State v. Hanisko , 187 Conn. App. 237 ( 2019 )

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STATE OF CONNECTICUT v. STEPHEN HANISKO
(AC 40831)
Prescott, Elgo and Moll, Js.
Syllabus
Convicted of the crime of possession of child pornography in the second
degree, the defendant appealed to this court. In November, 2008, the
state police had received from a Wyoming special agent a spreadsheet,
which indicated that a certain computer associated with a particular
Internet Protocol address was identified as a download candidate for
twenty-five files of suspected child pornography. In September, 2009,
detectives A and C obtained a warrant to search the property where
both the defendant and the holder of the Internet services account
associated with the identified computer resided and to seize certain
described categories of evidence. A and C executed the search and
seizure warrant and, while they were at the property, the defendant
stated that he had used a certain peer-to-peer network to download
pornography. In 2014, after A and C had examined the evidence that
had been seized from the property and uncovered videos depicting child
pornography, the trial court issued a warrant for the defendant’s arrest.
On the morning of the first day of trial, the defendant filed a motion to
suppress the evidence seized from the property, which the trial court
denied. On appeal, the defendant claimed, inter alia, that the trial court
improperly denied his motion to suppress, in which he claimed that the
information in the search warrant affidavit was stale at the time that
the search warrant was issued because that affidavit referenced an
isolated occurrence from approximately one year earlier and, as a result
of the lapse of time and the absence of any similar recurrences, there
was no probable cause to believe that the materials identified in the
search warrant would be in his possession when the warrant was
issued. Held:
1. The trial court properly denied the defendant’s motion to suppress evi-
dence seized pursuant to the search and seizure warrant and determined
that probable cause existed to support the issuance of that warrant; the
search warrant affidavit, which alleged that the user of the identified
computer distributed or attempted to distribute suspected child pornog-
raphy, including at least one file of known child pornography, on a peer-
to-peer network over the course of several days, suggested that the user
of the identified computer wilfully and deliberately accumulated and
sought to disseminate such video files over the Internet, and the passage
of approximately ten months between the receipt of information from
the Wyoming special agent and the issuance of the search warrant did
not render the information in the search warrant affidavit stale, as that
affidavit included certain statements from A and C that individuals who
possess child pornography often will store such material indefinitely if
they believe that their illegal activities have gone undetected, and that
information contained within a computer, or other media, remains elec-
tronically stored unless the information is deleted and subsequently
overwritten, which permitted an inference by the issuing judge that, if
the user had child pornography files on the identified computer, the
user would still have those files in his or her possession at the time
that the search warrant was executed, even though the such warrant
was not issued until approximately ten months after the state police
received the information from the Wyoming special agent.
2. The defendant’s claim that he was entitled to a judgment of acquittal on
the ground that the trial court’s evidentiary rulings were incorrect, which
was based on his claim that the court’s failure to recognize that the
oppressive delay between the execution of the search and seizure war-
rant in 2009 and the issuance of the arrest warrant in 2014 resulted in
a violation of his right to due process, was not reviewable, the defendant
having failed to timely raise that claim in a pretrial motion to dismiss;
the defendant could have raised his due process claim by way of a
pretrial motion, as that claim could have been determined without a
trial of the general issue and, by failing to do so, he had waived his
right to raise that claim.
Argued September 21, 2018—officially released January 15, 2019
Procedural History
Substitute information charging the defendant with
the crime of possession of child pornography in the
second degree, brought to the Superior Court in the
judicial district of New Haven at Meriden, geographical
area number seven, where the court, Hon. John F. Cro-
nan, judge trial referee, denied the defendant’s motion
to suppress certain evidence; thereafter, the matter was
tried to the court; subsequently, the court denied the
defendant’s motion for a judgment of acquittal; judg-
ment of guilty, from which the defendant appealed to
this court. Affirmed.
