author: Berdon, J. Covello, J.,

text:
    State of Connecticut v. Martin Geisler
    (14365)
    Peters, C. J., Shea, Glass, Covello and Berdon, Js.

      Argued February 19
    decision released June 18, 1992

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, was Steven M. Sellers, assistant state’s attorney, for the appellant (state).

      Richard Emanuel, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellee (defendant).
   Berdon, J.

In this appeal, the issue we certified for review is whether “the Appellate Court [was] correct in reversing the trial court’s factual finding that the police reasonably believed that the defendant was in need of emergency assistance, thus rendering entry of the defendant’s home lawful under the emergency doctrine?” State v. Geisler, 220 Conn. 918, 597 A.2d 342 (1991). We conclude that the Appellate Court properly held, on the basis of the facts found by the trial court, that pursuant to the state constitution the warrantless entry was not justified under the emergency doctrine. Therefore, we affirm the judgment of the Appellate Court.

In a three count substitute information, the defendant, Martin Geisler, was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (2), assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and evading responsibility in violation of General Statutes § 14-224 (a). The charges stemmed from a motor vehicle accident involving the defendant and Mark Brunstad, who was operating a motorcycle.

On January 27,1988, the trial court, Lewis, J., denied the defendant’s motion to suppress the results of the defendant’s blood alcohol tests, the defendant’s statements made at his home and at the station house, and the videotape of the defendant’s arrest. The trial court found that the evidence had been properly obtained because exigent circumstances justified the police officers’ warrantless entry into the defendant’s home, which subsequently resulted in his arrest. Thereafter, a jury convicted the defendant on all three counts.

The defendant did not appeal the judgment of his conviction for evading responsibility. The defendant appealed from the judgment convicting him of operating a motor vehicle while under the influence of intoxicating liquor and assault in the second degree with a motor vehicle. The Appellate Court, sitting en banc, with three judges dissenting, set aside the convictions, holding that the trial court should have granted the defendant’s motion to suppress the evidence obtained after the warrantless entry. State v. Geisler, 22 Conn. App. 142, 148, 576 A.2d 1283 (1990) (Geisler I). The Appellate Court remanded the case to the trial court with direction to render a judgment of acquittal on the charge of operating a motor vehicle while under the influence of intoxicating liquor and to conduct a new trial on the second degree assault charge. This court denied the state’s petition for certification. State v. Geisler, 215 Conn. 819, 576 A.2d 547 (1990).

Thereafter, the state petitioned the United States Supreme Court for a writ of certiorari, raising two questions. The first question sought a determination that the Appellate Court had improperly applied the emergency doctrine exception to the warrant requirement for a search of a private dwelling. In the second question, the state alternatively claimed that even if the entry into the private dwelling was illegal, suppression of the evidence subsequently obtained outside the home and at the police station was not required under New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). The court granted the petition for a writ of certiorari as to the second issue, vacated the Appellate Court’s judgment and remanded the case to the Appellate Court for further consideration in light of New York v. Harris, supra. Connecticut v. Geisler, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991).

On remand, the Appellate Court, sitting en banc, with two judges dissenting, concluded that although under Harris the federal exclusionary rule would not require suppressing the evidence obtained by the police after they left the defendant’s home, the Connecticut constitution extends greater protection to citizens of our state. The Appellate Court again ruled the evidence inadmissible, but this time it based its holding on state constitutional grounds. State v. Geisler, 25 Conn. App. 282, 292, 594 A.2d 985 (1991) (Geisler II). We then granted the state’s petition for certification to review the certified issue.

In Geisler I, supra, 144-47, and in Geisler II, supra, 285, the Appellate Court detailed the facts found by the trial court at the suppression hearing. We will discuss only those facts pertinent to the issues raised here. At approximately 3 p.m. on July 24, 1986, Brunstad was driving a motorcycle westbound on Long Lots Road in Westport. At the intersection of Long Lots Road and Bayberry Lane, Brunstad and a car traveling east on Long Lots Road collided, resulting in injuries to Brunstad. As he lay injured, Brunstad watched the car turn north on Bayberry Lane. When the police arrived, Brunstad described the car as a red Peugeot station wagon, and the driver as an older man with gray hair and glasses. Brunstad also told the police that the driver had stopped, had looked back at him and then had driven away.

Officer Michael Barrett of the Westport police department arrived at the scene of the accident while emergency personnel were attending to Brunstad. Barrett observed glass debris, a piece of trim and the front grille of a Peugeot. Westport police Sergeant Leonard Rummo told Barrett that a red Peugeot station wagon had hit Brunstad and then had fled the scene. Barrett assisted with traffic control for approximately twenty minutes and then was sent to check driveways on Bayberry Lane to try to locate the red Peugeot.

Approximately one mile from the accident scene, Barrett saw a red Peugeot station wagon in a driveway. He ran a check on the vehicle’s registration and obtained the defendant’s name and Bayberry Lane address. Barrett observed that the Peugeot’s door was ajar with the keys in the ignition. Additionally, the left front fender was dented, the trim and the plastic front grill were missing, the left headlight was broken, and the front fender had hair fibers attached to it.

Shortly thereafter, Westport police officer Gordon Hiltz arrived at the Bayberry Lane home to assist Barrett. Hiltz noticed that the Peugeot’s radiator felt warm, as if the car had been recently operated. The officers circled the house and then approached the front door. The inner door was open, but the screen door was closed. The officers rang the doorbell, knocked on the door and shouted through the screen door, but received no response. They again walked around the perimeter of the house and knocked on windows, but received no response. The officers knocked on the front door again, yelled into the house and still received no response. At this time, the officers discussed the possibility that the operator of the Peugeot might have been injured in the accident and might need assistance. At the suppression hearing, the officers testified that they had considered the following factors to be relevant in making that determination: the damage to the car; the victim’s description of the driver as “older”; their belief that the driver might have been rendered unconscious or might have suffered a heart attack; and their “collective experience” as police officers. The officers entered the defendant’s house without a warrant.

Once inside the house, the officers yelled “Anyone home?” into the kitchen, but received no response. From the kitchen the officers could see across a hallway into a bedroom. They saw someone lying on the bed and called out to the person. That person, the defendant, did not respond, and the officers entered the bedroom. The defendant lay fully clothed, either asleep or unconscious, and they smelled an odor of alcohol in the room.

The officers shook the defendant to awaken him and “to see if he was all right.” The defendant awoke, the officers asked if he was all right, and he replied that he was. The officers observed no visible injuries, the defendant complained of none, and the officers determined that the defendant was not injured.

While still in the bedroom, Barrett asked the defendant if he had been drinking, and he responded in the affirmative. In response to the officers’ questions, he admitted that the red Peugeot in the driveway belonged to him and that he had returned to his home an hour earlier. The officers asked the defendant to step outside where they questioned him further and then placed him under arrest. The defendant entered the patrol car and was read his Miranda rights.

At the police station, the officers videotaped the defendant answering questions and participating in performance tests given to determine his sobriety. The police administered to the defendant, with his consent, two blood alcohol breathalyzer tests and photographed him.

On the basis of the above factual findings, the trial court determined that the officers’ warrantless entry into the defendant’s home was justified by exigent circumstances, namely the officers’ reasonable beliefs that the defendant’s life was endangered, that the defendant might attempt to flee, and that evidence might be destroyed. The trial court further held that even if exigent circumstances did not exist, the blood alcohol results, the videotape of the defendant at the station house and the statements to the police were not “fruits of an illegal arrest,” and, therefore, were admissible. The trial court then denied the motion to suppress.

