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STATE OF CONNECTICUT v. ONAJE RODNEY SMITH
(SC 20600)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of various crimes, including first degree robbery, first degree
assault, second degree arson, and attempt to commit murder, charged
in five cases that were joined for trial, the defendant appealed to this
court. The defendant, along with G, P, and another individual, all of
whom were fellow gang members, had agreed to rob a food deliveryman.
When the deliveryman, H, arrived at the requested location, two men
wearing dark clothing and ski masks approached him. One of the men
pointed a gun at H’s chest and demanded his wallet. After taking the
wallet and the food, the two returned to a red hatchback and drove
away. Five days after that incident, G’s cell phone was used to place a
delivery order at a restaurant. When the deliveryman, C, arrived at the
requested location, he was approached by two men wearing ski masks
and hoodies, one of whom was armed. The armed assailant shot C’s
phone out of his hand, and, when C requested that the men leave behind
his wallet after they took his money, the armed assailant shot C in the
leg. Both men then entered C’s Toyota Camry and drove away. The red
hatchback in which the men arrived followed the Camry. Later that
night, the police responded to a report of a burning vehicle described
as a burgundy Subaru Forester. A subsequent investigation revealed
security camera footage from a nearby gas station showing both the
Forester and the stolen Camry pulling into the gas station approximately
one-half hour before the police received the report of the burning vehicle.
The footage showed the driver of the Camry purchasing gas and then
pumping it directly into the backseat of the Forester. Five days later,
the defendant was driving with G, P, and another individual in the Camry
when they saw F, a rival gang member. The defendant lowered the
vehicle’s front passenger window and fired a gun toward F, who ran
away uninjured. The defendant later spotted F again, and, while wearing
a ski mask, the defendant followed F into a convenience store and shot
him in the head. The defendant then returned to the Camry, and the
group drove away. Six days later, the police observed the Camry and,
after learning that it had been stolen, conducted a stop of the vehicle.
Both the defendant and G were apprehended while trying to flee the
vehicle. At the time of his arrest, the police seized a cell phone from
the defendant. The defendant filed a pretrial motion to suppress the
evidence obtained pursuant to both a warrant issued for the search of
his cell phone and a warrant issued to his cell phone’s service provider
for his phone records and cell site location information (CSLI). The
trial court denied the motion. On direct appeal from the judgments of
conviction, held:
1. The trial court improperly denied the defendant’s motion to suppress
the evidence obtained from the search of his cell phone because the
applicable search warrant was not supported by probable cause and
did not particularly describe the places to be searched and the things
to be seized: the application for the warrant indicated that the defendant’s cell phone constituted evidence that a particular person participated in aggravated assault, and the facts contained in the affidavit
attached to the application were not sufficient to allow the judge issuing
the warrant reasonably to conclude that there was probable cause to
believe that evidence of the crime of aggravated assault would be found
on the defendant’s cell phone because, although the affidavit described
in detail the robbery of H, the robbery and shooting of C, the theft of
the Camry, the car arson, the shootings involving F, and G’s role in
those events, it did not mention the defendant’s involvement in or connection to those events, and the defendant’s cell phone was likewise
never tied to the crime of aggravated assault; moreover, even if sufficient
probable cause existed, the warrant would fail for lack of particularity
insofar as it did not sufficiently limit the search of the contents of the
cell phone by a description of the areas within the phone to be searched
or by a time frame reasonably related to the crimes.
2. The trial court improperly denied the defendant’s motion to suppress the
evidence obtained from his cell phone’s service provider because the
applicable search warrant was not supported by probable cause: the
warrant indicated that the defendant’s cell phone had been or could
have been used as a means of committing the offense of attempt to
commit murder, and the issuing judge reasonably could not have concluded that there was a substantial chance that evidence of the shooting
of F would be found in the defendant’s cell phone records, as nothing
in the affidavit submitted in connection with the warrant connected the
defendant to the attempt to murder F or demonstrated that his cell
phone was either used during the commission of that crime or otherwise
contained evidence of it; moreover, the state could not prevail on its
claim that, because the affidavit referred to the defendant’s arrest warrant that was issued on facts sufficient to constitute probable cause
that the defendant was involved in the shooting of F, the judge issuing
the search warrant was entitled to rely on the arrest warrant to establish
probable cause, as a determination of probable cause for an arrest
requires different findings than a determination of probable cause for
a search warrant, and the search warrant affidavit did not contain the
factual allegations and evidence that led to the defendant’s arrest, which
would have enabled the issuing judge to determine whether those allegations established probable cause to believe that evidence of the attempt
to murder F existed in the cell phone carrier records at issue; furthermore, this court determined that there was insufficient information to
assess the validity of the defendant’s claim that the search warrant
for the defendant’s cell phone records lacked particularity, because,
although the warrant identified a specific list of items to be searched
and seized, and sought records only for a limited duration that were
reasonably connected with the attempt to murder F, there was a lack
of information in the affidavit relating to the defendant’s role in that
crime or the connection between the defendant’s cell phone and the
crime.
