Monday, June 30, 2014

Murder, Dismemberment and the Panel-Log

After a jury convicted Marash Gojcaj of murder in violation of Connecticut General Statutes § 53a–54a(a) and the judge sentenced him “to fifty hears in prison,” he appealed his conviction. State v. Gojcaj, 2014 WL 2723932 (Appellate Court of Connecticut 2014).  He made several arguments on appeal, but this post only examines one:  that the “trial court improperly . . . denied his motion to suppress certain security system records obtained by a warrantless search”.  State v. Gojcaj, supra.
The Appellate Court began its opinion by explaining how the case arose:
On the evening of April 4, 2004, [Gojcaj] and the victim, Zef Vulevic, enjoyed dinner and wine at the Inn at Newtown. [Gojcaj] was the victim's nephew, and they co-owned Gusto Ristorante, an Italian restaurant located in Danbury, where [Vulevic] served as head chef. They also lived in the same apartment in Danbury. After dining, the pair returned to Gusto's and continued drinking alcoholic beverages. Business was slow that evening, prompting [Gojcaj] to close Gusto's early, at approximately 11:30 p.m.

After closing, Daniel Cruz, a former employee of Gusto's, and his wife, walked by the restaurant en route to their apartment across the street from Gusto's. [Gojcaj] and [Vulevic] chased Cruz and exchanged words with him before Cruz entered his building. [Gojcaj] kicked in a portion of the apartment building's front door. In response, Cruz called the police.

[P]olice arrived shortly after midnight and interviewed Cruz about the verbal altercation. While interviewing Cruz, the police observed [Gojcaj] and [Vulevic] outside Gusto's. The[y] . . . were questioned by the police. The officers observed that [Gojcaj] and [Vulevic] had been drinking, but only [Vulevic] appeared intoxicated. [Gojcaj] offered to make restitution to the apartment building's owner for the damage to the door, and the police declined to arrest [him]. Throughout the course of the interview, [Gojcaj] repeatedly interrupted the police officers -- he appeared agitated and aggressive. The officers instructed [Gojcaj] to take [Vulevic] off the street.

Twice, as the police attempted to leave the scene, [Vulevic] yelled at them, saying he wanted to fight the officers. The police instructed [Gojcaj] to take control of [Vulevic], and threatened to tase [Vulevic] if he did not get off the street. At the request of the police, [Gojcaj] physically restrained [Vulevic] and took him inside Gusto's. The police heard the sound of breaking glass and yelling from inside the restaurant, but left . . . at 12:32 in the morning on April 5, 2004.

On evening of April 4, 2004, and into the early morning hours of April 5, 2004, Kenya Braden, a college student was working on a psychology paper in an apartment overlooking Gusto's front entrance. Braden observed the altercation between [Gojcaj] and Cruz and the police response. As she worked . . ., she periodically looked down upon Gusto's. Shortly after 2 a.m., on two occasions, she observed [Vulevic] crawling out of Gusto's on his hands and knees before [Gojcaj] grabbed [his] shirt and dragged him back into the restaurant. According to Braden, `[Vulevic’ looked like he was trying to get away.’