In Geisler I, the Appellate Court reversed, holding that on the basis of the facts found by the trial court, the officers could not have reasonably believed that the defendant’s life was endangered and that, therefore, the warrantless entry violated the search and seizure clause of the United States constitution. The Appellate Court determined that the “emergency doctrine” type of exigency was applicable to analyze the warrant-less entry into the defendant’s home and that the trial court’s factual findings did not support the officers’ conclusions that the defendant had been injured in the accident. The Appellate Court concluded that the trial court should have granted the motion to suppress the evidence obtained subsequent to the illegal entry—that is, the defendant’s statements at his home, his statements outside his home including those at the police station, the videotape and the results of the blood tests. Id., 155-56. The Appellate Court reasoned in Geisler I that the taint resulting from the unlawful entry into the defendant’s home was not sufficiently attenuated when the evidence was obtained.

In Geisler II, after remand by the United States Supreme Court, the Appellate Court held that the evidence obtained at the police station would have to be suppressed under state constitutional law, even though under federal constitutional law the evidence would be admissible. In its appeal from Geisler II, the state argues that the Appellate Court improperly found facts by reversing the trial court’s determination that the police officers’ entry was justified.

I

Well known federal and state constitutional principles govern the exclusion of evidence derived from a warrantless entry into a home. The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Entry by the government into a person’s home, “ ‘is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Payton violations—that is, warrantless searches and seizures inside ahorne, are “presumptively unreasonable”; id., 586; and the state bears the burden of showing that an exception to the warrant requirement exists. Id., 586 n.25; State v. Zindros, 189 Conn. 228, 237, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). “[A]bsent 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.” State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980). To discourage unreasonable searches and seizures, the evidence obtained as a direct result of that illegal search or seizure, as well as the ‘‘fruits,” or evidence derived therefrom, are excluded from evidence, unless the connection between the “fruits” and the illegal search has been sufficiently attenuated to be purged of its primary taint. Segura v. United States, 468 U.S. 796, 804-805, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).

In 1990, the United States Supreme Court in New York v. Harris, supra, narrowed the exclusionary rule in illegal warrantless home arrest situations so that evidence obtained away from the home incident to the arrest need not be suppressed if the police officers had probable cause to make the warrantless arrest. Id., 18. The court held that “the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Pay-ton.” Id., 21. In its analysis, the court in Harris distinguished “fruit of the poisonous tree” cases, which are analyzed by determining whether the evidence obtained is sufficiently divorced from the underlying illegality. It held that “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ” Id., 19, quoting United States v. Crews, 445 U.S. 463, 471, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980). Because the arresting officers in Harris had probable cause to arrest the defendant and because the statement at issue had been made while the defendant was lawfully detained at the police station, the court held that the statement was “not the product of being in unlawful custody. Neither was it the fruit of having been arrested in the home rather than someplace else.” New York v. Harris, supra.

Accordingly, if we were to follow Harris in interpreting our state constitution, the videotape, the blood alcohol results and the statements made by the defendant at the police station would be admissible into evidence because they were obtained while the defendant was in lawful custody at the police station and would not constitute “fruits” of the illegal entry into the dwelling. This court has not previously addressed this important question of state constitutional law.

In Geisler II, on remand from the United States Supreme Court, the Appellate Court held that the federal exclusionary rule, as narrowed by Harris, does not protect Connecticut citizens to the extent that the state constitution requires because it does not sufficiently deter police from entering a home without a warrant. Geisler II, supra, 290. In rejecting the United States Supreme Court’s abandonment in Harris of the attenuation analysis, the Appellate Court reasoned that “such an analysis is appropriate in order to determine whether there is a temporal and causal connection between the entry into the home and the particular evidence later obtained outside the home. Here, the state has conceded that the time between the defendant’s arrest in the home and the defendant’s station house statements and consent to take the intoximeter texts was minimal. [Geisler I], supra, 156. Furthermore, there were no intervening circumstances to break the causal connection between the warrantless entry into the home and the evidence in question. Id., 157.” Geisler II, supra, 290.

It is well established that “federal constitutional and statutory law ‘establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.’ . . . Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984).” State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991). Justice Shea, when writing for an unanimous en banc court in State v. Marsala, 216 Conn. 150, 159-60, 579 A.2d 58 (1990), rejected the “good faith” exception to the exclusionary rule adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and noted that “[w]e have frequently relied upon decisions of the United States Supreme Court interpreting the fourth amendment, as well as other amendments to the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution. We have also, however, determined in some instances that the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985).”

In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach; see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (“Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.”); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn. Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut’s equal rights amendment was adopted); (3) federal precedent; see, e.g., State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (“The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.”); (4) sister state decisions or sibling approach; see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. Westfarms Associates, supra, 58-59; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. Westfarms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938); and (6) economic!sociological considerations. See State v. Barton, supra, 546; State v. Dukes, supra, 115; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, “Connecticut’s Free Speech Clauses: A Framework and an Agenda,” 65 Conn. B. J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, “State Constitutional Law: Federalism in the Common Law Tradition,” 84 Mich. L. Rev. 583 (1986) (book review).

Article first, § 7 of the Connecticut constitution, which is similar, but not identical, to the fourth amendment, 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.” In order to give meaning to the independent vitality of owe state search and seizure clause, we made clear in State v. Dukes, supra, 110, that the exclusionary rule bars evidence obtained in violation of our state constitution. We recognized that the “exclusionary rule is now widely recognized as an effective remedy for enforcement of the constitutional protection against unconstitutional searches and seizures.” Id.

In determining that the exclusionary rule should be invoked to suppress evidence under the state constitution, we are mindful of the costs to society that result from excluding such evidence. Nonetheless, just as we rejected those costs as being insufficient to outweigh the constitutional necessity of excluding evidence in State v. Marsala, supra, 165, so we come to the same conclusion in the present case. Justice Thurgood Marshall, in his dissent in Harris, points out the practical considerations that weigh heavily in favor of excluding evidence that is obtained as a result of an illegal entry into the home. “[T]he officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today’s decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest. . . . The Court thus creates powerful incentives for police officers to violate the Fourth Amendment. In the context of our constitutional rights and the sanctity of our homes, we cannot afford to presume that officers will be entirely impervious to these incentives.” New York v. Harris, supra, 32. We do not believe that our state constitution allows us to overlook these consequences.

The sanctity of the home has a well established place in our jurisprudence. The English common law, upon which much of this country’s constitutional and common law is based, recognized that intrusion into the home constituted especially egregious conduct. “From earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man’s house is his castle. As early as the 13th Yearbook of Edward IV (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man’s house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle: ‘The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!’ ” Miller v. United States, 357 U.S. 301, 306-307, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958). In discussing burglary, defined as “nocturnal house-breaking,” Blackstone wrote, “[a]nd the law of England has so particular and tender a regard to the immunity of a man’s house, that it styles it his castle, and will never suffer it to be violated with impunity . . . .”4 Blackstone’s Commentaries (1822) p. 222.

The Connecticut constitution that was adopted in 1818 contained in article first, § 8 the search and seizure clause that is currently found in article first, § 7 of the 1965 state constitution. Before the fourth amendment’s search and seizure clause was made applicable to the states, much less the exclusionary rule, this court recognized the limits imposed on the government by the Connecticut search and seizure clause. “The common law was ready to supply a remedy for any unreasonable search or seizure, by an action of trespass against the individuals who made it. Our Declaration of Rights would be meaningless if it did not seek to do more than this. Its guaranties were designed to protect the citizen against the State . . . and to do so in a way that would repress the wrongful act most efficiently. ... If the constitutional guaranty now under consideration is to be liberally interpreted in favor of the citizen, it would be difficult to apply the principle of such decisions to criminal prosecutions, supported by proof of papers illegally seized for that purpose, in the defendant’s house, by public officers acting professedly as such, without seeming to allow the State to profit by its own wrong. . . . Whether its seizure would have been, under the circumstances, unreasonable . . . presents a question of the utmost gravity, in its bearing, on the one hand, upon the methods of detecting crime, and on the other, upon the liberty of the individual and the inviolability of home.” (Emphasis added.) State v. Griswold, 67 Conn. 290, 310-11, 34 A. 1046 (1896) (Baldwin, J., concurring). Indeed, the adoption of the state’s search and seizure clause in our state constitution was made in the context that its federal counterpart’s main thrust was not only protection from the general warrant but also applied “ ‘to all invasions on the part of the government and its employees] of the sanctity of a [person’s] home and the privacies of life.’ ” Payton v. New York, supra, 585, quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886).

