source: Caselaw Access Project

author: CALLAHAN, C. J. MCDONALD, J.,

license: Public Domain

text:
    ANGELA CORNELIO v. STAMFORD HOSPITAL
    (SC 15826)
    Callahan, C. X, and Borden, Norcott, Katz, Palmer, McDonald and Peters, Js.
    Argued April 28
    officially released August 4, 1998

      Brenden P. Leydon, for the appellant (plaintiff).

      Douglas R. Steinmetz, with whom was Charles D. Ray, for the appellee (defendant).

      Mark R. Kravitz, Alex V. Chachkes and Jennifer D. Jackson filed a brief for the Connecticut Hospital Association, Inc., as amicus curiae.
   Opinion

CALLAHAN, C. J.

The dispositive issue in this appeal is whether the plaintiff, Angela Comelio, has a right to immediate possession of pathology slides obtained and analyzed in the course of her medical care by the defendant, Stamford Hospital. We conclude that she does not have such a right.

The following facts and procedural history are undisputed. A Papanicolaou test, or Pap smear, is a test commonly used to screen for cancer of the cervix and endometrium. Dorland’s Illustrated Medical Dictionary (28th Ed. 1994) p. 1681. In brief, a specimen that contains cervical cells is removed from a patient and fixed on a laboratory slide. Id. After the Papanicolaou stain, which enhances the visibility of cell characteristics, has been applied to the slide, the specimen is examined under a microscope for cellular abnormalities. Id.; see also G. Papanicolaou, Atlas of Exfoliative Cytology (1963) pp. 3-6.

Pap smear specimens were taken from the plaintiff by her physician, Frances Ginsburg, on August 2, 1993, August 22, 1994, January 9, 1995, February 9, 1995, and November 2, 1995. The plaintiff voluntarily consented to having a specimen taken prior to undergoing each of those procedures. The record, however, does not include a consent form documenting the parameters of the plaintiffs consent to any of the five Pap smear tests. Ginsburg sent each of the Pap smear specimens taken from the plaintiff to the defendant’s pathology department for interpretation. The defendant analyzed those specimens and prepared written reports of its findings, dated August 21, 1993, August 25, 1994, January 13, 1995, February 14, 1995, and November 8, 1995.

The plaintiff alleges that on November 22, 1995, she was diagnosed with Stage IB endocervical adenocarcinoma, and that she subsequently underwent a radical hysterectomy at Yale-New Haven Hospital. In February, 1996, at the plaintiffs request, the defendant sent the pathology slides that contain the Pap smear specimens taken from the plaintiff to Yale-New Haven Hospital for review. The Yale-New Haven Hospital pathology department analyzed the slides and prepared a report of its findings. That report provides that the slides contain “highly atypical endocervical cells.” The slides were then returned to the defendant.

In August, 1996, the plaintiff requested that the defendant release the slides directly to her. The defendant informed the plaintiff that it would not do so because the slides contained cells that could not be duplicated. The defendant agreed, however, to allow experts retained by the plaintiff to examine the slides at the defendant’s pathology department.

The plaintiff subsequently brought an action against the defendant in the Superior Court, by way of a bill of discovery, seeking an order compelling the defendant to release the slides to her. Specifically, the plaintiff maintained that their release was necessary in order for her to fulfill her obligation under General Statutes § 52-190a to ascertain, prior to bringing a malpractice claim against the defendant, a good faith basis for such a claim. The trial court concluded that the plaintiff did not need to obtain possession of the slides in order to satisfy the requirements of § 52-190a. Consequently, the court denied the plaintiffs request for an order compelling the defendant to release the slides directly to her.

Thereafter, the plaintiff brought this action for replevin against the defendant pursuant to General Statutes § 52-515 seeking possession of the slides and damages. The defendant moved for summary judgment, maintaining that the plaintiff lacked both a property interest in the slides and a right to their immediate possession. The plaintiff thereafter also moved for summary judgment, claiming a property interest in the slides and a right to their immediate possession. The trial court concluded that, as a matter of law, the plaintiff lacked a property interest in the slides and that, consequently, the plaintiff was not entitled either to replevin of the slides or to damages. The trial court, therefore, granted the motion for summary judgment filed by the defendant.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4024, now § 65-2, and General Statutes § 51-199 (c).

In Connecticut, replevin proceedings are governed by statute rather than by the rules that apply to common-law actions of replevin. Staub v. Anderson, 152 Conn. 694, 695, 211 A.2d 691 (1965); M. Itzkowitz & Sons, Inc. v. Santorelli, 128 Conn. 195, 198, 21 A.2d 376 (1941); Belknap Savings Bank v. Robinson, 66 Conn. 542, 547, 34 A. 495 (1895). Section 52-515 provides that “[t]he action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.” Thus, in order to replevin the slides, the plaintiff must establish that: (1) the slides are “goods or chattels” within the meaning of § 52-515; (2) she has a “property interest” in the slides; (3) she has a right to immediate possession of the slides; and (4) the defendant has wrongfully detained the slides. See D'Addario v. Abbott, 128 Conn. 506, 507-508, 24 A.2d 245 (1941); M. Itzkowitz & Sons, Inc. v. Santorelli, supra, 198.

The plaintiff claims that the trial court’s rendering of summary judgment in favor of the defendant was improper because there was a genuine issue of material fact as to whether the plaintiff had a property interest and a right to immediate possession of the specimens removed from her body during the procedures she had undergone. The plaintiff argues that: (1) a person’s body is “property”; (2) consequently, prior to removal from the plaintiffs body, the Pap smear specimens contained on the slides were her “property” and, therefore, her “chattel” within the meaning of § 52-515; (3) the plaintiff intended to retain her “property interest” in and her right to control of the specimens; and (4) as a result, § 52-515 provides the plaintiff a right to replevin of the slides that contain those specimens.

The defendant argues, conversely, that the plaintiffs claimed intent to retain ownership and a right to control of the Pap smear specimens contained on the slides does not raise an issue of material fact. The defendant contends that it was entitled to summary judgment because, as a matter of law, the plaintiff lacks both a property interest in and a right to immediate possession of the slides as required by § 52-515.

Assuming, without deciding, that the specimens are “property” and “chattel” within the meaning of § 52-515, and further assuming, without deciding, that the plaintiff has retained a “property interest” in the specimens, we, nevertheless, agree with the defendant that the plaintiff, as a matter of statutory law, lacks a right to immediate personal possession of the slides that contain those specimens. Consequently, the defendant was entitled to summary judgment.

An overview of the statutory scheme pertaining to patient access to hospital records is necessary to a resolution of this appeal. Historically, only General Statutes §§ 4-104 and 4-105 addressed such access. Section 4-104 provides that private hospitals receiving state aid “shall, upon the demand of any patient . . . permit such patient or his physician or authorized attorney to examine the hospital record . . . and permit copies of such history, bedside notes and charts to be made . . . .” Thus, § 4-104 provides a patient who has been discharged from a private hospital that receives state aid a statutory right to examine and to obtain copies of his hospital records. In 1978, concluding that the term “state aid” in § 4-104 refers only to appropriations by the General Assembly and not to property tax exemptions, payments made to a hospital pursuant to contractual relations with the state, or to reimbursement for services rendered to indigent patients; Doe v. Institute of Living, Inc., 175 Conn. 49, 64-65, 392 A.2d 491 (1978); this court further concluded that a private hospital that did not receive state aid had no legal obligation to allow patients to examine or obtain copies of their hospital records. Id., 65 (“[i]t is not for this court to impose obligations not intended by the legislature”). Thus, patients’ rights regarding access to their private hospital records historically were limited to a statutory right to examine or copy the records of those private hospitals that received state aid.

In 1992, however, the legislature enacted General Statutes § 19a-490b, which provides patients of all hospitals licensed by the state a right to examine and obtain copies of their hospital records. The circumstances surrounding the enactment of § 19a-490b are instructive. In 1983, the legislature enacted the access to patients’ medical records act; General Statutes §§ 20-7b through 20-7e; to provide patients with access to health records prepared by individual health care providers such as physicians and dentists. See Public Acts 1983, No. 83-413 (P.A. 83-413). The initial version of House Bill No. 5908, the bill that eventually was enacted as P.A. 83-413, and codified as General Statutes (Rev. to 1985) §§ 20-7b through 20-7e, required licensed physicians to release “a patient’s medical records upon receipt of proper authorization by the patient or his duly authorized agent.” Proposed House Bill No. 5908. The version of House Bill No. 5908 actually enacted, however, provided that “[ujpon a patient’s written request, a provider . . . shall furnish to a patient at a reasonable cost to such patient a copy of the patient’s health record, including but not limited to, x-rays and copies of laboratory reports, prescriptions and other technical information used in assessing the patient’s health condition.” (Emphasis added.) P.A. 83-413, § 2 (b); see General Statutes (Rev. to 1985) § 20-7c (b). “Provider” was defined in relevant part as “any person who furnishes health care services and is licensed to furnish such services pursuant to chapters 370 to 373, inclusive, 375 to 380, inclusive, and 382 of the general statutes.” (Emphasis added.) P.A. 83-413, § 1 (b); see General Statutes (Rev. to 1985) § 20-7b (b).

