State v. Sayles ( 2021 )

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STATE OF CONNECTICUT v. DWAYNE SAYLES
(AC 43500)
Elgo, Alexander and Suarez, Js.
Syllabus
The defendant, who had been convicted of felony murder and several other
crimes, appealed, claiming that the trial court improperly denied his
motions to suppress his cell phone that was seized by the police and
the information it contained. The defendant and two other men, V and
S, had driven to and parked their car near a convenience store. V
remained in the car while the defendant and S went into the store,
robbed it of cash and cigars, and fatally shot the victim, an employee,
before fleeing in the car with V. The police later took a statement from
V, who identified the defendant and S as the perpetrators of the robbery
and murder, and stated that they had contacted him by cell phone or
that he had contacted them by cell phone on the day of the victim’s
death. The next day, the defendant spoke with two detectives at the
police station. After the defendant invoked his right to counsel pursuant
to Miranda v. Arizona (384 U.S. 436), one of the detectives, P, asked
the defendant where his cell phone was located. The defendant
responded that the phone was with his mother, who was waiting outside
of the interview room. P then asked the defendant’s mother for the cell
phone, which she gave him. The next day, P prepared an affidavit in
support of an application for a search and seizure warrant to obtain the
contents of the phone. The defendant claimed in his first motion to
suppress that the police lacked probable cause to seize his phone at
the police station and that the detectives improperly continued ques-
tioning him after he invoked his right to counsel pursuant to Miranda.
He further claimed that the subsequent search of the phone’s contents
constituted fruit of the poisonous tree as a result of P’s having prepared
an inaccurate affidavit as part of the warrant application. In his second
motion to suppress, the defendant sought to suppress the contents of
and cellular data from the phone due to alleged violations of the federal
and state constitutions. He claimed that he was entitled to a hearing
pursuant to Franks v. Delaware (438 U.S. 154) because he had made a
preliminary showing that P’s affidavit contained assertions that were
known to be false or were made with reckless disregard for the truth.
On appeal, the defendant claimed, inter alia, that this court should
adopt a prophylactic rule under the state constitution that would render
inadmissible incriminating evidence obtained after a criminal suspect
invokes the right to counsel or to have counsel present and the police
continue to use deceptive tactics to undermine those rights. Held:
1. The trial court properly denied the defendant’s motion to suppress the
evidence that was obtained from his cell phone, which was based on
his assertion that the evidence was discovered as a result of a Miranda
violation by the police: the defendant did not seek to suppress his
response to P, which occurred after the defendant’s request for counsel,
and, even if a Miranda violation occurred when P questioned him as
to the phone’s location after the invocation of his rights to remain
silent and to counsel, the phone and its contents were not subject to
suppression under the fruit of the poisonous tree doctrine, as Miranda
does not apply to the fruits of unwarned statements; furthermore, this
court declined to adopt the prophylactic rule the defendant proposed,
as the record and the trial court’s findings did not support his claim
that the police intended to undermine his invocation of his Miranda
rights and to trick him into telling them where his phone was, and the
trial court found, to the contrary, that there was evidence of the phone’s
use prior to and after the victim’s death, and that P wanted to seize the
phone to ensure that its data was not erased or damaged; moreover,
the defendant’s brief lacked a comprehensive analysis of the state consti-
tution that would persuade this court of the propriety of adopting his
proposed rule or that the protections afforded by the state constitution
are greater than those afforded by the federal constitution.
2. The defendant could not prevail on his claim that the trial court erred in
concluding that the police had probable cause to seize his cell phone
pursuant to the exigent circumstances exception to the fourth amend-
ment’s warrant requirement: the court correctly found that P, while at
the police station, had sufficient information to establish probable cause,
which included information that the defendant and S had been involved
in the robbery and shooting and that one of them had communicated
with V by cell phone, and the court credited P’s testimony that criminal
actors often use cell phones to communicate with one another and that
cell phones may contain evidence that may connect a person to a crime;
moreover, there was no merit to the defendant’s assertion that the police
should not have relied on V’s statements to establish probable cause,
as it is proper for the police to assess the credibility of informants, and
V’s statements that were against his penal interest carried their own
indicia of credibility.
3. The defendant’s claim that the warrant application to search his cell
phone contained materially false information pursuant to Franks was
inadequate for review, as the trial court did not make a finding as to
whether the omission in P’s affidavit that questioning of the defendant
occurred after he requested counsel was done knowingly or falsely or
with reckless disregard for the truth, and the defendant’s brief failed to
address whether that omission was material to the determination of
probable cause.
Argued September 17, 2020—officially released February 23, 2021
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, conspiracy to commit rob-
bery in the first degree, criminal possession of a pistol
or revolver and carrying a pistol without a permit,
brought to the Superior Court in the judicial district of
Waterbury, where the court, B. Fischer, J., denied the
defendant’s motions to suppress certain evidence;
thereafter, the matter was tried to the jury; verdict and
judgment of guilty, from which the defendant appealed.
Affirmed.
Dina S. Fisher, assigned counsel, for the appellant
(defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Seth R. Garbarsky, senior assistant state’s
attorney, and Lisa M. D’Angelo, assistant state’s attor-
ney, for the appellee (state).
Opinion
ALEXANDER, J. The defendant, Dwayne Sayles,
appeals from the judgment of conviction, rendered after
a jury trial, of felony murder in violation of General
Statutes § 53a-54c, conspiracy to commit robbery in the
first degree in violation of General Statutes §§ 53a-48
and 53a-134 (a) (2), criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217c and
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a). On appeal, the defendant claims
that the trial court improperly denied his motions to
suppress certain evidence. Specifically, he contends
that (1) police detectives violated his Miranda rights1
and his rights pursuant to article first, § 8, of the Con-
necticut constitution when they continued to interro-
gate him after he invoked his right to counsel, (2) the
police detectives seized his cell phone in violation of
the fourth amendment to the United States constitution
and article first, § 7, of the Connecticut constitution,
and (3) the affidavit that the police submitted in support
of their application for a warrant to search the contents
of his cell phone contained materially false informa-
tion.2 We disagree and, accordingly, affirm the judgment
of conviction.
The jury reasonably could have found the following
facts. On April 6, 2015, Leighton Vanderberg drove
around in his wife’s Ford Focus with the defendant and
Jamal Sumler.3 The three men proceeded to the Fair
Haven section of New Haven and then toward Forbes
Avenue. Sumler requested that they stop at a store.
Vanderberg complied, drove to a convenience store and
parked on the street. Vanderberg asked Sumler to pur-
chase a couple of cigars and provided him with cash
to complete the transaction. The defendant and Sumler
went into the convenience store while Vanderberg
remained in the vehicle.
Sumler, wearing a grey hooded sweatshirt, entered
the convenience store first. As he approached the
counter, he pointed a pistol at the victim, Sanjay Patel,
an employee at the convenience store. As Sumler moved
behind a counter, the defendant entered the conve-
nience store. The defendant pulled out a pistol from
his pocket and, after a few moments, shot the victim.
The defendant was handed a box of cigars and some
cash. He then moved toward the entrance of the conve-
nience store. As Sumler and the victim, who brandished
a stool, engaged in a physical altercation, the defendant
fled. After the defendant departed, Sumler shot the
victim.
At the time of the robbery and shooting, Jonathan
Gavilanes was at a friend’s house on Forbes Avenue.
He heard the sound of gunshots coming from the conve-
nience store. Gavilanes observed two men leaving the
store. Gavilanes called 911 and reported the shooting.
The victim was transported to Yale New Haven Hospi-
tal, where he died from his injuries.4 During their investi-
gation, the police recovered evidence from the shooting
scene as well as a surveillance video of the incident.