Although not rooted in state constitutional law, we recently demonstrated our concern for the privacy of the individual when we concluded that a homeless man has a reasonable expectation of privacy in his duffel bag and cardboard box because, inter alia, they were located in a place that he regarded as his home. State v. Mooney, 218 Conn. 85, 111, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); see also French v. Amalgamated Local Union 376, 203 Conn. 624, 630, 526 A.2d 861 (1987) (acknowledging inherent conflict between sanctity of home and principle of freedom of speech implicated in legislation restricting residential picketing); State v. Gallagher, 191 Conn. 433, 442, 465 A.2d 323 (1983) (privilege to resist unlawful warrantless intrusion into the home exists in some circumstances); State v. Santiago, 26 Conn. App. 481, 489-90, 602 A.2d 40, cert. granted, 221 Conn. 920, 608 A.2d 686 (1992) (“A porch is intrinsically associated with both the sanctity of the home and the privacies of life. . . . [It] is as sacrosanct as the home itself. . . .”). Only recently, when we extended to the overnight guest the common law privilege to resist an unlawful police entry into the bedroom he occupied, we emphasized the importance of the right of privacy in the home. We held that the right to be secure in one’s home, “unequivocally establishes the proposition that [a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511 [81 S. Ct. 679, 5 L. Ed. 2d 734 (1961)]. Payton v. New York, supra, 589-90. The right of officers to thrust themselves into a home is . . . agrave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).” (Internal quotation marks omitted.) State v. Brosnan, 221 Conn. 788, 806-807, 608 A.2d 49 (1992).

Finally, the New York Court of Appeals, when Harris returned to that court on remand from the decision of the United States Supreme Court, also rejected that court’s analysis under the New York constitution. The Court of Appeals concluded in People v. Harris, 77 N.Y.2d 434, 570 N.E.2d 1051, 568 N.Y.S.2d 702 (1991), “that the Supreme Court’s [Harris] rule does not adequately protect the search and seizure rights of [the] citizens of New York.” Id., 437. The court held that under the New York constitution, “statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated.” Id.

We, therefore, conclude that the Harris rationale falls short of the protection required under our state constitution. Accordingly, we agree with the Appellate Court that the exclusionary rule under article first, § 7 requires that evidence derived from an unlawful warrantless entry into the home be excluded unless the taint of the illegal entry is attenuated by the passage of time or intervening circumstances.

II

We must next determine whether the Appellate Court correctly decided that the warrantless entry into the home was not justified by an exception. The emergency doctrine is one of the recognized exceptions to the federal constitutional requirement that searches and seizures be conducted pursuant to a warrant. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). “[T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. . . . The extent of the search is limited, involving 'a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.’ . . . The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities. . . . Such a search is strictly circumscribed by the emergency which serves to justify it . . . and cannot be used to support a general exploratory search.” (Citations omitted.) State v. Magnano, 204 Conn. 259, 266, 528 A.2d 760 (1987).

Just as the commands of the fourth amendment are not absolute, neither are those of article first, § 7 of the state constitution. We recognize, therefore, that exceptions to the warrant requirement, such as an emergency, is an exception to the state constitution as well as the federal constitution. Such an exception is well grounded in the common law. Blackstone recognized a similar exception to the “house is a castle” principle in criminal cases where “the public safety supersedes the private.” 4 Blackstone’s Commentaries (1822) p. 223.

Nevertheless, the emergency doctrine does not give the state an unrestricted invitation to enter the home. “[Gjiven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.” Good v. Dauphin County Social Services, 891 F.2d 1087, 1094 (3d Cir. 1989). The police, in order to avail themselves of this exception, must “have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings . . . .” People v. Mitchell, 39 N.Y.2d 173, 178, 347 N.E.2d 607, 383 N.Y.S.2d 246, cert. denied, 426 U.S. 953, 96 S. Ct. 3178, 49 L. Ed. 2d 1191 (1976). It is an objective and not a subjective test. The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. State v. Klauss, 19 Conn. App. 296, 302, 562 A.2d 558 (1989); see State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963 (1983) (adopting objective test for warrantless felony arrest exigency analysis); see also United States v. Zabare, 871 F.2d 282, 291 (2d Cir. 1989) (test for determining whether a warrantless entry was justified by exigent circumstances is an objective one).

Ill

In making our determination as to whether the warrantless search was justified under the emergency doctrine exception to our state search and seizure clause, a two-part analysis is required. First, we must determine the proper standard of review the appellate courts should apply when analyzing trial court decisions involving the emergency doctrine exception and, second, whether the trial court’s decision passes muster under that standard of review. Although the Appellate Court did not explicitly state the standard of review that it used in Geisler I or in Geisler II, we conclude that it correctly analyzed the issue of the applicability of the emergency doctrine by making a de novo review, based upon the subordinate facts found by the trial court, to determine whether an emergency existed that would justify the warrantless entry into the dwelling.

Facts found by the trial court will not be disturbed unless the finding is clearly erroneous. Practice Book § 4061; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). Conclusions drawn from those underlying facts must be legal and logical. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). An appellate court reviews conclusions based upon subordinate facts found, even if labeled conclusions of fact, to the same extent that it reviews conclusions of law. Hadfield v. Tracy, 101 Conn. 118, 125, 125 A. 199 (1924). Because the issue of the warrantless entry into a person’s home involves his or her constitutional rights, a reviewing court must examine the record thoroughly to determine whether the subordinate facts justify the trial court’s conclusion that the officers’ belief that an emergency existed was reasonable. State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992); see State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). Thus, we must determine, whether on the facts found by the trial court, the Appellate Court correctly concluded that the officers’ conclusion that there was an emergency was unreasonable.

The state relies on State v. Reagan, 209 Conn. 1, 546 A.2d 839 (1988), in arguing that the clearly erroneous standard of review should apply both to the subordinate facts found by the trial court and to the trial court’s ultimate conclusion that there was an emergency that justified the warrantless entry. In that case, the trial court, ruling on a motion to suppress, held that exigent circumstances justified a warrantless entry into the defendant’s home. On appeal, the Appellate Court held that the defendant’s wife had consented to the entry, even though the issue of consent had not been raised before the trial court at the suppression hearing. On certification, we stated that whether consent to a search is voluntary is “ ‘a question of fact to be determined from the totality of all the circumstances.’ ” Id., 7-8, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Our holding in Reagan, however, must be viewed in the context of the issue that was then before us. The Appellate Court therein had concluded that there was consent without the benefit of the trial court’s finding of subordinate facts. We made it clear that the facts underlying a finding of consent are subordinate facts. State v. Reagan, supra, 14. We did not discuss the standard of review in the context of a trial court’s conclusion of consent because the trial court had not made such a finding. Thus, we regard Reagan as inapposite to the appropriate standard of review.

We hold, therefore, that in reviewing a trial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo.

Without disturbing the trial court’s undisputed factual findings, the Appellate Court held that the police officers’ belief that the defendant was in need of immediate aid was not reasonable, and reversed the trial court. Geisler I, supra, 154. We agree with the Appellate Court that the trial court’s factual findings do not support the conclusion that it was reasonable to believe that an emergency existed.

In the present case, the facts available to the police officers were the minor damage to the car, the key left in the ignition, the open car door and the lack of a response when the officers rang the doorbell, knocked on the door and windows and shouted through the screen. Those facts could not reasonably lead to the conclusion that the driver might have suffered the type of injury that would require emergency aid. See People v. Krueger, 208 Ill. App. 3d 897, 567 N.E.2d 717 (1991) (emergency doctrine cannot justify warrantless entry where trial court found that police knew that defendant had been involved in accident, that defendant was sleeping, and that defendant was "out of it” but fine); Lambert v. State, 745 P.2d 1185 (Okla. Crim. App. 1987) (emergency doctrine did not justify warrant-less entry even where the trial court found the automobile of the defendant severely damaged, but the defendant walked to a nearby farmhouse in order to obtain a ride home, and at his home, in response to a police inquiry, he said he was all right).

