State v. Brown ( 2019 )

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STATE OF CONNECTICUT v. TERRANCE BROWN
(SC 19960)
Palmer, McDonald, Robinson, D’Auria, Mullins and Kahn, Js.*
Syllabus
Pursuant to statute ([Rev. to 2009] § 54-47aa), a law enforcement official
may request an ex parte order from a Superior Court judge to compel
a telecommunications carrier to disclose basic cell phone subscriber
information and information identifying the origin and destination of
each communication generated or received by the subscriber. The judge
shall grant the order if the law enforcement official states a reasonable
and articulable suspicion that a crime has been or is being committed.
The defendant, who had been charged in multiple informations with various
crimes, including burglary and larceny, for his alleged role in the theft
or attempted theft of automated teller machines from gas stations and
convenience stores, filed motions to suppress the historical and prospec-
tive cell phone call and location data obtained by the state as a result
of three ex parte orders that had been issued pursuant to § 54-47aa. A
police task force had been organized to investigate a series of crimes
in which an individual or individuals, using various stolen vehicles,
had backed those vehicles into the stores or gas stations and removed
freestanding automated teller machines. As a result of information
obtained by the police, an officer conducted a motor vehicle stop of
the defendant, who was released after questioning. After uncovering
further information about the defendant, including his cell phone num-
ber, the police determined that the defendant may have been involved
in the various thefts under investigation. The police then obtained the
first ex parte order, which directed the defendant’s cell phone carrier
to disclose the past three months of his cell phone data and other
basic subscriber information. An analysis of that data led the police to
determine that the defendant had used his cell phone in relevant loca-
tions during times and dates that coincided with dates on which the
various thefts under investigation had occurred. On the basis of this
information, the police obtained two more ex parte orders that were
prospective in nature, requiring the defendant’s cell phone carrier to
disclose caller identification information linked to his cell phone num-
ber, including live updates every ten minutes, for two consecutive early
morning periods and for a later three day period. Based on the cell
phone data that had been obtained pursuant to the orders, J, who had
been in communication with the defendant at certain relevant times,
was arrested and taken into custody in connection with an automated
teller machine theft. During their interview of J, the police revealed to
J that his cell phone number was listed in the defendant’s phone log
and that the cell phone data indicated that the defendant and J had
contacted each other at or around the time of certain of the alleged
thefts or attempted thefts. J then gave a statement implicating himself
and the defendant in connection with many of the thefts and attempted
thefts that had been under investigation. Relying on the state’s conces-
sion that the second and third orders authorizing the disclosure of
prospective cell phone data violated § 54-47aa and its determination
that the first order authorizing the disclosure of historical data also
violated § 54-47aa, the trial court granted the defendant’s motions to
suppress all of the cell phone data, J’s statement to the police, and any
potential testimony by J. The trial court also concluded that the state
had failed to prove that the inevitable discovery exception to the exclu-
sionary rule applied to J’s statement and potential testimony. Thereafter,
the trial court granted the defendant’s motions to dismiss the charges
and rendered judgments thereon, from which the state, on the granting
of permission, appealed. Held:
1. The trial court correctly concluded that the state obtained the defendant’s
cell phone data illegally; the state had conceded that the two court
orders authorizing the disclosure of prospective cell phone data were
obtained in violation of § 54-47aa, and the disclosure of historical cell
phone data pursuant to the first ex parte order violated the defendant’s
fourth amendment rights in light of the United States Supreme Court’s
recent decision in Carpenter v. United States (138 S. Ct. 2206), in which
the court held that an individual has a legitimate expectation of privacy
in the historical record of his physical movements as captured through
cell phone data and that the government must generally obtain a warrant
supported by probable cause before acquiring such data, because the
police obtained the defendant’s historical data on the basis of a reason-
able and articulable suspicion, rather than on the basis of a warrant
supported by probable cause.
2. The trial court correctly concluded that the suppression of the historical
and prospective cell phone data that had been illegally obtained by the
state was the appropriate remedy: notwithstanding the state’s claim
that, because the police officers acted in reasonable reliance on the
court’s order authorizing the disclosure of the historical cell phone data,
they acted in good faith, and that the purpose of the exclusionary rule,
namely, to deter police misconduct, did not apply under these circum-
stances,, this court’s prior case law has uniformly established a bright-
line rejection of the good faith exception to the exclusionary rule under
the state constitution, and, accordingly, the trial court properly sup-
pressed the defendant’s historical cell phone data; moreover, the state
could not prevail on its claim that, with respect to the disclosure of the
prospective cell phone data, suppression was not a remedy for a violation
of § 54-47aa, this court having determined, after reviewing the statute’s
text and legislative history, as well as related statutes, that the statute’s
legislative history provided strong support for the conclusion that the
legislature intended that suppression would be an appropriate remedy
for violations of § 54-47aa and that the tracking of the defendant’s cell
phone, in the absence of a showing of probable cause and in violation
of § 54-47aa, implicated important privacy interests that are traditionally
the type protected by the fourth amendment, which required the applica-
tion of the exclusionary rule and the suppression of the prospective
cell phone data.
3. The trial court correctly determined that the state failed to meet its burden
of proving that the inevitable discovery exception to the exclusionary
rule applied to J’s statement to the police implicating the defendant and
J’s potential testimony, which the trial court suppressed on the ground
that the state conceded that, in the absence of the illegally obtained
cell phone data, the police would not have interviewed J and obtained
his statement; the trial court properly determined that the state, in order
to bear its burden of proving that that inevitable discovery exception
applied, was required to prove by a preponderance of the evidence not
only that the police would have identified and located J by legal means,
but also that J would have cooperated and provided the same information
in the absence of the illegally obtained cell phone data, and, although
the state presented credible evidence at the defendant’s suppression
hearing that it inevitably would have discovered J by lawful means, it
failed to present any evidence to demonstrate that J would have similarly
cooperated with the police in the absence of being confronted with the
illegally obtained cell phone data.