3. Any error in denying the defendant’s motion to suppress the evidence
obtained pursuant to the two search warrants was harmless with respect
to the charges relating to the robbery of H, the shootings involving F,
and the defendant’s attempt to flee from the Camry to avoid arrest, but
was harmful with respect to the charges relating to the robbery and
shooting of C, the larceny of the Camry, and the car arson: the evidence
against the defendant with respect to the robbery of H was principally
derived from P’s testimony, and there was no data from the cell phone
or the defendant’s cell phone service provider relating to that incident;
moreover, the state established a motive for the shootings involving F,
and video surveillance footage corroborated P’s testimony relating to
one of the shootings; furthermore, it was highly unlikely that the CSLI
from the defendant’s phone, which placed him in the area where the
stolen Camry was stopped by the police, affected the jury’s decision
with respect to the charge of interfering with an officer, as the police
apprehended the defendant after he attempted to flee from that vehicle
and his fingerprints were discovered inside the vehicle; nevertheless, the
CSLI was the most concrete and direct evidence placing the defendant
at the scene of the robbery and assault of C, where the Camry was also
stolen, and the omission of the CSLI would have reduced the certainty
that the defendant was involved in the burning of the Forester; accordingly, this court affirmed the defendant’s convictions relating to the
robbery of H, the shooting of F, and his flight from the police but
reversed the defendant’s convictions relating to the robbery and shooting
of C, the theft of the Camry, and the burning of the Forester.
Argued March 22—officially released August 9, 2022
Procedural History
Substitute information, in the first case, charging the
defendant with one count each of the crimes of accessory to robbery in the first degree and conspiracy to
commit robbery in the first degree, substitute information, in the second case, charging the defendant with
one count each of the crimes of accessory to robbery
in the first degree, conspiracy to commit robbery in the
first degree, and accessory to assault in the first degree,
substitute information, in the third case, charging the
defendant with one count each of the crimes of accessory to arson in the second degree and conspiracy to
commit arson in the second degree, substitute information, in the fourth case, charging the defendant with
two counts of the crime of attempt to commit murder
and one count of the crime of conspiracy to commit
murder, and substitute information, in the fifth case,
charging the defendant with one count each of the
crimes of larceny in the third degree and interfering
with an officer, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the cases
were consolidated; thereafter, the court, White, J.,
denied the defendant’s motion to suppress certain evidence; subsequently, the cases were tried to the jury
before Blawie, J.; verdicts and judgments of guilty, from
which the defendant appealed. Affirmed in part;
reversed in part; new trial.
Jennifer B. Smith, assistant public defender, with
whom, on the brief, was Mark Rademacher, senior
assistant public defender, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom were Thadius L. Bochain, deputy assistant
state’s attorney, and, on the brief, Paul J. Ferencek,
state’s attorney, and Michelle Manning, senior assistant
state’s attorney, for the appellee (state).
Robert C. Santoro filed a brief for Grayshift, LLC, as
amicus curiae.
Marisol Orihuela and Jim Davy, pro hac vice, filed
a brief for Upturn, Inc., as amicus curiae.
Opinion
KAHN, J. The defendant, Onaje Rodney Smith,
appeals directly to this court from the judgments of the
trial court convicting him of various crimes arising from
five consolidated cases, the most serious of which
included first degree robbery, second degree arson, and
attempt to commit murder.1 On appeal, the defendant
claims that the trial court improperly denied his motion
to suppress evidence discovered during a search of his
cell phone and evidence obtained from T-Mobile, his
cell phone service provider, because the warrants
authorizing those searches were not supported by probable cause and lacked sufficient particularity to comport with the fourth amendment to the United States
constitution.2 The state disagrees with each of these
claims and asserts, in the alternative, that any error
was harmless. For the reasons that follow, we agree
with the defendant that the trial court erred in denying
his motion to suppress the information obtained from
the execution of both warrants. We further conclude,
however, that this error was harmless with respect to
some, but not all, of the crimes alleged. As a result, we
affirm in part and reverse in part.
The following facts, which the jury reasonably could
have found from the evidence admitted at trial, and
procedural history are relevant to our review of the
defendant’s claims. On January 9, 2017, Tyreik Gantt,
Jeremy Middleton, Jaiden Parker, and the defendant,
all members of the Milla Death Row gang,3 went for a
drive in Norwalk inside of a stolen red hatchback. During that drive, the group agreed to rob a food deliveryman. At approximately 6:34 p.m., an internet search
for ‘‘China Moon Norwalk, CT’’ was conducted on an
iPhone owned by Gantt. Parker then used Gantt’s payas-you-go Tracfone to place an order for food from
China Moon Restaurant.
Wuquiang Huang, the deliveryman for China Moon
Restaurant, testified that he arrived at 4 Rolling Lane
in Norwalk at approximately 7 p.m. to deliver the food.
