Opinion
CR100261382 CR110262133 CR110262138 CR110262631 CR110076427 CR110076914 CR110117240 CR110143742 CR110143743 CR120125387 CR120409140 CR130148948 CR130148949
12-07-2015
State of Connecticut v. Terrance Brown
UNPUBLISHED OPINION
CORRECTED CONSOLIDATED MEMORANDUM OF DECISION RE DEFENDANT'S MOTIONS TO SUPPRESS
Identical written Motions To Suppress have been filed in four of the above-listed files: No. CR11-0262133 (Motion No. 14); No. CR11-0262631 (Motion No. 3); No. CR10-0261382 (Motion No. 3); and No. CR11-262138 (Motion No. 4). Although no written suppression motions have been filed in the remaining files, the parties agreed at the hearing that the already-filed motions address issues common to all files. Under these circumstances, the court will consider the defendant to have made oral motions to suppress, with the same substantive contentions, in the remaining files.
Jon C. Blue, Judge of the Superior Court.
I. INTRODUCTION
Conn. Gen. Stat. § 54-47aa allows a Judge of the Superior Court to grant an ex parte order, on a showing of " reasonable and articulable suspicion, " compelling the disclosure of certain telephone and Internet records. Although applications for ex parte orders pursuant to the statute have been quite common at the Superior Court level during the ten years of the statute's existence, the statutory text remains unconstrued by either the Appellate or Supreme Courts. In the meantime, cellphone technology has changed exponentially. As is often the case, modern technology has created both convenience and disturbing possibilities. The convenience of cellphones is well known; it is increasingly rare to meet someone who doesn't carry one on his or her person. But with this convenience comes the possibility of an Orwellian state.
The Supreme Court of the United Kingdom has recently explained that,
Historically, one of the main limitations of the power of the state was its lack of information and its difficulty in accessing efficiently even the information it had. The rapid expansion over the last century of man's technical capacity for recording, preserving and collating information has transformed many aspects of our lives. One of its most significant consequences has been to shift the balance between individual autonomy and public power decisively in favour of the latter. In a famous article in the Harvard Law Review for 1890 (" The Right to Privacy, " 4 Harvard LR 193), Louis Brandeis and Charles Warren drew attention to the potential for " recent inventions and business methods" to undermine the autonomy of individuals, and made the case for the legal protection not just of privacy in its traditional sense but what they called " the more general right of the individual to be let alone." Brandeis and Warren were thinking mainly of photography and archiving techniques. In an age of relatively minimal government they saw the main threat as coming from business organizations and the press rather than the state. Their warning has proved remarkably prescient and of much wider application than they realised.Regina v. Association of Police Officers, [2015] AC 1065, 1077 (S.C.U.K. 2015).
Modern cellphone technology makes it possible to track the movements and historic whereabouts of American citizens in increasingly accurate detail. The databases providing such knowledge are held by third party service providers. There is no dispute that law enforcement officials can access such databases if they obtain warrants based on probable cause. Whether they may constitutionally do so without warrants is the subject of lively judicial debate. But it must first be determined whether such access is statutorily permitted. As will be seen, the answer to that question is far from clear. In this uncertain setting, the case of a repetitive thief with an unusual modus operandi and law enforcement officers determined to get him must now be considered.
The defendant in State v. Smith, 156 Conn.App. 537, 113 A.3d 103, cert. denied, 317 Conn. 910, 115 A.3d 1106 (2015), conceded statutory authorization in the trial court. Id., at 558. Given its conclusion that " the admission of the CSLI, if erroneous, was harmless beyond a reasonable doubt"; id., at 568; the Appellate Court in Smith did not address issues of statutory construction.
II. THE FACTS
Terrance Brown was initially arrested in 2010. He is charged with numerous counts of crimes involving burglary and larceny. The Motions To Suppress now before the court were filed on May 23, 2011. (See n.1, supra .) After a delay of Dickensian proportions, an evidentiary hearing was held on May 6, 2015. In addition to testimonial evidence, the parties submitted a written stipulation of facts not in dispute. Following another Dickensian delay, the Motions were argued on December 2, 2015.