Argued December 15, 2017—officially released April 2, 2019
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 judi-
cial 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 ren-
dered 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).
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 infor-
mation]’’ (CSLI), and, therefore, ‘‘the [g]overnment
must generally obtain a warrant supported by probable
cause before acquiring such records.’’ The state
appeals1 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 defen-
dant’s fourth amendment rights. We further conclude
that the trial court properly determined that suppres-
sion 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 bur-
glaries 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 store-
front. 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 vehi-
cles 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 yel-
low 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 Cara-
van, 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 appre-
hended 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 defen-
dant was allowed to leave.
Meehan subsequently began investigating the defen-
dant. 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 ran a criminal history check on the defen-
dant, he discovered that he previously had been con-
victed of burglary and larceny. Specifically, the
defendant had been convicted of committing two bur-
glaries 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 ceme-
tery 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 Com-
munications (T-Mobile)4 to disclose telephone records,
including basic subscriber information and call identi-
fying 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 infor-
mation 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 informa-
tion 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 Novem-
ber 25, 2010.
From the records disclosed as a result of the October
22, 2010 order, following consultation with other offi-
cers 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 pat-
tern—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 recov-
ered 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 bur-
glaries 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 tele-
phone number was registered under the name ‘‘Ollie
Twig.’’
On November 23, 2010, Meehan reported to the Wall-
ingford 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 South-
ern 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 mar-
gins 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 tak-
ing 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 thir-
teen different docket numbers, with committing numer-
ous offenses, including burglary, attempt to commit
burglary, conspiracy to commit burglary, larceny, con-
spiracy to commit larceny, criminal mischief and pos-
session 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 set-
tled, the court first considered whether the ex parte
orders violated § 54-47aa, and, if so, whether suppres-
sion 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 Octo-
ber 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 rem-
edy 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 viola-
tion of state law. The court observed, however, that,
because § 54-47aa implicates important fourth amend-
ment privacy interests and because the failure to apply
the exclusionary rule would encourage further viola-
tions, 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 con-
fessed 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 dismiss
all charges, which the trial court granted. This appeal
followed.
We consider the question of whether the trial court
properly granted the defendant’s motions to suppress
the CSLI records in two parts. First, we conclude that
those records were obtained illegally. The state’s con-
cession that the prospective orders were issued in viola-
tion of § 54-47aa resolves that question for the two
prospective orders. As for the October 22, 2010 ex parte
order authorizing the disclosure of approximately three
months of the defendant’s historical CSLI, we conclude
that the order violated his fourth amendment rights.
See Carpenter v. United States, supra, 138 S. Ct. 2206.
Second, we conclude that the trial court properly deter-
mined that suppression was the appropriate remedy as
to all three sets of illegally obtained records. Finally,
we conclude that the trial court properly determined
that the suppression of those records also required that
Johnson’s statement and potential testimony be sup-
pressed.
I
We first consider whether the trial court properly
concluded that the state obtained the defendant’s CSLI
illegally. Before proceeding to the substance, we set
forth the applicable standard of review of a trial court’s
decision on a motion to suppress. ‘‘A finding of fact
will not be disturbed unless it is clearly erroneous in
view of the evidence and pleadings in the whole record
. . . . [W]hen a question of fact is essential to the out-
come of a particular legal determination that implicates
a defendant’s constitutional rights, [however] and the
credibility of witnesses is not the primary issue, our
customary deference to the trial court’s factual findings
is tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence. . . . [W]here the
legal conclusions of the court are challenged, [our
review is plenary, and] we must determine whether
they are legally and logically correct and whether they
find support in the facts set out in the memorandum
of decision . . . .’’ (Internal quotation marks omitted.)
State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821
(2014). Because the state’s claim that the trial court
improperly concluded that law enforcement obtained
the CSLI illegally challenges the trial court’s legal con-
clusions, we exercise plenary review. See id.
We begin, as did the trial court, with the state’s con-
cession of the illegality of the two prospective ex parte
orders. Given that concession, we need only resolve
the legality of the October 22, 2010 ex parte order, which
authorized the disclosure of the defendant’s historical
CSLI. That question is resolved by the recent decision
of the United States Supreme Court in Carpenter v.
United States, supra, 138 S. Ct. 2206. In Carpenter, the
court considered whether the state ‘‘conducts a search
under the [f]ourth [a]mendment when it accesses histor-
ical cell phone records that provide a comprehensive
chronicle of the user’s past movements.’’ Id., 2211. The
court answered that question in the affirmative and held
that ‘‘an individual maintains a legitimate expectation
of privacy in the record of his physical movements as
captured through CSLI.’’ Id., 2217. Accordingly, the state
‘‘must generally obtain a warrant supported by probable
cause before acquiring such records.’’ Id., 2221.
It is undisputed that the state did not obtain a warrant
supported by probable cause in order to procure the
defendant’s historical CSLI. Instead, the state relied on
§ 54-47aa (b) to obtain the ex parte order authorizing
the disclosure of those records. At the time of the
offenses, § 54-47aa (b) authorized a judge of the Supe-
rior Court to issue an ex parte order compelling a tele-
communications carrier to disclose call identifying
information and/or basic subscriber information per-
taining to a customer if the law enforcement official
seeking the order swore under oath that there was a
‘‘reasonable and articulable suspicion that a crime has
been or is being committed or that exigent circum-
stances exist and such call-identifying or basic sub-
scriber information is relevant and material to an
ongoing criminal investigation.’’7 General Statutes (Rev.
to 2009) § 54-47aa (b). Accordingly, because the record
is clear that the state obtained the defendant’s historical
CSLI in the absence of a warrant supported by probable
cause, the disclosure of those records violated the
defendant’s fourth amendment rights.8
II
We next address the question of whether the trial
court properly concluded that suppression of the histor-
ical and real time CSLI was the appropriate remedy.