When Huang exited his vehicle to make the delivery,
he was approached by two men wearing dark clothing
and ski masks. One of the men brandished a black
handgun, held it ‘‘[a]bout an inch’’ from Huang’s chest,
and demanded Huang’s wallet. The armed man then
took Huang’s wallet, which contained a souvenir Chinese bill, while the other masked man took the food
that Huang had brought with him. The two men then
entered the car they had arrived in, which Huang
described as a red vehicle with four doors and ‘‘no
trunk in the back.’’4 A third man, who had been in the
driver’s seat of the vehicle, then drove away.
On January 14, 2017, at approximately 6:09 p.m.,
Gantt’s iPhone was used to search ‘‘China Town Express
Norwalk, CT’’ and two phone calls to that restaurant
then were made on his Tracfone. Fen Yen Chen, the
deliveryman for China Town Express, drove a 2011
black Toyota Camry with New York license plates to
make that delivery at 19 Derby Road in Norwalk. When
Chen was unable to locate the address, he called the
number listed on the receipt for the order, which was
associated with Gantt’s Tracfone, and was told by the
man who answered that the address was ‘‘a house right
across from the red car.’’
Chen parked the Camry near the red car and left it
with the engine running. Chen then saw two men wearing ski masks, hoodies, and gloves get out of the passenger side of the red car and approach him. Chen
pretended to call 911 when one of those men brandished
a gun, but the armed assailant subsequently shot the
phone out of his hand. Chen then asked the men to
take his money but to leave his wallet. In response, the
unarmed assailant told his companion to shoot Chen.
The armed assailant then shot Chen in the thigh. Chen
fell to the ground and handed the men money from his
pocket. Both men then got into Chen’s Camry and drove
away. The red car in which they had come followed.
During the ensuing investigation into the crimes against
Chen, the police found two .25 caliber shell casings.
Forensic testing later determined that those two shell
casings were fired from the same gun.
Around 8:15 p.m. that same evening, police officers
responded to reports of a burning vehicle on Oakwood
Place, a street in Stamford. One of the responding officers described that vehicle as a burgundy Subaru Forester. In the investigation that followed, police officers
determined that someone had intentionally lit a fire in
the rear passenger seat of that vehicle using gasoline
as an accelerant.
Police officers subsequently viewed security camera
footage from a Shell gas station located at 243 West
Avenue in Stamford from the day of the Chen robbery
and vehicle fire. That footage showed the red Subaru
Forester pulling into the gas station with the stolen
black Camry at approximately 7:44 p.m. on January 14.
That same footage showed the driver of the Camry
entering the store to purchase gas while a passenger
remained in the back seat. After purchasing the gas,
the driver of the Camry exited the store and proceeded
to pump gas directly into the backseat of the Forester
while the Forester’s driver stood watch. At trial, Parker
identified Gantt as the driver of the Camry who purchased and pumped the gas.
Parker testified that, on January 19, 2017, Gantt and
the defendant drove the stolen Camry to pick up Parker
and another friend, Shahym Ranero, from their respective residences in Stamford. While driving around Stamford, the group was looking for Gregory Flemming, a
rival gang member5 they ‘‘had a beef with.’’ According
to Parker, their intention was to ‘‘[l]ikely shoot at [Flem-
ming]’’ or otherwise ‘‘deal with [him].’’ Parker stated
that the group eventually spotted Flemming, who had
dreadlocks and was wearing florescent striped pants,
while they were driving down High Street in the Camry.
The defendant then allegedly lowered the window of
the front passenger seat and fired a .25 caliber handgun
toward Flemming. Flemming, uninjured, then took off
running toward West Main Street.6
Following the shooting, the group drove to a plaza
on West Main Street where Gantt, Parker, and Ranero
smoked marijuana. About ten minutes later, the group
drove to a convenience store on West Main Street. As
they proceeded to the store, the defendant again spotted
Flemming and allegedly said, ‘‘I’m going to clean [Flemming] up . . . .’’
Parker testified that the defendant proceeded to enter
the store wearing a face mask and carrying the same
.25 caliber gun he had used on High Street. Parker
testified that he saw the defendant ‘‘put the gun to
[Flemming’s] head . . . and [pull] the trigger.’’ Although
Parker himself witnessed only one shot, he testified
that, after the defendant returned to the vehicle, he
admitted to ‘‘let[ting] off a couple more.’’ The group
then drove away in the black Camry.
The police received a call at approximately 7:04 p.m.
reporting that a black male with dreadlocks had been
shot in the head at a store located at 417 West Main
Street in Stamford. Responding emergency personnel
observed that Flemming had been shot twice—once in
the head and once in the leg. A subsequent review
of the store’s surveillance footage showed Flemming
walking into the store, followed moments later by a
gunman who had emerged from a dark colored four
door sedan. The gunman can be seen shooting Flemming in the head and then leaving in the same sedan.