Howard I. Gemeiner, for the appellant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and James Dinnan, senior assistant state’s
attorney, for the appellee (state).
Opinion
MOLL, J. The defendant, Stephen Hanisko, appeals
from the judgment of conviction, rendered after a court
trial, of possession of child pornography in the second
degree in violation of General Statutes (Rev. to 2009)
§ 53a-196e.1 On appeal, the defendant claims that (1)
the trial court improperly denied his motion to suppress
evidence seized pursuant to a search and seizure war-
rant (search warrant) because the information con-
tained in the search warrant affidavit was stale at the
time that the search warrant was issued, and (2) the trial
court’s ‘‘evidentiary rulings’’ were incorrect because the
court failed to recognize the oppressive delay between
the execution of the search warrant and the issuance
of the warrant for his arrest, resulting in a violation of
his right to due process. We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts, which the trial court reasonably
could have found, and procedural history are relevant
to our resolution of the defendant’s claims. On Novem-
ber 14, 2008, the Connecticut State Police Computer
Crimes and Electronic Evidence Laboratory (computer
crimes laboratory) received a spreadsheet and a DVD
from a special agent of the Wyoming Internet Crimes
Against Children Task Force (Wyoming special agent).
The spreadsheet contained Internet Protocol (IP)
addresses that had been captured during an investiga-
tion into electronic file sharing of child pornography.
Specifically, the spreadsheet indicated that, between
November 7 and 14, 2008, the computer associated with
a particular IP address (identified computer) was identi-
fied as a ‘‘download candidate’’2 for, what appeared to
be, twenty-five files of child pornography. The DVD
contained files of known child pornography, which the
computer crimes laboratory used for comparison
against the twenty-five files that were available for dow-
nload from the identified computer.
While reviewing the data provided by the Wyoming
special agent, the Connecticut state police uncovered
a match between one of the twenty-five files listed on
the spreadsheet and one file on the DVD. The matching
files contained two separate clips of two different sets
of male and female children, who appeared to be
between twelve and fourteen years old, engaging in
various sexual acts.
The state police later determined that the holder of
the Internet services account associated with the identi-
fied computer resided at 50 Carpenter Lane in Wall-
ingford (property). On August 13, 2009, Jonathan
Carreiro and David Aresco, detectives with the Con-
necticut State Police Computer Crimes Unit (computer
crimes unit), conducted a surveillance of the property.
Detective Carreiro observed, among other things, a
black sign labeled with the name ‘‘Hanisko’’ to the left
of the driveway. On August 14, 2009, the Connecticut
State Police Central Criminal Intelligence Unit con-
firmed that the Internet services account holder lived
at the property and informed Detective Carreiro that
several other individuals resided there as well, including
the defendant. On August 18, 2009, Detectives Carreiro
and Aresco conducted a second surveillance of the
property. This time, Detective Carreiro observed a
white pickup truck in the driveway, which he later
determined was registered to the defendant.
On September 10, 2009, Detectives Carreiro and Are-
sco obtained a warrant to search the property and to
seize certain described categories of evidence of viola-
tions of General Statutes §§ 53a-1943 and 53a-196b.4 In
the search warrant affidavit, Detectives Carreiro and
Aresco provided the foregoing details of their investiga-
tion and averred to the following additional informa-
tion. Both detectives are assigned to the computer
crimes laboratory and have received training relating
to the investigation of Internet related crimes, child
pornography crimes, and computer data analysis. The
detectives know from their training and experience that
so-called peer-to-peer networks are frequently used in
the trading of child pornography; individuals using peer-
to-peer file sharing networks can choose to install pub-
licly available software that facilitates the trading of
images, and such software allows those individuals to
search for pictures, movies, and other digital files. The
detectives know that information contained within a
computer or other media, even if deleted, often remains
electronically stored until the computer overwrites the
space previously allocated to the deleted file. On the
basis of their training and experience, and the training
and experience of other law enforcement personnel,
the detectives know that individuals who possess child
pornography often will store such material for future
viewing and will maintain these materials indefinitely
if they believe that their illegal activities have gone
undetected. In light of the foregoing information, the
detectives averred that they had probable cause to
believe that evidence of violations of §§ 53a-194 and
53a-196b would be located on the property.
