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State v. Brown

Supreme Court of Connecticut

April 2, 2019

STATE OF CONNECTICUT
v.
TERRANCE BROWN

          Argued December 15, 2017

         Procedural History

         Informations, in twelve cases, charging the defendant with nine counts each of the crimes of larceny in the third degree and criminal mischief in the first degree, six counts of the crime of burglary in the third degree, four counts each of the crimes of conspiracy to commit burglary in the third degree and conspiracy to commit larceny in the third degree, three counts of the crime of conspiracy to commit criminal mischief in the first degree, two counts each of the crimes of attempt to commit burglary in the third degree and criminal trover in the first degree, and one count each of the crimes of burglary in the first degree, larceny in the fourth degree, conspiracy to commit larceny in the fourth degree, larceny in the fifth degree and possession of burglar tools, brought to the Superior Court in the judicial district of New Haven, where the court, Blue, J., granted the defendant's motions to suppress certain evidence; thereafter, the court, Clifford, J., granted the defendant's motions to dismiss the charges and rendered judgments thereon, from which the state, on the granting of permission, appealed. Affirmed.

          Harry Weller, senior assistant state's attorney, with whom were John P. Doyle, Jr., senior assistant state's attorney, and, on the brief, Patrick J. Griffin, state's attorney, Timothy J. Sugrue, assistant state's attorney, and Dana Tal, certified legal intern, for the appellant (state).

          Jennifer B. Smith, for the appellee (defendant).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          KAHN, J.

         The present case is in large part governed by the recent decision of the United States Supreme Court in Carpenter v. United States, U.S., 138 S.Ct. 2206, 2217, 2221, 201 L.Ed.2d 507 (2018), in which the court held that an individual has ‘‘a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]'' (CSLI), and, therefore, ‘‘the [g]overnment must generally obtain a warrant supported by probable cause before acquiring such records.'' The state appeals[1] from the judgments of dismissal rendered by the trial court after it granted the oral motion of the defendant, Terrance Brown, seeking dismissal of all charges in thirteen separate dockets.[2] The state claims that the trial court improperly granted the defendant's motions to suppress any and all ‘‘cellular-telephone-derived location information'' obtained by the state as a result of three ex parte orders that had been granted pursuant to General Statutes (Rev. to 2009) § 54-47aa.[3]In their original briefs and arguments to this court, the parties focused primarily on whether the trial court properly granted the defendant's motions on the basis of its conclusion that the state obtained the prospective and historical CSLI in violation of § 54-47aa, and that suppression of the records was the appropriate remedy. Following oral argument, however, this court stayed the appeal pending the decision of the United States Supreme Court in Carpenter and ordered the parties to submit supplemental briefs concerning the relevance of that decision to this appeal. In light of the court's holding in Carpenter, we conclude that, because the state obtained the defendant's historical CSLI solely on the basis of a reasonable and articulable suspicion, rather than on a warrant supported by probable cause, the records were obtained in violation of the defendant's fourth amendment rights. We further conclude that the trial court properly determined that suppression of both the historical and prospective CSLI-which the state concedes it obtained in violation of § 54-47aa- was the appropriate remedy. Finally, we conclude that the trial court properly rejected the state's reliance on the inevitable discovery doctrine. Accordingly, we affirm the judgments of the trial court.

         The record reveals the following facts and procedural background. From July 30 through November 23, 2010, Connecticut State Police Detective Patrick Meehan was a member of a task force investigating a series of burglaries and attempted burglaries at a variety of gas stations and convenience stores in the New Haven, Waterbury and Fairfield areas. In the late night and early morning hours, the thieves targeted businesses that had freestanding ATMs inside a windowed storefront. Using a stolen vehicle, in many instances a Dodge Caravan minivan, the thieves backed the vehicle into the building when the business was closed, smashing through the glass and, in many cases, knocking over the ATM. The thieves would then load the ATM into the back of the vehicle, from which the rear seats had been removed, and drive away. Several of the ATMs had subsequently been recovered; those machines appeared to have been cut open with a reciprocating saw. Three of the ATMs were recovered in a cemetery not far from where the defendant lived. The stolen vehicles were later abandoned in different locations from where the ATMs had been discarded.

