Defendant did not show his own reasonable expectation of privacy in a grow operation he was arrested at in Northeast Connecticut out in the woods. The property belonged to another person, and defendant lived two hours away. There was some evidence of his connection to the property, including his getting some mail there, but it was all held not enough. The state found the grow with a helicopter and the coordinates were radioed to officers on the ground. State v. Houghtaling, 2015 Conn. App. LEXIS 89 (March 17, 2015):
First Boyd Factor
. . .
Notwithstanding the defendant’s arguments, the personal nature of his relationship to the property was not sufficiently developed through the evidence or testimony at the hearing. His arguments on appeal are thus unsupported by the record.
The fact that Phravixay paid monthly rent that was less than the defendant’s monthly mortgage payment, without more, provides no support for the claim that the defendant was a cotenant. The defendant did not present evidence indicating in what manner he retained the rights, if at all, to use the premises despite Phravixay’s rental of the property. See State v. Brown, 198 Conn. 348, 358, 503 A.2d 566 (1986) (no evidence presented that defendant’s rental of garage included both bays or relative rights of others to use garage or driveway).
With regard to the claim that the defendant received and stored items on the premises, the defendant cites only to an aeration system. The defendant acknowledges that the aeration system was addressed to him in Danbury, but he argues that it was used on the property. Cf. State v. Zindros, 189 Conn. 228, 240, 456 A.2d 288 (1983) (considering, in determining whether defendant had subjective expectation of privacy in premises, that defendant testified he had personal property inside building which he claimed to be worth more than $6000), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). Douglas Hall, a sergeant with the statewide narcotics task force, testified that other than the mail found in the kitchen, he could not think of any other personal items within the home that were identifiable to the defendant.
The only evidence adduced at the hearing with regard to mail was Hall’s testimony that he believed there was “some mail” in the kitchen with the defendant’s name on it, and Moskowitz’ testimony that he found mail in the mailbox with the defendant’s name on it. The defendant suggests that the officers’ observation of the mail shows that he was at the property frequently, but he offered no testimony or evidence to support this contention.
Second Boyd Factor
The defendant additionally argues that his relationship with the property was more than sporadic, irregular or inconsequential. He argues that he “actively participated in home improvement in the enclosed yard surrounding the house,” a claim that he supports with only the fact of his possession of “material to repair the greenhouse ….” He claims that this shows he was at the property on a regular basis. Additionally, in his reply brief, he claims that “there is as much indication he slept at the property as the Phravixay brothers did.”
The defendant’s claims that he actively participated in home improvement in the enclosed yard and that the property “was a place he … spent time at and possibly slept at” are entirely unsupported by facts in the record. Cf. State v. Kennedy, 20 Conn. App. 354, 359-60, 567 A.2d 841 (1989) (review of record revealed that defendant, grandson of homeowner, had established expectation of privacy in basement garage, noting factors including that he had made repairs around house), cert. denied, 214 Conn. 805, 573 A.2d 317 (1990).
Third Boyd Factor
The defendant claims that his “considerable efforts to preserve [the] property as private” demonstrate his subjective expectation of privacy in the property. The defendant mentions the “sparsely populated area” in which he purchased the property, the location of the residence on the property, a posted no trespassing sign, and a gate as examples of his efforts to keep the property private. The state contends that “[t]hese attributes do not reveal the defendant’s actual expectation of privacy in the property, when he leased it to another person, left no personal possessions there, and resided nearly two hours away.” (Emphasis omitted.) We agree with the state.
The relevant inquiry is whether the defendant exhibited a subjective expectation of privacy at the time of the search. The third Boyd factor addresses whether the defendant “maintained the location and the items within it in a private manner at the time of the search.” State v. Boyd, supra, 57 Conn. App. 185; see also State v. Mooney, 218 Conn. 85, 110, 588 A.2d 145 (resolving question of whether defendant had reasonable expectation of privacy in duffel bag and cardboard box at time of search), cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 129 Conn. App. 552, 557, 19 A.3d 1282 (noting, in determining expectation of privacy, testimony of resident of apartment that “at the time of the search the defendant would stay at her house three to four times a week with her permission”), cert. denied, 302 Conn. 914, 27 A.3d 372 (2011). The defendant did elicit testimony from Hall that he believed a “no trespassing” sign and a gate were located on the property. The defendant’s statement to police, however, indicated that shortly after buying the house about one year ago, he could not afford the mortgage and so he began renting the house to Phravixay. Without more, it is unclear when the gate and sign were installed, who installed these two items, and for whose privacy were they installed. Overall, the defendant failed to show how these two features, which he claims were suggestive of an effort to maintain the property as private, were indicative of his own expectation of privacy, rather than the expectation of Phravixay, the resident of the leased premises.