On September 11, 2009, Detectives Carreiro and Are-
sco, along with other state and local police officers,
executed the search warrant at the property. While
there, Detective Carreiro explained the purpose of the
search warrant to the defendant and asked him several
questions. During their conversation, the defendant
expressed that he had used Limewire, a peer-to-peer
network, to download pornography. Ultimately, the
state police seized fifty-six pieces of evidence, including
eight hard drives and optical disks containing forty-
eight video files. Shortly thereafter, the seized evidence
was transported to the computer crimes laboratory for
a forensic examination.
Eventually, the state police learned that, as a result
of a backlog, the computer crimes laboratory was
unable to process evidence that had been seized in
multiple cases, including the evidence seized from the
property. Consequently, the computer crimes unit
began removing the seized items from the computer
crimes laboratory in order to conduct its own forensic
examination. Between April and August, 2013, Detec-
tives Carreiro and Aresco examined the evidence that
had been seized from the property. Their examination
uncovered hours of videos depicting child por-
nography.
On January 21, 2014, the state applied for a warrant
to arrest the defendant for possession of child pornogra-
phy in the second degree in violation of § 53a-196e
(arrest warrant). On January 28, 2014, the trial court
issued the arrest warrant, and, on March 27, 2014, the
defendant was arrested. The matter proceeded to trial
approximately three years later.
On the morning of March 22, 2017, the first day of trial,
the defendant filed a motion to suppress the evidence
seized from the property. The defendant claimed that
the evidence was seized in violation of his rights under
the United States and Connecticut constitutions and
that the information contained in the search warrant
affidavit was stale and did not give rise to a finding of
probable cause. The trial court heard oral argument
with regard to the motion to suppress and issued an
oral ruling denying the motion.
A trial to the court commenced immediately there-
after,5 and the state called Detectives Carreiro and Are-
sco to testify. Both detectives testified, among other
things, that the delay between when the evidence seized
from the property was brought to the computer crimes
laboratory and when they began their own forensic
examination resulted from the inability of the computer
crimes laboratory to process voluminous evidence in
many cases in a more timely manner. The state rested
at the end of the first day of trial.
On March 23, 2017, the second and final day of the
trial, the defendant moved for a judgment of acquittal,
reserving argument upon the completion of evidence.
The defendant testified in his own defense and did
not mention any prejudice that he experienced as a
consequence of any delay. After the defense rested, the
court heard oral argument on the defendant’s motion
for a judgment of acquittal. Defense counsel argued
that the ‘‘totality of the delays’’—namely, the delays
between the receipt of the information from the Wyo-
ming special agent in November, 2008, the issuance of
the search warrant in September, 2009, and the issuance
of the arrest warrant in January, 2014—violated the
defendant’s right to due process. Additionally, defense
counsel argued that the ‘‘totality of the circumstances’’
or ‘‘cumulative nature of the delays’’ was ‘‘inherently
prejudicial.’’ The state argued to the contrary, and the
trial court denied the motion.
That same day, the trial court found the defendant
guilty of possession of child pornography in the second
degree in violation of § 53a-196e and rendered a judg-
ment of conviction for the same. On August 25, 2017,
the trial court sentenced the defendant to six years of
incarceration, execution suspended after thirty months
of incarceration, twenty-four of which are mandatory,
followed by ten years of probation. This appeal
followed.
