Opinion
AANCR160091597T
04-20-2017
State of Connecticut v. Thomas Sawyer
UNPUBLISHED OPINION
RULING ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED BY UNCONSTITUTIONAL SEARCH
Peter L. Brown, J.
The court (Brown, J.) rules on the defendant's motion to suppress evidence obtained by an unconstitutional search. For the reasons stated herein, the court denies the motion.
In an audiotaped statement provided to the West Haven Police Department on July 6, 2015, Lawrence Lussier (a brother of the Holy Cross residing at the Saint John Vianney rectory in West Haven), indicated that he observed one of his roommates, Thomas Sawyer, sitting at two desktop computers and viewing images of child pornography. See Warrant Application Affidavit (" Affidavit") at paragraph 3. Lussier described seeing one image of a " naked boy, standing with his genitals exposed . . . the boy appeared to be 8-9 years old with no pubic hair." Lussier then stated he " saw a picture of a naked girl, with very small breasts and her hand covering her genital area." Id.
Lussier explained the setup of the four-bedroom suite rented from Saint John Vianney Church. He stated that when you walk into the rectory of the church, you walk into a common living room and kitchen, with four separate bedrooms. Lussier stated that three of the four bedrooms were being used by the three tenants. The fourth was being used as a guest bedroom, with storage for holiday decorations and the two computers that Sawyer brought to the apartment when he arrived on September 1, 2014. Lussier further stated that, although the two desktop computers are in the guest bedroom, they were used exclusively by Thomas Sawyer. Lussier said that one of the computers was owned by Holy Cross High School in Waterbury, and the other was community property of the Holy Cross brotherhood. Id.
As support for his observation regarding the ages of the persons he observed, Lussier stated he was a former secondary education teacher and was able to distinguish adults from children. He was confident the pictures were definitely that of children. Id. at paragraph 4. In addition, Lussier pointed to his life experience as a 75-year-old male as further support for his conclusion that " those pictures were not of any adults." Id.
Police applied for a warrant to seize and search the defendant's computer and digital media storage equipment on July 7, 2015, on which day the court (Markle, J.) approved and signed the warrant. The following day, police entered the residence at 300 Captain Thomas Boulevard in West Haven. They seized 53 items, including computers, a cell phone, a variety of digital media storage devices and miscellaneous computer equipment. In April 2016, following forensic analysis of the seized items, the police obtained an Arrest warrant for the defendant, charging him with Possession of Child Pornography in the First Degree, Conn. Gen. Stat. 53a-196d.
The premises of 300 Captain Thomas Boulevard, West Haven, Connecticut consists of brick/masonry construction, said premises located within a four-bedroom suite rented from Saint Vianney Church.
The defendant moves to suppress all evidence obtained as a result of the issuance of the search and seizure warrant on the grounds that the information contained within the four corners of the warrant affidavit was insufficient to justify a reasonable belief that the persons depicted in the photos were either (1) under the age of sixteen or (2) engaged in sexually explicit conduct, as required by statutes criminalizing possession of child pornography.
In State v. Vincent, 229 Conn. 164, 172-74, 640 A.2d 94 (1994), the Connecticut Supreme Court held that search warrant affidavits must establish a factual basis to support probable cause to believe that: (1) an item was used during the commission of a crime, was stolen or embezzled, or constitutes evidence of a crime, or a particular person participated in a crime, and (2) the item or person is in a particular location. The Court also held that the items need only be evidence of criminal activity, not that the owner or possessor committed a crime.
In State v. DiMeco, 128 Conn.App. 198, 15 A.3d 1204, cert. denied, 301 Conn. 928, 22 A.3d 1275 (2011), the Appellate Court affirmed the trial court's conclusion that probable cause existed to support the issuance of a search warrant for child pornography. In DiMeco, the sister of the defendant's boyfriend found a notebook in the defendant's bedroom which contained web addresses that, from their names, appeared to her to contain pornography. Id., 200. The sister was also concerned because after the defendant's girlfriend confronted the defendant with the notebook, he threw it in the garbage. The defendant later asserted that his computer was broken. At a later time, the sister found a hard drive " seemingly hidden" in the defendant's bedroom. Id. The sister signed a sworn statement attesting to the truth of these allegations. Id., 205.
The sister provided the notebook to a detective, who was able to access one of the sites " which showed nude images/pictures of females [who] appeared to be preteen. Another site . . . also showed nude images/photos of what appeared to be preteen females." Id., 201. Based upon this information, the police applied for and obtained a search warrant for the defendant's home, allowing them to seize and search property related to computers. Id.