Indeed, in the present case, even if the police had been justified initially in entering the defendant’s home, once they ascertained that he was physically well they should have withdrawn. Upon being awakened, the defendant responded to the police officer that he was all right, the officers observed no visible injuries and they determined that he was not injured. See State v. Magnano, supra; Lambert v. State, supra.

We conclude, therefore, that the Appellate Court applied the correct standard of review to the trial court’s decision on the motion to suppress and also correctly ruled that the facts did not justify a reasonable belief that an emergency existed. Accordingly, we hold that the Connecticut constitution requires the suppression of evidence obtained not only inside the defendant’s home but also the evidence obtained outside the home, including the blood alcohol results, the defendant’s statements at the station house and the videotape of the defendant at the station house.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Shea and Glass, Js., concurred.

Covello, J.,

dissenting. I believe that the outcome of this case should be governed by the United States Supreme Court’s holding in New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). The cases are virtually indistinguishable. As here, in Harris, the police arrested the defendant in his home without a warrant. As here, the police had probable cause to do so. As here, Harris sought the suppression of evidence obtained at the police station following his arrest.

The United States Supreme Court concluded that the fourth amendment to the United States constitution did not require suppression of the subsequently obtained evidence. Since the police had probable cause to take the defendant into custody, the Supreme Court reasoned that the later acquired evidence was obtained while the accused was being legally detained and, therefore, the unwarranted entry into the defendant’s home did not require the suppression of this otherwise admissible evidence.

Wisely, the majority does not even attempt to distinguish either the facts of the two cases or the language of the controlling constitutional provisions. Further, there is no historical basis for construing this language differently. I submit, therefore, that the holding in Harris should control the outcome here.

Despite their compelling similarities, the majority, nevertheless, rejects this view and under the aegis of our state constitution, prevents those who are to determine the defendant’s guilt or innocence from learning critical, relevant facts; in this instance, time sensitive evidence of the defendant’s blood alcohol level and video tapes of his physical condition shortly following the accident.

“Although in interpreting the Connecticut constitution we have agreed with and followed the federal handling of consonant provisions of the federal constitution”; State v. Dukes, 209 Conn. 98, 113, 547 A.2d 10 (1988); I agree with the majority that “in a proper case ‘the law of the land’ may not, in state constitutional context, also be ‘the law of the state of Connecticut.’ ” Id., 113-14. In doing so, however, in the absence of textual distinctions, we have primarily relied upon our historical antecedents as the basis for arriving at a contrary result. See, e.g., State v. Barton, 219 Conn. 529, 538 n.4, 594 A.2d 917 (1991); State v. Lamme, 216 Conn. 172, 179, 579 A.2d 484 (1990); Cologne v. Westfarms Associates, 192 Conn. 48, 60-62, 469 A.2d 1201 (1984);Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938).

“This court has never viewed constitutional language as newly descended from the firmament like fresh fallen snow upon which jurists may trace out their individual notions of public policy uninhibited by the history which attended the adoption of the particular phraseology at issue and the intentions of its authors.” Cologne v. Westfarms Associates, supra, 62.

In examining the purported historical antecedents of article first, § 7 of the Connecticut constitution, the majority refers to the 13th Yearbook of Edward IV (1461-1483), at folio 9, “[rjemarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in [the British] Parliament...” and comments found in 4 Blackstone’s Commentaries (1822), p. 222.1 submit that the assertions of our English forbearers are applicable equally to the entire body of American jurisprudence and serve no particular purpose in illuminating the unique antecedents of Connecticut’s constitution.

The conferring of greater rights upon the individual always carries greater costs to society, including the diminution of the powers of those in law enforcement which are aimed at promoting the public good by the prevention of crime. State v. Dukes, supra, 106. “I believe that due process fairness, under our state as well as our federal constitution, must take into account the ‘felt necessities of the time’; O. W. Holmes, Jr., The Common Law (1881) p. 1; one of which is the magnitude of our crime problem.” State v. Stoddard, 206 Conn. 157, 182, 537 A.2d 446 (1988) (Shea, J., dissenting). I would not, therefore, place this further restriction upon the admissibility of relevant evidence.

Accordingly, I dissent.

       General Statutes § 14-227a (a) (2) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense ... if he operates a motor vehicle . . . while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.” In the context of this case, violation of § 14-227a constitutes a misdemeanor. General Statutes § 14-227a (h) (1).

       General Statutes § 53a-60d provides in relevant part: “(a) A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.
      “(b) Assault in the second degree with a motor vehicle is a class D felony

       General Statutes § 14-224 (a) provides in relevant part: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person . . . Violation of § 14-224 (a) constitutes a felony. General Statutes § 14-224 (d).

       In ruling on the charge of operating a motor vehicle while under the influence of intoxicating liquor, the Appellate Court held that even if the evidence at issue were admissible, General Statutes § 14-227a requires expert evidence extrapolating the results of a blood alcohol test back to the time of the operation of the motor vehicle. State v. Geisler, 22 Conn. App. 142, 162, 576 A.2d 1283 (1990), cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991) (Geisler I); see Marshall v. DelPonte, 27 Conn. App. 346, 350, 606 A.2d 716 (1992). At Geisler’s trial, no such evidence was offered, and the Appellate Court reversed the conviction on the basis of insufficient evidence.

       In the petition for a writ of certiorari to the United States Supreme Court, the state appealed the decision in Geisler I only as to the count of assault in the second degree.

       See footnote 13, infra.

       At the suppression hearing, the parties stipulated that: (1) probable cause existed for the defendant’s arrest; (2) the defendant was arrested without a warrant; and (3) the defendant was arrested inside his home by police officers who entered his home without a warrant. Although testimony at the hearing revealed that the defendant was, in fact, arrested outside his home, neither the state nor the defendant has raised any claim based on this inconsistency.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       See footnote 10, infra.

       On appeal, the state did not pursue the “flight” and “destruction of evidence” theories of exigency that the trial court used in its decision because the state conceded the facts of this case would not justify the warrantless entry under those theories. Geisler I, supra, 148.

       The Appellate Court correctly held that it could review the state constitutional claim after the United States Supreme Court vacated and remanded the case for consideration under federal constitutional law. “Even if we assume that the defendant abandoned his state constitutional claim on appeal but preserved it at the trial level our decision to review it on remand from the United States Supreme Court is consistent with our case law. In State v. Barrett, [205 Conn. 437, 534 A.2d 219 (1987)], our Supreme Court reviewed an unpreserved state constitutional claim, raised for the first time on remand from the United States Supreme Court, under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), which was later refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). It would be illogical to afford Evans-Golding review to a defendant, as the one in Barrett, who completely failed to preserve his state constitutional claim at the trial court but to deny review to a defendant, such as the one in this case, who preserved it at trial but failed to set forth a separate argument for it in his initial brief to this court.” State v. Geisler, 25 Conn. App. 282, 284 n.2, 594 A.2d 985 (1991).

       The fourth amendment to the United States constitution was made applicable to the states through the fourteenth amendment’s due process clause. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).

       No one questions that, even under New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the statements made by the defendant in his home after an illegal entry would be inadmissible.