The issue presents a question of law over which we
have plenary review. See, e.g., State v. Kendrick, supra,
314 Conn. 222. Because the illegality of the historical
CSLI is grounded on our conclusion that the disclosure
of those records violated the defendant’s fourth amend-
ment rights, we first consider whether those records
properly were suppressed. The state contends that,
because the officers acted in reasonable reliance on
the court’s ex parte order, they acted in good faith and
the purpose of the exclusionary rule—to deter police
misconduct—does not apply. In response, the defen-
dant relies on the greater protection provided under
the state constitution for fourth amendment violations.
That is, relying on this court’s decision in State v. Mar-
sala, 216 Conn. 150, 171, 579 A.2d 58 (1990), the defen-
dant responds that Connecticut has rejected the good
faith exception to the application of the exclusionary
rule. We agree with the defendant.
We have recognized that, ‘‘[a]s a general principle,
the exclusionary rule bars the government from intro-
ducing at trial evidence obtained in violation of the
fourth amendment to the United States constitution.
See Wong Sun v. United States, 371 U.S. 471, 485, 83
S. Ct. 407, 9 L. Ed. 2d 441 (1963). [T]he rule’s prime
purpose is to deter future unlawful police conduct and
thereby effectuate the guarantee of the [f]ourth
[a]mendment against unreasonable searches and sei-
zures. United States v. Calandra, 414 U.S. 338, 347, 94
S. Ct. 613, 38 L. Ed. 2d 561 (1974).’’ (Internal quotation
marks omitted.) State v. Brunetti, 279 Conn. 39, 72–73,
901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.
Ct. 1328, 167 L. Ed. 2d 85 (2007).
Under the ‘‘[good faith] exception’’ to the exclusion-
ary rule under the federal constitution, suppression of
‘‘reliable physical evidence seized by officers reason-
ably relying on a warrant issued by a detached and
neutral magistrate’’ is not required. United States v.
Leon, 468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984). In Marsala, however, this court categorically
rejected the good faith exception, holding that it is
‘‘incompatible with article first, § 7, of our state consti-
tution, which 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 affirma-
tion.’ ’’ State v. Marsala, supra, 216 Conn. 159. Nothing
in our decision in Marsala suggested that we intended
courts to accord the higher level of protection to defen-
dants on a case-by-case basis. Instead, the decision
established a bright-line rejection of the good faith
exception under our state constitution. Id., 171.
Our subsequent decisions citing to Marsala uniformly
have characterized Marsala as categorically rejecting
the good faith exception—not, as suggested by the state,
on a case-by-case basis. See, e.g., State v. Kelly, 313
Conn. 1, 15 n.13, 95 A.3d 1081 (2014) (in Marsala, court
declined ‘‘to recognize, for purposes of state constitu-
tion, good faith exception applicable to fourth amend-
ment exclusionary rule’’); State v. Buie, 312 Conn. 574,
584, 94 A.3d 608 (2014) (summarizing holding of Mar-
sala as ‘‘good faith exception to warrant requirement
does not exist under article first, § 7, of state constitu-
tion’’); State v. Jenkins, 298 Conn. 209, 291, 3 A.3d
806 (2010) (Katz, J., dissenting) (noting that Marsala
‘‘reject[ed] good faith exception to exclusionary rule
adopted by United States Supreme Court’’); State v.
Lawrence, 282 Conn. 141, 205–206, 920 A.2d 236 (2007)
(citing general principle relied on in Marsala for rejec-
tion of good faith exception: ‘‘[a]lthough we recognize
that the exclusionary rule exacts a certain cost from
society in the form of the suppression of relevant evi-
dence in criminal trials, we conclude, nevertheless, that
this cost is not sufficiently substantial to overcome the
benefits to be gained by our disavowal of the Leon
court’s good faith exception to the exclusionary rule’’
[internal quotation marks omitted]). Accordingly,
because the only exception on which the state relies
is one that this court expressly and consistently has
held is not recognized in Connecticut, the trial court
properly suppressed the CSLI obtained pursuant to the
October 22, 2010 ex parte order.
As to the two prospective ex parte orders issued on
November 10 and 22, 2010, once again we begin with
the state’s concession that those two orders were
obtained in violation of § 54-47aa.9 Notwithstanding that
concession, the state contends that, because § 54-47aa
does not identify suppression as an available remedy
for a violation of the statute, the trial court improperly
granted the motion to suppress the CSLI obtained as a
result of those two orders. The defendant responds that
the trial court properly concluded that, because § 54-
47aa implicates important fourth amendment interests,
suppression of the CSLI obtained as a result of the
two prospective orders is required. We conclude that,
although the plain language of § 54-47aa is unclear as
to whether suppression is available as a remedy for a
violation of the statute, the legislative history provides
strong, albeit not conclusive, support for the conclusion
that the legislature intended the remedy to be available
for violations. We find further support for interpreting
§ 54-47aa to provide for suppression as the appropriate
remedy in the policy principles underlying the exclu-
sionary rule itself. That is, we conclude that the real time
tracking of the defendant’s cell phone, in the absence
of a showing of probable cause and in violation of § 54-
47aa, implicated important fourth amendment interests,
requiring the application of the exclusionary rule. We
therefore conclude that the trial court properly deter-
mined that the violation of § 54-47aa required the sup-
pression of the CSLI obtained from the two prospective
ex parte orders.