As mentioned, Brown had an unusual modus operandi. According to the stipulation,
These proceedings are predicated upon several police investigations, in several Connecticut jurisdictions, into thefts of ATM machines from numerous business establishments located throughout the state, which had allegedly occurred between July of 2010 and November of 2010. Part of the modus operandi of the thieves involved in the burglaries was the utilization of stolen, dark-colored Dodge Caravan mini-vans as a means of breaking into targeted business establishments and transporting from the premises of those establishments cash-laden ATM machines located therein.(Stipulation par. 1.)
During the course of the police investigations of these incidents, three ex parte applications were granted by the Superior Court.
(1). On October 22, 2010, the Court (Holden, J.) ordered T-Mobile Communications (" T-Mobile") to disclose telephone records, including basic subscriber information and call-identifying information, pertaining to 4 Sylvan Way, Parsippany, New Jersey in reference to cellphone number 203-685-2325 for the period of July 29 to September 29, 2010. The information was to include " cellular site/tower information including addresses of cellular towers." The number in question had been provided by Southern Connecticut State University, where Brown had been enrolled as a student.
(2) On November 15, 2010, the Court (Shaban, J.) ordered T-Mobile to disclose telephone records including call-identifying information for telephone number 203-551-4208, including live updates from [T-Mobile] on cell phone pings every ten minutes between 00:01 [through] 06:00 on 11/16/10 and 00:01 through 06:00 on 11/17/2010." The police had determined in the course of their investigation that this number belonged to Brown.
(3) On November 22, 2010, the Court (Cremins, J.) ordered T-Mobile to disclose telephone records including call-identifying information for telephone number 203-551-4208 " for E911 pings every ten minutes between 00:01 on 11/23/2010 through 11/25/2010 ending at 07:00 on Terrence Brown's cell phone."
Importantly, the ex parte orders issued by Shaban and Cremins, JJ. are exclusively prospective in nature. They do not purport to authorize the disclosure of historical cellphone information. They authorize only the disclosure of cellphone information that did not yet exist at the time of the respective orders.
The parties stipulate that,
As a result of the real time tracking of the defendant through the monitoring of defendant's cell site location data, the police were able to track the defendant's activities on November 23, 2010, and to thereby locate an individual named " Ramon Johnson." Thereafter, through interrogation of Johnson, the police were able to obtain from Johnson a sworn signed statement implicating Terrance Brown in numerous ATM thefts at locations throughout the State of Connecticut. But for the ability of the police to track Brown's movements by monitoring Brown's cell phone on a real-time basis, Johnson would never have been stopped, detained, arrested or interrogated by the police on November 23, 2010.(Stipulation par. 9.)
III. THE STATE'S CONCESSION
The State expressly concedes that Conn. Gen Stat. § 54-47aa does not authorize the seizure of " prospective" cell site location information (" CSLI"). It notes that " the verbiage in § 54-47aa all speaks in the past tense." (State's Opening Brief, at 7, quoting State v. Smith, 156 Conn.App. 537, 557, 113 A.3d 103, cert. denied, 317 Conn. 910, 115 A.3d 1106 (2015).
This concession is important since, as mentioned, the ex parte orders issued by Shaban and Cremins, JJ. were exclusively prospective in nature. Any historical CSLI obtained by the police could not have been obtained pursuant to the terms of those orders. Only the ex parte order of Holden, J. facially allowed the police to obtain historical CSLI. Although the police obtained prospective CSLI from the orders of Shaban and Cremins, JJ., the State does not defend those acts.
The evidence indicates that, acting pursuant to the ex parte order of Holden, J., Detective Patrick Meehan of the Connecticut State Police was " able to look at the cellular locations" of those calls and " match them up" with ATM burglaries in certain areas. (T. 51.) The legal ability of the police to obtain this historical CSLI pursuant to § 54-47aa is in dispute in this case.
IV. THE STATUTE
Conn. Gen. Stat. § 54-47aa was enacted in 2005. (P.A. 05-182.) The architecture of this statute must now be explained.