       For example, the following decisions have approved warrantless entries and searches under the emergency doctrine: People v. Thompson, 770 P.2d 1282 (Colo. 1989) (responding to anonymous report of domestic dispute, police saw shell casings, blood on porch, broken glass in front door and woman inside house covered with blood); Arango v. State, 411 So. 2d 172 (Fla. 1982) (police received telephone call of disturbance at apartment; police saw broken glass on walkway and bullet hole in window and received no response after knocking); People v. Mitchell, 39 N.Y.2d 173, 347 N.E.2d 607, 383 N.Y.S.2d 246, cert. denied, 426 U.S. 953, 96 S. Ct. 3178, 49 L. Ed. 2d 1191 (1976) (after questioning hotel residents and searching hotel and all rooms except occupied ones for missing woman, police searched occupied rooms on floor where woman was last seen); La Fournier v. State, 91 Wis. 2d 61, 280 N.W.2d 746 (1979) (anonymous telephone call of drug overdose); see also 1 W. LaFave, Search and Seizure (2d Ed. 1987 and Sup. 1991) § 6.6 (a).

       Other courts also review de novo the trial court’s ultimate conclusion on a motion to suppress. See United States v. Uribe-Velasco, 930 F.2d 1029, 1032 (2d Cir. 1991) (historical facts, e.g., what information officers had, what officers did, upheld unless clearly erroneous; legal issues, e.g., whether information sufficed to give officers reasonable suspicion or probable cause, reviewed de novo); United States v. George, 883 F.2d 1407, 1411 (9th Cir. 1989) (findings of fact reviewed for clear error; ultimate legal conclusions of probable cause and exigent circumstances reviewed de novo); Stale v. Halla-Poe, 468 N.W.2d 570, 572 (Minn. App. 1991) (appellate court must determine whether as a matter of law officers were justified to enter under the emergency doctrine).

       We emphasize that our decision in this case rests on article first, § 7 of the Connecticut constitution. See Michigan v. Long, 463 U.S. 1032, 1041-42, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).

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


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Lucy M. Favrow v. Jacqueline Vargas
    (14432)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued March 24
    decision released July 7, 1992

      Henry D. Marcus, for the appellant (petitioner).

      Jacqueline A. Wilson, for the appellee (respondent).

      Richard Blumenthal, attorney general, and Rochelle Homelson, assistant attorney general, filed a brief for the state of Connecticut as amicus curiae.
   Borden, J.

The principal issue in this appeal is whether a trial court may properly order a deviation from the child support guidelines promulgated pursuant to General Statutes § 46b-215b solely on the basis of the noncustodial parent’s actual living expenses. The petitioner, Lucy M. Favrow, appeals from the order of the trial court directing the respondent, Jacqueline Vargas, to pay the petitioner $7.50 per week in current child support for each of two minor children of the respondent, and denying the petitioner’s request for a finding of and order on an arrearage for past child support. The petitioner claims that the trial court improperly (1) deviated from the guidelines, and (2) denied her request for an arrearage order. We reverse the order on both issues, and remand the case for a new hearing.

The relevant facts are as follows. The petitioner is the legal guardian of two of the respondent’s minor children, Noemi Maldonado, born February 27,1979, and Janet Mercado, born January 14,1985 (children), who reside with the petitioner and her husband. These children were born to the respondent during her marriages to their fathers, Eduardo Maldonado and Edwin Mercado, respectively.

In May, 1991, the petitioner filed verified petitions for support pursuant to General Statutes § 46b-215, alleging that the respondent had “failed, neglected and refused” to support the children, and requesting an order of support and a finding of and an order on an arrearage. At the hearing on the petition, held on July 16,1991, the parties filed financial affidavits and presented oral argument.

The respondent’s affidavit indicated that she was employed at an insurance company, that she had a gross weekly income of $261.51, and a net weekly income of $212.10 after deductions for federal income taxes and social security. Her affidavit also indicated total weekly expenses of $295.75, consisting of $133.75 for rent, $7.50 for electricity, $50 for telephone, $60 for food, $3 for public transportation, $10 for laundry, and $31.50 for church contributions.

The petitioner’s affidavit indicated that she was employed as a legal secretary, and that she had a gross weekly income of $600, and a net weekly income of $473.10 after deductions for federal income taxes, social security and medicare. Her affidavit also disclosed her husband’s gross weekly income of $1127.17 and his net weekly income of $773.61 after deductions for federal income taxes, social security, medicare, various insurance expenses, and savings bonds and charities. The petitioner’s affidavit also indicated total weekly expenses for both her and her husband of $1396.97. That figure included $373.14 in weekly payments on credit card and similar debts totaling $29,236.83.

The petitioner requested that the trial court order current support in the total amount of $75 per week for the children, which was in accordance with the guidelines. The respondent argued that the guidelines should not apply, and that a total weekly payment of $50 for the children was appropriate.

With regard to the arrearage sought by the petitioner, the respondent represented that, following her participation in an alcohol rehabilitation program, she had begun working full time in May, 1991. She argued, nonetheless, that because the petitioner had not previously moved in court for a support order, there had been no neglect or refusal by the respondent to furnish support for the children, and thus that the petitioner had established no statutory basis for an order of arrearage.

The trial court found that application of the guidelines would be inequitable or inappropriate. Its stated rationale for that finding was the “[respondent’s] living costs.” After eliminating certain of the respondent’s expenses as shown on her affidavit, the court entered an order of current support of $7.50 per week for each child, or a total weekly order of $15. The court denied the petitioner’s claim for an arrearage upon the basis that, because the respondent “was never formally notified of any demand being made on her prior to this action being commenced . . . [t]he Court will not make a finding that she neglected or refused to provide support for the children.” This appeal followed.

I

We first consider the petitioner’s challenge to the trial court’s order of current child support. The petitioner claims that the trial court improperly deviated from the child support guidelines for reasons not articulated or contemplated by the guidelines. Conversely, the respondent claims that the trial court was within its discretion because it properly found that application of the guidelines would have been inequitable and inappropriate in this case. We agree with the petitioner.

Some history is in order. In 1984, by Special Act No. 84-74 the legislature established pilot programs of mediation and conciliation in the Fairfield and Litchfield judicial districts. Special Acts 1984, No. 84-74, § 1. The special act had two major goals: (1) to “[establish pilot programs at the two court locations for the mediation of contested child custody, visitation, property and financial issues related to dissolution of marriage proceedings”; and (2) “[ajppointment of an inter-agency commission to develop family support guidelines to be used by Family Relations Counselors in the mediation of dissolution proceedings in the two Judicial Districts.” Report of the Commission on Family Support Guidelines, Guidelines for Support Standards (October, 1985) p. 1 (1985 Guidelines). Thus, these guidelines were specifically for the use of family relations counselors in mediating and conciliating disputes and were not aimed at the discretion of the court in entering such orders.

Pursuant to that statutory mandate, the commission appointed thereunder developed a set of guidelines for support of minor children “based on expected levels of support to be provided by a spouse or parent depending on the income and current situation of each adult, total family income, and the number of persons in need of support.” 1985 Guidelines, p. 2. The commission specifically made the guidelines flexible and nondirective. The commission stated that the guidelines “reflect an integration of national averages for the costs of child rearing in families of varying size and income levels as well as the usual range of obligations established by families and the courts. They are not intended to transform the sensitive process of determining the equitable allocation of family support responsibilities into a fixed and rigid mathematical formula. Rather, the purpose is to provide a framework within which the unique characteristics of each family can be examined in an orderly fashion to construct an allocation of financial responsibility responsive to the needs of all family members as well as to the community.” 1985 Guidelines, pp. 1-2. In keeping with this flexible and nondirective approach, the commission also stated: “In most situations, support obligations are not dependent upon current adult expenses as it is anticipated that parents must adjust their expenses in accordance with the priority of their obligations, with the support of a dependent spouse or child being the primary obligation. In appropriate circumstances, however, fixed obligations may be considered.” 1985 Guidelines, p. 2. The commission also stated that the guidelines were not intended to preclude consideration of thirteen “other factors relevant to the allocation of financial responsibility,” the last listed of which was “[ojther reasonable considerations.” 1985 Guidelines, pp. 2, 3.