I
We first turn to the defendant’s claim that the trial
court improperly denied his motion to suppress because
the information in the search warrant affidavit was stale
at the time that the search warrant was issued. The
defendant contends that the information was stale
because the search warrant affidavit referenced an iso-
lated occurrence from one year earlier. According to
the defendant, as a result of the lapse of time and the
absence of any similar recurrences, there was no proba-
ble cause to believe that the materials identified in the
search warrant would be in his possession when the
warrant was issued. We disagree.
We begin by setting forth the applicable standard of
review. When reviewing the trial court’s denial of a
motion to suppress, the standard of review to be applied
depends on whether the challenge asserted on appeal
is to the factual basis of the trial court’s decision or to
its legal conclusions. State v. DiMeco, 128 Conn. App.
198, 202, 15 A.3d 1204, cert. denied, 301 Conn. 928, 22
A.3d 1275, cert. denied, 565 U.S. 1015, 132 S. Ct. 559,
181 L. Ed. 2d 398 (2011). ‘‘[T]o the extent that the trial
court has made findings of fact, our review is limited
to deciding whether those findings were clearly errone-
ous. Where, however, the trial court has drawn conclu-
sions of law, our review is plenary, and we must decide
whether those conclusions are legally and logically cor-
rect in light of the findings of fact.’’ (Internal quotation
marks omitted.) Id., 202–203. ‘‘Whether the trial court
properly found that the facts submitted were enough
to support a finding of probable cause is a question of
law.’’ (Internal quotation marks omitted.) State v. Hol-
ley, 324 Conn. 344, 351, 152 A.3d 532 (2017). Accord-
ingly, ‘‘[o]ur review of the question of whether an
affidavit in support of an application for a search [and
seizure] warrant provides probable cause for the issu-
ance of the warrant is plenary.’’ State v. Rodriguez, 163
Conn. App. 262, 266, 135 A.3d 740, cert. denied, 320
Conn. 934, 134 A.3d 622, cert. denied, U.S. , 137
S. Ct. 167, 196 L. Ed. 2d 140 (2016).
We next discuss the legal principles relevant to the
defendant’s claim. ‘‘Both the fourth amendment to the
United States constitution and article first, § 7, of the
Connecticut constitution prescribe that a search war-
rant shall issue only upon a showing of probable cause.
Probable cause to search exists if . . . (1) there is
probable cause to believe that the particular items
sought to be seized are connected with criminal activity
or will assist in a particular apprehension or conviction
. . . and (2) there is probable cause to believe that the
items sought to be seized will be found in the place to
be searched. . . . Although [p]roof of probable cause
requires less than proof by a preponderance of the
evidence . . . [f]indings of probable cause do not lend
themselves to any uniform formula because probable
cause is a fluid concept—turning on the assessment of
probabilities in particular factual contexts—not readily,
or even usefully, reduced to a neat set of legal rules.
. . . Consequently, [i]n determining the existence of
probable cause to search, the issuing [judge] assesses
all of the information set forth in the warrant affidavit
and should make a practical, nontechnical decision
whether . . . there is a fair probability that contraband
or evidence of a crime will be found in a particular place.
. . . The determination of probable cause is reached
by applying a totality of the circumstances test. . . .
‘‘The role of an appellate court reviewing the validity
of a warrant is to determine whether the affidavit at
issue presented a substantial factual basis for the [issu-
ing judge’s] conclusion that probable cause existed.
. . . [Our Supreme Court] has recognized that because
of our constitutional preference for a judicial determi-
nation of probable cause, and mindful of the fact that
[r]easonable minds may disagree as to whether a partic-
ular [set of facts] establishes probable cause . . . we
evaluate the information contained in the affidavit in
the light most favorable to upholding the issuing
judge’s probable cause finding. . . . We therefore
review the issuance of a warrant with deference to the
reasonable inferences that the issuing judge could have
and did draw . . . . In evaluating whether the warrant
was predicated on probable cause, a reviewing court
may consider only the information set forth in the four
corners of the affidavit that was presented to the issuing
judge and the reasonable inferences to be drawn there-
from.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Holley, supra, 324
Conn. 351–53.