After the shooting, Vanderberg noticed that the defen-
dant was carrying cigars that were falling out of his
hands as he returned to the vehicle.5 As the defendant
entered the vehicle, he demanded that Vanderberg drive
away. Vanderberg responded that they had to wait for
Sumler. After Sumler returned and got into the car,
the three men drove away, and the defendant directed
Vanderberg to go to the Church Street South housing
complex. After parking there, Vanderberg noticed that
the defendant had taken an entire box of cigars from
the convenience store and watched as the defendant
placed that box, and the sweatshirt he had been wear-
ing, into a nearby dumpster. Vanderberg, who had lent
the sweatshirt to the defendant, asked why he had
thrown it away. The defendant responded, ‘‘that shit
[is] hot.’’ The three men then walked along a path to
the defendant’s apartment, where Vanderberg, after
speaking with the defendant later, realized that the
defendant and Sumler likely had robbed the conve-
nience store. After receiving approximately $20 for gas
from the defendant and thirty to forty cigars from
Sumler, Vanderberg left the apartment.
The next night, Vanderberg learned from a friend that
the victim had been shot and killed at the convenience
store. Thereafter, he informed his probation officer
about what had transpired at the convenience store.
Following his arrest, Vanderberg met with police detec-
tives on April 14, 2015, and identified the defendant and
Sumler in photographs that were taken from surveil-
lance video at the convenience store. On April 15, 2015,
after the police had procured a warrant and conducted
a search of the defendant’s residence, the defendant
came to the police station, accompanied by his mother,
and was interviewed by two detectives. After further
investigation, the police arrested the defendant. In May,
2015, while in pretrial custody, he admitted to a fellow
inmate that he and Sumler had shot the victim during
the robbery of the convenience store.
The state charged the defendant with felony murder,
conspiracy to commit robbery in the first degree, crimi-
nal possession of a pistol or revolver and carrying a
pistol without a permit. The court denied two pretrial
motions to suppress that the defendant had filed, and,
following a trial, the jury found him guilty of all counts.
The court rendered judgment in accordance with the
verdict and imposed a total effective sentence of eighty
years of incarceration. This appeal followed.6
The following additional facts and procedural history
are necessary to address the defendant’s specific
claims. In the defendant’s first motion to suppress, filed
on January 16, 2018, he sought to suppress the contents
of his cell phone, which, he alleged, had been seized
in violation of the United States and Connecticut consti-
tutions. The defendant claimed that, after his unambigu-
ous request for counsel during his interview at the
police station on April 15, 2015, Detective Christopher
Perrone of the New Haven Police Department asked
him where his cell phone was located. The defendant
responded that his mother, who was waiting outside
the interview room, possessed the phone.7 Perrone then
obtained the phone from the defendant’s mother. The
next day, Perrone prepared an affidavit as part of an
application for a search and seizure warrant to obtain
the data contained in the defendant’s cell phone. There-
after, the court issued the warrant for the contents of
the defendant’s cell phone.8
In his first motion to suppress, the defendant argued
that the police detectives lacked probable cause to seize
his cell phone on April 15, 2015. At that time, they did
not have a warrant. He additionally claimed that, during
the interview at the police station, the detectives contin-
ued questioning him after he had requested the presence
of counsel and that the subsequent search of the con-
tents of the cell phone constituted ‘‘fruit of the poison-
ous tree’’9 as a result of inaccuracies in Perrone’s affida-
vit, which was part of the April 16, 2015 application for
a search and seizure warrant.
The defendant filed his second motion to suppress
on January 18, 2018. He moved to suppress the contents
of his cell phone and any cellular data because of viola-
tions of both the federal and state constitutions. The
defendant again claimed that the contents of the phone
constituted fruit of the poisonous tree. He argued that
he had made a preliminary showing that the affidavit in
support of the April 16, 2015 search warrant contained
assertions that were known to be false or were made
with reckless disregard for the truth, and, therefore, he
was entitled to a hearing pursuant to Franks v. Dela-
ware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
The court held a hearing on the defendant’s motions
to suppress on January 24, 2018. Perrone and the defen-
dant’s mother testified at the hearing. After argument
from counsel, the court orally denied both of the defen-
dant’s motions and indicated that a supplemental mem-
orandum of decision would be issued at a later date.
The state utilized the data obtained from the defendant’s
cell phone as part of its case against the defendant,
including global positioning system (GPS) information,
the defendant’s Internet search history, and the commu-
nications between the defendant and Sumler and Vand-
erberg on the night of the murder.
The court issued the supplemental memorandum of
decision on April 23, 2018. It set forth the following
findings of fact. On April 14, 2015, Vanderberg provided
a statement to the New Haven police indicating that he
had driven the defendant and Sumler to the convenience
store on April 6, 2015, where they committed a robbery
and murder. On that day, the defendant used his cell
phone before and after the shooting. In connection with
this statement, and after further investigation, the police
obtained a search and seizure warrant for the defen-
dant’s residence on April 15, 2015.10 This warrant, how-
ever, did not include the defendant’s cell phone. The
police executed this warrant in the early morning hours
of April 15, 2015, seizing a ski mask and gloves. The
defendant was not home during the search of his resi-
dence but contacted the police later that day. He agreed
to go to the New Haven police station to speak with
Perrone and another detective, David Zaweski.
The defendant, accompanied by his mother, went to
the police station. Before entering an interview room
with the two detectives, the defendant handed his cell
phone to his mother, who sat on a nearby bench outside
of the interview room. The defendant was not placed
under arrest and was free to leave the police station at
any time. After a few minutes of the interview, which
was video-recorded, the defendant requested to speak
with an attorney.11 At this point, the detectives termi-
nated the interview.
Perrone, concerned about the loss of evidence
through damage or intentional erasure, intended to
seize the defendant’s cell phone. Perrone had observed
the defendant with a cell phone when he arrived at the
police station, but the defendant did not have it with
him in the interview room. Thus, after the defendant
invoked his right to counsel, Perrone walked over to the
defendant’s mother and asked if she had the defendant’s
cell phone. She responded in the affirmative and handed
it to Perrone. The defendant’s mother also provided the
defendant’s cell phone number to Perrone.
With respect to the January 16, 2018 motion to sup-
press, the court concluded that the detectives were
justified in seizing the phone under the facts of the case,
and the exigent circumstances and inevitable discovery
exceptions to the fourth amendment’s warrant require-
ment. As part of its analysis, the court concluded that
Perrone had probable cause to seize the defendant’s
cell phone to prevent the destruction of evidence. With
respect to the January 18, 2018 motion to suppress, the
court found that Perrone had not made a false statement
knowingly and intentionally or with reckless disregard
for the truth in his affidavit, which was part of the April
16, 2015 application for a search warrant.
Prior to addressing the defendant’s specific claims,
we set forth the relevant legal principles regarding the
denial of a motion to suppress. ‘‘As a general matter,
the standard of review for a motion to suppress is well
settled. A finding of fact will not be disturbed unless it
is clearly erroneous in view of the evidence and plead-
ings in the whole record. . . . [W]hen a question of
fact is essential to the outcome of a particular legal
determination that implicates a defendant’s constitu-
tional 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 quota-
tion marks omitted.) State v. Ingala, 199 Conn. App.
240, 247, 235 A.3d 619, cert. denied, 335 Conn. 954, 238
A.3d 731 (2020); see also State v. Castillo, 329 Conn.
311, 321–22, 186 A.3d 672 (2018); State v. Marsan, 192
Conn. App. 49, 65, 216 A.3d 818, cert. denied, 333 Conn.
939, 218 A.3d 1049 (2019).