Two provisions of these guidelines are relevant to the issue in this case. The provision entitled “Maximum Family Support” stated that the “guidelines intend that the spousal support determination occur within the context of the disposable income of the non-custodial parent after the child support obligation is established and with the proviso that the retained income of the noncustodial parent in no case be reduced to below 40%, or $100.00, whichever is greater, for any combination of child support and spousal support. The amount of disposable income available for spousal support is the difference between the expected child support and the Maximum Family Support.” (Emphasis in original.) 1985 Guidelines, p. 5. The provision entitled “Limit On Maximum Support To Be Ordered” provided as follows: “The guidelines presume that as a rule the retained income of the support obligor will not be reduced below 40%, or $100.00, whichever is greater. The rationale for this proviso is that reduction below 40%, or $100.00, may have the effect of undermining an obligor’s incentive to remain employed.” 1985 Guidelines, p. 6. Thus, these two provisions established as a baseline that, within the boundaries of the flexible and nondirective approach of the guidelines, the noncustodial parent would be permitted to retain the greater of 40 percent of his or her other disposable income or $100 per week.

The commission also recommended that the proposed guidelines be used statewide by family relations counselors as part of the mediation process. 1985 Guidelines, Pilot Program Report and Recommendations addendum, p. 2. In a further addendum to the report, the mediators appointed under the statute recommended that the guidelines “be formally incorporated as guidelines to be considered by judges in the adjudication of family support matters.” 1985 Guidelines, Commentary addendum, p. 4.

Thereafter, in 1985 the legislature enacted No. 85-548 of the Public Acts, entitled “An Act Implementing the Federal Child Support Enforcement Amendments of 1984.” Section 8 of that Public Act established a commission “to develop guidelines, not later than January 1, 1987, for child support award amounts within the state. Such guidelines shall be available but not binding upon judges and other officials who have the power to determine child support awards.” This legislation, therefore, provided for a set of child support guidelines, and expanded their use from the family relations counselors to the court. The guidelines, although made “available” to the court, were in no way binding on it. These guidelines were in all essential characteristics identical to those established pursuant to Special Act No. 84-74. See Guidelines For Child Support Standards Developed Pursuant to Public Acts 1985, No. 85-548 by the Commission on Support Guidelines.

In 1989, the legislature enacted No. 89-203 of the Public Acts, entitled “An Act Concerning Child Support Guidelines.” Section 1 of that act established a third “commission for child support guidelines.” This commission was given three specific statutory mandates: “[1] to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, [2] to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and [3] to issue updated guidelines not later than January 1,1991 and every four years thereafter.” Public Acts 1989, No. 89-203, § 1. Section 1 of that public act is now codified as General Statutes § 46b-215a. Sections 2 and 3 of that public act are now codified as General Statutes (Rev. to 1991) § 46b-215b. See footnote 1, supra.

Section 46b-215b (a) made four significant changes in the application of the guidelines to questions of child support. These four changes, moreover, displaced the flexible and nondirective approach taken by the previous sets of guidelines. First, § 46b-215b (a) provides that the guidelines “shall be considered in all determinations of child support amounts within the state.” Second, the statute provides that “there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered.” Third, in order for a court or magistrate “to rebut the presumption in such case,” it must make a “specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case.” Fourth, such a specific finding must be “determined under criteria established by the commission.”

In response to these statutory mandates, the commission promulgated new guidelines. In its final report, issued in January, 1991, the commission observed that the new guidelines “have been working quite well since they have been used as a rebuttable presumption by judges and magistrates. The order establishment process has been expedited; and although there has been some inconsistent application, orders of support are generally more consistent. Generally, there is less litigation, and much more thought is being given to the reasons for deviation from the guidelines.” Final Report of the Commission for Child Support Guidelines (January, 1991) p. 3 (1991 Guidelines).

With respect to the deviation criteria mandated by § 46b-215b (a), the commission found that the “deviation criteria should be more clearly specified. The guidelines therefore include a complete listing of specific deviation criteria. In addition, the Commission has expanded the general criteria to ensure that orders are in the best interests of the child and are equitable to the financial interests and needs of the parties.” 1991 Guidelines, p. 3. Accordingly, the commission specified fourteen deviation criteria, the last of which, relevant here, was “other equitable factors.” 1991 Guidelines, p. 9.

The commission, moreover, specifically addressed the issue of the noncustodial parent’s actual living expenses. Under the heading, “Non-Custodial Parent’s Self Support Reserve,” the commission stated: “In general, support obligations should not be dependent on current adult expenses because parents must adjust their expenses in accordance with the priority of their obligations, with the support of dependents being a primary obligation. However, it is important that the noncustodial parent be allowed to retain sufficient income to support him/herself at some minimal level in order not to undermine his/her incentive to remain employed. In view of these concerns, the Commission finds that the $100 or 40% of net income self-support reserve for the non-custodial parent under the current guidelines is too low due to the increased cost of living. Therefore, the Commission finds that the non-custodial parent’s self-support reserve should be increased to $135 per week, taking into account that the poverty income level for one person is $120.44 as of July, 1990.” 1991 Guidelines, p. 4.

This history strongly suggests three conclusions. First, underlying the entire notion of the mandatory child support guidelines is the fundamental principle that, unless a specific deviation criterion applies, “support obligations should not be dependent on current adult expenses because parents must adjust their expenses in accordance with the priority of their obligations, with the support of dependents being a primary obligation.” 1991 Guidelines, p. 4. Although this principle was specifically stated in the 1991 Guidelines mandated by the 1989 legislation, its applicability was evident even in the context of the precursor legislation. In accordance with this principle, the commission specifically set $135 per week as the presumptive permissible ceiling on the noncustodial parent’s reserve for living expenses.

Second, the deviation criteria must be read so as to be consistent with this fundamental principle. Just as different statutes must be read so as to form a consistent whole; 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 265, 541 A.2d 478 (1988); the deviation criteria must be read, insofar as possible, so as to form a consistent whole with the guidelines, both of which were issued by the same commission.

Third, the guidelines evolved from an experimental, intentionally nondirective and flexible approach to the imposition of standards that are presumptively binding on the court or magistrate, from which deviations would be permitted only in accordance with specific findings related to specific criteria established by the commission. Thus, in general, the 1989 legislation and the ensuing work of the commission substantially circumscribes the traditionally broad judicial discretion of the court in matters of child support.

These conclusions lead us to conclude, further, that the trial court went beyond its permissible bounds in deviating from the guidelines in this case. The only deviation criterion at issue in this case is the fourteenth, namely, “other equitable factors.” The trial court did not rely on any other criterion, and the respondent does not argue for the applicability of any other. It is true that the language of that criterion is very broad and would, at first glance, appear to give the trial court almost as much discretion as it had before the promulgation of the guidelines. To read this criterion, however, so as to permit the court to deviate from the guidelines solely on the basis of the noncustodial parent’s actual living expenses, even when they are relatively modest in amount, would in effect permit the exception to swallow the rule.

Permitting such an application of the deviation criteria would be inconsistent with the fundamental principle underlying the guidelines, namely, that support obligations of parents should not be dependent upon their current living expenses but that those expenses must give way to support obligations. Furthermore, to give precedence to current living expenses would be to read the catch-all, fourteenth deviation criterion so as to be inconsistent with and, in effect, to govern the application of the guidelines themselves. Finally, to do so would be inconsistent with the circumscribed discretion that the guidelines have imposed on the trial court by the 1989 legislation that replaced the broad discretion that the trial court had in such matters before the promulgation of the guidelines. In sum, therefore, in the present case the trial court’s order finding a deviation from the guidelines on the basis of the respondent’s actual living expenses amounted to a disagreement with the guidelines themselves, rather than an application of the deviation criteria established by the commission.

We recognize that, particularly at the lowest end of the financial spectrum as reflected in the guidelines, the amount left for the noncustodial parent’s self-support reserve may well be penurious, if not inadequate. The legislature, however, left the difficult policy determination of the appropriate level of that reserve, not to the court, but to the commission. It was not the trial court’s function, nor is it this court’s function, to countermand that essentially legislative determination. See Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 77, 607 A.2d 1142 (1992).