The store’s surveillance footage showed that the
shooter was wearing a black jacket, black shoes, black
gloves, dark colored pants, and a mask. Video surveillance footage from an apartment building on Bedford
Street approximately one hour before the shooting
showed the defendant wearing clothing matching that
of the shooter captured on the store’s video. Bullet
casings from a .25 caliber gun subsequently recovered
by the police inside of the store were later matched to
the same gun that had been used to shoot Chen.
On January 25, 2017, Keith Hanson, a Bridgeport
police officer, observed a four door black Toyota Camry
with New York license plates parked in the Beechwood
Avenue area of Bridgeport. Hanson asked dispatch
about the Camry and learned that it was stolen and had
been ‘‘used in a carjacking and robbery’’ in Norwalk.
After Hanson radioed for backup, an officer in a marked
police vehicle conducted a stop of the Camry. Gantt,
the operator of the Camry, tried to drive away but failed
after colliding with a pole. Gantt tried to escape on foot
but was apprehended. The defendant, a passenger in
the Camry, also attempted to flee on foot but was apprehended. As part of a search incident to the arrest, police
officers seized two cell phones from the defendant’s
person, as well as a ‘‘dark gray knit hat/face mask.’’
While searching the Camry later, investigators located
the defendant’s fingerprints on the right passenger door
of the Camry and on a cigar wrapper found inside the
car. The investigators also found a phone owned by
Gantt, which had a souvenir Chinese bill between the
phone and its protective cover. At trial, Huang identified
that bill as the one stolen from him on January 9, 2017.
The defendant was charged in five different files. In
the first case, the defendant was charged with robbery
in the first degree in violation of General Statutes
§§ 53a-8 (a) and 53a-134 (a) (4) and conspiracy to commit robbery in the first degree in violation of General
Statutes §§ 53a-48 (a) and 53a-134 (a) (4) for the robbery
of Huang on January 9, 2017, in Norwalk. In the second
case, the defendant was charged with robbery in the
first degree in violation of §§ 53a-8 (a) and 53a-134 (a)
(1), conspiracy to commit robbery in the first degree
in violation of §§ 53a-48 (a) and 53a-134 (a) (1), and
assault in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-59 (a) (1) for the crimes against
Chen on January 14, 2017, in Norwalk. In the third case,
the defendant was charged with arson in the second
degree in violation of General Statutes §§ 53a-8 (a) and
53a-112 (a) (1) (B) and conspiracy to commit arson in
the second degree in violation of §§ 53a-48 (a) and 53a-
112 (a) (1) (B) for the burning of the Forester on January
14, 2017, in Stamford. In the fourth case, the defendant
was charged with two counts of attempt to commit
murder in violation of General Statutes §§ 53a-49 (a)
(2) and 53a-54a, and one count of conspiracy to commit
murder in violation of §§ 53a-48 (a) and 53a-54a for the
drive-by shooting and the shooting of Flemming on
January 19, 2017, in Stamford. Finally, in the fifth case,
the defendant was charged with larceny in the third
degree in violation of General Statutes §§ 53a-8 (a) and
53a-124 (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a) for being found
in the stolen Camry and attempting to evade police
capture in Bridgeport on January 25, 2017. The defendant elected to have his cases tried before a jury, and
the court, Blawie, J., granted the state’s motion to join
all five of the defendant’s files for trial.
On December 19, 2018, the defendant filed a pretrial
motion to suppress evidence obtained in connection
with two search warrants—one issued on February 16,
2017, for a search of a cell phone seized from the defendant when he was arrested, and another issued on September 19, 2018, for phone records and cell site location
information (CSLI) obtained from that cell phone’s service provider, T-Mobile. The court, White, J., heard argu-
ment on the defendant’s motion to suppress and denied
it in an oral decision.
The jury ultimately returned a verdict finding the
defendant guilty on all counts. He was sentenced to a
total effective term of imprisonment of thirty-five years,
with ten years of special parole.7 This direct appeal
followed. Additional facts and procedural history will
be set forth as necessary.
In the present appeal, the defendant claims that the
trial court improperly denied his motion to suppress
evidence obtained pursuant to (1) the February 16, 2017
search warrant for data on his cell phone, and (2) the
September 19, 2018 search warrant for his T-Mobile
phone records. Specifically, the defendant claims that
both warrants were not supported by probable cause
and lacked sufficient particularity. The state disagrees
and, in the alternative, argues that any error with
respect to the denial of the defendant’s motion to suppress was harmless beyond a reasonable doubt. We
address the defendant’s claims with respect to the validity of these two warrants, respectively, in parts I and
II of this opinion. We then address the state’s claim of
harmless error in part III of this opinion.
I
We begin with the defendant’s first claim that the
trial court improperly denied his motion to suppress
evidence obtained from the search of his Samsung cell
phone because the search warrant was not supported
by probable cause and did not particularly describe the
place to be searched and the things to be seized. For
the following reasons, we agree with the defendant on
both points.