The legislative history of P.A. 83-413 confirms that the act was intended, principally but not exclusively, to provide patients a right to examine and to obtain copies of their health records prior to the initiation of malpractice litigation. See Conn. Joint Standing Committee Hearings, Public Health, Pt. 1,1983 Sess., p. 170, remarks of Jackie Coleman, assistant executive director of the Connecticut Psychiatric Society; id., pp. 198-99, remarks of Brett Flamm. The legislative history of P.A. 83-413, also reveals that Proposed House Bill No. 5908 was amended to require providers to furnish a copy of a patient’s health record, rather than the original health record itself, specifically, but not exclusively, to ensure that the original health record is available to the provider in the event that the patient brings a malpractice action. See 26 S. Proc., Pt. 9, 1983 Sess., p. 3078, remarks of Senator Reginald J. Smith (“because of possible malpractice suits, [providers] should be allowed to keep the original file and . . . turn over a copy to the patient”).

In 1986, § 20-7c (b) was amended to delete the reference to “reasonable cost,” and to provide instead that “[n]o provider shall charge a patient more than twenty-five cents per page and the cost of first class postage, if applicable, for furnishing a health record pursuant to this subsection.” Public Acts 1986, No. 86-43, § 2; see General Statutes (Rev. to 1987) § 20-7c (b). During the discussion on the floor of the House of Representatives of House Bill No. 5217, which was the bill that eventually was enacted as Public Act 86-43, Representative Adele L. Kusnitz remarked, while addressing the cost of duplication of nonpaper portions of a patient’s health record, that “the [health] record would include slides, microscopic slides that were prepared for the pathologist . . . x-rays, laboratory reports, slides, it could be any number of things that are used in making the diagnosis and are part of the permanent record.” (Emphasis added.) 29 H.R. Proc., Pt. 2, 1986 Sess, pp. 636, 638-39.

In 1991, § 20-7c was amended to prohibit providers from charging a fee for furnishing health records to patients who request the records in order to apply for benefits under the Social Security Act. Public Acts 1991, No. 91-137, § 2; see General Statutes (Rev. to 1993) § 20-7c. In addition, in order to “eliminate any charges for hospital . . . records for individuals filing social security appeals”; 35 H.R. Proc, Pt. 9, 1992 Sess, p. 2941, remarks of Representative Joseph Courtney; the definition of provider in § 20-7b (b) was amended to include institutions, such as hospitals, that are licensed to furnish health care services pursuant to chapter 368v of the General Statutes. Public Acts 1991, No. 91-137, § 1; see General Statutes (Rev. to 1991) § 20-7b (b), as amended by Public Act 91-137, § 1.

The 1991 amendment to the definition of provider in § 20-7b (b), however, had the unintended consequence of also making hospitals subject to the per page maximum copy fee set forth in § 20-7c (b). See 35 H.R. Proc, supra, p. 2941, remarks of Representative Courtney; Conn. Joint Standing Committee Hearings, Human Services, Pt. 1, 1992 Sess, pp. 56 and 109, remarks of Michael Eisner, counsel for the Connecticut Hospital Association. In 1992, the legislature, therefore, deleted from the definition of provider in § 20-7b (b) the reference to institutions licensed to provide health care services pursuant to chapter 368v, and added to chapter 368v of the General Statutes a separate section addressing patient access to hospital records. General Statutes § 19a-490b. Public Acts 1992, No. 92-78; see General Statutes (Rev. to 1993) §§ 20-7b (b) and 19a-490b. As originally enacted, § 19a-490b (a), like General Statutes (Rev. to 1991) § 20-7c (b), as amended by Public Act 91-137, § 1, provided in relevant part that “ [u]pon a patient’s written request, [licensed providers] shall furnish to a patient a copy of the patient’s health record, including but not limited to, copies of laboratory reports, prescriptions and other technical information used in assessing the patient’s health condition. . . .” Section 19a-490b (a), however, did not incorporate the twenty-five cent maximum per page copy fee provided in § 20-7c (b) but instead imposed a maximum per page copy fee of sixty-five cents. See General Statutes (Rev. to 1993) § 19a-490b (a).

Thus the language, legislative history and circumstances surrounding the enactment of §§ 20-7b through 20-7e and § 19a-490b manifest the legislature’s intention that: (1) pathology slides constitute part of a patient’s health record; (2) patients be given the right to examine and obtain copies of their hospital health records without first initiating a malpractice action; and (3) hospitals be permitted to retain possession of original health records to ensure, inter alia, that such records are available to the hospital in the event of a malpractice action. This statutory history raises two separate questions: (1) are pathology slides part of a patient’s health record; and (2) do pathology slides that cannot be duplicated fall within a hospital’s right to retain original health records? We conclude that both of these questions should be answered in the affirmative.

The first question is relatively easy to resolve. The legislature’s intent to preserve reasonable access for a patient to that patient’s health records counsels against a narrow construction of “health record.” We can conceive of no rational argument to the contrary.

The second question is more difficult. We must reconcile the statutes’ express recognition of a patient’s right of access to health records with the statutes’ failure to address specifically the problem presented if, as in this case, some components of a health record, such as the slides that contain the Pap smear specimens taken from the plaintiff, cannot be duplicated. Because, in our view, the legislature attempted to create a comprehensive network of patient rights, we can discern no basis for extending these rights beyond that which the legislature contemplated. See Doe v. Institute of Living, Inc., supra, 175 Conn. 65. We are persuaded, therefore, that patients’ rights of access to their health records are limited to those specified by statute. Furthermore, the legislature has manifested an intention that hospitals be permitted to retain possession of original health records in order to ensure, inter alia, that such records are available to the hospital in the event of a malpractice action. We conclude, therefore, that § 19a-490b does not afford patients a right to possession of those components of their hospital records that cannot be duplicated.

Our conclusion finds additional support in the fact that § 19a-490b is not the only statute that governs the obligations of health care providers regarding pathology slides. Pursuant to General Statutes § 19a-36, formerly § 19-13, the commissioner of public health has adopted § 19-13-D32 (b) of the Regulations of Connecticut State Agencies, which provides that “[n]o specimen of excised tissue shall be subjected to pathological examination except by a physician licensed to practice in Connecticut who is certified in pathologic anatomy by the American Board of Pathology. No specimen of exfoliated tissue or cells shall be examined except under the supervision and review of a physician licensed to practice in Connecticut who either is so certified or has special qualifications acceptable to the commissioner of health for making such examinations.” (Emphasis added.) In addition, pursuant to the authority of General Statutes § 19a-14, §§ 19a-14-41 through 19a-14-43 of the Regulations of Connecticut State Agencies address the obligations of licensed physicians with respect to patients’ medical records. Licensed physicians are required to “maintain appropriate medical records of the assessment, diagnosis, and course of treatment provided each patient, and such medical records [must] be kept for the period prescribed . . . .” Regs., Conn. State Agencies § 19a-14-41. In addition, the regulations provide that “[u]nless specified otherwise herein, all parts of a medical record shall be retained for a period of seven (7) years from the last date of treatment, or, upon the death of the patient, for three (3) years. . . . Pathology Slides . . . must ... be kept for seven (7) years. . . ,” (Emphasis added.) Regs., Conn. State Agencies § 19a-14-42 (a). Finally, “[i]f a claim of malpractice, unprofessional conduct, or negligence with respect to a particular patient has been made, or if litigation has been commenced, then all records for that patient must be retained until the matter is resolved.” (Emphasis added.) Regs., Conn. State Agencies § 19a-14-43.

Thus, the statutory and regulatory scheme that governs the obligations of health care providers with respect to health records recognizes that a hospital has public duties as well as private interests with respect to proper retention of slides for seven years and, if a patient has raised a malpractice claim or malpractice litigation has commenced, until the claim or litigation has been resolved.

We conclude, therefore, that a patient who seeks possession and control of nonduplicable pathology slides contained in the patient’s hospital record for litigation related purposes does not have a right to possession of such slides. Because the plaintiff lacks a right to immediate possession of the pathology slides that contain the Pap smear specimens, she is not entitled to replevin of those slides.

The judgment is affirmed.

In this opinion BORDEN, NORCOTT, KATZ, PALMER and PETERS, Js., concurred.