The question of whether § 54-47aa provides suppres-
sion as a remedy for a violation presents a question of
statutory interpretation, over which we exercise ple-
nary review, guided by well established principles
regarding legislative intent. See, e.g., Kasica v. Colum-
bia, 309 Conn. 85, 93, 70 A.3d 1 (2013) (explaining plain
meaning rule under General Statutes § 1-2z and setting
forth process for ascertaining legislative intent). We
turn first to the statutory text, which does not clarify
whether the legislature intended to require or allow
suppression for a violation of § 54-47aa. The statute
neither expressly identifies nor precludes any remedies
for violations of the statute. See footnote 3 of this opin-
ion. By contrast, as the state points out, General Statutes
§ 54-41m expressly provides that a person aggrieved by
a communication that was allegedly ‘‘unlawfully inter-
cepted’’ pursuant to chapter 959a, which governs wire-
tapping and electronic surveillance, may file a motion
to suppress.10 The state contends that the provision of
suppression as a remedy for a violation of the wiretap-
ping statutes,11 contrasted with the absence of a similar
provision for a violation of § 54-47aa, supports its posi-
tion that suppression is not available as a remedy pursu-
ant to § 54-47aa.
We observe, however, that a comparison of § 54-47aa
with the federal Stored Wire and Electronic Communi-
cations and Transactional Records Access Act (SCA),
one of the statutory schemes on which § 54-47aa gener-
ally was modeled, yields a different contrast. Unlike
§ 54-47aa, the SCA lists the remedies available for a
violation of that act. See 18 U.S.C. § 2707 (b) (2012)
(authorizing persons aggrieved by violations of SCA
to bring civil action and listing ‘‘appropriate relief,’’
including equitable or declaratory relief, damages and
attorney’s fees). Suppression of illegally obtained evi-
dence is not one of the listed remedies. Furthermore,
the SCA includes an exclusivity of remedies provision:
‘‘The remedies and sanctions described in this chapter
are the only judicial remedies and sanctions for noncon-
stitutional violations of this chapter.’’ 18 U.S.C. § 2708
(2012). By contrast, as we have noted, § 54-47aa neither
specifies available remedies nor limits them. The legis-
lature easily could have incorporated the SCA’s limited
list of remedies into § 54-47aa, along with the SCA’s
exclusivity of remedies provision. The failure to do so
supports the conclusion that the legislature did not
intend to limit the remedies available for a violation of
§ 54-47aa.12 At best, therefore, the plain language of the
statute is ambiguous as to whether suppression is an
available remedy.
Because the plain language of the statute is ambigu-
ous, we turn to the legislative history, which provides
at least some support for the conclusion that the legisla-
ture intended that suppression would be available as a
remedy for abuses of § 54-47aa. Section 54-47aa was
first enacted through No. 05-182 of the 2005 Public Acts
in order to address the difficulties encountered by law
enforcement in gaining access to the basic subscriber
information associated with a telephone number. Pre-
viously, that information had been readily obtained
from local telephone companies. With the expansion
of the telecommunications industry and the increasing
prevalence of cell phones, however, law enforcement
personnel increasingly found themselves dealing with
out of state providers that were less cooperative in
providing that basic information. See 48 S. Proc., Pt.
11, 2005 Sess. pp. 3435–36, remarks of Senator Andrew
J. McDonald.
One of the primary concerns in crafting the legislation
was to strike the proper balance between the need for
law enforcement to have access to such information and
the need to safeguard the legitimate privacy interests
of citizens. See 48 H.R. Proc., Pt. 26, 2005 Sess., pp.
7869, 7871, remarks of Representative Michael P.
Lawlor. During the public hearing on the bill, Fanol
Bojka, an attorney speaking on behalf of the Connecti-
cut Criminal Defense Lawyers Association, spoke in
opposition to the bill, expressing concern that the stan-
dard required in the proposed legislation was merely a
reasonable suspicion rather than probable cause. Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 14,
2005 Sess., pp. 4122, 4124–25. In light of the lower stan-
dard and the absence of any express language speci-
fying any recourse available to aggrieved parties, Bojka
questioned: ‘‘What is the remedy under this bill . . . if
there are abuses?’’ Id., 4125. Representative Robert Farr
responded immediately that suppression would be the
appropriate remedy. Id. Nothing in the legislative his-
tory counters that representation.
Representative Farr’s assertion that suppression is
available as a remedy for a violation of § 54-47aa is
consistent with the legal principles governing suppres-
sion. As the trial court correctly noted, the ‘‘Connecticut
Code of Evidence does not prescribe a specific rule
governing the admissibility of evidence obtained under
these circumstances. ‘Where the code does not pre-
scribe a rule governing the admissibility of evidence,
the court shall be governed by the principles of common
law as they may be interpreted in the light of reason
and experience.’ Conn. Code Evid. § 1-2 (b).’’ Reason
and experience counsel that the exclusionary rule
requires the suppression of prospective CSLI obtained
in violation of § 54-47aa. Although the United States
Supreme Court has applied ‘‘the exclusionary rule pri-
marily to deter constitutional violations’’; Sanchez-Lla-
mas v. Oregon, 548 U.S. 331, 348, 126 S. Ct. 2669, 165
L. Ed. 2d 557 (2006); it has identified narrow circum-
stances under which the rule properly applies to
exclude evidence obtained in violation of statutory law.
The circumstances under which the exclusionary rule
may be applied to statutory violations, however, has
been limited to those violations that implicate
‘‘important [f]ourth [or] [f]ifth [a]mendment inter-
ests.’’ Id.13
In the present case, the evidence obtained in violation
of § 54-47aa—the prospective CSLI yielded from the
real time tracking of the defendant’s cell phone—impli-
cates important privacy interests that are traditionally
the type protected by the fourth amendment. In fact,
as one court has observed, much of the rationale that
the court relied on in Carpenter to hold that accessing
historical CSLI implicates legitimate privacy interests
applies with equal force to CSLI obtained by real time
tracking, because the two types of records are not
‘‘meaningfully different . . . .’’ Sims v. State, Docket
No. PD-0941-17, 2019 WL 208631, *7 n.15 (Tex. Crim.