In DiMeco, the defendant filed a motion to suppress, arguing that the affidavit supporting the warrant contained " chiefly hearsay . . . conclusory assertions, and speculation." (Internal quotation marks omitted) Id., 203. He further contended that the evidence of the addresses contained in the notebook and the photographs observed did not support a finding of probable cause because the affiant merely set forth a conclusory statement that the photographs " appeared to be preteen females and the website addresses do not necessarily suggest that the persons depicted would be under the requisite age." (Internal quotation marks omitted.) Id. The court held that " Olivero's statements, as corroborated by the notebook, provided a substantial basis for the judge issuing the warrant to conclude that her statements were reliable." Id. 205-06. Although the detective was able to corroborate the sister's statements by searching the website himself, it was only by the sister's testimony did the detective believe that those websites were somehow linked to the defendant and were used by the defendant at some point to access and " possess" pornography.
The court went on to state that " [t]he magistrate is entitled to draw reasonable inferences from the facts presented. When the magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Whe[n] the circumstances for finding probable cause are detailed, whe[n] a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories." (Internal quotations omitted.) State v. Lasaga, 269 Conn. 454, 469, 848 A.2d 1149 (2004) (Id., 204).
The court rejects the arguments of the defendant. Specifically, he first argues that the affidavit failed to allege sufficient facts from which the court could reasonably have found probable cause to believe the pictures depicted persons under the age of sixteen. The defendant took issue with Lussier's conclusions that he observed images of a naked 8-9-year-old boy and a naked " girl" on the defendant's computer screen. Lussier cited to a lack of visible pubic hair as to the boy and " very small breasts" as to the girl in support of his conclusion as to their ages. He also made reference to his life experiences as a 75-year-old male, as well as his experience as a former secondary education teacher as to the basis for his conclusion. The court (Markle, J.) was entitled to draw reasonable inferences based upon these facts, provided the court determined that said facts presented sufficient objective indicia of reliability to justify a search. In DiMeco, the court found that sufficient objective indicia of reliability existed based upon the sister's observation of the notebook which appeared to her to contain addresses of child pornography websites. The sister had no specialized knowledge or training upon which to make such a conclusion.
Nonetheless, the court held that the sister's statements, corroborated by the notebook, provided a substantial basis for the judge issuing the warrant to conclude that her statement was reliable. Here, Lussier actually observed images on the defendant's computer, rather than simply relating words that appeared to be addresses for child pornographic websites. Thus the judge was entitled to draw the reasonable inference from Lussier's observation that the defendant was in fact in possession of child pornography, sufficient to justify the issuance of a search and seizure warrant.
Defendant also argues that the photos in the affidavit did not present evidence from which the court could reasonably find probable cause that " sexually explicit conduct" was depicted. The court in DiMeco held that the reviewing court should not invalidate the warrant by application of rigid analytical categories. This is precisely the argument being advanced by the defendant. Specifically, he argues that there is no evidence that the pictures depicted a lascivious exhibition of the genitals or pubic area of any person observed by Lussier.
Counsel argued that there was a lack of corroboration that the defendant was actually viewing any child pornography sites when he was observed by Lussier. Several cases were cited by the defendant to support the corroboration argument, including State v. Rodriguez, 223 Conn. 127, 130, 613 A.2d 211 (1992); State v. Shields, 308 Conn. 678, 69 A.3d 293 (2013); U.S. v. Gourde, 440 F.3d 1065 (2006); U.S. v. Martin, 426 F.3d 68 (2005); U.S. v. Froman, 355 F.3d 882 (2004); and U.S. v. Falso, 544 F.3d 110 (2008). As was pointed out by the state in its Second Response to Defendant's Motion to Suppress, unlike these cases, in the present case there were no internet communications that prompted the investigation which would typically leave behind a digital footprint. However, the police did have the personal observation of the defendant's roommate on which they chose to rely to identify the computer, the defendant in operation of said computer, and the images on the screen.
Whether the pictures actually depicted " sexually explicit conduct" was not a relevant area of inquiry for the issuing court. The only relevant issue before the court was whether the affidavit presented sufficient objective indicia of reliability to justify a finding of probable cause that the pictures depicted minors engaged in sexually explicit conduct. The issuing court was permitted to infer from Lussier's statements that he in fact observed pictures of naked children on a computer that was in the defendant's possession, and that it was more probable than not that evidence of a crime (to wit possession of child pornography) could be found pursuant to a search of the defendant's items. This was sufficient justification to authorize the issuance of the warrant. This court concludes that such a finding by the issuing court was appropriate and thus will not disturb its findings.
Accordingly, the Motion to Suppress is hereby denied.
SO ORDERED.