At approximately 3:30 a.m., Braden observed [Gojcaj] park a white van in front of the restaurant. [He] exited the vehicle, removed boxes from the back of the van, and took them inside. . . . At 4 a.m., [she] went to sleep.
State v. Gojcaj, supra. If you are interested, you can read more about the facts and see photos of Gojcaj and Vulevic in the news story you can find here.  The story you can find here provides more information about the trial and this story provides even more detail.
Phone records would later show that Gojcaj made calls
from Gusto's landline to a close friend at 3:34:14 a.m. and 3:34:51 a.m. Alarm records indicated that Gusto's security system was armed at 3:59 a.m. Using his cell phone, he telephoned another close friend at 4:10:09 a.m. and 4:10:30 a.m., and [Vulevic’s] cell phone at 4:24:31 a.m. 
State v. Gojcaj, supra.
Gojcaj “subsequently traveled to Bedford, New York.” State v. Gojcaj, supra. A Danbury resident “who commuted through Bedford,” and apparently knew Gojcaj, saw “a white van that resembled his’ parked on . . . Baldwin Road.” State v. Gojcaj, supra. At 11:00 a.m. on April 5, Gojcaj unlocked the door to Gusto’s for an employee, who saw “a statue had been broken and there was broken glass on the floor.” State v. Gojcaj, supra.  Gojcaj said Vulevic was “intoxicated and emotional the previous evening, and he `flipped out’ and `just left.’”  State v. Gojcaj, supra.
On April 6, Gojcaj called Dennis Radovic,
a chef who had worked at Gusto's in February, 2004. [Gojcaj said Vulevic] was missing and he needed a chef. Radovic agreed to return to work at Gusto's, and upon entering the kitchen he noticed a bone saw was missing. . . . [T]he saw hung in the kitchen at Gusto's when he had worked there in February, 2004.
State v. Gojcaj, supra. 
On April 8, Gojcaj had the carpets at Gusto’s cleaned, after which he filed a missing persons report with the police regarding Vulevic.  State v. Gojcaj, supra. He said Vulevic “might have traveled to Florida to visit family.”  State v. Gojcaj, supra.  On April 9, police asked Gojcaj in for questioning; he said Vulevic left Gosto’s around 1:00 a.m. on April 5 and he had “not heard from him since.”  State v. Gojcaj, supra.  On April 16, Gojcaj had the carpets at Gusto’s replaced.  State v. Gojcaj, supra.  Before the installers arrived, he removed the old carpet and put “the remnants in a dumpster.” State v. Gojcaj, supra. Police retrieved the carpet and found one section was missing.  State v. Gojcaj, supra.
On April 24,
David Jussel, an Earth Day volunteer was cleaning up trash in Bedford, New York. Jussel stumbled upon a black trash bag enveloped in flies. The volunteer opened the bag, revealing a human foot covered in maggots. Jussel's mother called the police.

Forensic testing later determined that the foot, and the rest of the body parts that were subsequently recovered, belonged to [Vulevic]. An autopsy revealed two gunshots to the back of [his] head. The medical examiner determined that the gunshots to the head were the cause of death and that [Vulevic] was dismembered postmortem.
State v. Gojcaj, supra. 
Finally, in February of 2008, while he was incarcerated on an
unrelated matter at Westchester County Correctional Facility, [Gojcaj] asked Anthony D'Amato, an inmate working as a librarian, if there was a statute of limitations for murder. D'Amato later [sent a letter to the Connecticut prosecutors stating that [Gojcaj] `told me he killed his uncle . . . shot him dead then cut him in pieces and was intoxicated at the time.’
State v. Gojcaj, supra. 
Gojcaj was arrested on August 19, 2008, charged with murder and pled not guilty.  State v. Gojcaj, supra.  On November 5, 2010, he was convicted.  State v. Gojcaj, supra. 
That brings us to his appeal, and the issue he raised that concerned his alarm system.  Gojcaj argued on appeal that “his 4th amendment rights were violated when his security system service provider disclosed to the police a panel-log indicating when his alarm system was armed or disarmed because he had a reasonable expectation of privacy in this information.”   State v. Gojcaj, supra. 
The Appellate Court explains, in a footnote, that “[t]he security system recorded in its memory the date and time the alarm system was either armed or disarmed. The panel-log is merely a printout of this information.” State v. Gojcaj, supra.  And as I have noted in prior posts, and as Wikipedia explains, a “search” within the compass of the 4th Amendment’s protection against “unreasonable” searches occurs when law enforcement officers violated someone’s reasonable expectation of privacy in a place or thing.
The Appellate Court began its analysis of Gojcaj’s argument by explaining that at trial,
the state elicited testimony from James Corbett, a partner of United Alarm Services. Corbett testified that United contracted with Gusto's to provide security alarm services and that on April 21, 2004, the police requested information pertaining to the burglar alarm at Gusto's. Corbett complied . . . and gave police a two page document. Corbett obtained this information by remotely connecting to Gusto's security system panel and downloading data stored in the panel's memory. The first page of the document contained general subscriber information; the second page, the panel-log, showed alarm panel activity from March 30, 2004, until April 21, 2004. The information on the second page was computer generated and indicated the date and time the system was armed or disarmed.