App. January 16, 2019). In Carpenter, the court began
its analysis by describing the nature of the interests
implicated, explaining: ‘‘A person does not surrender
all [f]ourth [a]mendment protection by venturing into
the public sphere. To the contrary, what [one] seeks to
preserve as private, even in an area accessible to the
public, may be constitutionally protected. . . . A
majority of this [c]ourt has already recognized that indi-
viduals have a reasonable expectation of privacy in the
whole of their physical movements. [United States v.
Jones, 565 U.S. 400, 430, 132 S. Ct. 945, 181 L. Ed. 2d
911 (2012) (Alito, J., concurring); id., 415 (Sotomayor, J.,
concurring)]. Prior to the digital age, law enforcement
might have pursued a suspect for a brief stretch, but
doing so for any extended period of time was difficult
and costly and therefore rarely undertaken. Id., [429
(Alito, J., concurring)]. For that reason, society’s expec-
tation has been that law enforcement agents and others
would not—and indeed, in the main, simply could not—
secretly monitor and catalogue every single movement
of an individual’s car for a very long period.’’ (Citation
omitted; internal quotation marks omitted.) Carpenter
v. United States, supra, 138 S. Ct. 2217. The court further
observed that, ‘‘like GPS monitoring, cell phone
tracking is remarkably easy, cheap, and efficient com-
pared to traditional investigative tools.’’ Id., 2217–18.
Cell phone tracking, the court observed, presented
‘‘even greater privacy concerns than the GPS monitor-
ing of a vehicle [it] considered in Jones. Unlike [a]
bugged container . . . or the car in Jones, a cell
phone—almost a feature of human anatomy . . .
tracks nearly exactly the movements of its owner. While
individuals regularly leave their vehicles, they compul-
sively carry cell phones with them all the time. A cell
phone faithfully follows its owner beyond public thor-
oughfares and into private residences, doctor’s offices,
political headquarters, and other potentially revealing
locales. . . . Accordingly, when the [g]overnment
tracks the location of a cell phone it achieves near
perfect surveillance, as if it had attached an ankle moni-
tor to the phone’s user.’’ (Citations omitted; internal
quotation marks omitted.) Id., 2218.
The concerns expressed by the court in Carpenter
regarding historical CSLI apply with equal force to pro-
spective CSLI. As that court observed, ‘‘the time-
stamped data provides an intimate window into a per-
son’s life, revealing not only his particular movements,
but through them his familial, political, professional,
religious, and sexual associations.’’ (Internal quotation
marks omitted.) Id., 2217. An individual’s cell phone
has the ability to disclose increasingly exhaustive infor-
mation regarding that person’s movements, revealing
the most intimate details of that individual’s life. See
generally J. Valentino-DeVries et al., ‘‘Your Apps Know
Where You Were Last Night, and They’re Not Keeping
It Secret,’’ N.Y. Times, December 10, 2018, p. A1
(describing abilities of smartphone apps to track indi-
viduals’ movements and discussing privacy implications
of smartphone technology). We therefore conclude that
the trial court properly granted the defendant’s motions
to suppress the CSLI obtained from the two prospective
ex parte orders.14
III
Finally, we address the state’s claim that, although,
as the state concedes, Johnson’s arrest was tainted by
the illegally obtained CSLI, the trial court improperly
concluded that the state had failed to prove that, in
the absence of the illegally obtained CSLI, it inevitably
would have obtained Johnson’s postarrest statement
through lawful means. Therefore, the state contends,
the trial court improperly suppressed Johnson’s poten-
tial trial testimony.15 The state argues that, in arriving
at that conclusion, the trial court improperly concluded
that in order to prove inevitable discovery, the state
was required to prove that Johnson would have testified
in a manner similar to and consistent with the statement
that he gave to the police when he was confronted with
the illegally obtained CSLI.16 The state claims that all
it was required to prove under the inevitable discovery
doctrine was that it would inevitably have identified
and located Johnson. The defendant responds that the
trial court correctly concluded that the state failed to
meet its burden to prove that the inevitable discovery
doctrine applied under the facts of the present case.
The trial court credited the testimonial evidence pre-
sented by the state at the suppression hearing in support
of its claim that, even if it had not relied on the illegally
obtained CSLI, it inevitably would have discovered
Johnson by lawful means. The court further found, how-
ever, that the state failed to sustain its burden to prove
that, in the absence of the illegally obtained CSLI, it
would have obtained the same information from John-
son. We conclude that the trial court properly deter-
mined that, in order to bear its burden to prove that
the inevitable discovery exception to the exclusionary
rule applied, the state was required to prove by a pre-
ponderance of the evidence not only that it inevitably
would have identified and located Johnson by legal
means, but also that, under the different circumstances,
Johnson would have cooperated and provided the
same information.
We have explained that ‘‘ ‘[a]pplication of the exclu-
sionary rule . . . is not automatic.’ ’’ State v. Spencer,
268 Conn. 575, 599, 848 A.2d 1183, cert. denied, 543 U.S.
957, 125 S. Ct. 409, 160 L. Ed. 2d 320 (2004). ‘‘Under
the inevitable discovery rule, evidence illegally secured
in violation of the defendant’s constitutional rights need
not be suppressed if the state demonstrates by a prepon-
derance of the evidence that the evidence would have
been ultimately discovered by lawful means.’’ State v.
Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied,
479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).
The inevitable discovery doctrine is ‘‘based on the prem-
ise that the interest of society in deterring unlawful
police conduct and the public interest in having juries
receive all probative evidence of a crime are properly
balanced by putting the police in the same, not a worse,
position that they would have been in if no police error
or misconduct had occurred.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Vivo, 241 Conn.
665, 672, 697 A.2d 1130 (1997).