         Following a task force meeting on September 15, 2010, Meehan learned that, on or about May 26, 2009, a police officer patrolling in the town of Monroe had observed a Dodge Caravan swerve over the double yellow line in the road several times. The officer pulled the Caravan over and, because there was heavy traffic, directed the driver to a nearby parking lot. As the driver of the Caravan began to pull into the parking lot, a Lincoln Navigator pulled up alongside the Caravan. The Lincoln's driver briefly spoke to the driver of the Caravan, then drove away. The Caravan continued into the parking lot but, while the van was still in gear, the driver opened the door and fled on foot. Although the officers attempted to pursue the driver, he was never apprehended or identified. The rear seats of the Caravan, which had been stolen in Bridgeport just prior to the incident, had been removed. The Lincoln Navigator was stopped moments later. At the time of the stop, the defendant, who was driving that vehicle, informed the officers that he was a student at Southern Connecticut State University (Southern) and played for the football team. After being questioned by the officers, the defendant was allowed to leave.

         Meehan subsequently began investigating the defendant. From the campus police at Southern, Meehan obtained the defendant's cell phone number and his address in New Haven, a location not far from where a couple of the stolen vehicles had been recovered. When Meehan ranacriminal history check on the defendant, he discovered that he previously had been convicted of burglary and larceny. Specifically, the defendant had been convicted of committing two burglaries over the course of several weeks at a gun shop. Of particular interest to Meehan was the fact that the defendant had used a vehicle to smash through the front door to enter the shop.

         On October 4, 2010, Meehan and other police officers conducted overnight surveillance of the defendant. Sometime after 10 p.m., they observed the defendant leave his house, get into his car and drive to the cemetery where three of the stolen ATMs had been recovered approximately two weeks earlier. The officers followed him to the cemetery, where he remained for a few minutes. He then returned to his home and did not leave for the rest of the night.

         On the basis of all of this information, Meehan obtained the first of the three ex parte orders that are the subject of this appeal and which was the sole order that authorized the disclosure of historical cell phone records. In this first ex parte order, issued on October 22, 2010, the court, Holden, J., directed T-Mobile Communications (T-Mobile)[4] to disclose telephone records, including basic subscriber information and call identifying information, pertaining to the defendant's cell phone number for the period of July 29 to September 29, 2010. The order specified that basic subscriber information included ‘‘name, address, local and long distant telephone connection records, records of session times and durations, length of service (including start date, and types of service utilized), telephone or instrument number, other subscriber number or identity, assigned internet protocol addresses, and means and source of payment for such service including any credit card or bank account number.'' ‘‘Call identifying information'' included ‘‘dialing or signaling information that identifies the origin, direction, destination or termination of each communication generated or received by a subscriber or customer by means of any equipment, facility or service of telecommunications carrier.'' The order also directed the disclosure of ‘‘cellular site/tower information including addresses of cellular towers . . . .''

         The remaining two ex parte orders were prospective in nature. In the second order, issued on November 15, 2010, the court, Shaban, J., directed T-Mobile to disclose call identifying information for the defendant's cell phone number, including live updates from T-Mobile on cell phone pings every ten minutes between midnight and 6 a.m. on both November 16 and 17, 2010. In the third order, issued on November 22, 2010, the court, Cremins, J., directed T-Mobile to disclose call identifying information for the defendant's cell phone number, including ‘‘E911 pings, '' every ten minutes from midnight on November 23, 2010 until 7 a.m. on November 25, 2010.

         From the records disclosed as a result of the October 22, 2010 order, following consultation with other officers who assisted in the analysis of the records, Meehan noticed that, during the period between July 29 and September 29, 2010, the defendant's daily cell phone calls ordinarily stopped sometime between 10 and 11 p.m. There were some exceptions to that general pattern-certain days when the defendant made several phone calls between 2 and 4 a.m. Those dates and times coincided with the dates on which there had been attempted or completed ATM burglaries. In addition, Meehan observed that the location information recovered from the cell phone records often ‘‘match[ed] . . . up'' with the location of the burglaries or attempts that had occurred on a given date. That is, during the time period of the burglaries, the defendant's cell phone records showed that his phone was pinging off of nearby cell towers.

         Meehan particularly focused on the defendant's phone records for the early morning hours of September 28, 2010, when two attempted or completed ATM burglaries had occurred, both of which had involved stolen vans smashing through storefronts. An ATM was removed from a business in Shelton at approximately 2:15 a.m., and there was an attempt to steal an ATM in Ansonia at 5:04 a.m. At the time that these two incidents occurred, six phone calls were exchanged between the defendant's cell phone and a New Jersey telephone number. Meehan discovered that the New Jersey telephone number was registered under the name ‘‘Ollie Twig.''