Sec. 54-47aa(b) provides that, " A law enforcement official may request an ex parte order from a judge of the Superior Court to compel (1) a telecommunications carrier to disclose call-identifying information pertaining to a subscriber or customer, or (2) a provider of electronic communication service or remote computing service to disclose basic subscriber information pertaining to a customer or subscriber."
" Call-identifying information" and " basic subscriber information" are terms of art.
" Call-identifying information" means " dialing or signaling information that identifies the origin, direction, destination or termination of each communication generated or received by a subscriber or customer by means of any equipment, facility or service of a telecommunications carrier." Sec. 54-47aa(a)(2).
" Basic subscriber information" means:
(A) Name, (B) address, (C) local and long distance telephone connection records or records of session times and durations, (D) length of service, including start date, and types of services utilized, (E) telephone or instrument number or other subscriber number or identity, including any assigned Internet protocol address, and (F) means and source or payment for such service, including any credit card or bank account number.
These terms are borrowed from federal statutes. The definition of " call-identifying information" is taken verbatim from the Communications Assistance for Law Enforcement Act (" CALEA"), 47 U.S.C. § 1001(2), enacted in 1994. 108 Stat. 4279 (1994). The definition of " basic subscriber information" is borrowed from a list of authorized disclosures itemized in the Stored Communications Act (" SCA"), 18 U.S.C. § 2703 (c)(2).
Although federal statutory law was obviously relied upon in crafting § 54-47aa, the legislature has not incorporated corresponding federal statutes in their entirety. The judicially recognized federal statutory authority for law enforcement discovery of historical CSLI is contained in 18 U.S.C. § 2703(c)(1), which provides that, " A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber or customer of such service ." (Emphasis added.) In re Application of United States, 620 F.3d 304, 307-08 (3d Cir. 2010). Sec. 54-47aa does not contain any analogue to this provision.
The legislative history of CALEA and SCA is instructive on this point.
SCA was first enacted in 1986. 100 Stat. 1860 (1986). In its original form it contained a provision, to be codified as 18 U.S.C. § 2703(a), allowing governmental entities to " require the disclosure by a provider of electronic communication service of the contents of an electronic communication." 100 Stat. 1861 (1986). (Emphasis added.) This provision was subsequently expanded by the USA Patriot Act of 2001 (" Patriot Act") to allow disclosure of " a record or other information pertaining to a subscriber to or customer of such service." 115 Stat. 284 (2001). (Emphasis added.)
When the Connecticut legislature enacted Conn. Gen. Stat. § 54-47aa in 2005, the Patriot Act had been on the books for four years and was, to put it mildly, extremely well known. The fact that the Connecticut legislature chose not to adopt the Patriot Act's broad language is telling.
Since Connecticut has not adopted the language of the Patriot Act, disclosure of historical CSL under § 54-47aa can be justified only if it is either " call-identifying information" or " basic subscriber information."
The State conceded at argument that historical CSLI is not " basic subscriber information." It is neither (A) a name, (B) an address, (C) a record of " session times and duration, " (D) a length of service, (E) a number or identity, of (F) a means and source of payment. Consequently, the State concedes, historical CSLI is disclosable under § 54-47aa only if, and only if, it is " call-identifying information."
As mentioned, " call-identifying information" means " dialing or signaling information that identifies the origin, direction, destination or termination of each communication generated or received by a subscriber or customer by means of any equipment, facility or service of a communications carrier." Sec. 54-47aa(a)(2). The only words of this text that arguably allow disclosure of CSLI are " origin, " " direction, " and " termination."
The meaning of these terms is far from " plain and unambiguous." Conn. Gen. Stat. § 1-2z. While the terms " origin, " " direction, " and " termination" arguably pertain to the physical location of target cellphones, it is equally possible that they simply pertain to originating and destination numbers. In fact, as will be discussed in a moment, Congress, in enacting these terms, expressly relied on the latter definition. Under these circumstances of ambiguity, extratextual considerations must be considered. Id.
V. EXTRATEXTUAL CONSIDERATIONS
Five extratextual considerations must now be considered: (A) the legislative history of CALEA, (B) the legislative history of Conn. Gen. Stat. § 54-47aa, (C) recent developments in cellphone technology, (D) recent developments in Fourth Amendment law, and (B) the canon of constitutional avoidance.