We recognize, moreover, as is implicit in the work of the commission, that every dollar of deviation downward from the guidelines, as the trial court ordered in this case, shifts that dollar of support for the children involved from the shoulders of one primary obligor, namely, a parent, onto the shoulders of another person—in this case, the custodian of the children. Thus, the legislative determination made by the commission in its guidelines must be regarded with some degree of deference, because it reflects that difficult policy choice.

II

The petitioner also claims that the trial court improperly denied her request for an arrearage order because there had been no formal demand made upon the respondent for support prior to this petition. We agree.

General Statutes § 46b-215 provides in pertinent part: “The superior court or a family support magistrate shall have authority to make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to . . . a child under the age of eighteen, according to his or her ability to furnish such support . . . .” (Emphasis added.) There is nothing in this language, or in the important public policy that it reflects, to suggest that the obligation of a parent to support her child, according to her ability, is subject to a condition precedent of a formal demand. That obligation is ongoing, and does not require the trigger of a request by those persons who are shouldering that responsibility.

The order is reversed, and the case is remanded for a new hearing on the petition.

In this opinion Peters, C. J., Callahan and Glass, Js., concurred.

Berdon, J., concurring. I concur in the result.

       General Statutes § 46b-215b provides: “guidelines to be used in DETERMINATION OF AMOUNT OF SUPPORT. PRESUMPTION, (a) The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.
      “(b) In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-198, 46b-215, 17-324 and 17-578.”

       The petitioner appealed from the order of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The petitioner is also the guardian of a third minor child of the respondent who is in the custody of the department of children and youth services and whose support is not at issue in this case. The petitioner’s husband is not a guardian of any of the respondent’s children.

       General Statutes § 46b-215 provides: “relatives obliged to furnish support, when, orders, (a) The superior court or a family support magistrate shall have authority to make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to his or her spouse or a child under the age of eighteen, according to his or her ability to furnish such support, notwithstanding the provisions of section 46b-37. Proceedings to obtain such orders of support shall be instituted by a verified petition with summons and order, in a form approved by the chief court administrator, of the husband or wife, child or any relative or the conservator, guardian or support enforcement officer, town or state, or any selectmen or the public official charged with the administration of public assistance of the town, or in AFDC support cases, as defined in subdivision (15) of subsection (b) of section 46b-231, the commissioner of human resources, filed in the judicial district in which the petitioner or respondent resides or does business, or if filed in the family support magistrate division, in the judicial district in which the petitioner or respondent resides or does business. For purposes of this section, the term ‘child’ shall include one bom out of wedlock whose father has acknowledged in writing his paternity of such child or has been adjudged the father by a court of competent jurisdiction, or a child who was bom before marriage whose parents afterwards intermarry. Said court or family support magistrate shall also have authority to make and enforce orders directed to the conservator or guardian of any person, or payee of social security or other benefits to which such person is entitled, to the extent of the income or estate held by such fiduciary or payee in any such capacity. Said court or family support magistrate shall also have authority to determine, order and enforce payment of any sums due under a written agreement to support against the person liable for such support under such agreement. Said court or family support magistrate shall also have authority to determine, order and enforce payment of any support due because of neglect or refusal to furnish support prior to the action. Upon the filing of such petition, the judge or family support magistrate shall cause a summons, signed by him or by the clerk or assistant clerk of said court or family support magistrate division, to be issued requiring such liable person or persons to appear in court or before a family support magistrate, at a time and place named, for a hearing upon such petition. Service may be made by any proper officer or by any investigator employed by the department of human resources or the state department of income maintenance or by the commissioner of administrative services. Upon proof of the service of the summons to appear in court or before a family support magistrate at the time and place named for hearing upon such petition, the failure of the defendant or defendants to appear shall not prohibit the court or family support magistrate from going forward with the hearing. In the case of a person supported wholly or in part by a town, the welfare authority of the town shall notify the responsible relatives of such person of the amount of assistance given, the beginning date thereof and the amount of support expected from each of them, if any, and if any such relative does not contribute in such expected amount, the superior court for the judicial district in which such town is located or a family support magistrate sitting in the judicial district in which such town is located may order such relative or relatives to contribute to such support, from the time of the beginning date of expense shown on the notice, such sum as said court or family support magistrate deems reasonably within each such relative’s ability to support such person. The court, or any judge thereof, or family support magistrate when said court or family support magistrate is not sitting, may require the defendant or defendants to become bound, with sufficient surety, to the state, town or person bringing the complaint, to abide such judgment as maybe rendered on such complaint. Failure of the defendant or defendants to obey any order made hereunder, may be punished as contempt of court and the costs of commitment of any person imprisoned therefor shall be paid by the state as in criminal cases. Upon proof of the service of the summons to appear in court or before a family support magistrate at the time and place named for a hearing upon the failure of the defendant or defendants to obey such court order or order of the family support magistrate, the court or family support magistrate may order a capias mittimus be issued, and directed to some proper officer to arrest such defendant or defendants and bring him or them before the superior court for the contempt hearing. When any person is found in contempt under this section, the court or family support magistrate may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt. In addition to or in lieu of such contempt proceedings the court or family support magistrate, upon a finding that any person has failed to obey any order made hereunder, may issue an order directing that execution issue against such amount of any debt accruing by reason of personal services as provided by sections 52-362, 52-362b and 52-362c, and may further order executions against any real, personal, or other property of such person which cannot be categorized solely as either, for payment of accrued and unpaid amounts due under such order. No entry fee, judgment fee or any other court fee shall be charged by the court or the family support magistrate to either party in proceedings under this section. Any written agreement to support which is filed with the court or the family support magistrate division shall have the effect of an order of the court or a family support magistrate.
      “(b) The attorney general of the state of Connecticut and the attorney representing a town, shall become a party for the interest of the state of Connecticut and such town, in any proceedings for support which concerns any person who is receiving or has received public assistance or care from the state or any town. The attorney general shall represent the IV-D agency in non-AFDC IV-D support cases if the IV-D agency determines that such representation is required pursuant to guidelines issued by the commissioner of the department of human resources.
      “(c) The court or a family support magistrate may direct all orders of support to be made through the support enforcement division and shall direct payments made under such orders to the commissioner of administrative services, with authority residing in the support enforcement division to enforce all orders directed for its supervision.
      “(d) No order for support made by the court or a family support magistrate shall be stayed by an appeal but such order shall continue in effect until a determination is made thereon upon such appeal; if however as a result of such appeal or further hearing, the amount of such order is reduced or vacated, such defendant shall be credited or reimbursed accordingly.
      “(e) Any court or family support magistrate, called upon to enforce a support order, shall insure that such order is reasonable in light of the obligor’s ability to pay. Any support order entered pursuant to this section, or any support order from another jurisdiction subject to enforcement by the state of Connecticut, may be modified by motion of the party seeking such modification upon a showing of a substantial change in the circumstances of either party or upon a showing that such support order substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate, provided the court or family support magistrate finds that the obligor or the obligee and any other interested party have received actual notice of the pendency of such motion and of the time and place of the hearing on such motion. No such support orders may be subject to retroactive modification, except that the court or family support magistrate may order modification with respect to any period during which there is a pending motion for a modification of an existing support order from the date of service of the notice of such pending motion upon the opposing party pursuant to section 52-50. In any hearing to modify any support order from another jurisdiction the court or the family support magistrate shall conduct the proceedings in accordance with the procedure set forth in section 46b-197.”

       In response to questions from the trial court, the petitioner indicated that, although there were outstanding orders of support and wage executions against the fathers of the children, those orders had yielded only $14 in the previous seven weeks.