I
The defendant first claims that the evidence found
in his cell phone had been obtained after the detectives
violated his Miranda rights12 and his rights pursuant to
article first, § 8, of the state constitution, and, therefore,
should have been suppressed. He argues that (1) his
interview with the detectives on April 15, 2015, was
custodial in nature and, therefore, the Miranda protec-
tions applied, (2) he invoked his rights to remain silent
and to have an attorney present, (3) despite his invoca-
tion of his Miranda rights, the detectives continued
questioning him regarding the location of his cell phone,
and (4) the continued questioning, conducted with the
aim of obtaining incriminating evidence, constituted a
violation of his rights to remain silent and to have coun-
sel present. The defendant also contends that the inter-
rogation after his invocation of his rights to remain
silent and to have counsel present violated article first,
§ 8, of the Connecticut constitution13 and our Supreme
Court’s recent decision in State v. Purcell, 331 Conn.
318, 203 A.3d 542 (2019), which broadened the scope of
the Miranda protections.14 Furthermore, the defendant
requests that we establish a new prophylactic rule,
under the Connecticut constitution, that would render
any incriminating evidence inadmissible if it is obtained
after a suspect invokes his right to remain silent or to
have counsel present, and the police continue to utilize
deceptive questioning and tactics to undermine those
rights.
The state counters that, even if a Miranda violation
occurred, the fruit of the poisonous tree doctrine does
not apply to physical evidence under these circum-
stances. We agree with the state.
As a general matter, ‘‘the prosecution may not use
statements, whether exculpatory or inculpatory, stem-
ming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards
effective to secure the privilege against [self-incrimina-
tion].’’ (Internal quotation marks omitted.) State v. Don-
ald, 325 Conn. 346, 355, 157 A.3d 1134 (2017); see also
State v. Turner, 267 Conn. 414, 420, 838 A.2d 947, cert.
denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12(2004). The United States Supreme Court, however, has
held that a violation of Miranda does not require sup-
pression of physical evidence resulting from that viola-
tion. United States v. Patane, 542 U.S. 630, 634, 124 S.
Ct. 2620, 159 L. Ed. 2d 667 (2004).
The respondent in Patane was arrested for violating a
restraining order. Id., 635. The law enforcement officers
who arrested the respondent, a convicted felon, knew
that he illegally possessed a firearm. Id., 634–35. The
officers attempted to advise the respondent of his
Miranda rights, but he interrupted them, asserting that
he knew his rights. Id., 635. The officers never com-
pleted providing the Miranda warnings to the respon-
dent. Id. One of the officers inquired where the firearm
was located, and the respondent eventually admitted
that it was in his bedroom in his home. The officer, with
the respondent’s permission, then seized the firearm. Id.A grand jury indicted the respondent for possession
of a firearm by a convicted felon. Id. The United States
District Court granted the respondent’s motion to sup-
press the firearm on the ground that the officers lacked
probable cause to arrest him for violating the restraining
order. Id. The United States Court of Appeals for the
Tenth Circuit reversed the ruling of the District Court
but affirmed the suppression of the firearm on the basis
of the respondent’s alternative argument that the fire-
arm was the fruit of a statement made without a proper
advisement of his Miranda rights. Id., 635–36.
The United States Supreme Court noted that the core
protection of the self-incrimination clause in the fifth
amendment ‘‘is a prohibition on compelling a criminal
defendant to testify against himself at trial. . . . The
[c]lause cannot be violated by the introduction of non-
testimonial evidence obtained as a result of voluntary
statements.’’ (Citations omitted; emphasis added.) Id.,
637. The court further declined to apply the fruit of the
poisonous tree doctrine under these circumstances. Id.,642–43; id., 643 (‘‘[i]ntroduction of the nontestimonial
fruit of a voluntary statement, such as [the] respon-
dent’s [firearm], does not implicate the [s]elf-[i]ncrimi-
nation [c]lause’’). See also United States v. Parker, 549
F.3d 5, 10 (1st Cir. 2008) (physical fruits of otherwise
voluntary statement are admissible against defendant
even if Miranda warnings wrongly were omitted), cert.
denied, 556 U.S. 1160, 129 S. Ct. 1688, 173 L. Ed. 2d
1050 (2009); United States v. Capers, 627 F.3d 470,
493–94 (2d Cir. 2010) (Trager, J., dissenting) (citing
holding of Patane that physical evidence obtained as
result of unwarned statements is not excluded under
Miranda).
The appellate courts of Connecticut have followed
the rule established in Patane. In State v. Mangual, 311
Conn. 182, 186, 85 A.3d 627 (2014), the police obtained
a search and seizure warrant for an apartment as part
of an investigation of the sale of heroin. After obtaining
entry to the apartment, the police detained the defen-
dant and her daughters in the living room. Id. Without
providing any Miranda warnings, an officer asked the
defendant if there were any drugs or weapons in the
apartment. Id., 187. The defendant responded that there
were ‘‘ ‘drugs in the bedroom.’ ’’ An officer followed the
defendant into the bedroom, where she pointed to a can
of hairspray on a dresser and indicated that it contained
drugs. Id. The officer removed the false bottom of the
hairspray can and discovered 235 packets of heroin. Id.
He then placed the defendant under arrest. Id.
The defendant filed a motion to suppress her state-
ment on the ground that she had been in custody and
questioned before being provided with the Miranda
warnings. Id., 188. The trial court concluded that the
defendant had not been in custody and denied her
motion to suppress. Id., 188–89. The defendant filed an
appeal, challenging the court’s ruling. Id., 190–91.
Our Supreme Court noted that the defendant had
asserted, in passing, that the police likely would not
have discovered the hidden heroin but for her state-
ments. Id., 188 n.5. In response, the court stated: ‘‘The
defendant, however, has raised no claim that the heroin
itself should be suppressed as a fruit of the Miranda
violation. Indeed, a statement that is obtained in viola-
tion of Miranda does not require suppression of the
physical fruits of the suspect’s unwarned but otherwise
voluntary statements.’’ (Emphasis added.) Id.
In State v. Bardales, 164 Conn. App. 582, 585, 137
A.3d 900 (2016), the police obtained a warrant to search
the defendant’s residence and person after a confiden-
tial informant indicated that the defendant stored illegal
firearms for sale. In executing the warrant, the police
stopped the defendant in his motor vehicle. Id., 586.
After the defendant exited his vehicle, a police sergeant
asked the defendant if there was anything in the car that
‘‘he needed to be concerned about.’’ Id. The defendant
admitted that there was cocaine in the pocket of the
driver’s side door. Id., 589. As a result, the defendant
was arrested and charged with possession of narcotics.
Id. At trial, the defendant moved to suppress his state-
ment regarding the presence of cocaine in his vehicle.
Id., 587–88. The trial court denied the defendant’s motion
to suppress on the basis of the public safety exception
to the requirement of a prior Miranda warning before
a suspect’s answers may be admitted into evidence.15
Id., 588 and n.1.
On appeal, the defendant claimed that the court
improperly denied his motion to suppress as a result
of its misapplication of the public safety exception. Id.,
587–88. In rejecting this claim, we noted that, even if
we were to assume that the sergeant’s question did not
fall within the public safety exception, the defendant
would not necessarily be entitled to suppression of the
cocaine, the physical evidence discovered as a result
of the alleged Miranda violation. Id., 599 n.6. In support,
we cited to United States v. Patane, supra, 542 U.S.
633–34, and State v. Mangual, supra, 311 Conn. 188 n.5.
State v. Bardales, supra, 164 Conn. App. 599 n.6.
In the present appeal, the defendant contends that the
court erred in failing to suppress the evidence obtained
from his cell phone, which he argues was discovered as
a result of the alleged Miranda violation when Perrone
asked the defendant where his cell phone was after the
defendant had asked for a lawyer. The defendant does
not seek the suppression of his response to Perrone
after he requested counsel. On the basis of the prece-
dent previously discussed, even if a Miranda violation
occurred when Perrone questioned the defendant as to
the location of his cell phone after he had invoked his
rights to remain silent and to counsel, the cell phone
and its contents were not subject to suppression under
the fruit of the poisonous tree doctrine. See State v.