A. Legislative History of CALEA
As mentioned, the Patriot Act language currently relied upon by the Federal courts as the statutory basis for law enforcement discovery of historical CSLI was not part of the original text of CALEA. CALEA did (and still does) contain a definition of the term " call-identifying information" identical to that found in Conn. Gen. Stat. § 54-47aa(a)(2). 108 Stat. 4279 (1994). But the House Report (there was no Senate Report) accompanying H.R. 4922, the bill ultimately enacted as CALEA, plainly shows that Congress did not intend the statutory terms " origin, " " direction, " and " destination" to describe the physical location of cellphone calls. Instead, the House Report explains, the language in question " requires telecommunications carriers to ensure their systems have the capability to . . . [i]solate expeditiously information identifying the originating and destination numbers of targeted communications, but not the physical location of targets ." H.R. Rep. No. 103-827 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3496. (Emphasis added.)
A more explicit expression of legislative intention could not be made.
B. Legislative History of Conn. Gen. Stat. § 54-47aa
As mentioned, Conn. Gen. Stat. § 54-47aa, which incorporates the definition of " call identifying information" originally set forth in CALEA, was enacted four years after CALEA had been amended by the Patriot Act. P.A. 05-182. The legislature did not, however, incorporate the Patriot Act's broad expansion of CALEA but, instead, adopted CALEA's original definition of " call-identifying information."
The legislative history of P.A. 05-182 suggests that the legislature did not intend to effectuate any new or broad intrusions on the privacy of Connecticut citizens. Senator (now Justice) McDonald, the sponsor of the bill in the Senate, explained that,
[T]his bill is intended to address the situation that used to be one of ordinary procedures in the State of Connecticut. And that is for law enforcement officials to obtain some information relating to subscriber information with telephone accounts.
It used to be that our law enforcement folks would be able to call their local telephone company and, in the investigation of a crime, find out who a telephone number of information about a telephone number was from.
However, with the ever-expanding telecommunications industry . . . our law enforcement folks have found it more difficult to obtain readily . . . telephone subscriber information in the investigation of crimes.48 S.Proc., 2005 Sess., pp. 343 5-36.
Similarly, Representative Lawlor, the sponsor of the bill in the House, explained that,
This bill . . . would allow law enforcement under extraordinary circumstances to obtain very limited information related to the owners of particular accounts . . . just the identity of the owner or information related to the origin or terminus of phone calls or Internet messages, emails, and things of the like.
* * * *
[I]n the good old days, this was done [on] a very informal basis between the local telephone company at the time, Southern New England Telephone, and our local law enforcement agencies.
And a phone call, that was all that was necessary from a police officer to the phone company to get whose phone number belongs, whose phone number is this or what phone numbers are called from a particular phone over the last few hours, that type of thing.48 H.R. Proc., 2005 Sess., pp. 7867-68.
Similarly, Representative Farr noted that, " What we're trying to do is just put the law enforcement back into the position they were a few years ago in terms of getting subscriber information and getting the information about whether a phone is currently being used." Id., at 7875.
This history plainly establishes that, in enacting § 54-47aa, the legislature was simply attempting to restore the status quo ante. It was not attempting to create new powers to enable law enforcement to track the physical whereabouts of citizens beyond the basic information suggested by subscriber phone numbers.
(C) Recent Developments in Cellphone Technology
Moore's Law tells us that the number of transistors in an integrated circuit has doubled approximately every two years. If anything, cellphone technology has developed at an even faster pace. For good or ill, the capacities of modern cellphones far surpass the capacities of cellphones manufactured only a few years ago.
A helpful description of modern cellphone technology, based on extensive evidentiary submissions, is set forth in In Re Application For Telephone Information, No. 15-XR-90304-HRL-1(LHK), (N.D.Cal. July 29, 2015). It is well known that, " [w]henever a cell phone makes or receives a call, sends or receives a text message, or otherwise sends or receives data, the phone connects via radio waves to an antenna on the closest tower, generating CSLI." at *4. Less well known is the fact that,
CSLI may still be generated in the absence of user interaction with the cell phone . . . For example, CSLI may still be generated during an incoming phone call that is not answered . . . Additionally, most modern smartphones have applications that continually run in the background, sending and receiving data without a user having to interact with the cell phone . . .