This court has not addressed the question of whether
the state must prove not only that it would inevitably
have discovered the witness but also that it would have
obtained the testimony or statements of that witness
that were procured through illegal means. The decisions
of the United States Court of Appeals for the Second
Circuit discussing the state’s burden to prove that the
inevitable discovery exception to the exclusionary rule
applies in a given case, however, are instructive. See
Martinez v. Empire Fire & Marine Ins. Co., 322 Conn.
47, 62, 139 A.3d 611 (2016) (‘‘[w]hen addressing ques-
tions of federal law, we give special consideration to
the decisions of the Second Circuit’’). Specifically, the
Second Circuit has explained that ‘‘proof of inevitable
discovery involves no speculative elements but focuses
on demonstrated historical facts capable of ready verifi-
cation or impeachment, United States v. Eng, 971 F.2d
854, 859 (2d Cir. 1992), quoting [Nix v. Williams, 467
U.S. 431, 445 n.5, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)].
The focus on demonstrated historical facts keeps specu-
lation to a minimum, by requiring the [D]istrict [C]ourt
to determine, viewing affairs as they existed at the
instant before the unlawful search occurred, what
would have happened had the unlawful search never
occurred. . . . Evidence should not be admitted, there-
fore, unless a court can find, with a high level of confi-
dence, that each of the contingencies necessary to the
legal discovery of the contested evidence would be
resolved in the government’s favor.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
United States v. Stokes, 733 F.3d 438, 444 (2d Cir. 2013),
citing United States v. Cabassa, 62 F.3d 470, 472–73
(2d Cir. 1995).
The United States District Court for the Southern
District of New York has applied the standard set forth
by the Second Circuit to conclude that one of the contin-
gencies that the state must establish is that a witness
whose statement had been obtained by illegal means
would have been cooperative if the state had identified,
located and questioned the witness through legal
means. United States v. Ghailani, 743 F. Supp. 2d 242,
254 (S.D.N.Y. 2010). The court reasoned that, pursuant
to the standard that was first announced in United
States v. Cabassa, supra, 62 F.3d 472–73, ‘‘[i]nevitable
discovery analysis . . . requires a court to examine
each of the contingencies that would have had to have
been resolved favorably to the government in order for
the evidence to have been discovered legally and to
assess the probability of that having occurred.’’
(Emphasis in original; internal quotation marks omit-
ted.) United States v. Ghailani, supra, 253–54.
The requirement that the state prove that each contin-
gency would have been resolved in its favor demands
that, at the least, the state had to prove at the suppres-
sion hearing that it would have identified, located and
secured the same level of cooperation from Johnson
in the absence of the illegally obtained CSLI. The trial
court found that the state had established that it would
have identified and located Johnson. The court
grounded its rejection of the state’s reliance on the
inevitable discovery doctrine, however, on the state’s
failure to prove that, if found by legal means and if
questioned without the reliance on the illegally obtained
CSLI, Johnson would have cooperated to the same
extent. Johnson’s cooperation was a contingency upon
which the procurement of a statement incriminating
himself and the defendant depended. The state bore
the burden, therefore, to prove that this contingency
would have resolved in its favor.
The state failed, however, to present any evidence
to demonstrate that Johnson would have similarly coop-
erated in the absence of being confronted with the
illegally obtained CSLI. For example, as the trial court
observed, the state did not present Johnson’s testimony
at the hearing. Due to that failure, the court observed,
‘‘the record is utterly barren concerning the circum-
stances of [his] interrogation and [his] willingness or
unwillingness to give his statements or to testify.’’ We
further observe that the state failed to present any evi-
dence at the suppression hearing as to how it would
have obtained the same cooperation from Johnson in
the absence of the illegally obtained CSLI and did not
make a proffer or otherwise articulate what other
sources or means it had available that would have led
the state to discover the same information it obtained
from Johnson. Because the state failed to present any
evidence regarding the likelihood of Johnson’s coopera-
tion under different circumstances, the trial court prop-
erly reasoned that any conclusion regarding Johnson’s
cooperation would have rested on pure speculation.
The court properly concluded that the state failed to
sustain its burden to prove that the inevitable discovery
exception applied.
The judgments are affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The state appealed to the Appellate Court, and we transferred the appeal
to this court pursuant to General Statutes § 51-199 (c) and Practice Book
§ 65-1.
2
The defendant was charged in twelve of the informations with, inter
alia, various burglary and larceny charges. As to the thirteenth information,
Docket No. CR-XX-XXXXXXX-S, referenced in the trial court’s corrected consoli-
dated memorandum of decision, the record contains neither the information
nor the judgment file for that docket. Nor is there any other document in
the record that identifies the charges filed against the defendant in that
docket. We observe that, although the trial court, Clifford, J., subsequently
indicated that it was granting dismissal in all thirteen dockets, in its appeal
form, the state did not list the judgment in Docket No. CR-XX-XXXXXXX-S as
a judgment from which the state is appealing. The state appeals only from
the judgments in the remaining twelve dockets.
3
General Statutes (Rev. to 2009) § 54-47aa provides in relevant part:
‘‘(a) For the purposes of this section:
‘‘(1) ‘Basic subscriber information’ means: (A) Name, (B) address, (C)
local and long distance telephone connection records or records of session
times and durations, (D) length of service, including start date, and types
of services utilized, (E) telephone or instrument number or other subscriber
number or identity, including any assigned Internet protocol address, and
(F) means and source of payment for such service, including any credit
card or bank account number;
‘‘(2) ‘Call-identifying information’ means dialing or signaling information
that identifies the origin, direction, destination or termination of each com-
munication generated or received by a subscriber or customer by means of
any equipment, facility or service of a telecommunications carrier;
...