Mangual, supra, 311 Conn. 188 n.5; State v. Bardales,
supra, 164 Conn. App. 599 n.6. The remedy for such a
violation would be limited to suppression of the defen-
dant’s response to the post-Miranda questioning, and
not the actual cell phone and its contents. See, e.g.,
United States v. Oloyede, 933 F.3d 302, 308–10 (4th Cir.
2019) (even if Miranda violation had occurred when
defendant provided passcode for her iPhone, contents
obtained from that device were not subject to suppres-
sion), cert. denied sub nom. Popoola v. United States,
U.S. , 140 S. Ct. 2554, 206 L. Ed. 2d 488 (2020),
and cert. denied sub nom. Ogundele v. United States,
U.S. , 140 S. Ct. 1213, 206 L. Ed. 2d 213 (2020),
and cert. denied sub nom. Popoola v. United States,
U.S. , 140 S. Ct. 1212, 206 L. Ed. 2d 213 (2020);
United States v. Heusner, United States District Court,
Docket No. 3:18-cr-02658-BTM (S.D. Cal. October 24,
2019) (Miranda violation alone does not require sup-
pression of fruits of unwarned statements, including
contents of cell phone).16 We conclude, therefore, that
the court properly denied the defendant’s motion to
suppress under the United States constitution.17
In his appellate brief, the defendant, for the first time,
argues that this court should adopt a new prophylactic
rule, as a matter of due process pursuant to our state
constitution, to protect against police tactics aimed at
undermining the constitutional rights of a suspect. Spe-
cifically, he proposes the following: ‘‘In a custodial inter-
rogation, if incriminating evidence is obtained from a
suspect after he has invoked his right to counsel and
it can be shown that the evidence was obtained through
impermissible questioning designed to undermine the
suspect’s Miranda rights, the evidence can only be
admissible if it is shown that ‘curative measures’ were
taken to ensure that a reasonable person in the suspect’s
situation would understand the effect of his answering
questions after he has invoked his right to counsel and
that his doing so was voluntary.’’
We decline to adopt the rule proposed by the defen-
dant for a variety of reasons. First, in support of his
proposal, the defendant asserts that the conduct of the
police in the present case revealed ‘‘an intent to under-
mine [his] invocation of rights and to trick him into
telling them where they could find his [cell] phone
. . . .’’ The record and the findings of the trial court
do not support this assertion. The court made no such
findings of fact regarding police deception, trickery, or
the intent to deprive the defendant of his constitutional
rights. To the contrary, the court found that Perrone
had intended to seize the defendant’s cell phone
because there was evidence that it had been used prior
to and after the death of the victim, and because he
wanted to ensure that the data contained therein was
not erased or damaged.
Second, the defendant’s brief has not persuaded us
that such a rule is required by our state constitution.
In certain instances, our state constitution affords the
citizens of Connecticut protections beyond those pro-
vided by the federal constitution. State v. Marsala, 216
Conn. 150, 160, 579 A.2d 58 (1990); Cologne v. Westf-
arms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984);
see also State v. Joyce, 229 Conn. 15–16, 639 A.2d 1007(1993) (‘‘[i]t is well established that federal constitu-
tional and statutory law establishes a minimum national
standard for the exercise of individual rights and does
not inhibit state governments from affording higher lev-
els of protection of such rights’’); cf. State v. Dukes,
209 Conn. 98, 114, 547 A.2d 10 (1988) (law of land
may not also be law of this state in context of our
state constitution).
‘‘In construing the Connecticut constitution to deter-
mine whether it provides our citizens with greater pro-
tections than [does] the federal constitution, we employ
a multifactor approach that we first adopted in [State
v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992)].
The factors that we consider are (1) the text of the
relevant constitutional provisions; (2) related Connecti-
cut precedents; (3) persuasive federal precedents; (4)
persuasive precedents of other state courts; (5) histori-
cal insights into the intent of [the] constitutional [fram-
ers]; and (6) contemporary understandings of applica-
ble economic and sociological norms [otherwise described
as public policies].’’ (Internal quotation marks omitted.)
State v. Sawyer, 335 Conn. 29, 50, 225 A.3d 668 (2020);
State v. Taupier, 330 Conn. 149, 175, 193 A.3d 1 (2018),
cert. denied, U.S. , 139 S. Ct. 1188, 203 L. Ed.
2d 202 (2019).
In his appellate brief, the defendant mentions the
Geisler test, summarily recites the first Geisler factor,
and briefly addresses the issue of police deception and
trickery. Absent from the defendant’s brief is a compre-
hensive Geisler analysis that would persuade this court
that the protections afforded by our state constitution
are greater than those afforded by the federal constitu-
tion or of the propriety of adopting his proposed rule
under our state constitution. Cf. State v. Estrella, 277
Conn. 458, 488, 893 A.2d 348 (2006) (defendant raised
due process claim under state constitution, complete
with requisite Geisler analysis). ‘‘It is not enough merely
to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the
ossature for the argument, and put flesh on its bones.’’
(Internal quotation marks omitted.) State v. Fetscher,
162 Conn. App. 145, 155–56, 130 A.3d 892 (2015), cert.
denied, 321 Conn. 904, 138 A.3d 280 (2016); State v.
Diaz, 94 Conn. App. 582, 593, 893 A.2d 495, cert. denied,
280 Conn. 901, 907 A.2d 91 (2006). For these reasons,
we decline the defendant’s invitation to adopt a new
prophylactic rule pursuant to our state constitution.
II
The defendant next claims that the police seized his
cell phone in violation of the fourth amendment to the
United States constitution and article first, § 7, of the
Connecticut constitution,18 and, therefore, the court
should have suppressed the evidence obtained from the
phone as fruit of the poisonous tree. Specifically, he
argues that the court erred in concluding that the police
had probable cause to seize his cell phone at the police
station pursuant to the exigent circumstances doctrine.
The state counters that the court properly determined
that probable cause existed at the time of the seizure.
We agree with the state.19
In his January 16, 2018 motion to suppress, the defen-
dant argued that the police had seized his cell phone
on April 15, 2015, without probable cause. He claimed
that there was no ‘‘nexus’’ linking the cell phone to
any criminal behavior. He further argued that, even if
probable cause had existed to seize the cell phone,
the exigent circumstances doctrine did not justify its
immediate seizure at the police station.
In denying the January 16, 2018 motion to suppress,
the court concluded that ‘‘the police were justified in
seizing [the defendant’s cell] phone under the facts of
this case and the law of exigent circumstances and
inevitable discovery.’’ The court first explained that the
police detectives had probable cause to seize the phone.
The court relied on Perrone’s testimony that, on the
basis of his training and experience, coconspirators
often use cell phones, before and after the criminal
activity, to communicate by talking, texting or using
social media. Perrone indicated that he had received
information that either the defendant or a coconspirator
had communicated with a third coconspirator via cell
phones at about the time of the crime. Perrone also
stated that cell phones frequently contained ‘‘GPS coor-
dinates on where the phone was at the time of the
crime.’’ On the basis of this evidence, the court found
that probable cause had existed to seize the defendant’s
phone at the police station on April 15, 2015.
The court then turned to the exigent circumstances
doctrine. It noted that this doctrine constitutes a well
recognized exception to the warrant requirement of
the fourth amendment. It concluded that Perrone had
seized the defendant’s cell phone to prevent him from
leaving the police station with it, after which the phone
could have been destroyed or discarded or the evidence
contained therein could have been erased.