The following additional undisputed facts and procedural history are relevant to our consideration of this
claim. On February 16, 2017, Stamford police officers
applied for a search warrant for a white Samsung phone
and a black Alcatel flip phone found on the defendant
when he was arrested.8 Specifically, the officers requested
permission to ‘‘do a data extraction’’ on the phones and
described them by their make, color, and serial number.
The application further indicated that the cell phones
‘‘constitute[d] evidence . . . that a particular person
participated in’’ aggravated assault in violation of
§ 53a-59.
The affidavit attached to the application made the
following factual assertions. During their investigation
into the January 14, 2017 arson of the red Subaru Forester, Stamford police officers learned that the Forester
had been stolen during a carjacking in Bridgeport on
January 8. The Stamford officers then learned from
Norwalk police officers that multiple suspects had used
a red Subaru Forester to facilitate an armed robbery
of a food deliveryman in Norwalk, who was shot twice
and who had his Toyota Camry with New York license
plates stolen by the suspects on January 14. Investigators located two .25 caliber shell casings at the scene
of the Norwalk robbery.
The affidavit then discussed how further investigation revealed that, on January 14, 2017, the stolen Camry
and Forester were seen on surveillance cameras pulling
into a gas station in Stamford together at approximately
7:44 p.m. That footage showed Gantt, who was
operating the Camry, exiting that vehicle and pumping
gas directly into the backseat of the Forester, while the
driver of the Forester stood next to him. Both vehicles
left the gas station together and, then, at approximately
7:50 p.m., the Forester was discovered burning nearby.
The affidavit then described the January 19, 2017
drive-by shooting and the subsequent shooting of Flemming. Specifically, the affidavit stated that a ‘‘dark colored vehicle . . . with possible New York plates’’ was
used in both shootings. Investigators located multiple
.25 caliber shell casings at the scenes of both shootings,
all of which were fired from the same gun, which was
also the same gun used in the shooting of the food
deliveryman on January 14. A reliable, confidential
informant then implicated Gantt in the shooting of
Flemming.
The defendant in the present case is first mentioned
in paragraph seventeen of nineteen paragraphs of the
warrant affidavit. It avers that, on January 25, 2017,
Bridgeport police officers stopped the stolen Camry
and arrested Gantt, the defendant, who was a front
passenger in the vehicle, and a third individual, all of
whom were subsequently charged with larceny in the
second degree and interfering with a police officer. The
only other paragraph that mentions the defendant is
the final paragraph, which reiterates that, on ‘‘January
25, 2017, Bridgeport police stopped a stolen motor vehicle and arrested the occupants, one of [whom] was [the
defendant]. . . . [The defendant] was in possession of
two cell phones that were taken as evidence. Stamford
police were aware of a ‘Facebook’ Live video that
showed . . . Gantt and [the defendant] talking with
each other. Bridgeport police turned over the two cell
phones to Stamford police to assist in [their] investigation. [The] Stamford Police Forensic Unit would like
to do a data extraction on both cell phones.’’ Other
than the reference to Stamford police officers being
aware that the defendant and Gantt had appeared
together on a Facebook Live video,9 the affidavit does
not describe the date, time, location, device used to
record, content of that particular posting, or its relationship to the underlying offense under investigation.
A
We begin by setting forth the applicable standard of
review of a trial court’s decision on a motion to suppress. ‘‘A finding of fact will not be disturbed unless it
is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]hen a question of
fact is essential to the outcome of a particular legal
determination that implicates a defendant’s constitutional rights, [however] and the credibility of witnesses
is not the primary issue, our customary deference to the
trial court’s factual findings is tempered by a scrupulous
examination of the record to ascertain that the trial
court’s factual findings are supported by substantial
evidence. . . . [When] the legal conclusions of the
court are challenged, [our review is plenary, and] we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision . . . .’’ (Internal
quotation marks omitted.) State v. Brown, 331 Conn.
258, 271–72,
202 A.3d 1003 (2019). Additionally, ‘‘[w]hether
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 subject to plenary review
on appeal.’’ (Internal quotation marks omitted.) State
v. Buddhu,
264 Conn. 449, 459,
825 A.2d 48 (2003), cert.
denied,
541 U.S. 1030,
124 S. Ct. 2106,
158 L. Ed. 2d
712 (2004).