Of course, ‘‘[t]he determination of probable cause to
conduct a search depends in part on the finding of facts
so closely related to the time of the issuance of the
warrant as to justify a belief in the continued existence
of probable cause at that time. . . . Although it is rea-
sonable to infer that probable cause dwindles as time
passes, no single rule can be applied to determine when
information has become too old to be reliable. . . .
Consequently, whether a reasonable likelihood exists
that evidence identified in the warrant affidavit will be
found on the subject premises is a determination that
must be made on a case-by-case basis. Accordingly, we
have refused to adopt an arbitrary cutoff date,
expressed either in days, weeks or months, beyond
which probable cause ceases to exist. . . . The likeli-
hood that the evidence sought is still in place depends
on a number of variables, such as the nature of the
crime, of the criminal, of the thing to be seized, and of
the place to be searched. . . . [W]hen an activity is of
a protracted and continuous nature the passage of time
becomes less significant.’’6 (Citation omitted; internal
quotation marks omitted.) State v. Buddhu, 264 Conn.
449, 465–66, 825 A.2d 48 (2003), cert. denied, 541 U.S.
1030, 124 S. Ct. 2106, 158 L. Ed. 2d 712 (2004).
In United States v. Raymonda, 780 F.3d 105, 114 (2d
Cir.), cert. denied, U.S. , 136 S. Ct. 433, 193 L.
Ed. 2d 337 (2015), the United States Court of Appeals
for the Second Circuit recognized that ‘‘[t]he determina-
tion of staleness in investigations involving child por-
nography is unique. . . . Because it is well known that
images of child pornography are likely to be hoarded
by persons interested in those materials in the privacy
of their homes, evidence that such persons possessed
child pornography in the past supports a reasonable
inference that they retain those images—or have
obtained new ones—in the present. . . . Crucially,
however, the value of that inference in any given case
depends on the preliminary finding that the suspect is
a person interested in images of child pornography. The
alleged proclivities of collectors of child pornography,
that is, are only relevant if there is probable cause to
believe that [a given defendant] is such a collector.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) The Second Circuit went on to
explain that, in cases where courts have inferred that
a suspect was a collector of child pornography on the
basis of a single incident of possession or receipt, that
inference ‘‘did not proceed merely from evidence of his
access to child pornography at a single time in the past.
Rather, it proceeded from circumstances suggesting
that he had accessed those images willfully and deliber-
ately, actively seeking them out to satisfy a preexisting
predilection. Such circumstances tend to negate the
possibility that a suspect’s brush with child pornogra-
phy was a purely negligent or inadvertent encounter,
the residue of which was long ago expunged. They
suggest that the suspect accessed those images because
he was specifically interested in child pornography, and
thus—as is common among persons interested in child
pornography—likely hoarded the images he found.’’
Id., 115.
In addition to the Second Circuit, other United States
Circuit Courts of Appeal and our Superior Court have
recognized that collectors of child pornography tend
to retain such images and videos, and, thus, the passage
of time between the alleged criminal activity and the
issuance of a search and seizure warrant does not, in
itself, render information contained in the warrant affi-
davit stale. See United States v. Morgan, 842 F.3d 1070,
1074 (8th Cir. 2016) (recognizing that five month lapse
did not render warrant affidavit information stale and
concluding information was not stale where seventy-
five days had passed because affiants attested that child
pornography collectors tend to retain images and that
computer programs that download these images often
leave files, logs, or remnants that show exchange, trans-
fer, distribution, possession, or origin of such files),
cert. denied, U.S. , 137 S. Ct. 2176, 198 L. Ed.