On appeal, the defendant contends that the exigent
circumstances doctrine applies only if there is probable
cause to believe that the seized evidence contains evi-
dence of a crime. He further asserts that the court erred
in crediting Perrone’s testimony regarding the probable
cause to seize20 the defendant’s cell phone at the police
station on April 15, 2015. As a result of this alleged
constitutional violation, he maintains that his cell
phone, and the contents therein, should have been
excluded from evidence.21 We are not persuaded.
We now turn to the legal principles relevant to our
analysis of the defendant’s claim. ‘‘The fourth amend-
ment to the United States constitution protects the right
of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search and
seizures . . . . U.S. Const., amend. IV; see also Conn.
Const., art. I, § 7. Ordinarily, police may not conduct a
search unless they first obtain a search warrant from
a neutral magistrate after establishing probable cause.
. . . Under both the federal and state constitutions, a
warrantless search and seizure is per se unreasonable,
subject to a few well defined exceptions. . . . These
exceptions have been jealously and carefully drawn
. . . and the burden is on the state to establish the
exception.’’ (Internal quotation marks omitted.) State
v. Ortiz, 182 Conn. App. 580, 587, 190 A.3d 974, cert.
denied, 330 Conn. 920, 194 A.3d 290 (2018); see also
State v. Owen, 126 Conn. App. 358, 364, 10 A.3d 1100,
cert. denied, 300 Conn. 921, 14 A.3d 1008 (2011).22
Our Supreme Court has explained: ‘‘The fourth
amendment’s requirement that a warrant issue from a
neutral and detached judicial officer rests upon the
desirability of having magistrates rather than police
officers determine when searches and seizures are per-
missible and what limitations should be placed upon
such activities. . . . [As we have already observed,
however], the fourth amendment proscribes only unrea-
sonable searches and seizures, and there will be occa-
sions when, given probable cause to search, resort to
the judicial process will not be required of law enforce-
ment officers. Thus, where exigent circumstances exist
that make the procurement of a search warrant unrea-
sonable in light of the dangers involved . . . [or the
likelihood of evidence being destroyed or removed from
the grasp of law enforcement officers] . . . a warrant
will not be required.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Spencer, 268 Conn. 575,
585–86, 848 A.2d 1183, cert. denied, 543 U.S. 957, 125
S. Ct. 409, 160 L. Ed. 2d 320 (2004); see State v. Jackson,
304 Conn. 383, 394–95, 40 A.3d 290 (2012); State v.
Curet, 200 Conn. App. 13, 25, A.3d , cert. granted
on other grounds, 335 Conn. 969, 240 A.3d 287 (2020);
see generally State v. Mann, 271 Conn. 300, 319–20, 857
A.2d 329 (2004) (it is long-standing rule that police must,
whenever practicable, obtain in advance judicial
approval of searches and seizures via warrant proce-
dure), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161
L. Ed. 2d 527 (2005).
‘‘The exigent circumstances doctrine is one of three
exceptions to the warrant requirement that are trig-
gered by the need for swift action by the police. All
three exceptions, the exigent circumstances doctrine,
the protective sweep doctrine and the emergency doc-
trine, must be supported by a reasonable belief that
immediate action was necessary. . . . Of the three, the
exigent circumstances doctrine arguably encompasses
the widest variety of factual scenarios. [Our Supreme
Court] previously [has] recognized the [catchall] quality
of the doctrine, explaining that [t]he term, exigent cir-
cumstances, does not lend itself to a precise definition
but generally refers to those situations in which law
enforcement agents will be unable or unlikely to effec-
tuate an arrest, search or seizure, for which probable
cause exists, unless they act swiftly and, without seek-
ing prior judicial authorization. . . . There are three
categories of circumstances that are exigent: those that
present a risk of danger to human life; the destruction
of evidence; or flight of a suspect. . . . The exigent
circumstances doctrine, however, is limited to
instances in which the police initially have probable
cause either to arrest or to search. . . .
‘‘Our Supreme Court has adopted a totality of circum-
stances test to evaluate whether an exigency exists,
which inquires whether, under the totality of the cir-
cumstances, the police had reasonable grounds to
believe that if an immediate arrest [or entry] were not
made, the accused would have been able to destroy
evidence, flee or otherwise avoid capture, or might,
during the time necessary to procure a warrant, endan-
ger the safety or property of others. This is an objective
test; its preeminent criterion is what a reasonable, [well
trained] police officer would believe, not what the . . .
officer actually did believe. . . . Put simply, given
probable cause to arrest or search, exigent circum-
stances exist when, under the totality of the circum-
stances, the officer reasonably believed that immediate
action was necessary to protect the safety of those
present, or to prevent the flight of the suspect, or the
destruction of evidence. . . . The test requires a rea-
sonable belief, not a level of certainty approaching prob-
able cause. . . . That said, [w]hen there are reasonable
alternatives to a warrantless search, the state has not
satisfied its burden of proving exigent circumstances.
. . . Moreover, [t]he calculus of reasonableness must
embody allowance for the fact that police officers are
often forced to make split-second judgments—in cir-
cumstances that are tense, uncertain, and rapidly evolv-
ing.’’ (Citations omitted; emphasis added; internal quo-
tation marks omitted.) State v. Ingala, supra, 199 Conn.
App. 248–49; see also State v. Kendrick, 314 Conn. 212,
225–28, 100 A.3d 821 (2014). Thus, the existence of
probable cause serves as a necessary prerequisite to
the applicability of the exigent circumstances doctrine.
See State v. Spencer, supra, 268 Conn. 585–86; State v.
Ingala, supra, 248; State v. Owen, supra, 126 Conn. App.
366. ‘‘Whether the trial court properly found that the
facts submitted were enough to support a finding of
probable cause is a question of law. . . . The trial
court’s determination on [that] issue, therefore, is sub-
ject to plenary review on appeal. . . . Probable cause,
broadly defined, [comprises] such facts as would rea-
sonably persuade an impartial and reasonable mind not
merely to suspect or conjecture, but to believe that
criminal activity has occurred. . . . Reasonable minds
may disagree as to whether a particular affidavit estab-
lishes probable cause. . . .
‘‘We consistently have held that [t]he quantum of
evidence necessary to establish probable cause exceeds
mere suspicion, but is substantially less than that
required for conviction. . . . The probable cause deter-
mination is, simply, an analysis of probabilities. . . .
The determination is not a technical one, but is
informed by the factual and practical considerations of
everyday life on which reasonable and prudent [per-
sons], not legal technicians, act. . . . Probable cause
is not readily, or even usefully, reduced to a neat set
of legal rules.’’ (Citations omitted; internal quotation
marks omitted.) State v. Correa, 185 Conn. App. 308,
334–35, 197 A.3d 393 (2018), cert. granted on other
grounds, 330 Conn. 959, 199 A.3d 19 (2019); see also
State v. Eady, 249 Conn. 431, 440, 733 A.2d 112 (mere
suspicion and probable cause often separated by fine
line), cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L.
Ed. 2d 428 (1999).
In determining whether probable cause existed, the
‘‘United States Supreme Court has endorsed an objec-
tive standard, noting that evenhanded law enforcement
is best achieved by the application of objective stan-
dards of conduct, rather than standards that depend on
the subjective state of mind of the officer.’’ (Internal
quotation marks omitted.) State v. Ortiz, supra, 182
Conn. App. 592; accord State v. Eady, supra, 249 Conn.
441; see generally Ornelas v. United States, 517 U.S.
690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Beck
v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d
142 (1964). Additionally, the determination of probable
cause requires a consideration of the totality of the
circumstances. State v. Duffus, 125 Conn. App. 17, 25–
26, 6 A.3d 167 (2010), cert. denied, 300 Conn. 903, 12
A.3d 572 (2011); see also State v. Sawyer, supra, 335
Conn. 45–46; State v. Trine, 236 Conn. 216, 236–37, 673
A.2d 1098 (1996).