       The respondent offered two bases for departing from the application of the guidelines: (1) since the petitioner’s affidavit indicated a high level of combined income for her and her husband and many weekly expenses— particularly the credit card liabilities—that, in the respondent’s view, “ha[d] nothing to do in the majority as regards the care and maintenance” of the children, the respondent “shouldn’t have to pay in order to maintain a living household and a style of living that she’s not a party to”; and (2) since the petitioner had become the guardian of the children when the respondent was an alcoholic and unfit to care for the children, and since the respondent had now turned her life around and was sober and working, she now wanted to reestablish her relationship with the children. She argued that application of the guidelines would cripple her attempt to rehabilitate herself and cripple her attempt to reunite with her children. In view of our conclusions that the trial court improperly employed the respondent’s actual living expenses as the sole basis for its decision to deviate from the guidelines and that a new hearing is required, we need not determine whether either of these bases would satisfy the deviation criteria established under General Statutes § 46b-215b.

       The petitioner sought an arrearage in the amount of $17,940, calculated on the basis of her belief that the respondent had been employed for the previous one and one-half or two years. The petitioner also suggested an order on this arrearage of $25 per week. That amount, however, was to be included in the total weekly order sought of $75, to be allocated $50 for current support and $25 on the arrearage.

       Although in its oral decision from the bench the trial court also adverted to three other factors—namely, (1) the absence of payments by the natural fathers of the children and the effect thereof on the respondent, (2) the presence of the “step-parent ... in the equation,” and (3) the court’s perception that the respondent’s offer of $50 per week would set her up for defeat when she was trying to rehabilitate herself and regain custody of her children—it is clear that the basis of its decision not to apply the guidelines was the fact that applying the guidelines would not leave the respondent with enough money for the basic necessities of living. In invoking the statutory exception to the guidelines, the court stated that “what the guidelines don’t always take into consideration is that shelter, food and utilities and clothing . . . are necessities of life. And before we get past necessities, we can’t start talking about the ability to support.” The court also stated that “the Commission members [who] . . . set up these guidelines . . . didn’t take into consideration that there is a basic necessity level that people have to get by before we start talking about discretionary income.” The court then concluded: “Therefore, I am going to make a finding in this case that the application of the guidelines in this case would be unfair and inappropriate.” Whatever slight ambiguity there may have been about the basis of the trial court’s decision, moreover, is completely dispelled by its written order, as follows: “(x) Order is outside Guidelines. Rationale: /Respondent’s] living costs. ” (Emphasis in original.)

       Although the petitioner has phrased her claims on appeal somewhat differently than the state of Connecticut as amicus curiae has phrased the claims, we conclude that the phrasing of the claims of the amicus more accurately presents the issues. We therefore consider the claims of the amicus as those of the petitioner.

       Special Acts 1984, No. 84-74, § 1, provides: “There shall be established in the judicial districts of Fairfield and Litchfield a pilot program of mediation and conciliation services for persons filing for dissolution in such judicial districts. Mediation and conciliation services shall include property, financial, custody and visitation counseling services as well as educational programs concerning custody and property issues, financial matters and dealing with children.”

       Special Acts 1984, No. 84-74, § 2, provides: “There is established a commission consisting of three employees of the judicial department, appointed by the chief court administrator, two employees of the office of the attorney general, appointed by the attorney general and two employees of the department of human resources appointed by the commissioner of said department. The commission shall, not later than January 1,1986, develop for each judicial district offering mediation and conciliation services in dissolution proceedings, a guideline for support standards to be used by family relations counselors in the mediation of dissolution proceedings. Such guidelines shall reflect the financial assets and needs of each party, including but not limited to: The present and potential earning capacity of each party; the division of jointly held property and debts; the value of, and the income producing capacity of, solely held assets, including retirement and deferred income plans; special needs of children to be supported by either party; alimony; and the eligibility of either of the parties for support under chapter 302 or chapter 308 of the general statutes. The chief court administrator shall designate a chairman of the commission.”

       The first twelve factors included: the assets and unique needs of each party; the parties’ earnings capacities; the division of jointly held property, assets and debts; the value of retirements and deferred income plans; special needs of children; alimony; the eligibility of either party for support from the state pursuant to chapters 302 and 308 of the General Statutes; the amount of public assistance available to the custodial parent; the needs of other dependents; unreimbursable medical costs; the ages and health of the parties and children; and the needs of a second or prior family. 1985 Guidelines, pp. 2-3.

       Number 85-548 of the 1985 Public Acts was enacted in response to federal legislation regarding support for children. “Since 1984, the United States Congress has actively encouraged states to take measures to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for support of children. The Child Support Enforcement Amendments of 1984, enacted as Public Law 98-378 and codified at 42 U.S.C. § 666 et seq., amended part D of title IV of the Social Security Act to require that states establish procedures to improve the effectiveness of child support enforcement (IV-D) programs. In those amendments, Congress conditioned the states’ receipt of federal funds for AFDC programs and for IV-D programs upon compliance with these requirements. Among the requirements was a provision directing states to establish, by law or by judicial or administrative action, guidelines for child support award amounts that would be available to, but not binding upon, judges who had the authority to enter child support orders. 42 U.S.C. § 667 (a). Such guidelines were intended to provide reliable benchmarks for use in quasi-judicial proceedings, to expedite awards of child support, and to guide courts to more equitable awards in order to address the ‘feminization of poverty’ resulting from consistent underestimates of the cost of rearing children by increasing the average level of awards. See, e.g., R. D..Thompson & S. F. Paikin, ‘Formulas and Guidelines for Support,' 36 Juv. & Fam. Ct. J. 33 (1985).” Turner v. Turner, 219 Conn. 703, 713-14, 595 A.2d 297 (1991).

       Number 85-548, § 8, of the 1985 Public Acts provides: “A commission consisting of three employees of the judicial department, appointed by the chief court administrator, two employees of the office of the attorney general, appointed by the attorney general and two employees of the department of human resources appointed by the commissioner of human resources shall be established to develop guidelines, not later than January 1, 1987, for child support award amounts within the state. Such guidelines shall be available but not binding upon judges and other officials who have the power to determine child support awards.”

       Like No. 85-548 of the 1985 Public Acts, No. 89-203 of the 1989 Public Acts was enacted in response to federal legislation. “Four years [after the enactment of The Child Support Enforcement Amendments of 1984] . . . Congress enacted the Family Support Act of 1988 to increase the responsibility of the states to assist all families, including those who do not receive welfare assistance, to establish, modify and enforce support obligations. Public Law 100-485, codified at 42 U.S.C. § 666 et seq. Section 103 (a) of the 1988 act required the states to create a rebuttable presumption that the amounts recommended in the child support guidelines are the correct amounts to be awarded.” Turner v. Turner, 219 Conn. 703, 714, 595 A.2d 297 (1991).

       General Statutes § 46b-215a provides: “commission foe child support guidelines, duties, members. The commission for child support guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than January 1,1991, and every four years thereafter. The commission shall consist of eleven members as follows: The chief court administrator or his designee, the commissioner of human resources or his designee, the attorney general or his designee, the chairpersons and ranking members of the joint standing committee on judiciary or their designees and a representative of the Connecticut Bar Association, a representative of legal services, a person who represents the financial concerns of child support obligors and a representative of the permanent commission on the status of women, all of whom shall be appointed by the governor. The chairperson of the commission shall be elected by the members of the commission.”

       The first thirteen deviation criteria included: the substantial assets of a party; earning capacity of a party; division of property, assets and debts; special needs of the child; extraordinary educational expenses; alimony; needs of other dependents; extraordinary unreimbursable medical expenses; shared custody arrangements; tax consequences; significant visitation expenses; parental support available to a minor parent; and the best interests of the child. 1991 Guidelines, pp. 8-9.

       The commission also specifically determined that where a minor noncustodial parent lives at home and is supported in part by his or her parents, the court should be permitted to deviate from the guidelines by leaving the parent with less than $135 per week. 1991 Guidelines, p. 5. Significantly, there was no corresponding specific determination that a finding of actual living expenses of the noncustodial parent amounting to more than $135 per week should by itself trigger a deviation from the guidelines.

       We note, however, that in this ease the trial court, in ordering only $15 per week support for the two children, went below even what the respondent felt she could afford to pay, $50 per week.