Furthermore, the governing law guiding our probable
cause analysis is well established. ‘‘Both the fourth
amendment to the United States constitution and article
first, § 7, of the Connecticut constitution prohibit the
issuance of a search warrant in the absence of probable
cause. . . . Probable cause to search is established if
there is probable cause to believe that (1) . . . the
particular items sought to be seized are connected with
criminal activity or will assist in a particular . . . conviction . . . and (2) . . . the items sought to be seized
will be found in the place to be searched. . . . There
is no uniform formula to determine probable cause—
it is not readily, or even usefully, reduced to a neat set
of legal rules—rather, it turns on the assessment of
probabilities in particular factual contexts . . . . Probable cause requires less than proof by a preponderance
of the evidence . . . . There need be only a probability
or substantial chance of criminal activity, not an actual
showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a
showing of probable cause . . . . [T]he relevant
inquiry is not whether particular conduct is innocent
or guilty, but the degree of suspicion that attaches to
particular types of noncriminal acts. . . . The task of
the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will
be found in a particular place.’’ (Citations omitted; internal quotation marks omitted.) State v. Sawyer,
335
Conn. 29, 37–38,
225 A.3d 668 (2020).
‘‘In our review of whether there was probable cause
to support the warrant, we may consider only the information that was actually before the issuing judge . . .
and the reasonable inferences to be drawn therefrom.
. . . The judge is entitled to rely on his own common
sense and the dictates of common experience, although
the standard for determining probable cause is an objective one. . . . We review the issuance of a warrant with
deference to the reasonable inferences that the issuing
judge could have and did draw . . . and . . . uphold
the validity of [the] warrant . . . [if] the affidavit at
issue presented a substantial factual basis for the
[judge’s] conclusion that probable cause existed.’’ (Citations omitted; internal quotation marks omitted.)
Id., 38.
The question before us is whether, based on the totality of the circumstances described in the affidavit and
the reasonable inferences drawn therefrom, the issuing
judge reasonably could have concluded that there was
probable cause to believe that evidence of aggravated
assault would be found in the defendant’s cell phone.
We do not believe that the affidavit reasonably supports
such a conclusion.
The trial court determined that there was adequate
probable cause because the defendant was arrested
along with Gantt when officers apprehended them in
the stolen Camry that was taken during the Norwalk
robbery of Chen and that was used during the arson of
the Forester and the shootings of Flemming in Stamford, both on High Street and in the West Main Street
store. The trial court also based its conclusion on the
fact that the same gun had been used during all of these
incidents. Finally, the trial court referenced the Stamford
Police Department’s knowledge that the defendant and
Gantt had engaged in a discussion with one another on
Facebook Live.
We conclude that the trial court incorrectly determined that the warrant affidavit contained sufficient
facts on which to base a finding of probable cause to
search the defendant’s cell phone. The facts contained
in the warrant affidavit were not sufficient to allow the
judge issuing the warrant reasonably to conclude that
probable cause existed to believe that evidence of the
crime of aggravated assault, which occurred during a
robbery on January 14, 2017, would be found on the
defendant’s cell phone seized on January 25.
First, we note that the facts relating to the defendant
in the affidavit are sparse. The averments contained
therein show only that the defendant happened to be
inside of a stolen vehicle with Gantt, in a different city,
several days after the crimes against both Chen and
Flemming. Although the warrant affidavit describes in
detail the robbery of Huang, the robbery and shooting
of Chen, the theft of the Camry, the arson of the Forester, the shootings of Flemming, and Gantt’s role in
those crimes, it did not mention the defendant’s involvement in or connection to those offenses. The only men-
tion of the defendant in the affidavit was in two
paragraphs at the end, which stated that he was arrested
as the front passenger in the vehicle stolen during the
Chen robbery and shooting, and that he was charged
with larceny and interfering with an officer. The last
paragraph notes that the defendant was in possession
of two cell phones, which were taken into evidence,
and that he had been seen on a posted Facebook Live
video having a conversation with Gantt at some
unknown time and location prior to his arrest in Bridgeport. There was no information in the warrant about
the content of that Facebook Live video and its connection or relationship to any of the events leading up to
the defendant’s arrest.10 Unlike the information contained in the warrant describing the video of Gantt
pumping gas into the Forester and a reliable confidential informant’s identification of Gantt from that video,
there is no mention or description of the defendant or
his connection to those offenses. These facts, in and
of themselves, fail to establish a nexus between the
defendant and the alleged crime of aggravated assault.
See Warden v. Hayden,
387 U.S. 294, 307,
87 S. Ct. 1642,
18 L. Ed. 2d 782 (1967) (there must be a ‘‘nexus . . .
between the item to be seized and criminal behavior’’).
Moreover, the defendant’s Samsung cell phone was
likewise never tied to the crime of aggravated assault.
There must be more than just probable cause that a
crime has been committed; there must also be, within
the four corners of the affidavit, facts adequate for a
judicial officer to form a reasonable belief that evidence
of that crime will be found in a particular place. See,
e.g., State v. Colon, 230 Conn. 24, 34,
644 A.2d 877 (1994)
(‘‘the information to establish probable cause must be
found within the affidavit’s four corners’’). Other than
his presence in the stolen Camry eleven days after the
crime, nothing in the warrant affidavit suggested that
the defendant was present during the robbery and
shooting of Chen, that he used the cell phone during
the planning or commission of the aggravated assault,
or that he possessed the cell phone at the time of the
offense. The warrant application asserts that the Samsung cell phone ‘‘constitute[d] evidence’’ of aggravated
assault, but the affidavit attached to it gives no description of how that cell phone was itself evidence of the
crime, connected to the crime, or otherwise contained
evidence of the crime.11 For the foregoing reasons, we
conclude that the warrant to search the defendant’s cell
phone was not supported by probable cause.