On appeal, the defendant claims that the court relied
on evidence that was not available to the police at the
time they seized his cell phone at the police station.
See, e.g., State v. DeMarco, 311 Conn. 510, 536, 88 A.3d
491 (2014) (reasonableness of police officer’s determi-
nation that emergency exists so as to justify application
of emergency exception to warrant requirement is eval-
uated on facts known at time of entry into defendant’s
home); State v. Federici, 179 Conn. 46, 58, 425 A.2d 916(1979) (probable cause for seizure under plain view
doctrine cannot be established by knowledge obtained
after intrusion occurs). He also contends that the police
should not have relied on Vanderberg’s statements as
a basis for determining whether probable cause existed.
We are not persuaded by these arguments.
At the January 24, 2018 hearing on the defendant’s
motion to suppress, Perrone testified that he had taken
a statement from Vanderberg approximately one week
after the shooting. Perrone learned that Vanderberg
drove the defendant and Sumler on April 6, 2015. Vand-
erberg stated that either they had contacted him or he
had contacted one of them by the use of a cell phone.
Vanderberg further indicated the he had contact with
either the defendant or Sumler via cellular voice call or
a FaceTime video call. During the interview, Vanderberg
provided Perrone with cell phone numbers for both the
defendant and Sumler.
Perrone then testified regarding the interview that
he had conducted with the defendant on April 15, 2015.
He recalled observing the defendant holding a cell
phone while talking with his mother prior to going into
the interview room. After a brief time, the defendant
asked for an attorney, and Perrone concluded what
the prosecutor termed the ‘‘substantive portion of the
interview . . . .’’ Perrone explained that, at some point,
he had intended to seize the cell phone that he had
observed the defendant holding. Perrone also testified,
on the basis of his training and experience, that a person
suspected of committing a homicide would have an
incentive to conceal or to destroy a cell phone or erase
the data contained therein. Thus, Perrone thought that,
if he had attempted to obtain a warrant, this evidence
could have been destroyed or lost. The next day, Per-
rone obtained a warrant to search the contents of the
defendant’s cell phone.23 During his cross-examination
at the January 24, 2018 suppression hearing, Perrone
acknowledged that Vanderberg never specifically stated
that the defendant’s cell phone had been used, but,
rather, that Vanderberg had called either the defendant
or Sumler.24
In its memorandum of decision on the motions to
suppress, the court found that Vanderberg had given a
statement to the police on April 14, 2015, and that he
identified the defendant and Sumler as the perpetrators
of the April 6, 2015 robbery and murder. The court also
credited Perrone’s testimony that cell phones often are
used by criminal coconspirators before or after criminal
activity and that these devices therefore may contain
evidence of such conduct and may include GPS informa-
tion, text messages, voice communications and social
media postings. The court stated: ‘‘Perrone further testi-
fied that he had information that the defendant had a
Facebook account, that the defendant used that Face-
book account to communicate with one of the [perpe-
trators], and that either the defendant or another [perpe-
trator] communicated with the third [perpetrator] via
their cell phone on the night of the shooting.’’
The defendant first argues that the court’s determina-
tion that Perrone had probable cause to seize the cell
phone on April 15, 2015, at the police station was flawed
because it was based on information that Perrone
obtained after that seizure. Specifically, he contends
that, ‘‘[a]t the time of the seizure of the cell phone, the
police did not have information that the defendant may
have used a Facebook account to communicate with
[Sumler or Vanderberg] at the time of the crime.’’
This argument is unavailing because, even if it is
accurate, the court’s determination regarding probable
cause did not rely exclusively on the use of Facebook
by the defendant, Sumler and Vanderberg. At the time
of the seizure of the defendant’s cell phone, Perrone
had information that the defendant and Sumler had
been involved in the April 6, 2015 robbery and shooting,
and that one of those individuals had communicated
with Vanderberg via cell phone. Additionally, on the
basis of his training and experience, Perrone knew that
criminal actors often communicate with one another via
cell phone, and that these devices may contain evidence
that can connect a person to a crime, such as call logs,
text messages and GPS data. In the present case, the
court correctly found that Perrone had sufficient infor-
mation to establish probable cause, beyond mere suspi-
cion, at the time of the seizure, that the defendant’s
cell phone contained evidence that could link him to
the April 6, 2015 robbery and shooting at the conve-
nience store.
The defendant also argues that the police should not
have relied on Vanderberg’s self-serving statements to
establish probable cause to seize the cell phone. He
contends that Vanderberg was not an established infor-
mant, he was operating under a cooperation agreement
with the state and had provided contradictory informa-
tion regarding his involvement in another criminal inci-
dent. As a result of these factors, the defendant asserts,
the police should not have considered Vanderberg to
be a trustworthy source, nor should they have relied
on his statements to establish probable cause to seize
the defendant’s cell phone. We disagree.
Vanderberg provided a recorded statement to the
New Haven police on April 14, 2015. Our Supreme Court
has recognized that facts the police obtain from an
informer can be significant in a credibility determina-
tion. ‘‘In such circumstances, the police can observe
the informant’s demeanor to determine his . . . credi-
bility, and the informant runs the greater risk that he
may be held accountable if his information proves false.
. . . Indeed, as this court has repeatedly recognized,
[t]he fact that an informant’s identity is known . . . is
significant because the informant could expect adverse
consequences if the information that he provided was
erroneous.’’ (Citations omitted; internal quotation
marks omitted.) State v. Flores, 319 Conn. 218, 227–28,
125 A.3d 157 (2015), cert. denied, U.S. , 136 S.
Ct. 1529, 194 L. Ed. 2d 615 (2016); see also State v.
Mann, supra, 271 Conn. 326–27.
Vanderberg also made statements against his penal
interest, which, as our Supreme Court has noted, ‘‘carry
their own indicia of credibility—sufficient at least to
support a finding of probable cause . . . .’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Flores, supra, 319 Conn. 229. We conclude, therefore,
that the defendant’s argument concerning the credibil-
ity of Vanderberg is without merit, and, thus, the trial
court properly denied the defendant’s motion to sup-
press the seizure of his cell phone and the evidence
obtained as a result of that seizure.
III
Finally, the defendant claims that Perrone’s affidavit
in support of the warrant application to search the
contents of the cell phone contained materially false
information. Specifically, he argues that Perrone’s affi-
davit concealed the Miranda violation that had
occurred at the police station on April 15, 2015. The
defendant contends that, had the court been aware of
this violation, it would not have authorized the search
warrant for the contents of his phone. We disagree. The
trial court, in conducting the Franks hearing, found
that the defendant did not establish the requisite proof
in his preliminary showing to require further inquiry.
As previously noted, the police seized the defendant’s
cell phone after his interview on April 15, 2015. The
next day, they applied for a search warrant for the
contents of the phone. The following was part of the
affidavit attached to that application: ‘‘On April 15, 2015,
[the defendant] came to [p]olice [h]eadquarters with
his mother. Prior to any questioning, [the defendant]
was given his Miranda [r]ights from a New Haven
Police Department Miranda [w]aiver form. [The defen-
dant] requested an attorney and no questioning took
place. Prior to [the defendant] leaving, his mother
handed to detectives a cellular telephone she said
belonged to [the defendant] and provided . . . the
phone number. The phone was seized and placed in an
electronic protective bag to prevent remote erasure of
data.’’ (Emphasis added.) The application was signed
by a judge of the Superior Court on April 16, 2015.