‘‘(b) A law enforcement official may request an ex parte order from a
judge of the Superior Court to compel (1) a telecommunications carrier to
disclose call-identifying information pertaining to a subscriber or customer,
or (2) a provider of electronic communication service or remote computing
service to disclose basic subscriber information pertaining to a subscriber
or customer. The judge shall grant such order if the law enforcement official
states a reasonable and articulable suspicion that a crime has been or is being
committed or that exigent circumstances exist and such call-identifying or
basic subscriber information is relevant and material to an ongoing criminal
investigation. The order shall state upon its face the case number assigned
to such investigation, the date and time of issuance and the name of the
judge authorizing the order. The law enforcement official shall have any ex
parte order issued pursuant to this subsection signed by the authorizing judge
within forty-eight hours or not later than the next business day, whichever
is earlier. . . .’’
Unless otherwise indicated, all subsequent references to § 54-47aa in this
opinion are to the 2009 revision.
4
The November 15 and 22, 2010 ex parte orders were directed to T-Mobile
USA, Inc., at the same business address as the October 22, 2010 order. The
record does not clarify any reason for the difference in corporate name,
and we refer in this opinion to the telecommunications carrier as T-Mobile.
5
The trial court noted that the defendant had filed identical motions to
suppress in four of the criminal dockets and further noted that, ‘‘[a]lthough
no written suppression motions have been filed in the remaining files, the
parties agreed at the hearing that the already filed motions address issues
common to all files.’’ Accordingly, the court considered the defendant to
have filed motions to suppress in the remaining files.
6
The trial court also concluded that the state had failed to prove that
Johnson’s statement and potential testimony were sufficiently attenuated
from the tainted arrest. The state claims that the attenuation doctrine is
not implicated under the facts of the present case and challenges only the
trial court’s finding that it failed to prove that the inevitable discovery
exception to the exclusionary rule applied. Accordingly, we consider only
whether the trial court properly analyzed the inevitable discovery doctrine.
7
The statute has subsequently been amended to clarify that a judge of
the Superior Court must make a finding of probable cause prior to issuing
an order compelling a telecommunications carrier to disclose ‘‘the geo-
location data associated with such subscriber’s or customer’s call-identifying
information . . . .’’ General Statutes § 54-47aa (b); see Public Acts 2016,
No. 16-148, § 1.
8
The state contends that we should not apply Carpenter to this appeal
unless we first conclude that the October 22, 2010 ex parte order was issued
in violation of § 54-47aa (b). The state relies on the principle that this court
‘‘eschew[s] unnecessarily deciding constitutional questions . . . .’’ (Cita-
tions omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 560,
964 A.2d 1213 (2009). The jurisprudential principles underlying that policy
are not implicated in the present case, however, where Carpenter is clearly
dispositive of the issue of whether the state obtained the defendant’s histori-
cal CSLI in violation of the fourth amendment.
In the alternative, the state contends that Carpenter would not prohibit
the October 22, 2010 ex parte order. The state points to the majority’s
response in Carpenter to Justice Kennedy’s claim in his dissent that the
majority had established ‘‘an arbitrary [six day] cutoff . . . [that] suggests
that less than seven days of location information may not require a warrant.’’
Carpenter v. United States, supra, 138 S. Ct. 2234 (Kennedy, J., dissenting).
The majority rejected that characterization, responding that ‘‘we need not
decide whether there is a limited period for which the [g]overnment may
obtain an individual’s historical CSLI free from [f]ourth [a]mendment scru-
tiny, and if so, how long that period might be. It is sufficient for our purposes
. . . to hold that accessing seven days of CSLI constitutes a [f]ourth amend-
ment search.’’ Id., 2217 n.3. We believe that a fair reading of the decision
is that accessing CSLI for seven days or more is clearly a search for purposes
of the fourth amendment. What the court left unsettled is whether accessing
CSLI for fewer than seven days constitutes a search. At best, therefore,
Carpenter leaves unanswered the question of whether an order targeting a
very short time frame would be permitted under the fourth amendment.
More importantly for purposes of the present case, however, is that, even
if the state were correct that Carpenter is limited to cases in which the
state accesses more than six days of CSLI, the October 22, 2010 ex parte
order falls well within that rule. As the state acknowledges, that order
authorized the disclosure of sixty-two days of historical CSLI, from July 29
to September 29, 2010.
Finally, we observe that the state appears to suggest that, if it is correct
that the holding in Carpenter is limited to instances in which the state has
accessed seven days or more of historical CSLI, this court should remand
to the trial court for a hearing to determine which six days of historical
CSLI the state would have sought if they had been aware of the supposed
six day limit. Even if we agreed with the state’s reading of Carpenter, we
would categorically reject that claim. We find the procedure requested by
the state to be inappropriate in the present case, in which the state seeks
the opportunity to return to the trial court so that it may belatedly attempt
to ‘‘correct’’ the infringement with the benefit of having reviewed all the
data for the critical pieces of evidence.
9
As we noted previously in this opinion, the state’s concession that the
two prospective orders violated § 54-47aa has rendered it unnecessary to
resolve whether those orders also violate the fourth amendment. Moreover,
it is at best unclear whether the holding in Carpenter would extend to the
two prospective orders. Neither of the two orders authorized the release
of more than three days of CSLI and both applied prospectively. Although
we see no difficulty in extending the rationale of Carpenter as applied to
historical CSLI to prospective orders, the court expressly declined to resolve
whether its holding would extend to orders authorizing the disclosure of
fewer than seven days of CSLI. Carpenter v. United States, supra, 138 S. Ct.
2217 n.3. See footnote 8 of this opinion. This court ‘‘eschew[s] unnecessarily
deciding constitutional questions . . . .’’ (Citations omitted.) Hogan v. Dept.
of Children & Families, 290 Conn. 545, 560, 964 A.2d 1213 (2009). Accord-
ingly, in light of the state’s concession and the court’s failure in Carpenter
to provide a clear resolution of the constitutional question—at least as to
the two prospective orders—we confine our analysis to considering whether
application of the exclusionary rule is the proper remedy for a violation of
§ 54-47aa.