2d 244 (2017); United States v. Elbe, 774 F.3d 885, 891
(6th Cir. 2014) (recognizing crime of child pornography
is not fleeting and generally carried out in secrecy of
home over long time period and concluding warrant
affidavit information was not stale), cert. denied,
U.S. , 135 S. Ct. 1573, 191 L. Ed. 2d 656 (2015); United
States v. Burkhart, 602 F.3d 1202, 1206 (10th Cir. 2010)
(recognizing passage of time alone cannot demonstrate
staleness and determining warrant affidavit information
was not stale even though warrant was executed two
years and four months after defendant’s alleged last
contact with child pornography distributor); United
States v. Watzman, 486 F.3d 1004, 1008–1009 (7th Cir.)
(recognizing one year old warrant affidavit information
was not necessarily stale as matter of law and conclud-
ing information was not stale where only three months
had passed and agent attested that possessors of child
pornography save their materials), cert. denied, 552 U.S.
1052, 128 S. Ct. 682, 169 L. Ed. 2d 533 (2007); see, e.g.,
State v. Roesing, Superior Court, judicial district of
Litchfield, Docket No. CR-00-103351, 2001 WL 951287,
*5 (July 19, 2001) (DiPentima, J.) (stating nature of
crimes of attempted possession and possession of child
pornography is such that evidence sought can reason-
ably be expected to be kept for long periods of time
and concluding search warrant affidavit information
was not stale as to attempted possession charge where
approximately three months had passed because com-
puter related devices used were likely to be kept at
defendant’s home for long period of time).
Mindful of the foregoing principles, we now evaluate
the defendant’s claim. The defendant argues that there
was no information presented in the search warrant
affidavit to suggest that (1) he intentionally downloaded
the suspected files in question or kept them for future
reference, (2) he collected this type of material, or (3)
this kind of peer-to-peer file retrieval from the identified
computer had ever occurred, either before or after the
computer crimes laboratory received the spreadsheet
and DVD from the Wyoming special agent. He contends
that the allegations in the search warrant affidavit in
the present case are akin to those in United States v.
Raymonda, supra, 780 F.3d 105, in which the Second
Circuit concluded that the search warrant at issue was
not supported by probable cause, because, according
to the defendant, in the present case ‘‘there was only
one incident reported with no other traces to suspect
any additional discoveries would be made.’’ We
disagree.
In Raymonda, the warrant affidavit ‘‘alleged only
that, on a single afternoon more than nine months ear-
lier, a user with an IP address associated with [the
defendant’s] home opened between one and three pages
of a website housing thumbnail links to images of child
pornography, but did not click on any thumbnails to
view the full-sized files. The [warrant] affidavit con-
tained no evidence suggesting that the user had deliber-
ately sought to view those thumbnails or that he
discovered [the website] while searching for child por-
nography—especially considering that [the agent] him-
self only uncovered the website through an innocuous
link on the message board of another site not explicitly
associated with child pornography. Nor was there any
evidence that the user subsequently saved the illicit
thumbnails to his hard drive, or that he even saw all
of the images, many of which may have downloaded
in his browser outside immediate view. Far from sug-
gesting a knowing and intentional search for child por-
nography, in short, the information in [the warrant]
affidavit was at least equally consistent with an innocent
user inadvertently stumbling upon a child pornography
website, being horrified at what he saw, and promptly
closing the window.’’ (Footnote omitted.) United States
v. Raymonda, supra, 780 F.3d 117. Thereupon, the Sec-
ond Circuit held that the search warrant that was issued
was not supported by probable cause because, ‘‘[u]nder
those circumstances, absent any indicia that the suspect
was a collector of child pornography likely to hoard
pornographic files . . . a single incident of access does
not create a fair probability that child pornography will
still be found on a suspect’s computer months after all
temporary traces of that incident have likely
cleared.’’ Id.The present case is readily distinguishable from Ray-
monda. Here, Detectives Carreiro and Aresco averred,
in the search warrant affidavit, that the identified com-
puter was recognized twenty-five times over the course
of several days as a download candidate for, what
appeared to be, child pornography and that the state
police was able to confirm a match between one of
the twenty-five child pornography files listed on the
spreadsheet and one child pornography file on the DVD
provided by the Wyoming special agent. In other words,
according to the search warrant affidavit, the user of
the identified computer did not simply visit a webpage
containing links to images of child pornography on one
occasion, as in Raymonda; rather, the user had file
sharing software installed on his or her computer and
was using that software to share multiple files of sus-
pected child pornography by way of a peer-to-peer net-
work on more than one occasion, and at least one of
those files was confirmed as being known child pornog-
raphy. This alleged distribution of, or attempt to distrib-
ute, child pornography on a peer-to-peer network over
the course of several days suggests that the user wilfully
and deliberately accumulated and sought to dissemi-
nate such video files over the Internet.