MCDONALD, J.,

dissenting. One principle that formerly appeared deeply ingrained in our society and in our law is that one controls one’s body. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 869, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). In this case, the patient sought to regain control of cells taken from her for medical treatment. This decision now severely restricts the patient’s control over her own cells at a time when the advance of genetic science should raise very wide privacy implications. Because she sought these cells for litigation-related purposes, the majority now holds that the patient has no right to immediate possession to parts of her own body. The majority implies, in footnote 19, without deciding, that she may have such a right for purposes reasonably related to her medical care. The majority also intimates that the patient may be required to direct her cells to another medical provider to safeguard them.

In good part, the majority relies on legislation concerning medical records to ascertain a legislative intent to restrict a patient’s right to her tissue samples. The majority, however, fails to consider legislation explicitly covering this case. The legislature recently enacted Public Acts 1998, No. 98-144, entitled “An Act Concerning Patient Access to Tissue Slides in Health Records.” The act provides that institutions are required to send a patient’s tissue slides to the institution, laboratory or physician that the patient designates without restrictions as to the patient’s purpose. I, therefore, disagree that the patient may not direct that her tissue slides be sent to her designated physician for litigation-related purposes.

Furthermore, the issue as to whom she may wish to direct the tissue slides was not settled in the papers before the trial judge. In these circumstances, summary judgment was improper. See Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481, 697 A.2d 680 (1997).

Accordingly, I respectfully dissent and would remand this case for a trial on those issues vital to privacy and health.

       In this opinion, we refer to the pathology slides that contain the Pap smear specimens taken from the plaintiff as the slides.

       General Statutes § 52-190a provides in relevant part: “,(a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate. . . .”

       General Statutes § 52-515 provides: “The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.”

       The plaintiffs motion for summary judgment was based entirely upon an affidavit in which she stated that, at the time she consented to the Pap smear procedures, it was her unstated assumption that she would retain ownership of, and a right to control over, the specimens taken from her body.

       The plaintiff also claims that the trial court improperly failed to grant her motion for summary judgment. Specifically, the plaintiff maintains that she was entitled to summary judgment because the defendant offered no evidence to rebut her claim that she intended to retain ownership and control of the specimens removed from her body. Because our conclusion, later in this opinion, that the plaintiff, as a matter of law, lacks a right to immediate possession of the slides that contain those specimens is dispositive of this appeal, we disagree with this claim.

       This new, and thorny, question has as yet been the subject of very little authority and commentary. See, e.g., Moore v. Regents of University of California, 51 Cal. 3d 120, 136-37, 793 P.2d 479, 271 Cal. Rptr. 146 (1990), cert. denied, 499 U.S. 936, 111 S. Ct. 1388, 113 L. Ed. 2d 444 (1991) (refusing to apply property law to cells and bodily tissues); see generally E. Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (1996) (arguing that, for reasons of policy, claims to human biological material ought not be subject to property law analysis); compare Moore v. Regents of University of California, 215 Cal. App. 3d 709, 249 Cal. Rptr. 494, 506-507 (1988) (concluding that bodily tissue is property for purposes of action for conversion), rev’d in part, Moore v. Regents of University of

        California, supra, 51 Cal. 3d 120; comment, “Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue,” 34 U.C.L.A. L. Rev. 207 (1986) (arguing that bodily tissue is property within meaning of bailment law).

       General Statutes § 4-104 provides: “Each private hospital, public hospital society or corporation receiving state aid shall, upon the demand of any patient who has been treated in such hospital and after his discharge therefrom, permit such patient or his physician or authorized attorney to examine the hospital record, including the history, bedside notes, charts, pictures and plates kept in connection with the treatment of such patient, and permit copies of such history, bedside notes and charts to be made by such patient, his physician or authorized attorney. If any such hospital, society or corporation is served with a subpoena issued by competent authority directing the production of such hospital record in connection with any proceedings in any court, the hospital, society or corporation upon which such subpoena is served may, except where such record pertains to a mentally ill patient, deliver such record or at its option a copy thereof to the clerk of such court. Such clerk shall give a receipt for the same, shall be responsible for the safekeeping thereof, shall not permit the same to be removed from the premises of the court and shall notify the hospital to call for the same when it is no longer needed for use in court. Any such record or copy so delivered to such clerk shall be sealed in an envelope which shall indicate the name of the patient, the name of the attorney subpoenaing the same and the title of the case referred to in the subpoena. No such record or copy shall be open to inspection by any person except upon the order of a judge of the court concerned, and any such record or copy shall at all times be subject to the order of such judge. Any and all parts of any such record or copy, if not otherwise inadmissible, shall bo admitted in evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of the record room of the hospital or his authorized assistant indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter. A subpoena directing production of such hospital record shall be served not less than twenty-four hours before the time for production, provided such subpoena shall be valid if served less than twenty-four hours before the time of production if written notice of intent to serve such subpoena has been delivered to the person in charge of the record room of such hospital not less than twenty-four hours nor more than two weeks before such time for production.”
      General Statutes § 4-105 provides: “K any patient who has received treatment in any such hospital, after his discharge from such hospital, has made written application to such hospital, hospital society or corporation for permission to examine his record as such patient in such hospital and has been refused permission to examine or copy the same, such patient may file a written motion addressed to any judge of the Superior Court, praying for a disclosure of the contents of such hospital record relating to such patient and for a production of the same before such judge. Upon such application being filed, the judge to whom the same has been presented shall cause reasonable notice to be given to such hospital, hospital society or corporation of the time when and place where such petition will be heard, and such judge, after due hearing and notice, may order the officer authorized to act in the capacity of manager of such hospital to produce before him and deliver into his custody the history, bedside notes, charts, pictures and plates of such patient for the purpose of being examined or copied by such patient, his physician or authorized attorney. Each officer of any hospital having custody of the history, bedside notes, charts, pictures or plates of any patient therein, who refuses to produce such record before such judge, pursuant to the provisions of this section, shall be fined not more than one hundred dollars or imprisoned not more than six months or both.”

       The plaintiff does not claim that the defendant receives “state aid” within the meaning of § 4-104.

       General Statutes § 19a-490b, as amended by Public Acts 1997, No. 97-216, provides in relevant part: “(a) Upon the written request of a patient, his attorney or authorized representative, or pursuant to a written authorization, an institution licensed pursuant 1o this chapter shall furnish to the person making such request a copy of the patient’s health record, including but not limited to, copies of bills, laboratory reports, prescriptions and other technical information used in assessing the patient’s health condition. No such institution shall charge more than sixty-five cents per page, including any research fees, clerical fees, handling fees or related costs, and the cost of first class postage, if applicable, for furnishing a health record pursuant to this subsection, except such an institution may charge the amount necessary to cover its cost of materials for furnishing a copy of an x-ray.
      “(b) No institution licensed pursuant to this chapter shall charge for furnishing a health record or part thereof to a patient, his attorney or conservator if the record or part thereof is necessary for the purpose of supporting a claim or appeal under any provision of the Social Security Act and the request for the records is accompanied by documentation of the claim or appeal. An institution shall furnish the requested record within thirty days of the request, unless the request was received in less than thirty days subsequent to the date the patient was discharged, in which case the institution shall furnish the requested record upon its completion. ...”

       General Statutes § 20-7b provides: “For purposes of sections 20-7b to 20-7e, inclusive:

        “(a) ‘Patient’ means anatural person who has received health care services from a provider for treatment of a medical condition, or a person he designates in writing as his representative; and
      “(b) ‘Provider’ means any person or organization that furnishes health care services and is licensed or certified to furnish such services pursuant to chapters 370 to 373, inclusive, 375 to 384a, inclusive, 388, 398 and 399 or is licensed or certified pursuant to chapter 368d.”
      General Statutes § 20-7c provides: “(a) A provider, except as provided in section 4-194, shall supply to a patient upon request complete and current information possessed by that provider concerning any diagnosis, treatment and prognosis of the patient.
      “(b) Upon a written request of a patient, his attorney or authorized representative, or pursuant to a written authorization, a provider, except as provided in section 4-194, shall furnish to the person making such request a copy of the patient’s health record, including but not limited to, bills, x-rays and copies of laboratory reports, contact lens specifications based on examinations and final contact lens fittings given within the preceding three months or such longer period of time as determined by the provider but no longer than six months, records of prescriptions and other technical information used in assessing the patient’s health condition. No provider shall charge more than forty-five cents per page, including any research fees, handling fees or related costs, and the cost of first class postage, if applicable, for furnishing a health record pursuant to this subsection, except such provider may charge a patient the amount necessary to cover the cost of materials for furnishing a copy of an x-ray, provided no such charge shall be made for furnishing a health record or part thereof to a patient, his attorney or authorized representative if the record or part thereof is necessary for the purpose of supporting a claim or appeal under any provision of the Social Security Act and the request is accompanied by documentation of the claim or appeal. A provider shall furnish a health record requested pursuant to this section within thirty days of the request.
      “(c) If a provider, as defined in section 20-7b, reasonably determines that the information is detrimental to the physical or mental health of the patient, or is likely to cause the patient to harm himself or another, he may withhold the information from the patient. The information may be supplied to an appropriate third party or to another provider who may release the information to the patient. If disclosure of information is refused by a provider under this subsection, any person aggrieved thereby may, within thirty days of such refusal, petition the superior court for the judicial district in which he resides for an order requiring the provider to disclose the information. Such a proceeding shall be privileged with respect to assignment for trial. The court, after hearing and an in camera review of the information in question, shall issue the order requested unless it determines that such disclosure would be detrimental to the physical or mental health of the person or is likely to cause the person to harm himself or another.
      “(d) The provisions of this section shall not apply to any information relative to any psychiatric or psychological problems or conditions.”
      General Statutes § 20-7d provides: “A copy of the patient’s health record, including but not limited to, x-rays and copies of laboratory reports, prescriptions and other technical information used in assessing the patient’s condition shall be furnished to another provider upon the written request of the patient. The written request shall specify the name of the provider to whom the health record is to be furnished. The patient shall be responsible for the reasonable costs of furnishing the information.”
      General Statutes § 20-7e provides: “The provisions of sections 20-7b to 20-7d, inclusive, shall not apply to medical records maintained by any agency as defined in section 4-190.”

         Chapters 370, 371, 372 and 373 of the General Statutes as revised to 1985 respectively address the practice of medicine and surgery, osteopathy, chiropractic and natureopathy.

       Chapters 375 through 380 of the General Statutes as revised to 1985 address the practice of podiatry, physical therapy, occupational therapy, alcoholism counseling, midwifery, nursing, dentistry and optometry.

       Chapter 382 of the General Statutes as revised to 1985 addresses the practice of pharmacy.

       Public Act 86-43, § 1, amended the definition of “provider” in § 20-7b (b) to include opticians licensed pursuant to chapter 381 of the General Statutes.

       See footnote 9 of this opinion.

       Section 19a-14-40 of the Regulations of Connecticut State Agencies provides in relevant part: “The purpose of a medical record is to provide a vehicle for: documenting actions talcen in patient management; documenting patient progress; providing meaningful medical information to other practitioners should the patient transfer to a new provider or should the provider be unavailable for some reason. . . .”

       The plaintiff has called our attention to Public Acts 1998, No. 98-144, which amends § 19a-490b (a) to provide in relevant part: “Upon the written request of the patient, the patient’s attorney or the patient’s designated health care provider, an institution shall send the original retained tissue slide [s] . . . directly to the patient’s designated licensed institution, laboratory or physician. . . Public Act 98-144, however, does not take effect until October 1, 1998. Moreover, Public Act 98-144, does not provide that a hospital must furnish original tissue slides directly to a patient, and the legislative history of Public Act 98-144 manifests the legislature’s intention that patients not have a right to possession of Pap smear slides. See 41 H.R. Proc., Pt. 11,1998 Sess., p. 3587, remarks of Representative Carl J. Dickman (“the provisions of this bill include . . . [P]ap [smear slides]”); id., p. 3584, remarks of Representative Anne McDonald (“There’s no intent ever to give the slides to a patient — this is why we [amended the bill] — or to his attorney. . . . [Hospitals] will only [be required to] release ... to another hospital, a licensed laboratory, or a physician in another state. Who presumably will know how to handle these slides.” [Emphasis added.]).

       Moreover, medicare and medicaid regulations provide that participating laboratories “must retain all slide preparations for five years from the date of examination .... Documentation for slides loaned or referred for purposes other than proficiency testing must also be maintained. All slides must be retrievable [by the laboratory] upon request.” 42 C.F.R. § 493.1257 (g); see 42 C.F.R. § 493.1. Thus, federal regulations prohibit participating laboratories from relinquishing control of Pap smear slides to medicare and medicaid patients for five years.

       We do not mean to suggest that there are no circumstances under which a hospital would be obligated to relinquish, for purposes of discovery in litigation, possession of nonduplicable portions of the patient’s hospital record. See Practice Book §§ 13-9, 13-10, 13-14 and 13-15, formerly §§ 227, 228, 231 and 232. Nor do we mean to indicate that hospitals have no legal obligation to comply with a patient’s written request that the hospital send nonduplicable hospital records directly to another health care provider for purposes reasonably related to the patient’s medical care under conditions reasonably designed to preserve the integrity and availability of those records. See footnote 17 of this opinion.

       See, e.g., “Scientist Reports First Cloning Ever of Adult Mammal,” New York Times, February 23, 1997, p. Al.

       The plaintiff submitted an unrefuted affidavit that she assumed that the Pap smear slides would be forwarded at her request to any new physician whom she selected and that she had ultimate authority over the disposition of the slides. She further stated that she requested that the slides be sent to her new physician for review, which was done, but when her attorneys requested the slides for review of a potential malpractice action, the slides could not be retrieved.


author: NORCOTT, J. CALLAHAN, C. J., MCDONALD, J., BERDON, J.,

text:
    STATE OF CONNECTICUT v. CHRISTOPHER G. BERNIER
    (SC 15781)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued February 18
    officially released August 4, 1998

      Timothy J. Sugrue, executive assistant state’s attorney, with whom were Guy W. Wolf III, senior assistant state’s attorney, and, on the brief, Frank S. Maco, state’s attorney, for the appellant (state).

      Joseph F. Keefe, with whom was A. Thomas Waterfall, for the appellee (defendant).
   Opinion

NORCOTT, J.

The sole issue in this certified appeal is whether, pursuant to article first, § 7, of the state constitution, a search warrant was required to perform a gas chromatography analysis on charred wood flooring samples that lawfully had been seized from the defendant’s home pursuant to a fire investigation. The trial court granted the defendant’s motion to suppress the results of the test and on the state’s appeal the Appellate Court affirmed the granting of the motion to suppress and the judgment of the trial court dismissing the charges against the defendant. State v. Bernier, 46 Conn. App. 350, 352, 700 A.2d 680 (1997). We reverse the judgment of the Appellate Court.

The relevant facts and procedural history are set forth in the opinion of the Appellate Court. “On November 15, 1990, the fire department of the town of Morris responded to a house fire alarm at the [home of the defendant, Christopher G. Bernier], Firefighters and equipment arrived at the scene at 8:37 a.m. to begin fire suppression measures. At 9:11 a.m., Joel Skilton, the local fire marshal, requested the state fire marshal’s assistance in conducting an investigation to determine the cause and origin of the fire. At 10:53 a.m., Detectives James Pierpont and Julio Fernandez of the state fire marshal’s office, arrived at the house and met with Skilton. Pierpont was accompanied by an accelerant detecting dog. The detectives and Skilton walked around the exterior of the house inspecting the fire damage and photographing the exterior. While taking photographs, they entered the interior of the home. As a part of their investigative inspection, they checked various rooms and moved various items of debris and furniture. In the living room, they observed a low burn pattern and pour patterns on the living room floor. These indicated the presence of a flammable liquid. Thereafter, the accelerant detecting dog was brought into the house. The dog alerted the fire investigators to several pour pattern areas. Because of those findings, four samples of charred wood flooring were taken from four different areas of the house. . . .

“The samples were placed in four separate cans and transmitted to the state police forensic science laboratory on November 16, 1990, the day after the fire. A moderate odor of petroleum was detected when the laboratory personnel opened one of the cans containing the samples. Gas chromatographic analysis revealed the presence of something similar to gasoline in three of the samples and a ‘medium range petroleum distillate’ in all four samples. The laboratory report was dated November 29, 1990.” State v. Bernier, supra, 46 Conn. App. 352-53.

The defendant was charged with arson in the first degree in violation of General Statutes § 53a-lll and with arson in the third degree in violation of General Statutes § 53a-113. The trial court denied the defendant’s initial motion to suppress the wood samples themselves and the photographs of the fire scene that had been obtained without a warrant. “The court ruled that the warrantless seizure was legally justified . . . because it was part of an investigation of the cause and origin of the fire.” Id., 352. Thereafter, relying on this court’s decision in State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), the defendant filed an amended motion to suppress any and all evidence obtained as a result of the warrantless analysis of the charred flooring samples. The trial court granted the motion and then granted the defendant’s subsequent motion to dismiss the charges against him. The state appealed to the Appellate Court.