B
Even if we were to determine that sufficient probable
cause existed to search the defendant’s cell phone, we
would also agree with the defendant that the cell phone
warrant would fail for lack of particularity of the places
to be searched and the things to be seized.
The standard of review for whether a warrant satis-
fies the particularity requirement of the fourth amendment to the United States constitution is well
established. ‘‘Whether a warrant is sufficiently particular to pass constitutional scrutiny presents a question
of law that we decide de novo.’’ (Internal quotation
marks omitted.) State v. Buddhu, supra,264 Conn. 467.
A search warrant satisfies the fourth amendment’s particularity requirement ‘‘if it identifies the place or thing
for which there is probable cause to search with sufficient definiteness to preclude indiscriminate searches.’’
Id., 458–59. Further, ‘‘[t]he particularity requirement has
three components. First, a warrant must identify the
specific offense for which the police have established
probable cause. . . . Second, a warrant must describe
the place to be searched. . . . Third, the warrant must
specify the items to be seized by their relation to the
designated crimes.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) United States
v. Galpin,
720 F.3d 436, 445–46 (2d Cir. 2013).
In the present case, the trial court found that the
cell phone warrant was particular because it was ‘‘as
specific as it could be’’ when it asked for a full data
extraction and identified the cell phone to be searched
as a ‘‘Samsung color white’’ with the associated serial
number. We disagree that this was enough to satisfy
the fourth amendment’s particularity requirement.
The United States Supreme Court has stated that
‘‘[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an
arrestee’s person.’’ Riley v. California,
573 U.S. 373,
393,
134 S. Ct. 2473,
189 L. Ed. 2d 430 (2014). Indeed,
the court in Riley noted that ‘‘nearly [three quarters]
of smart phone users report being within five feet of
their phones most of the time, with 12 [percent] admitting that they even use their phones in the shower. . . .
[I]t is no exaggeration to say that many of the more
than 90 [percent] of American adults who own a cell
phone keep on their person a digital record of nearly
every aspect of their lives—from the mundane to the
intimate.’’ (Citations omitted.) Id., 395. The court in
Riley further described how the quantitative and qualitative differences in electronic devices include the
‘‘immense storage capacity’’ of cell phones; id., 393;
their ‘‘ability to store many different types of information’’; id., 394; their functioning as ‘‘a digital record of
nearly every aspect of their [owners’] lives’’; id., 395;
and their ability to ‘‘access data located elsewhere
. . . .’’ Id., 397. Industry studies conducted by the Cellular Telecommunications Industry Association (CTIA)
indicate that reliance on wireless technology, including
mobile devices, increases yearly.12 Given the privacy
interests at stake in a search of a cell phone, as acknowledged in Riley and confirmed by the CTIA annual survey, the fourth amendment’s particularity requirement
must be respected in connection with the breadth of
a permissible search of the contents of a cell phone.
Accordingly, we conclude that a warrant for the search
of the contents of a cell phone must be sufficiently
limited in scope to allow a search of only that content
that is related to the probable cause that justifies the
search.
In this case, the cell phone warrant was defective
for failing to meet the particularity requirement of the
fourth amendment. The warrant not only failed to connect the defendant to the crime of aggravated assault
and to establish the probable cause to believe that his
cell phone would contain evidence of that crime, it also
failed to provide the type of information sought by its
authorization. The warrant authorized a search of a
‘‘data extraction,’’ which allowed for a search of the
entire contents of the cell phone. The warrant failed to
list types of data this particular device or cell phones
in general contain, and the types of data on the phone
the affiants sought to search and seize, such as cell
phone call logs, text messages, voice messages, photographs, videos, communications via social media, or
other evidence of the crime of aggravated assault.13
Further, it included no time parameters to cabin the
scope of the search but, rather, allowed for the entire
contents of the phone to be searched for all time. See,
e.g., United States v. Wey,
256 F. Supp. 3d 355, 387–88
(S.D.N.Y. 2017) (warrants failed, in part, because they
did not contain ‘‘any relevant [time frame] or dates of
interest’’). Thus, we conclude that the search warrant
did not comply with the particularity requirement
because it did not sufficiently limit the search of the
contents of the cell phone by description of the areas
within the cell phone to be searched, or by a time frame
reasonably related to the crimes. Therefore, the trial
court improperly denied the defendant’s motion to suppress the evidence obtained with respect to the cell
phone search warrant.