In his January 18, 2018 motion to suppress, the defen-
dant claimed that the affidavit supporting the April 16,
2015 search warrant application contained factual
assertions that were known to be false or were made
with reckless disregard for the truth, and, therefore, he
was entitled to a hearing pursuant to Franks v. Dela-
ware, supra, 438 U.S. 154. At the January 24, 2018 hear-
ing on the defendant’s motions to suppress, the court
stated: ‘‘To be entitled to a hearing, the defendant must
have a substantial preliminary showing that a false
statement knowingly and intentionally or with reckless
disregard for the truth was included by the affiant in
the warrant affidavit and that the alleged false statement
is necessary to a finding of probable cause. The defen-
dant has not met his burden here, and I will again
supplement that with more findings and more case law
to support the court’s finding[s] and denial of the motion
down the road.’’
In the court’s April 23, 2018 supplemental memoran-
dum of decision, the court noted that a presumption
of validity exists with respect to an affidavit that is
submitted in support of an application for a search
warrant.25 The court then focused its analysis on the
interaction between Perrone and the defendant’s
mother, and concluded that she had provided him with
the defendant’s cell phone in a consensual interaction.
The court ultimately found that Perrone had not made
‘‘a false statement knowingly and intentionally or with
reckless disregard for the truth when he indicated to
the magistrate that [the defendant’s mother] handed
him the cell phone.’’
‘‘In Franks, the United States Supreme Court held
that where the defendant makes a substantial prelimi-
nary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the
finding of probable cause, the [f]ourth [a]mendment
requires that a hearing be held at the defendant’s
request. . . . As our Supreme Court has explained,
before a defendant is entitled to a Franks hearing, the
defendant must (1) make a substantial preliminary
showing that a false statement knowingly and intention-
ally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit; and (2)
show that the allegedly false statement is necessary to
a finding of probable cause.’’ (Citation omitted; internal
quotation marks omitted.) State v. Crespo, 190 Conn.
App. 639, 651, 211 A.3d 1027 (2019); see also State v.
Ferguson, 260 Conn. 339, 363–64, 796 A.2d 118 (2002).
Stated differently, ‘‘before a defendant is entitled to a
Franks hearing for an alleged omission, he must make
a substantial preliminary showing that the information
was (1) omitted with the intent to make, or in reckless
disregard of whether it made, the affidavit misleading
to the issuing judge, and (2) material to the determina-
tion of probable cause.’’ State v. Bergin, 214 Conn. 657,
666–67, 574 A.2d 164 (1990).
The court did not specifically address the question
of whether the omission in the affidavit that questioning
had taken place after the defendant requested an attor-
ney met the first prong of the Franks test. The issue
of whether a statement in an affidavit supporting an
application for a search warrant was knowingly and
falsely made, or whether it was made with a reckless
disregard for the truth, is a question of fact subject to
the clearly erroneous standard of review. See, e.g., State
v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983),
cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed.
2d 772 (1984); see also State v. Mordowanec, 259 Conn.
94, 107, 788 A.2d 48, cert. denied, 536 U.S. 910, 122 S.
Ct. 2369, 153 L. Ed. 2d 189 (2002); State v. Gjini, 162
Conn. App. 117, 132, 130 A.3d 286 (2015), cert. denied,
320 Conn. 931, 134 A.3d 621 (2016). In the absence of
such a finding, the record is inadequate for our review.
‘‘The duty to provide this court with a record adequate
for review rests with the appellant. . . . Without the
necessary factual and legal conclusions furnished by
the trial court, any decision made by us respecting the
defendant’s claims would be entirely speculative.’’
(Citation omitted; internal quotation marks omitted.)
State v. Cotto, 111 Conn. App. 818, 821, 960 A.2d 1113(2008); see State v. Pecor, 179 Conn. App. 864, 876, 181
A.3d 584 (2018) (it is not function of Appellate Court
to speculate or presume error from silent record).
Additionally, the defendant’s brief failed to address
the question of whether the purported false or mis-
leading statement was material to the determination of
probable cause. We have recognized that, ‘‘there can
be no Franks violation when the omissions, if included
in the . . . warrant affidavit, would not defeat proba-
ble cause.’’ (Internal quotation marks omitted.) State
v. St. Louis, 128 Conn. App. 703, 711, 18 A.3d 648, cert.
denied, 302 Conn. 945, 30 A.3d 1 (2011); see also State
v. Altayeb, 126 Conn. App. 383, 398, 11 A.3d 1122, cert.
denied, 300 Conn. 927, 15 A.3d 628 (2011).
In his brief, the defendant simply asserts that the
court would not have issued the search warrant if the
police had included in their affidavit the fact that he
had requested an attorney before he provided them
with information as to the phone’s location. For the
reasons set forth in part I of this opinion, this is not
correct. Furthermore, ‘‘[w]e are not required to review
issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . The parties may not merely cite a legal princi-
ple without analyzing the relationship between the facts
of the case and the law cited.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Buhl, 321 Conn.
688, 724, 138 A.3d 868 (2016); see also State v. Errol
J., 199 Conn. App. 800, 807, 237 A.3d 747, cert. denied,
335 Conn. 962, 239 A.3d 1213 (2020). For these reasons,
we decline to review the defendant’s final claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Miranda v. United States, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966).
2
See generally Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.
2d 667 (1978).
3
See State v. Sumler, 199 Conn. App. 187, 190–93, 235 A.3d 576 (2020).
4
Frank Evangelista, an associate state medical examiner, testified that
he had performed an autopsy on the victim and determined the cause of
death to be gunshot wounds of the torso and extremities.
5
Shortly after the shooting, Elsa Berrios, a New Haven police officer,
parked her police cruiser near the crime scene and searched for suspects
or evidence. She observed a trail of cigars on the ground that were similar
to those taken by the defendant from the convenience store.
6
The defendant filed a motion for articulation, which the trial court denied
on February 4, 2020. The defendant then filed a motion for review with this
court. We granted the motion but denied the relief requested.
7
In Riley v. California, 573 U.S. 373, 385, 134 S. Ct. 2473, 189 L. Ed. 2d
430 (2014), the United States Supreme Court considered ‘‘how the search
incident to arrest doctrine applies to modern cell phones, which are now
such a pervasive and insistent part of daily life that the proverbial visitor from
Mars might conclude they were an important feature of human anatomy.’’
It also noted that ‘‘[t]he term ‘cell phone’ is itself misleading shorthand;
many of these devices are in fact minicomputers that also happen to have
the capacity to be used as a telephone. They could just as easily be called
cameras, video players, [R]olodexes, calendars, tape recorders, libraries,
diaries, albums, televisions, maps or newspapers.’’ Id., 393. Ultimately, the
court held that ‘‘officers must generally secure a warrant before conducting
. . . a search [of the information on a cell phone].’’ Id., 386.
8
The detectives sent the defendant’s cell phone to the Federal Bureau of
Investigation (FBI) for the purpose of retrieving the data contained within
the phone. Initially, the FBI was unable to defeat the phone’s passcode
protection. Thereafter, the phone remained in the custody of the New Haven
Police Department. On October 12, 2017, the police filed a second application
for a search and seizure warrant to retrieve the data from the phone. The
court issued the warrant, and the FBI, at this time, successfully accessed
the data.
On May 29, 2015, the court issued a warrant, and the police successfully
obtained the account information for the defendant’s cell phone, including
the account history and global positioning system information.
9
‘‘Under the exclusionary rule, evidence must be suppressed if it is found
to be the fruit of prior police illegality. Wong Sun v. United States, [371
U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)]. All evidence is not,
however, a fruit of the poisonous tree simply because it would not have
been discovered but for the illegal action of law enforcement officials.’’
(Internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697
A.2d 1122 (1997); see also State v. Romero, 199 Conn. App. 39, 50, 235 A.3d
644, cert. denied, 335 Conn. 955, 238 A.3d 731 (2020).