The Appellate Court was divided, with the majority affirming the judgment of the trial court that a search warrant was required to conduct the testing of the flooring. State v. Bernier, supra, 46 Conn. App. 372. In determining whether the results of the tests should have been suppressed, the court had to resolve: ‘(1) whether [the defendant had] a reasonable expectation of privacy in the [samples], (2) whether the testing of the [samples] at the state laboratory constituted a search, and (3) if so, whether the circumstances of this case fall within a recognized exception to the warrant requirement.’ ” Id., 357.

The Appellate Court concluded that the defendant’s expectation of privacy in the flooring samples was reasonable, relying principally on the fact that they had been taken from his home, an area traditionally afforded heightened protection from government intrusion, as well as the fact that the defendant owned the property at issue. Id., 361. The court rejected the state’s claim that the reasonableness of the defendant’s expectation of privacy should be informed by General Statutes §§ 29-302, 29-310 and 29-311, which require that fire officials conduct a thorough investigation into the cause and origin of fires. Id., 364-65.

The Appellate Court next concluded that the gas chromatography tests constituted a search because this court had reached a similar conclusion in Joyce. Id., 365. Having determined that the defendant had a reasonable expectation of privacy in the flooring samples and that the gas chromatography analysis constituted a search, the Appellate Court was left to consider only whether there existed an applicable exception to the warrant requirement. Id. The Appellate Court concluded that the exigent circumstances exception did not apply here because, at the time of the testing at the state laboratory, any exigency had abated. Id., 366-67.

In his dissent, Judge Schaller asserted that the defendant’s expectation of privacy in the charred remains of his living room floor was not one that society would recognize as reasonable in light of the statutory framework authorizing the seizure of evidence pursuant to a cause and origin investigation of a fire. Id., 373-74. Specifically, Judge Schaller argued that these statutes contemplated the subsequent testing of the evidence because “[i]t would be incongruous ... to conclude that the legislature authorized, within the course of a cause and origin fire investigation, a seizure of investigative materials but failed to provide for the completion of the investigation by allowing the testing of those materials. . . . Clearly, the investigation authorized in §§ 29-302, 29-310 and 29-311 contemplated both the seizure and testing of those materials without the need for additional authorization, the original thorough investigation and seizure already having been authorized.” (Emphasis in original.) Id., 374. As a final matter, Judge Schaller maintained that the majority’s reliance on Joyce was misplaced because the property in Joyce had been seized by the police pursuant to their community caretaking function as opposed to an investigation expressly authorized by statute. Id., 375-76.

We granted the state’s petition for certification to appeal from the judgment of the Appellate Court limited to the following issue: “Did the Appellate Court properly conclude that State v. Joyce, [supra, 229 Conn. 10] requires that a search warrant be obtained to test items lawfully seized as part of an investigation into the cause and origin of a residential fire?” State v. Bernier, 243 Conn. 927, 701 A.2d 659 (1997).

The state argues that under article first, § 7, of the state constitution, a search warrant is not required to test the charred flooring samples because once the evidence was lawfully seized pursuant to the statutorily mandated cause and origin investigation of the fire scene, the defendant’s expectation of privacy in the samples was not reasonable. The defendant concedes that a warrant was not required for the fire marshal to enter the premises and to seize the samples of the wood flooring. He contends, however, that the Appellate Court properly concluded that the defendant retained a reasonable expectation of privacy in the flooring samples. We agree with the state.

In order for the defendant to demonstrate that he had a reasonable expectation of privacy in the flooring samples: (1) he must have manifested a subjective expectation of privacy with respect to the samples; and (2) that expectation must be one that society would consider reasonable. State v. Joyce, supra, 229 Conn. 19; State v. DeFusco, 224 Conn. 627, 633, 620 A.2d 746 (1993). For the purpose of this appeal, we assume, arguendo, that the defendant sufficiently manifested a subjective expectation of privacy in the flooring samples. The threshold question is, therefore, whether the defendant’s expectation of privacy in the charred flooring samples was an objectively reasonable one for state constitutional purposes. See, e.g., State v. Hill, 237 Conn. 81, 96, 675 A.2d 866 (1996). The burden is on the defendant to prove that his expectation of privacy in the place searched was one that society would recognize as reasonable. State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). The analysis focuses on whether Connecticut citizenry “is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy. . . . Under some circumstances, the determination of whether an expectation of privacy is reasonable involves a balancing of interests.” (Citations omitted; internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 95-96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The determination of “what Connecticut citizens would consider reasonable in the present day”; State v. DeFusco, supra, 635; “is made on a case-by-case basis . . . [and] involves a fact-specific inquiry into all the relevant circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Joyce, supra, 20.

We first address the state’s claim that the statutory framework authorizing the cause and origin investigation embodies Connecticut’s code of values and informs the reasonableness of the defendant’s expectation of privacy. The state argues that because the statutes expressly authorize both the entry of fire officials into any premises where a fire has occurred for investigative purposes as well as the seizure of evidence, they suggest that the defendant’s expectation of privacy in the flooring samples was not one that Connecticut citizens would consider reasonable.

We have recognized that “statutes may . . . help to define the contours of constitutional rights . . . .” (Citations omitted.) State v. Miller, 227 Conn. 363, 375, 630 A.2d 1315 (1993). Because “[legislative enactments are expressions of this state’s public policy”; id.; they may be relevant to the resolution of whether the defendant’s expectation of privacy is one that Connecticut citizens would recognize as reasonable. We previously have considered the presence of state regulation in determining whether a defendant’s expectation was one that Connecticut citizens would consider reasonable in State v. DeFusco, supra, 224 Conn. 627. The issue in DeFusco was “whether the defendant’s expectation of privacy in garbage placed at the curb for collection was objectively reasonable under the circumstances”; id., 635; such that a search warrant was required under article first, § 7, of the state constitution, to conduct a search and seizure. We were persuaded that the defendant’s expectation of privacy in the refuse was not objectively reasonable, in large part, by the existence of statutes regulating garbage collection, disposal and recycling. Id., 636-38. Because these statutes authorized access to the garbage by various individuals, they were “useful in our determination” that the defendant’s expectation of privacy in curbside garbage was not one that Connecticut citizens would recognize as reasonable. Id., 636 n.16.

We consider DeFusco to be instructive in our resolution of this appeal. Similar to DeFusco, we are presented in this case with a statutory scheme that represents the declared public policy of this state, albeit with regard to fire investigations, that informs our determination of Connecticut citizenry’s attitudes and expectations regarding privacy interests. Determining the cause of a fire is such a compelling public interest that fire marshals, both state and local, are required under state law to conduct an investigation. These statutes permit state officials to enter into private premises without a warrant and seize evidence. We conclude that Connecticut citizens have assented, by virtue of §§ 29-302, 29-310 and 29-311, to the testing of fire scene evidence without the warrant protection afforded by article first, § 7, of the state constitution.

In addition, we agree with the state that the presence of this statutory framework informs the objective reasonableness of the defendant’s expectation of privacy in the fire scene evidence taken from his home because it encompasses the gas chromatography analysis. The determination of the presence of an accelerant in the flooring and its identity were essential to ascertain the cause of the fire. We conclude that once the charred flooring samples were lawfully seized pursuant to the cause and origin investigation statutes, the defendant no longer possessed an expectation of privacy in them that Connecticut citizens would recognize as meriting constitutional protection. Accord State v. Moretti, 521 A.2d 1003 (R.I.1987) (under fourth amendment, no warrant necessary to test charred floorboards because no reason to recognize remaining privacy interests in objects seized pursuant to cause and origin investigation).

The defendant maintains, however, that the protection traditionally accorded to one’s privacy interests in the home extends to the wood flooring samples. It is well established that “[t]he sanctity of the home has a well established place in our jurisprudence.” State v. Geisler, 222 Conn. 672, 687, 610 A.2d 1225 (1992); see State v. Brown, 198 Conn. 348, 356-57, 503 A.2d 566 (1986) (“[pjrivacy expectations are normally highest and are accorded the strongest constitutional protection in the case of a private home”). It is axiomatic that the right to be secure in one’s home is central to the prohibition of article first, § 7, of the state constitution, against unreasonable intrusions by the state. Unlike the Appellate Court, however, we conclude that the particular location from which the material was taken from, alone, is not dispositive of the constitutional protection afforded. The heightened protection of article first, § 7, generally accorded to a private home is to prevent state officials from “thrustfing] themselves into ahorne. . . State v. Geisler, supra, 690. This concern is not present under the circumstances of this case. The intrusion of the state already had occurred when the fire officials legitimately entered the defendant’s home to conduct an investigation, inspected the premises and subsequently seized evidence. Once the flooring samples were removed from the defendant’s home, the sanctity of the home already had been compromised and the reasonable expectations of privacy thereafter were necessarily diminished. We reject the defendant’s contention that, in essence, his burned flooring merits a higher expectation of privacy than that accorded to his home.