Moreover, on the basis of their training and experi-
ence, Detectives Carreiro and Aresco averred that indi-
viduals who possess child pornography often will store
such material for future viewing and will maintain these
materials indefinitely if they believe that their illegal
activities have gone undetected. Both detectives also
attested that peer-to-peer networks are used frequently
to trade child pornography and that information con-
tained within a computer, or other media, remains elec-
tronically stored unless the information is deleted and
subsequently overwritten. Such statements permitted
an inference by the issuing judge that, if the user had
child pornography files on the identified computer, the
user would still have those files in his or her possession
at the time that the search warrant was executed, even
though such warrant was not issued until September,
2009, approximately ten months after the state police
received the information from the Wyoming special
agent. See, e.g., State v. Shields, 308 Conn. 678, 693, 69
A.3d 293 (2013) (issuing judge may rely on affiant’s
statements concerning individuals who possess child
pornography where affiant has relevant training and
experience with such matters), cert. denied, 571 U.S.
1176, 134 S. Ct. 1040, 188 L. Ed. 2d 123 (2014).
In consideration of the foregoing, we conclude that
the passage of ten months between the receipt of infor-
mation from the Wyoming special agent and the issu-
ance of the search warrant did not render the
information in the search warrant affidavit stale. Rather,
it was reasonable for the issuing judge to believe, on
the basis of that information, that the items sought to
be seized would be found at the time that the search
warrant was executed. Therefore, the trial court cor-
rectly reaffirmed that probable cause existed to support
the issuance of the search warrant and, accordingly,
properly denied the defendant’s motion to suppress.
II
The defendant next claims that he is entitled to a
judgment of acquittal because the trial court’s ‘‘eviden-
tiary rulings’’7 were incorrect as a result of the court’s
failure to recognize that the delay between the execu-
tion of the search warrant in 2009 and the issuance of
the arrest warrant in 2014 (preaccusation delay)
resulted in a violation of his right to due process.8 The
defendant further argues that the state did not present
any good reason for the preaccusation delay and that
such delay was never justified, was oppressive, and
ultimately worked to the benefit of the state. The state
argues that the defendant’s due process claim is not
reviewable because it was not raised in a pretrial motion
to dismiss. We agree with the state.
Because the defendant’s due process claim could
have been determined without a trial of the general
issue, the defendant could have raised the claim by way
of a pretrial motion. Practice Book § 41-2 provides: ‘‘Any
defense, objection or request capable of determination
without a trial of the general issue may be raised only by
a pretrial motion made in conformity with this chapter.’’
Practice Book § 41-4 provides in relevant part: ‘‘Failure
by a party, at or within the time provided by [our rules
of practice], to raise defenses or objections or to make
requests that must be made prior to trial shall constitute
a waiver thereof, but a judicial authority, for good cause
shown, may grant relief from such waiver . . . .’’
(Emphasis added.) By failing to file a pretrial motion
to dismiss on due process grounds, the defendant has
waived such claim. See State v. Pickles, 28 Conn. App.