10
In the application for the search warrant, the police sought to seize the
following items from the defendant’s residence: a black face mask, dark
colored gloves, a black baseball hat with an insignia on the front and white
colored sneakers. Any items seized would be submitted to the state forensics
laboratory for testing.
11
At the outset of the interview, the two detectives introduced themselves
to the defendant. The defendant then complied with Perrone’s request that
he read out loud the Miranda rights. The defendant acknowledged that he
understood his Miranda rights and the fact that he was not under arrest.
Perrone then asked the defendant to initial the Miranda waiver form. At
this point, the defendant stated: ‘‘I really would like a lawyer. Cause I don’t,
I can’t just speak. I don’t know. It’s crazy. I don’t. They never raided my
mother’[s] house before or something . . . . I don’t know what’s going on.
I need a lawyer.’’ The defendant then reaffirmed to Perrone the request for
a lawyer.
12
In Miranda v. Arizona, supra, 384 U.S. 436, ‘‘the United States Supreme
Court held that the fifth and fourteenth amendments’ prohibition against
compelled self-incrimination requires that a suspect in police custody be
informed specifically of his or her right to remain silent and to have an
attorney present before being questioned. . . . The court further held that
[i]f the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease
. . . and [i]f the individual states that he wants an attorney, the interrogation
must cease until an attorney is present.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Hafford, 252 Conn. 274, 289–90, 746 A.2d 150,
cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000); see also
State v. McMillion, 128 Conn. App. 836, 839–40, 17 A.3d 1165 (Miranda
recognized that right to have counsel present at interrogation is indispens-
able to protection of fifth amendment privilege), cert. denied, 302 Conn.
903, 23 A.3d 1243 (2011).
Our Supreme Court has noted that ‘‘Miranda warnings are required when
a suspect is in police custody and subject to interrogation. . . . [T]he term
interrogation under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.’’
(Citations omitted; internal quotation marks omitted.) State v. Canales, 281
Conn. 572, 585, 916 A.2d 767 (2007).
13
Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . . No person shall be compelled to give
evidence against himself . . . .’’
14
In State v. Purcell, supra, 331 Conn. 318, our Supreme Court held that
‘‘our state constitution requires that, if a suspect makes an equivocal state-
ment that arguably can be construed as a request for counsel, interrogation
must cease except for narrow questions designed to clarify the earlier state-
ment and the suspect’s desire for counsel. . . . Interrogators confronted
with such a situation alternatively may inform the defendant that they under-
stand his statement(s) to mean that he does not wish to speak with them
without counsel present and that they will terminate the interrogation.’’
(Citation omitted; internal quotation marks omitted.) Id., 362.
15
See generally New York v. Quarles, 467 U.S. 649, 653, 104 S. Ct. 2626,
81 L. Ed. 2d 550 (1984); State v. Betances, 265 Conn. 493, 503–505, 828 A.2d
1248 (2003).
16
Pursuant to Practice Book § 67-10, the defendant notified this court on
September 14, 2020, of his intention to rely on a decision of the District of
Columbia Court of Appeals, Green v. United States, 231 A.3d 398 (D.C.
2020). The defendant’s reliance on Green is not persuasive, as the suppres-
sion motion in that case was directed at a fourth amendment violation and
not a fifth amendment violation, as in the present appeal.
17
It is axiomatic that we may affirm the proper result of the trial court
on a different basis. See, e.g., State v. Marro, 68 Conn. App. 849, 859, 795
A.2d 555 (2002); see also Diaz v. Commissioner of Correction, 125 Conn.
App. 57, 63 n.6, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150(2011); Coleman v. Commissioner of Correction, 111 Conn. App. 138, 140
n.1, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).
Furthermore, as a result of our conclusion regarding the appropriate
remedy for a Miranda violation as it relates to physical evidence, we reject
the defendant’s reliance on our Supreme Court’s decision in State v. Purcell,
supra, 331 Conn. 318. In that case, the court held that our state constitution
provides greater safeguards for the Miranda right to counsel than the federal
constitution. Id., 362. Specifically, ‘‘our state constitution requires that, if a
suspect makes an equivocal statement that arguably can be construed as a
request for counsel, interrogation must cease except for narrow questions
designed to clarify the earlier statement and the suspect’s desire for counsel.’’
(Internal quotation marks omitted.) Id. The court in Purcell did not, however,
address whether the remedy for such a violation includes suppression of
physical evidence. Stated differently, whether the violation occurred under
the federal or the state constitution, or both, the defendant does not gain
the remedy sought in this appeal, namely, suppression of the cell phone
and its contents.
18
In a single sentence in his brief, the defendant asserts that our state
constitution affords greater protection to citizens in the determination of
probable cause than does the federal constitution. In the absence of a
Geisler analysis or any additional argument in his brief, we conclude that
the defendant has abandoned any claim to greater protection under our
state constitution with respect to this claim. See, e.g., State v. Rivera, 335
Conn. 720, 725 n.2, 240 A.3d 1039 (2020); State v. Marcus H., 190 Conn.
App. 332, 335 n.2, 210 A.3d 607, cert. denied, 332 Conn. 910, 211 A.3d 71,
cert. denied, U.S. , 140 S. Ct. 540, 205 L. Ed. 2d 343 (2019). Thus,
we evaluate the claim only under the federal constitution.
19
As a result of our conclusion, we need not address the other ground
on which the state relies in support of the denial of the defendant’s motion
to suppress, namely, the inevitable discovery doctrine.
20
‘‘A seizure of property occurs when there is some meaningful interfer-
ence with an individual’s possessory interests in that property.’’ (Internal
quotation marks omitted.) State v. Jones, 320 Conn. 22, 64, 128 A.3d 431(2015); State v. Jackson, 304 Conn. 383, 394, 40 A.3d 290 (2012).
21
‘‘To discourage unreasonable searches and seizures, the evidence
obtained as a direct result of that illegal search or seizure, as well as the
fruits, or evidence derived therefrom, are excluded from evidence unless
the connection between the fruits and the illegal search has been sufficiently
attenuated to be purged of its primary taint.’’ (Internal quotation marks
omitted.) State v. Ryder, 301 Conn. 810, 821, 23 A.3d 694 (2011).
22
‘‘The fourth amendment to the United States constitution, made applica-
ble to the states through the [due process clause of the] fourteenth amend-
ment, prohibits unreasonable searches and seizures by government agents.’’
(Internal quotation marks omitted.) State v. Jones, 320 Conn. 22, 64, 128
A.3d 431 (2015); see State v. Thomas, 98 Conn. App. 542, 551, 909 A.2d 969(2006) (same), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007).
23
See State v. Boyd, 295 Conn. 707, 717, 992 A.2d 1071 (2010) (defendant
had reasonable expectation of privacy in contents of cell phone), cert.
denied, 562 U.S. 1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011).
24
Specifically, the following colloquy occurred between defense counsel
and Perrone:
‘‘Q. . . . So, what probable cause did you have to think that [the defen-
dant’s] phone is the one that he was communicating with?
‘‘A. I didn’t. It could have been either of the two guys.
‘‘Q. It could have been either.
‘‘A. Um-hm.
‘‘Q. So, you had no probable cause that that search—that phone that you
seized from [the defendant] was the one that Mr. Vanderberg was talking
about; right?
‘‘A. I don’t know.
‘‘Q. Pardon me.
‘‘A. I don’t know.
‘‘Q. You don’t know?
‘‘A. It could have been either of the two he was contacted with on the
phones.
‘‘Q. Right. But you don’t know, right?
‘‘A. I don’t know which one he contacted.’’
25
See, e.g., State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990); State
v. Dolphin, 195 Conn. 444, 457, 488 A.2d 812, cert. denied, 474 U.S. 833, 106
S. Ct. 103, 88 L. Ed. 2d 84 (1985).