The defendant argues, in addition, that our decisions in Joyce, Mooney and Miller “hold that the initial lawful seizure does not validate the subsequent warrantless search . . . .’’He contends that, despite the lawful seizure, he still retained an expectation of privacy in the floor samples. We disagree with the defendant that these cases support the notion that a search warrant was required.

In Joyce, for safekeeping the police collected clothing that had been cut from the defendant and left by the side of the road when he was taken to the hospital. After the defendant became a suspect, the police transmitted the clothing to the state forensic laboratory for testing. State v. Joyce, supra, 229 Conn. 14. This court concluded that the defendant retained a reasonable expectation of privacy in his clothing and that a search warrant was required under the state constitution to submit the clothing to a gas chromatography analysis. Id., 27.

Although both Joyce and the present case involve a gas chromatography analysis of certain materials, the defendant’s reliance on Joyce is misplaced. First, in Joyce, the police collected the defendant’s clothing to safeguard it pursuant to their community caretaking function. Id., 14. In contrast, in the present case, the flooring was seized as evidence pursuant to an investigation. The defendant’s expectations of privacy with regard to material seized as evidence as part of an investigation are diminished as compared to the situation in Joyce where the material was taken for safekeeping. Once a defendant’s personal property has been legitimately seized for investigatory purposes, the major portion of his privacy expectations has been legitimately breached, and the investigation ordinarily will legitimately include chemical testing of the property, without the necessity of an intervening warrant. Second, the nature and degree of personal information that could be revealed by the evidence distinguishes Joyce from the present case. The defendant bears the burden of proving that his privacy interests in the place searched are reasonable. State v. Brown, supra, 198 Conn. 356. We concluded in State v. Joyce, supra, 229 Conn. 23, that the defendant had a reasonable expectation of privacy in the “invisible and odorless chemicals present in his clothing” that might be revealed by the gas chromatography. Expert testimony was presented in Joyce that the test was designed to detect the presence and identity of many organic compounds by heating the clothing and analyzing the resultant vapors. Id., 24. The highly private facts about an individual that are contained in his clothing that might be revealed by the test were evidenced by the fact that the machine detected the presence of an organic material in the defendant’s underwear that was not an accelerant. Id., 24 n.16. Although the trial court in the present case stated that testing of the floor “would reveal personal and private information about that person or family; for example, signs of incontinence, or use of various fluids or substances”; it relied exclusively on Joyce as authority that the gas chromatography could reveal such personal information in flooring without exploring the extent and likelihood of such information being revealed and determining if it was sufficient to warrant the protection of article first, § 7, of the state constitution. The defendant adduced no evidence as to the type of private information the test conducted on the flooring could or did reveal about him. We are unpersuaded by the defendant’s contention that our conclusion in Joyce that the defendant in that case had a reasonable expectation of privacy in the information the gas chromatography might reveal from his clothing necessarily means that the same type of private facts might be revealed by the use of this test on the defendant’s flooring. We decline to impute to the defendant’s burned flooring the degree and nature of personal information contained in one’s clothing. The flooring samples, as compared to the clothes in Joyce, are such an unlikely repository of personal information as to render the defendant’s expectation of privacy unreasonable.

Mooney and Miller are also inapposite because the nature of the privacy interests at issue are distinguishable. In Mooney, we considered whether the defendant, a homeless man, had a reasonable expectation of privacy under the fourth amendment to the federal constitution in certain closed containers located in the area under a bridge abutment where he was living. State v. Mooney, supra, 218 Conn. 86. Although the determination presented a “close question”; id., 98; we concluded that a search warrant was required because “[o]ur society has traditionally afforded a high degree of deference to expectations of privacy in closed containers because such an area is normally intended as a repository of personal effects.” Id., 111.

The defendant in Miller challenged as violative of article first, § 7, of the state constitution, a warrantless automobile search supported by probable cause but conducted after the automobile had been impounded and towed to the police department. State v. Miller, supra, 227 Conn. 365. We concluded that, contrary to federal precedent, under our state constitution a warrant was required to search the automobile because “[o]ur constitutional preference for warrants reflects a goal of protecting citizens from unjustified police intrusions by interposing a neutral decisionmaker between the police and the object of the proposed search.” Id., 382.

As in Joyce, our decisions in Mooney and Miller involved factual circumstances where the breadth of personal information that could be revealed by the particular area searched was such that an expectation of privacy was reasonable. In contrast, in the present case, the nature and extent of the private facts that possibly might be revealed by a piece of charred flooring simply are far less than the nature and extent of the private information that maybe gleaned from clothing, a closed duffel bag and an automobile trunk. “[Expectations of privacy in some places are afforded greater legitimacy than in others.” State v. Brown, supra, 198 Conn. 356. Furthermore, in Miller we simply declined to extend the scope of the automobile exception to our warrant requirement to a situation that was based on a fiction and that had exceeded the purpose of the exception. State v. Miller, supra, 227 Conn. 384-85. Finally, absent in Joyce, Mooney and Miller is a statutory scheme that, as in DeFusco, specifically authorizes certain intrusions by the state and is highly probative of the fact that the citizenry of Connecticut would not consider the defendant’s expectation of privacy reasonable.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and remand the case to that court with direction to deny the defendant’s motions to suppress and to dismiss the charges and for further proceedings.

In this opinion BORDEN, KATZ and PALMER, Js., concurred.

CALLAHAN, C. J.,

Taking into consideration both the statutes authorizing “thorough” cause and origin investigations when there has been a fire, especially with regard to whether the fire resulted from criminal activity; General Statutes §§ 29-302 and 29-311; and the compelling public interest in quickly ascertaining the causes of fires, I believe that we should adopt a bright line rule that whenever law enforcement personnel lawfully seize evidence from a fire scene, they may cause that evidence to be tested subsequently for the presence of an accelerant without first obtaining a warrant. It seems only logical that if the authorities are lawfully in possession of property, at least property not in a sealed container, a suspect has lost any reasonable expectation of privacy in that property. See State v. Joyce, supra, 229 Conn. 30 (Callahan, J., dissenting). B.ecause our opinion in Joyce contravenes that logic, and because the coexistence of the majority opinions in Joyce and in this case will cause needless confusion for the trial courts in future arson cases, I would explicitly overrule State v. Joyce, supra, 229 Conn. 10.

MCDONALD, J.,

concurring. In this case, the officers legally seized, under statutory authority, burned floorboards at a fire scene open to the public authorities to fight a fire and determine the fire’s origin forthwith.

Where evidence is so legitimately in the hands of the police, there is no reason under the federal or state constitution that reliable and highly relevant evidence of laboratory testing should be barred in the prosecution of any crime. In this case, the officers removed the floorboards pursuant to their explicit and valid statutory authority to investigate and quickly determine the origin of a fire. General Statutes § 29-311 (a); see also Michigan v. Tyler, 436 U.S. 499, 510-11, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); State v. Guertin, 190 Conn. 440, 448, 461 A.2d 963 (1983). Once the legal evidence is in the possession of the police, a further search warrant for laboratory testing should not be required any more than a further warrant should be required for the police to examine the evidence, visually or otherwise. See United States v. Edwards, 415 U.S. 800, 803-804, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); People v. Hadley, 179 Ill. App. 3d 152, 155-57, 534 N.E.2d 395, leave to appeal denied, 125 Ill. 2d 570, 537 N.E.2d 814 (1989); People v. Deacon, 130 Ill. App. 3d 280, 289-90, 473 N.E.2d 1354, cert. denied, 474 U.S. 921, 106 S. Ct. 253, 88 L. Ed. 2d 260 (1985); Bastin v. State, 510 N.E.2d 229, 231 (Ind. App. 1987). To the extent that State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), may be to the contrary in requiring a search warrant for laboratory testing, I agree with Chief Justice Callahan that it should be overruled.

This case and Joyce illustrate the uncertain and confusing state of the law of search and seizure that daily affects effective law enforcement. They also illustrate the unwisdom of our decision in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990), in which we held that even should the police search and seize evidence in objectively reasonable good faith, the exclusionary rule is applied. Id., 167, 171. The rationale of the exclusionary rule is that it will deter police misconduct with respect to privacy rights. As the United States Supreme Court pointed out in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), “[the exclusionary rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Id., 919. The Supreme Court has also observed that the exclusionary rule “exacts an enormous price from society and our system of justice . . . .” Segura v. United States, 468 U.S. 796, 816, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).