283, 288, 610 A.2d 716 (1992) (‘‘[b]y failing to raise the
due process defense by a timely pretrial motion, the
defendant waived her right to raise such a defense
later’’); see also State v. LaMothe, 57 Conn. App. 736,
740, 751 A.2d 831 (2000) (‘‘Failure by the defendant
to utilize these pretrial motions constituted a waiver.
Practice Book § 41-4.’’).9
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 2009) § 53a-196e provides in relevant part: ‘‘(a)
A person is guilty of possessing child pornography in the second degree
when such person knowingly possesses twenty or more but fewer than fifty
visual depictions of child pornography. . . .’’ Hereinafter, all references to
§ 53a-196e in this opinion are to the 2009 revision of the statute.
2
According to the search warrant affidavit, a download candidate is a
computer that has a certain type of software installed that makes electronic
files with specific digital signatures available for download by other com-
puters.
3
General Statutes § 53a-194 provides in relevant part: ‘‘(a) A person is
guilty of obscenity when, knowing its content and character, he promotes,
or possesses with intent to promote, any obscene material or perfor-
mance. . . .’’
4
General Statutes § 53a-196b provides in relevant part: ‘‘(a) A person is
guilty of promoting a minor in an obscene performance when he knowingly
promotes any material or performance in which a minor is employed,
whether or not such minor receives any consideration, and such material
or performance is obscene as to minors notwithstanding that such material
or performance is intended for an adult audience.
‘‘(b) For purposes of this section, ‘knowingly’ means having general knowl-
edge of or reason to know or a belief or ground for belief which warrants
further inspection or inquiry as to (1) the character and content of any
material or performance which is reasonably susceptible of examination by
such person and (2) the age of the minor employed. . . .’’
5
On March 1, 2017, the defendant elected a court trial.
6
We note that, in the context of a search of property, except for the
installation and use of a tracking device, our General Statutes require that
a search warrant be executed within ten days of its issuance. General Statutes
§ 54-33c (b).
7
Because the defendant does not complain of any particular evidentiary
ruling during the trial, we construe the defendant’s argument as a reframed
challenge to the court’s denial of his motion to suppress.
8
On appeal, the defendant has not provided a separate analysis of his due
process claim pursuant to article first, § 8, of the Connecticut constitution
or asserted that our state constitution affords him greater protection than
the United States constitution. Rather, the defendant relies upon the right
to due process guaranteed by the fifth amendment to the United States
constitution, as applied to the states through the fourteenth amendment to
the United States constitution. Accordingly, we limit our analysis to the
defendant’s federal constitutional claim. See State v. Roger B., 297 Conn.
607, 611 n.7, 999 A.2d 752 (2010); State v. Miller, 83 Conn. App. 789, 806
n.5, 851 A.2d 367, cert. denied, 271 Conn. 911, 859 A.2d 573 (2004).
9
The defendant also cursorily claims that the delays leading up to his
arrest, to trial, and to his sentencing date violated his sixth amendment
right to a speedy trial. Specifically, he argues, without citation to the record,
that these delays caused him to suffer mentally, emotionally, and physically.
Furthermore, although he identifies the interests that the right to a speedy
trial was designed to protect, he fails to articulate how those interests are
implicated in the present case and, instead, sets forth various unsupported,
conclusory statements. Accordingly, we decline to consider the defendant’s
sixth amendment claim because it is inadequately briefed. See Artiaco v.
Commissioner of Correction, 180 Conn. App. 243, 248–49, 182 A.3d 1208(‘‘Ordinarily, [c]laims are inadequately briefed when they are merely men-
tioned and not briefed beyond a bare assertion. . . . Claims are also inade-
quately briefed when they . . . consist of conclusory assertions . . . with
no mention of relevant authority and minimal or no citations from the record
. . . . [T]he dispositive question in determining whether a claim is ade-
quately briefed is whether the claim is reasonably discernible [from] the
record . . . .’’ [Internal quotation marks omitted.]), cert. denied, 328 Conn.
931, 184 A.3d 758 (2018).