Indeed, cell phones, when turned on and not in airplane mode, are always scanning their network's cellular environment. In doing so, cell phones periodically identify themselves to the closest cell tower--i.e. the one with the strongest radio signal--as they move throughout their network's coverage area. This process, known as . . ." pinging" . . . is automatic and occurs whenever the phone is on, without the user's input or control . . . A cell phone that is switched on will ping the nearest tower every seven to nine minutes . . .
As the number of cell phones has increased, the number of cell towers--and thus cell sites--has increased accordingly . . . Within just one mile of the Federal Courthouse in New York City, there are 118 towers and 1, 026 antennas . . .
In addition to the large, three-sided cell towers, smaller and smaller base stations are becoming increasingly common. Examples include microcells, picocells, and femtocells, all of which cover a very specific area, such as one floor of a building, the waiting room of an office, or a single home . . . This proliferation of base stations means that knowing the identity of the base station (or sector ID) that handled a call is tantamount to knowing a phone's location to within a relatively small geographic area . . . sometimes identifying individual floors and rooms within buildings . . . Although the ability of cellular service providers to track a cell phone's location within an area covered by a particular cell site might vary, it has become ever more possible for the government to use CSLI to calculate a cell phone user's locations with a precision that approaches that of GPS.(Internal quotation marks and citations omitted.)
These are technological capacities undreamed of by the legislative bodies enacting CALEA and Conn. Gen. Stat. § 54-47aa.
D. Recent Developments in Fourth Amendment Law
Fourth Amendment law is scrambling to catch up with modern developments in electronic technology, but judicial systems and the cellphone industry operate on entirely different schedules. By the time that a case based on the technology of a particular time period makes its way up the judicial ladder to the United States Supreme Court, an entirely different technology may already be in use by the citizenry. For example, the most recent Federal Court of Appeals decision considering the application of the Fourth Amendment to historical CSLI; United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc), cert. denied, 136 S.Ct. 479, 193 L.Ed.2d 349 (U.S. 2015); " limits its decision to the world (and technology) as we knew it in 2010, " id., at 521 (Jordan, J., concurring).
All three Federal Courts of Appeals that have considered the matter have concluded, based on existing Supreme Court precedent, that historical CSLI may be discovered by law enforcement officers without a warrant. United States v. Davis, supra ; In re Application for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); In re Application of United States, 620 F.3d 304 (3rd Cir. 2010). This conclusion by lower courts is understandable given the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), that " a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Id., at 743-44.
Smith, which held that the installation and use of a pen register is not a " search" within the meaning of the Fourth Amendment, is a product of a much earlier technological era. There are recent signs that the Supreme Court may be willing to reconsider Smith's " third-party" doctrine in light of current technology. In her separate opinion in United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), Sotomayor, J. explained that,
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties . . . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.Id., at 957 (Sotomayor, J. concurring).
Although no other Justice joined Sotomayor's concurring opinion, four other Justices (Alito, J., joined by Ginsburg, Breyer & Kagan, JJ.) also expressed deep concern about the viability of current Supreme Court decisional law in the cellphone age. They specifically noted that, " cell phones and other wireless devices now permit wireless carriers to track and record the location of users . . . The availability and use of these and other new devices will continue to shape the average person's expectations about the privacy of his or her daily movements." 132 S.Ct., at 963 (Alito, J. concurring). Thus five Justices--a majority of the court--have, at a minimum, expressed concern concerning the application of Smith's jurisprudence to the cellphone age.
Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), holding that the police may not search cellphones seized incident to arrest, provides additional evidence that the Supreme Court recognizes that the realities of modern cellphone capacity do not form an easy fit with Fourth Amendment jurisprudence based on earlier technology.
[T]here is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower . . .
Although the data stored in a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different . . . Data on a cell phone can . . . reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute, not only around town but also within a particular building.Id., at 2490.