In this case, the officers, in obtaining the evidence and submitting it to the laboratory, acted in objectively reasonable reliance on a valid statute. Cf. Illinois v. Krull, 480 U.S. 340, 360, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

I would overrule Marsala to the extent that it may require suppression of evidence gathered by the police in objectively reasonable good faith.

Accordingly, I concur in the reversal of the Appellate Court.

BERDON, J.,

dissenting. I disagree with the majority opinion because, in my view, General Statutes § 29-311 must be interpreted as authorizing warrantless searches and seizures only under exigent circumstances. I believe that such an interpretation of § 29-311 is mandated by article first, § 7, of the Connecticut constitution and by this court’s decisions in State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993), and State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), cases from which I find this case to be indistinguishable. In this case, as in Miller and Joyce, the circumstances that justified the initial search and seizure of the defendant’s home — the fire in his home — had long since ceased to exist when the search at issue was executed. Because I believe that the defendant had an objectively reasonable expectation of privacy in the floorboards of his home and the warrantless search of those floorboards by the state at the chromatography laboratory did not occur under exigent circumstances, I would affirm the judgment of the Appellate Court.

Article first, § 7, of the Connecticut constitution grants to the citizens of Connecticut protection from unreasonable warrantless searches of their persons and their private property. It is well established that “searches and seizures inside ahorne without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). “¡Ajbsent consent to entry or exigent circumstances, a judicial determination of probable cause must stand in between the police and the door of a person’s home, whether the object of an entry is to search and seize or to arrest.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92 n.17, 675 A.2d 866 (1996); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980). When a search occurs without a warrant, the state bears the burden of demonstrating that the circumstances surrounding the warrantless search fit within one of the limited exceptions to the warrant requirement so as to justify the failure to obtain a warrant. State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993). In determining whether the circumstances fit within an exception to the warrant requirement, the exceptions themselves are narrowly construed. State v. Badgett, 200 Conn. 412, 428-29, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The majority concludes that the defendant was not entitled to the protections afforded by article first, § 7, with respect to the floorboards removed from his home because, in its estimation, the defendant’s subjective expectation of privacy in the floorboards was unreasonable. I disagree. “Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.” (Internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 92. Upon review, this court must accept the trial court’s factual conclusions unless those factual findings are legally or logically inconsistent with the facts found or involve an erroneous interpretation of the law. Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993). In this case, the trial court determined that the defendant’s expectation of privacy in the floorboards removed from his home was a reasonable one, and the Appellate Court affirmed that decision.

The conclusion reached by the trial court and the Appellate Court, that the defendant’s expectation of privacy in the floorboards removed from his home was reasonable, is entirely consistent with our jurisprudence in this area. Previously, we have concluded that important factors to be considered in deciding whether an expectation of privacy was reasonable include: (1) the place from which the item searched was removed; (2) ownership of the item searched; and (3) the degree of deference that society affords to expectations of privacy with respect to the item searched in light of its ownership and the place from which it was removed. State v. Mooney, 218 Conn. 85, 94-96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). In this case, the floorboards were removed from the defendant’s home, and the defendant was the owner of the floorboards. Society customarily affords a very high degree of deference to expectations of privacy within the home. See State v. DeFusco, 224 Conn. 627, 634, 620 A.2d 746 (1993) (state constitution affords highest protection against state invasion into home); State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983) (violation of right to privacy in home is “chief evil” against which fourth amendment is directed). Although the majority concludes that floorboards are unlikely repositories for private information, the fact is that the chemical analysis of the floorboards was capable of revealing a significant amount of private information about the defendant and other occupants of his home, in that it could reveal the presence of substances such as pharmaceuticals, alcohol and bodily fluids. In addition, other factors that might have affected the reasonableness of the defendant’s expectation of privacy in the floorboards, such as evidence that the floorboards had been discarded or abandoned, were not present in this case. Indeed, in that regard, the expectation of privacy is even stronger in this case than it was in State v. Joyce, supra, 229 Conn. 21, wherein we found that a warrant was required by the state constitution with respect to the defendant’s clothing that had been removed from his person and left by the roadside. It is, therefore, unquestionable, in my view, that the defendant’s expectation of privacy in the floorboards of his home was entirely reasonable.

Once it has been determined that a legitimate privacy interest exists with respect to property that has been subjected to a warrantless search, it is incumbent upon the state to demonstrate that the warrantless search was justified because it fit within one of the exceptions to the warrant requirement. In this case, the state argued that the warrantless search of the defendant’s property was justified in light of § 29-311. That section authorizes fire and police personnel to enter private property and investigate the causes and origins of a fire without a warrant, on the basis of the exigent circumstances presented by the fire and in the interest of public safety. Pursuant to that section, the fire investigators in this case were properly authorized to investigate the fire scene without a warrant and, further, I will assume for the purposes of this case, were properly authorized to seize the defendant’s floorboards on the basis of the urgent need to preserve that evidence from damage, or from being tampered with, lost or stolen. In determining whether any further warrantless search or seizure was constitutional, however, it is critical to bear in mind that § 29-311 is based upon the exigent circumstances exception to the warrant requirement and, therefore, the contours of that exception are controlling.

The exigent circumstances exception obviates the need for a warrant only in those limited “situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978). “[W]hen there are reasonable alternatives to a warrantless search, the state has not satisfied its burden of proving exigent circumstances.” (Internal quotation marks omitted.) State v. Gant, supra, 231 Conn. 68. Furthermore, when a warrantless search is justified by exigent circumstances, it “must be strictly circumscribed by the exigencies which justify its initiation.” (Internal quotation marks omitted.) Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998); State v. Miller, 29 Conn. App. 207, 229, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).

In Miller, on appeal to this court, we considered whether the automobile exception to the warrant requirement should be extended to allow a warrantless search of an automobile that had been removed from the highway and securely impounded at the police station. This court concluded that such an extension of the automobile exception would be violative of article first, § 7, of the state constitution. The basis for our decision was the fact that once the automobile was impounded in a secure area, the exigencies inherent in a roadside search would have evaporated, and there no longer would exist any justification for not seeking authorization for the search from a neutral and detached magistrate. This court further articulated the basis for its decision as follows: “We tolerate the warrantless on-the-scene automobile search only because obtaining a warrant would be impracticable in light of the inherent mobility of automobiles and the latent exigency that that mobility creates. ... If the impracticability of obtaining a warrant no longer exists, however, our state constitutional preference for warrants regains its dominant place in that balance, and a warrant is required.” (Citation omitted; emphasis in original.) State v. Miller, supra, 227 Conn. 384-85.

Similarly, in State v. Joyce, supra, 229 Conn. 27, we concluded that a warrant was required in order to perform the same gas chromatography analysis that was performed in this case on the defendant’s clothing that had been removed from his person by paramedics and left by the roadside near the scene of a fire at his parent’s home. The defendant in Joyce initially was not suspected of having been responsible for causing the fire, and his clothes were placed into police custody merely for safekeeping. Id., 13-14. When the defendant later became a suspect, the police sent his clothing to the state forensic laboratory for chemical testing without first obtaining a warrant to perform that search. Id., 14. We concluded that the search was violative of our state constitution because the circumstances did not fall within the exigency exception or any other exception to the warrant requirement. Id., 27.

Likewise, in this case, the subsequent search of the floorboards through chromatographic analysis required that a warrant first be obtained. By the time the subsequent search was performed, the floorboards had been removed and placed securely into police custody, and were no longer in any danger of being lost, stolen, tampered with or destroyed. There was, therefore, no longer any justification for the failure to obtain a warrant prior to searching them. As we previously have stated, when a warrantless search is justified by exigent circumstances, that search “must be strictly circumscribed by the exigencies which justify its initiation” (internal quotation marks omitted); Tierney v. Davidson, supra, 133 F.3d 197; State v. Miller, supra, 29 Conn. App. 229; and if reasonable alternatives to the warrantless search existed, the state will not have satisfied its burden of proving exigent circumstances. State v. Gant, supra, 231 Conn. 68. The fact that no exigency existed in this case and the evidence was secure in the custody of police negated any possibility that the warrantless search could be justified.

Moreover, § 29-311 offers no cure for the lack of exigent circumstances in this case. Although that statute authorizes fire and police personnel to investigate, without a warrant, the causes and origins of a fire and to act to prevent the destruction of evidence for a reasonable amount of time following the suppression of a fire, the statute cannot be interpreted in such a way as to render it violative of rights guaranteed by the state constitution. Consequently, the section must be interpreted as a codification of the exigent circumstances exception to the warrant requirement. Because that exception clearly is bounded by the exigencies upon which it is based, so too is § 29-311.