         On November 23, 2010, Meehan reported to the Wallingford Police Department, where a suspect, Ramon Johnson, had been arrested and taken into custody in connection with an ATM burglary. The police had located Johnson as a result of the real time tracking of the defendant's CSLI on that date, pursuant to the prospective ex parte order granted on November 22, 2010. During his interview of Johnson, Meehan learned that Johnson, like the defendant, was a student at Southern and a member of the school's football team. Johnson informed Meehan that, when not at school, he lived in New Jersey with his grandmother, Ollie Twig. At that point, Meehan showed Johnson the defendant's phone log for September 28, 2010, which he had obtained pursuant to the October 22, 2010 order, and in the margins of which Meehan had written ‘‘Ollie Twig'' and drawn arrows pointing to the New Jersey phone number that the defendant had been calling when the Shelton burglary and the Ansonia attempted burglary were taking place. Johnson admitted that the phone number in the log was his and gave a statement implicating himself and the defendant in connection with the series of ATM burglaries and attempted burglaries.

         The defendant was subsequently arrested and charged in thirteen separate informations under thirteen different docket numbers, with committing numerous offenses, including burglary, attempt to commit burglary, conspiracy to commit burglary, larceny, conspiracy to commit larceny, criminal mischief and possession of burglar tools. See footnote 2 of this opinion. The defendant filed motions to suppress any and all ‘‘cellular-telephone-derived location information, '' both historical and prospective in nature, as well as any evidence found to be the fruit of such information, including any potential testimony by Johnson.[5] Included in the evidence considered by the trial court during the suppression hearing were stipulated facts submitted by the parties, including: ‘‘As a result of the real time tracking of the defendant through the monitoring of [his] cell site location data, the police were able to track the defendant's activities on November 23, 2010, and to thereby locate [Johnson]. . . . But for the ability of the police to track [the defendant's] movements by monitoring [his] cell phone on a real time basis, Johnson would never have been stopped, detained, arrested or interrogated by the police on November 23, 2010.''

         Following the suppression hearing, the trial court granted the defendant's motions to suppress in all of the cases pending against him. In its memorandum of decision, the court acknowledged that the defendant's motions implicated both statutory and constitutional principles, but, because the constitutional question of whether the ex parte orders violated the defendant's fourth amendment rights had not yet been clearly settled, the court first considered whether the ex parte orders violated § 54-47aa, and, if so, whether suppression was the proper remedy.

         As to the prospective ex parte orders, issued on November 15 and 22, 2010, the state conceded that those orders violated § 54-47aa. The first part of the court's inquiry focused, therefore, on whether the October 22, 2010 order, which authorized the disclosure of the defendant's historical cell phone records, violated § 54-47aa, a question that the court answered in the affirmative. The court then addressed the second issue-whether suppression was the appropriate remedy for evidence that the state had obtained in violation of § 54-47aa. The court acknowledged that suppression was not always required for evidence obtained in violation of state law. The court observed, however, that, because § 54-47aa implicates important fourth amendment privacy interests and because the failure to apply the exclusionary rule would encourage further violations, suppression was the appropriate remedy.

         Finally, the court considered the defendant's claim that, because the state had conceded that, in the absence of the illegally obtained CSLI, it would not have interviewed Johnson and obtained his statement implicating himself and the defendant on November 23, 2010, the court should suppress Johnson's statement and potential trial testimony. The court observed that there was ample evidence in the record to sustain the defendant's burden to prove that Johnson's arrest was tainted. The remaining question for the court was whether the state had proven that one of the exceptions to the exclusionary rule applied. The court began with the observation that, because Johnson did not testify at the suppression hearing, ‘‘the record is utterly barren concerning the circumstances of [his] interrogation and [his] willingness or unwillingness to give his statements or to testify.'' Although the court credited the testimony and evidence presented by the state that supported a finding that the state eventually would have identified and located Johnson even without the CSLI, it noted that it was unclear whether Johnson would have confessed if he had not been confronted with the damning CSLI evidence. In light of that lacuna in the record, the court concluded that the state had failed to prove that it inevitably would have obtained the statement from Johnson incriminating himself and the defendant.[6]

         Following the granting of the defendant's motions to suppress, the state entered nolles prosequi on all of the charges against the defendant in the pending cases. In response, the defendant made an oral motion to ...


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