[Gojcaj] objected to the panel-log's admission into evidence and orally moved to suppress the panel-log, arguing that it was obtained by the police in violation of his 4th Amendment rights. The issue was briefed, and the court held a suppression hearing at which Corbett testified.
State v. Gojcaj, supra. 
The trial judge then found that the alarm system was
controlled by a central control panel (panel) that was connected to United's operation center over a telephone wire. Although the panel was owned by Gusto's and located within the restaurant, the panel was operated by software that was designed and owned by United. The software controlled the basic operation of the alarm system and automatically logged information in the panel's memory. United provided a single passcode for Gusto's security system.

There was no evidence as to how many of Gusto's employees had access to the passcode and because the passcode was shared, there is no way to determine who armed or disarmed the system. Upon entry of the passcode, the panel records the date, time of day, and whether the system is being armed or disarmed. It is this data that formed the basis of the panel-log.

Although the panel did not transmit this information directly to United, United had the ability to access the panel's memory and operations remotely over the telephone connection. It was common for United to remotely connect into a panel to perform basic maintenance, including adjusting the panel's internal clock.

[Gojcaj] did not have access to the information stored in the panel; the only means of accessing the data was through United's remote connection software and downloading the information onto United's computers. There was no evidence that [he] ever knew that this information was being recorded by the security system.
State v. Gojcaj, supra. 
The trial judge therefore denied Gojcaj’s motion to suppress because he found Gojcaj
had failed to prove `a subjective expectation of privacy in the [panel-log] or an objective expectation of privacy . . . . that society is willing to recognize as reasonable, in light of the [monitoring agreement],’ and `the fact the information was willingly transferred to a third party . . . as part of the contract. . . .’ 
State v. Gojcaj, supra. 
The Appellate Court noted, before ruling on Gojcaj’s argument that the trial judge erred, that in reviewing the denial of a motion to suppress it (i) will uphold the trial judge’s factual findings “so long as they are not clearly erroneous”, but (ii) when a defendant challenges a judge’s “legal conclusions,” it reviews the accuracy of those conclusions independently.  State v. Gojcaj, supra.  The court then analyzed Gojcaj’s claim that the trial judge erred in rejecting his 4th Amendment argument by noting that the "touchstone" of 4th Amendment
`analysis is whether a person has a constitutionally protected reasonable expectation of privacy.’ . . . California v. Ciraolo, 476 U.S. 207 (1986). `Absent such an expectation, the subsequent police action has no constitutional ramifications. . . . [T]o meet this rule . . . a two-part. . . test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . .The burden of proving the existence of a reasonable expectation of privacy rests on the defendant.’ . . .  State v. Boyd, 295 Conn. 707, 992 A.2d 1071 (Connecticut Supreme Court 2010).
State v. Gojcaj, supra. 
The Appellate Court found that Gojcal had 
not established that he had a reasonable expectation of privacy in the panel-log because he did not know that the information contained in the panel-log even existed, and there was no evidence that he intended to keep this information private.
State v. Gojcaj, supra.  It then explained why it reached this conclusion:
Although the panel-log information was not directly transmitted to United, it had the authority to remotely connect and download information from the security system without [Gojcaj’s] permission, pursuant to the monitoring agreement. This operational information is of the type that one reasonably would expect to be shared with a monitoring company, as it relates directly to the operation of the security system and the service United was under contract to provide. See U.S. v. Kennedy, 81 F.Supp.2d 1103 (U.S. Court for the District of Kansas 2000) (defendant's 4th Amendment rights were not violated when service provider turned over subscriber information, as there is no expectation of privacy in information provided to third parties).

As the trial court aptly noted, the sharing of information with a third party is a fundamental element of a security system.
State v. Gojcaj, supra. 
The Appellate Court also pointed out that it is
well established that `[a person] takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government . . . [and] that the 4th Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’ (emphasis added.) U.S. v. Miller, 425 U.S. 435 (1976).
State v. Gojcaj, supra. 
The court therefore held that Gojcaj
agreed to reveal information to a third party and was warned that this information could be disclosed to the police. We acknowledge that technological advances and the erosion of privacy stemming from our society's increasing propensity to share information present new and challenging evidentiary issues. Given the facts of this case, however, the police acquisition of the panel-log did not violate the defendant's 4th Amendment rights.

State v. Gojcaj, supra.  For these and other reasons, the Appellate Court affirmed Gojcaj’s conviction and sentence.  State v. Gojcaj, supra. 

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