Chief Justice Callahan, in his concurring opinion, intimates that this case is indistinguishable from Joyce and I agree. I disagree, however, with the Chief Justice’s suggestion that, in effect, we overrule Joyce by adopting a “bright line” rule that whenever law enforcement personnel lawfully seize evidence from a fire scene, that evidence may be tested subsequently for the presence of an accelerant without first obtaining a search warrant. One factor that distinguishes a democracy from a police state is respect for the fundamental right to privacy. That respect requires that we place the warrant requirement between the police and the privacy of each citizen when circumstances do not fit within any established exception. “Our [state] constitutional preference for warrants reflects a goal of protecting citizens from unjustified police intrusions by interposing a neutral decisionmaker between the police and the object of the proposed search.” State v. Miller, supra, 227 Conn. 382.

In my view, Miller and Joyce require the same outcome in this case as was reached in those cases. Simply put, a warrant was required because “[there] was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.” Walter v. United States, 447 U.S. 649, 654, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980).

Accordingly, I dissent.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       General Statutes § 53a-lll provides in relevant part: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury. . . .”

       General Statutes § 53a-113 provides in relevant part: “Arson in the third degree: Class C felony, (a) A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building ... of his own or of another by intentionally starting a fire or causing an explosion.

       In State v. Joyce, supra, 229 Conn. 14-15, this court determined that the warrantless gas chromatography analysis of the defendant’s burned clothing, which had been cut off him in order to administer medical treatment and later was retrieved by the police pursuant to their community caretaking function, violated article first, § 7, of the state constitution because the defendant had possessed a reasonable expectation of privacy in his clothing, the testing therefore constituted a “search,” and there was no applicable exception to the warrant requirement.

       The Appellate Court decision rested entirely upon article first, § 7, of the state constitution.

       General Statutes § 29-302 provides: “Investigations. The local fire marshal shall, in accordance with the provisions of section 29-311, investigate the cause, origin and circumstances of any fire or explosion within his jurisdiction, by reason of which property has been destroyed or damaged, or any person injured or killed, or any incidents which threatened any property with destruction or damage or any person with injury or death by reason of fue or explosion, and shall especially investigate whether such fire was the result of an incendiary device or the result of carelessness, design or any criminal act; and the Commissioner of Public Safety as State Fire Marshal, or the deputy fire marshal under his direction, may supervise and direct such investigation.”
      General Statutes § 29-310 provides in relevant part: “Investigation by State Fire Marshal of origin of fires or explosions. Order to remove combustible material or remedy flammable condition or fire hazard. Penalty, (a) The Commissioner of Public Safety as State Fire Marshal shall thoroughly investigate the cause, circumstances and origin of all fires or explosions to which his attention has been called, in accordance with the provisions of this part, by reason of which any property has been destroyed or damaged, or any person injured or killed, and shall especially examine and decide as to whether such fire was the result of carelessness, design, an incendiary device or any other criminal act. He may take the testimony under oath of any person supposed to be cognizant of or to have means of knowledge in relation to the matters as to which an examination is being made, and shall cause the same to be reduced to writing and filed in his office; and if, in his opinion, there is sufficient evidence to warrant that any person should be charged with the crime of arson or any other crime, he shall forthwith submit such evidence, together with the names of the witnesses and all other information obtained by him, to the proper prosecuting officer. He may, in any investigation, issue subpoenas for the purposes of summoning and compelling the attendance of witnesses before him to testily. He may administer oaths or affirmations to witnesses before him, and false swearing therein shall be perjury. He may, in the performance of his duties, enter, by himself or his assistants, into and upon the premises or building where any fire or explosion has occurred and premises thereto acjjacent in accordance with the provisions of section 29-311. . . .”
      General Statutes § 29-311 provides: “Fire investigations. Warrant requirements. The Commissioner of Public Safety as State Fire Marshal, any local fire marshal within his jurisdiction, and all duly authorized fire and police personnel acting within their jurisdiction may enter into and upon any premises or building where any fire or explosion has occurred and premises adjacent thereto, without liability for trespass or damages reasonably incurred, to conduct investigations in accordance with sections 29-302 and 29-310, under the following circumstances and conditions:
      “(a) During an emergency by reason of fire or explosion on any premises, they or any of them may, without a warrant, enter such premises during the suppression of the fire or explosion or within a reasonable period of time following the suppression thereof and remain for a reasonable period of time following the suppression of the fire or explosion to: (1) Investigate in order to determine the cause and origin of the fire or explosion, (2) prevent the intentional or unintentional destruction of evidence and (3) prevent a rekindling of the fire.
      “(b) After expiration of a reasonable period of time following the suppression of the fire or explosion, they or any of them shall apply in writing under oath to any judge of the Superior Court for a warrant to enter upon the premises to determine the cause and origin of the fire or explosion, if such cause or origin has not been previously determined. The application shall describe: (1) The premises under investigation, (2) the owner or occupant of the premises, if reasonably ascertainable, (3) the date and time the fire or explosion which is the subject of the investigation was reported to a police or fire agency, and (4) the date and times during which the investigative activities to determine the cause and origin of such fire or explosion are to be conducted. The judge to whom an application for a warrant is made may issue such a warrant upon finding that the requirements of this subsection have been met, and that the proposed activities are a reasonable intrusion onto the private premises to determine the cause and origin of the fire or explosion.”

       The Appellate Court justified its rejection of the state’s claim based on testimony by the local fire marshal that the cause and origin investigation had been completed on the day of the fire. State v. Bernier, supra, 46 Conn. App. 364-65. The Appellate Court reasoned that the trial court had credited that testimony and that the factual finding of the trial court was not clearly erroneous. Id., 365.

       Specifically, the Appellate Court stated that “[t]he four samples of charred wood flooring were seized by the fire marshal investigators at the scene of the fire during their cause and origin investigation. . . . While the seizure of the samples can be found to have occurred due to the exigency of the on-the-scene fire investigation, the same conclusion cannot be reached as to the laboratory tests. The . . . flooring samples, once seized, were in the safe care of law enforcement personnel. . . . The exigencies of the fire scene seizure do not serve to justify the subsequent warrantless search by means of laboratory testing of the seized wood flooring.” State v. Bernier, supra, 46 Conn. App. 366-67.

       The certified question is framed only under the state constitution. The federal counterpart to article first, § 7, is the fourth amendment. Although we employ in our state constitutional analysis the same “analytical framework [that would be] used under the federal constitution”; State v. Joyce, supra, 229 Conn. 18 n.12; we also noted in Joyce that the result might be different under the state constitution in a case where Connecticut’s citizens would consider a given expectation of privacy reasonable while the national citizenry would not.

       The state does not argue otherwise.

       The trial court concluded that the cause and origin investigation was completed on the day of the fire. In the Appellate Court, both the majority; State v. Bernier, supra, 46 Conn. App. 364-65; and Judge Schaller in his dissent; id., 372-73; considered the conclusion of the trial court a finding of fact. We are persuaded, however, that the determination as to whether the gas chromatography analysis is within the scope of the legislatively mandated cause and origin investigation is a question of statutory construction and therefore a question of law.

       “The community caretaking function serves several interests, including protecting the owner’s personal property, deterring false claims against the police, protecting the police from danger potentially posed by the property, and inhibiting careless handling of articles taken from arrested persons.” State v. Bernier, supra, 46 Conn. App. 367. Custody pursuant to a community caretaking function is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).

       That the flooring would not necessarily reveal the same degree of personal information is evidenced by the fact that one sample was retrieved from underneath the house because the floor had burned completely through.

       In Joyce, the Appellate Court upheld the admission of the test results by a two to one vote; State v. Joyce, supra, 229 Conn. 12; and we reversed the Appellate Court by a vote of five to two. Id., 28. In this case, the Appellate Court held that the testing results should be suppressed in a two to one decision. State v. Bernier, supra, 46 Conn. App. 552.

       General Statutes § 29-311 (a) provides: “During an emergency by reason of fire or explosion on any premises, [the commissioner of public safety as state fire marshal, any local fire marshal within his jurisdiction, and all duly authorized fire and police personnel acting within their jurisdiction] may, without a warrant, enter such premises during the suppression of the fire or explosion or within a reasonable period of time following the suppression thereof and remain for a reasonable period of time following the suppression of the fire or explosion to: (1) Investigate in order to determine the cause and origin of the fire or explosion, (2) prevent the intentional or unintentional destruction of evidence and (3) prevent a rekindling of the fire.”

       The same rule applies with respect to warrantless searches and seizures justified under the emergency exception — a specific type of exigent circumstance. When “the police act without a warrant under the emergency exception, once that emergency ceases to exist, the police must terminate their intrusive conduct.” State v. Joyce, supra, 229 Conn. 27; State v. Geisler, 222 Conn. 672, 695-96, 610 A.2d 1225 (1992).