None of this necessarily means that the Supreme Court will ultimately hold that Smith v. Maryland cannot be applied to historical CSLI. Only the Supreme Court has " the prerogative of overruling its own decisions." Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005). (Internal quotation marks and citation omitted.) It does, however, mean that the ultimate question whether Smith applies to modern cellphone technology is a new and different question than that presented in Smith itself. Until the Supreme Court addresses this point, the ultimate answer remains uncertain.
Although Brown additionally claims that his rights under the Connecticut Constitution were violated, he has not provided a separate analysis of his claim under the Connecticut constitution. Under these circumstances, his state constitutional claim will not be reviewed. State v. Stanley, 161 Conn.App. 10, 31 n.23 (2015).
E. The Canon of Constitutional Avoidance
The canon of constitutional avoidance must now be considered. It is well established that a court " must seek to avoid" an interpretation of a statute that " would place it in serious constitutional jeopardy." State v. Jenkins, 288 Conn. 610, 626, 954 A.2d 806 (2008). " [I]n choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." Id. (Internal quotation marks and citation omitted.) This is a canon long followed by both the Supreme Court of Connecticut and the Supreme Court of the United States. See United States ex rel. Attorney General v. Delaware & Hudson Co ., 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836 (1909); Wilson v. Town of West Haven, 142 Conn. 646, 654-55, 116 A.2d 420 (1955).
For reasons set forth above, judicial construction of Conn. Gen. Stat. § 54-47aa to permit law enforcement to access historical CSLI without a warrant would place the statute " in serious constitutional jeopardy." This is a path that the court must " seek to avoid."
The canon of constitutional avoidance " represents judicial policy--a judgment that statutes ought not to tread on questionable constitutional grounds unless they do so clearly." Antonin Scalia & Bryan A. Gamer, Reading Law 249 (2012). (Emphasis in original.) " [T]he canon rests . . . upon a judicial policy of not interpreting ambiguous statutes to flirt with constitutionality, thereby minimizing judicial conflicts with the legislature. That policy has full force whether the cases raising the constitutional doubt antedate or postdate a statute's enactment." Id.
The canon's deep roots in the separation of powers are particularly important in the present case. If Conn. Gen. Stat. § 54-47aa were construed more broadly it would delegate a decision " to officials and to judges which is too important to be made by anyone but the legislature." Alexander M. Bickel, The Least Dangerous Branch 181 (1962). The determination of the proper balance between privacy and security in this case requires both a thorough factual grounding in the current state of digital technology and a sense of the citizenry's current expectations of privacy. While the courts, given their constitutional role, necessarily have the last word concerning these matters, the legislature, with its data-collecting capacity and political sense, should make the initial determination. " Legislators are likely to be more acutely aware of just what they are being asked to do if the language of a bill clearly defines what is aimed at." Id., at 181-82.
It is clear, in this case, that the legislature enacting § 54-47aa never contemplated that the statute would be used to permit the warrantless collection of historical CSLI. In this constitutionally precarious area, no such legislative intent should be implied. If the legislature wishes to grant law enforcement officials express authority to collect historical CSLI without a warrant, it is free to do so. Judicial determination of the constitutionality of such authority can then be made.
VI. SUPPRESSION ISSUES
A. Suppression For Statutory Violations
Since the State has conceded that Conn. Gen. Stat. § 54-47aa " does not authorize the seizure of 'prospective' CSLI"; State's Brief, at 7; and the court has concluded that § 54-47aa does not authorize the seizure of historical CSLI, the question arises whether evidence thus illegally obtained is admissible under Connecticut law. The State conceded in its brief that evidence so obtained is inadmissible; State's Brief, at 7-8; but withdrew that concession at argument. The State contends that even prospective CSLI, which it concedes was obtained in violation of the statute in question, is nevertheless admissible. In doing so, it relies on the doctrine of Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), that the Fourth Amendment does not require the suppression of evidence obtained in violation of state law.
