United States v. Glover, 957 F.2d 1004, 1013 (2d Cir. 1992). The fact that the dog alerted to narcotics at the scene and the Norwalk Police impounded the car, that gave the Norwalk Police the opportunity to petition a magistrate to obtain a search warrant; not to conduct an investigatory search of the vehicle. Given that the Norwalk Police opted not to get a warrant but instead rely on their inventory policy to search the vehicle, the

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defense would claim Officer Spuda is using that policy as a pretext to conduct an investigatory search of the vehicle, rather than as a means to inventory the vehicle. In short, Officer Spuda conduct was not in good faith. United States v. Thompson, 29 F.3d 62, 65 (2nd Cir 1994). Given that the Norwalk Police had ample opportunity to seek a warrant to search the vehicle, this Court should find that the search at the police station of the vehicle violated the Fourth Amendment of the United States Constitution and the narcotics discovered were properly suppressed.

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CONCLUSION For the reasons stated above, the defendant would request that this Court Affirm the dismissal of all charges against the defendant as obtained in violation of his rights under the Fourth Amendment of the United States Constitution.

RESPECTFULLY SUBMITTED, LEROY PRESSLEY THE DEFENDANT BY: ___________/s/__________________ David V. DeRosa 42 Terrace Avenue P.O. Box 992 Naugatuck, CT 06770 Tel: (203) 729-4248 Fax: (203) 729-4249

ON THE BRIEF: BY:__________/s/_________________ Donald Cretella Zingaro and Cretella, LLC. 1087 Broad Street Bridgeport, CT 06604-4261 Tel: (203) 367-0442 Fax: (203) 367-0493

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 10,748 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman, 14 point font.

RESPECTFULLY SUBMITTED, LEROY PRESSLEY THE DEFENDANT BY: ___________/s/__________________ David V. DeRosa 42 Terrace Avenue P.O. Box 992 Naugatuck, CT 06770 Tel: (203) 729-4248 Fax: (203) 729-4249 ON THE BRIEF: BY:__________/s/_________________ Donald Cretella Zingaro and Cretella, LLC. 1087 Broad Street Bridgeport, CT 06604-4261 Tel: (203) 367-0442 Fax: (203) 367-0493 42