10
General Statutes § 54-41m provides: ‘‘Any aggrieved person in any trial,
hearing or proceeding in or before any court, department, officer, agency,
regulatory body or other authority of the state of Connecticut, or of a political
subdivision thereof, may move to suppress the contents of any intercepted
wire communication, or evidence derived therefrom, on the grounds that
the communication was unlawfully intercepted under the provisions of this
chapter; the order of authorization or approval under which it was inter-
cepted is insufficient on its face; or the interception was not made in confor-
mity with the order of authorization or approval. Such motion shall be made
before the trial, hearing or proceeding unless there was no opportunity to
make such motion or the person was not aware of the grounds of the motion,
in which case such motion may be made at any time during the course of
such trial, hearing or proceeding. If the motion is granted, the contents of
the intercepted wire communication, or evidence derived therefrom, shall
be treated as having been obtained in violation of this chapter and shall not
be received in evidence in any such trial, hearing or proceeding. The panel,
upon the filing of such motion by the aggrieved person, shall make available
to the aggrieved person or his counsel for inspection the intercepted commu-
nication and evidence derived therefrom.’’
11
Other statutes to which the state refers that expressly provide for sup-
pression as a remedy include General Statutes §§ 54-41l, 54-1c, 46b-137 (a)
and 14-227a (b).
12
The state claims that the reporting requirement in § 54-47aa (g) suggests
a remedy other than suppression. Subsection (g) requires the chief state’s
attorney to submit an annual report itemizing certain statistics regarding
orders issued pursuant to § 54-47aa, including the number of motions to
vacate that were filed, and the number of such motions granted and denied.
See General Statutes (Rev. to 2009) § 54-47aa (g) (6).
The state’s suggestion, however, that a motion to vacate could serve as
a remedy for an order granted in violation of § 54-47aa, cannot be reconciled
with the nature of the order—it is ex parte. Notice of the order is only
required to be provided to the subscriber forty-eight hours after the order
is issued, and there are numerous bases upon which a law enforcement
officer may request that notice not be given. See General Statutes (Rev. to
2009) § 54-47aa (d). Given the delayed notice available to a subscriber, a
motion to vacate can hardly be considered an efficacious remedy.
13
We find unpersuasive the state’s reliance on Virginia v. Moore, 553 U.S.
164, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008), for the proposition that this
court cannot conclude that suppression is an appropriate remedy for a
violation of a statute that implicates the same important interests that are
protected by the fourth amendment. The state’s argument relies on a misread-
ing of Moore. That case involved the question of whether ‘‘a police officer
violates the [f]ourth [a]mendment by making an arrest based on probable
cause but prohibited by state law.’’ Id., 166. In Moore, the defendant was
arrested for the misdemeanor of driving with a suspended license. Id., 167.
Under applicable state law, however, the officers should have issued the
defendant a summons instead of arresting him. Id. In a search incident to
the arrest, the officers discovered that the defendant had crack cocaine on
his person. Id. The defendant sought suppression of the crack cocaine on
the basis that, because the arrest violated state statutory law, it automatically
violated the defendant’s fourth amendment rights, and, therefore, he was
entitled to the protection of the exclusionary rule. Id., 167–68. The court
rejected that argument, explaining, ‘‘[w]e are aware of no historical indica-
tion that those who ratified the [f]ourth [a]mendment understood it as a
redundant guarantee of whatever limits on search and seizure legislatures
might have enacted.’’ Id., 168. The court explained further that the problem
is that ‘‘the [f]ourth [a]mendment’s meaning [does] not change with local
law enforcement practices—even practices set by rule. While those practices
vary from place to place and from time to time, [f]ourth [a]mendment
protections are not so variable and cannot be made to turn upon such
trivialities.’’ (Internal quotation marks omitted.) Id., 172.
In contrast to Moore, we are not presented in this appeal with the question
of whether a violation of § 54-47aa automatically constitutes a violation of
the fourth amendment, thus entitling the defendant to the protection of the
exclusionary rule. The defendant’s argument is that the violation of § 54-
47aa triggers the rule’s protections because of the important nature of the
interests implicated by the statute, interests that are also protected by the
fourth amendment. Accordingly, the concerns expressed by the court in
Moore do not apply in the present case, in which we hold only that suppres-
sion is required for a violation of § 54-47aa because the statute implicates
important interests protected by the fourth amendment. It is the importance
of the protected interests—not the force of the fourth amendment itself—
that requires suppression in the present case. Our decision does not reduce
the fourth amendment to a redundancy; it simply recognizes that the fourth
amendment is not the only means by which those important interests are pro-
tected.
14
To the extent that the state’s brief may be read to suggest that the good
faith exception to the exclusionary rule applies in Connecticut when the
basis for the rule’s application is a statutory, rather than a constitutional
violation, we reject that argument. As we have explained in this opinion,
in State v. Marsala, supra, 216 Conn. 171, we categorically rejected the good
faith exception to the exclusionary rule.
15
The state does not challenge the portion of the trial court’s ruling sup-
pressing Johnson’s postarrest statement and concedes that Johnson’s state-
ment was obtained illegally. We observe that, although the state challenges
only the portion of the trial court’s ruling suppressing Johnson’s potential
testimony, if called to testify, he would have had to testify consistent with
his prior statement to the police or risk negative consequences, including
further charges. Accordingly, we question the efficacy of the state’s conces-
sion of the inadmissibility of Johnson’s statement in light of its challenge
to his potential testimony.
16
The state claims that, in concluding that the inevitable discovery doctrine
required the state to prove that Johnson would have testified in a similar
manner, the trial court improperly conflated the attenuation and inevitable
discovery doctrines. Because we conclude that the trial court properly
applied the inevitable discovery doctrine, we need not resolve the state’s
claim that the court conflated the two doctrines.