While Moore removes a Fourth Amendment basis for the exclusion of evidence obtained in violation of state law, other considerations remain. The Supreme Court has explained that, " We have applied the exclusionary rule primarily to deter constitutional violations." Sanchez-Llamas v. Oregon, 548 U.S. 331, 348, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006). (Emphasis added.) Although cases suppressing evidence for statutory violations are rare, the Court has, on occasion, excluded evidence arising " directly out of statutory violations that implicated important Fourth and Fifth Amendment interests." Id. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) (suppressing incriminating statements obtained during detention in violation of Federal statutory law); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) (suppressing evidence procured by wiretapping in violation of Communications Act of 1934). Conn. Gen. Stat. § 54-47aa, by carefully balancing issues of security and personal privacy, implicates important Fourth Amendment interests.
The question of Connecticut evidentiary law is ultimately for Connecticut courts to determine. The Connecticut Code of Evidence does not prescribe a specific rule governing the admissibility of evidence obtained under these circumstances. " Where the Code does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of common law as they may be interpreted in the light of reason and experience." Conn. Code of Evidence § 1-2(b).
Experience is the key to the problem presented here, because decades of experience have taught courts in Connecticut and elsewhere the painful lesson that if evidence obtained by the government in violation of the law is deemed admissible by the courts, the government will continue to obtain evidence in violation of the law. It was this consideration--" the deterrent effect of the exclusionary rule" --that long ago moved the Connecticut Supreme Court to adopt the exclusionary rule as a matter of Connecticut law. State v. Dukes, 209 Conn. 98, 111, 547 A.2d 10 (1988). Under Connecticut law, the exclusionary rule applies even where the violation in question results from a law enforcement officer's good faith reliance on a judicial order. State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990).
Marsala was a stronger case for the application of a good faith exception than the present case because Marsala involved a warrant and the present case does not. The State has not argued for the application of a good faith exception in the present case.
Dukes and Marsala involved evidence obtained in violation of state constitutional law. But their logic is not tethered to state constitutional law alone. Marsala explains that the exclusionary rule is designed, inter alia, to ensure " institutional compliance" with Connecticut law. 216 Conn., at 170. In enacting § 54-47aa, the Connecticut legislature has carefully set forth statutory parameters for the collection of evidence that implicates important Fourth Amendment interests. Connecticut courts should act so as to encourage institutional compliance with these legislative requirements.
Sec. 54-47aa is a comprehensive statute, of statewide application, designed to deal with a persistent and repetitive law enforcement issue. Most search and seizure cases involve individual decisions by law enforcement officers unlikely to be repeated, at least on the precise facts presented to the court. In that setting, the effect of a judicial decision to admit or suppress evidence will ordinarily affect only the individual litigants. This case is different. Acceptance of the State's argument that evidence obtained in violation of § 54-47aa is nevertheless admissible will inevitably encourage violations of the statute. The balance between privacy and security crafted by the legislature in an area potentially implicating the privacy of everyone in Connecticut who possesses a cellphone--which is to say almost everyone in Connecticut--will be adversely affected. " A decent respect for the policy of [the legislature] must save us from imputing to it a self-defeating, if not disingenuous purpose." Nardone v. United States, supra, 308 U.S., at 341. Evidence obtained in violation of § 54-47aa is inadmissible in court.
B. Derivative Evidence
The second issue is whether the pretrial statements and trial testimony of Ramon Johnson must also be suppressed as evidence derived from these illegal and unauthorized orders. The judicial goal of ensuring institutional compliance with the requirements of § 54-47aa requires the suppression of derivative evidence resulting from a violation of that statute. " The essence of a provision forbidding the acquisition of evidence in a certain way is not merely that evidence so acquired shall not be used before the court, but that it shall not be used at all." Nardone v. United States, supra, 308 U.S., at 340-41. (Internal quotation marks and citations omitted.) The question presented here is whether the pretrial statements and trial testimony of Ramon Johnson are derivative evidence of this description.
The application of the exclusionary rule to live-witness testimony presents a different problem than the application of the exclusionary rule to an inanimate object, such as a packet of narcotics or a bloody knife, discovered as a result of an illegal search. " [T]he degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced in its application." United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). Ceccolini explains that,
The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition . . . The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.Id., at 276-77. (Footnote omitted.)
The flip side of this analysis is equally important. " Sometimes . . . it will appear that the witness has been pressured and that the pressure is a consequence of the prior . . . violation, in which case a finding of attenuation is unlikely to be justified." 6 Wayne R. LaFave, Search and Seizure 481-82 (5th ed. 2012) (citing authorities).
At this point we come to a glaring evidentiary lacuna in the case. In spite of the fact that it was perfectly obvious from the beginning that Brown wished to suppress the pretrial statements and trial testimony of Ramon Johnson, neither party called Johnson to testify in the suppression hearing. Even more inexplicably, neither party called any law enforcement officer who conducted or witnessed Johnson's interrogation. Under these circumstances, the record is utterly barren concerning the circumstances of that interrogation and Johnson's willingness or unwillingness to give his statements or to testify.
The court does know, because it has been stipulated, that,
As a result of the real time tracking of the defendant through the monitoring of defendant's cell cite location data, the police were able to track the defendant's activities on November 23, 2010, and thereby locate an individual named " Ramon Johnson." Thereafter, through interrogation of Johnson, the police were able to obtain from Johnson a sworn statement implicating Terrance Brown in numerous ATM thefts at locations throughout the State of Connecticut. But for the ability of the police to track Brown's movements by monitoring Brown's cell phone on a real-time basis, Johnson would never have been stopped, detained, arrested or interrogated by the police on November 23, 2010.
Stipulation P9. (Emphasis added.)
The court additionally credits testimonial evidence that, through the use of other investigative techniques, the police would eventually have located Johnson had they been unable to use CSLI. But this fact fails to answer a crucial question. What would Johnson have said once he had been located in this alternative scenario? Would he have immediately spilled the beans and implicated Brown? Or would he have kept his mouth shut or told some completely different story, not implicating Brown. Johnson is a codefendant who, through the use of CSLI, was caught more or less redhanded. He is not a citizen bystander. At least in the absence of evidence describing his interrogation, any conclusion concerning his willingness to testify or what he would have told the police had he been located in legitimate fashion would be pure speculation.
Under these circumstances, the burden of proof comes into play. The Supreme Court has explained that,
[W]hen an illegal search has come to light, [the Government] has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time [the defendant] must go forward with specific evidence demonstrating taint. " [T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof has an independent origin." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Accord State v. Colvin, 241 Conn. 650, 658 n.5, 697 A.2d 1122 (1997).
The parties in this case have submitted ample specific evidence demonstrating taint. Johnson would not have given his statement implicating Brown under the circumstances in which he gave it in the absence of law enforcement officers' illegal use of CSLI. The State has had ample opportunity to convince the court that its proof (i.e. Johnson's testimony) has an independent origin in Johnson's free will and his willingness to testify freely. Nothing prevented the State from calling Johnson or a witness to Johnson's interrogation. The State simply did not take advantage of this opportunity. Under these circumstances, the court cannot find that Johnson's testimony is untainted.
A similar analysis applies to the State's argument that Johnson would have inevitably been discovered. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). For reasons already discussed, the testimony of a living witness is not an evidentiary item like the murder victim's body at issue in Nix . As mentioned, the court credits evidence that law enforcement officials would eventually have located Johnson through the use of legitimate police techniques. But whether Johnson, thus legitimately located, would have given the same story, is--given the evidentiary vacuum here - entirely a matter of speculation. The evidence in question here is not the person of Johnson but his testimony . While the use of legitimate police techniques could have resulted in evidence implicating Brown, the court can only speculate as to whether the use of legitimate tactics would have yielded such a result. See State v. Topanotes, 2003 UT 30, 76 P.3d 1159, 1164 (Utah 2003). Under these circumstances, the inevitable discovery exception cannot be applied.
VII. CONCLUSION
The Motion To Suppress is granted as to (A) prospective CSLI gathered by the police pursuant to Conn. Gen. Stat. § 54-47aa, (B) historical CSLI gathered pursuant to § 54-47aa, and (C) the pretrial statements and trial testimony of Ramon Johnson.