II
We turn now to the defendant’s second claim that
the trial court improperly denied his motion to suppress
evidence obtained pursuant to a search warrant of his
T-Mobile phone records because the warrant was not
supported by probable cause and did not particularly
describe the places to be searched and the things to
be seized. As with the first warrant, we agree with
the defendant that this second warrant also was not
supported by probable cause, but we lack sufficient
information to determine whether the second warrant
was sufficiently particular.
The following additional undisputed facts and procedural history are relevant to our consideration of this
claim. On September 19, 2018, the court issued a search
warrant for various records from T-Mobile, the mobile
service provider associated with the defendant’s Samsung phone. This warrant was served on and records
were obtained from T-Mobile.
Pursuant to this warrant, Stamford police officers
requested to search and seize phone records associated
with the defendant’s ‘‘white Samsung cell phone’’
between January 7, 2017, at 11:59 p.m., and January
25, 2017, at 11:59 p.m. The warrant identified various
categories of information sought, including ‘‘subscriber
information, [cell phone] information, including call
records of incoming and outgoing calls, SMS text messages, [e-mail] information and messages, social media
messages, video recordings, digital images, voice mail
recordings, GPS data, [g]eo-locator, and any other data/
information stored on the [device], internal memory or
removable storage media, and/or any data the [device]
has access to through a cellular [n]etwork/[Wi-fi]/Bluetooth connection.’’ The warrant further provided that
the phone ‘‘is possessed, controlled, designed or
intended for use or which is or has been or may be
used as the means of committing the criminal offense of:
[c]riminal [a]ttempt [at] [m]urder [§§] 53a-49/53a-54a.’’
The affidavit accompanying the warrant made the
following factual assertions. During their investigation
of the arson of the Forester, Stamford police officers
learned that it had been stolen during a robbery in
Bridgeport six days earlier. The affidavit then described
how Stamford police officers were dispatched to a
shooting at a convenience store on West Main Street
where they found Flemming with a gunshot wound to
his head. The affidavit further alleged that, ‘‘during the
investigation of [those] crimes, [Gantt] and [the defendant] were developed as potential suspects’’ and were
arrested in Bridgeport on January 25, 2017, ‘‘for unrelated crimes,’’ larceny and interfering with a police officer by resisting arrest, resulting in the seizure of the
defendant’s cell phone. Next, the affidavit stated that,
on February 17, 2017, ‘‘after an extensive investigation
[that] included multiple search warrants and interviews,
arrest warrants were applied for and eventually granted
for both [Gantt and the defendant] for the shooting of
[Flemming] on January 14, 2017.’’ The affidavit then
provided that ‘‘the data requested may be of evidentiary
value as it may assist with identifying the person/persons who shot [Flemming], the location of [the defendant] at the time of the shooting, and other crimes.’’
In denying the defendant’s motion to suppress the
evidence obtained from T-Mobile, the trial court concluded that the warrant affidavit set forth probable
cause based on the defendant’s and Gantt’s being
arrested together on January 25, 2017, the defendant’s
possession of two cell phones at that time, and the fact
that the Camry and Forester were ‘‘connected with the
Norwalk robbery and the Stamford shooting and robbery . . . .’’ With respect to particularity, the court
noted that it was ‘‘specific as to the phone, phone number, dates . . . and the contents to be searched.’’
A
The applicable standard of review and governing law
related to a probable cause analysis are the same as
we iterated in part I A of this opinion. Therefore, we
must determine whether, on the basis of the totality of
the circumstances described in the affidavit and the
reasonable inferences drawn therefrom, the issuing
judge reasonably could have concluded that there was
a substantial chance that evidence of the shooting of
Flemming would be found in the defendant’s phone
records. We hold that the affidavit does not reasonably
support such a conclusion.
We note that the warrant ‘‘must establish probable
cause to believe’’ not only that an item of evidence ‘‘is
likely to be found at the place to be searched’’; Groh
v. Ramirez, 540 U.S. 551, 568,
124 S. Ct. 1284,
157 L.
Ed. 2d 1068 (2004) (Kennedy, J., dissenting); but also
that there is ‘‘a nexus . . . between the item to be
seized and [the] criminal behavior.’’ Warden v.
Hayden,
supra,387 U.S. 307. As with the first warrant, nothing
within the four corners of this affidavit connects the
defendant to the crime mentioned, attempted murder,
or shows that his cell phone was either used during
the commission of that crime or otherwise contained
evidence of it. The affidavit fails to tie the defendant
to the crime or even mention that multiple suspects
were involved in the commission of the crime.
The trial court found probable cause on the basis
of the defendant’s arrest with Gantt, the defendant’s
possession of two cell phones during his arrest, and
the fact that the ‘‘Toyota and the Subaru were connected
with the Norwalk robbery and the Stamford shooting
and robbery . . . .’’ However, this particular affidavit,
unlike the affidavit filed in support of the first warrant,
did not contain any information about the robberies of
Huang or Chen. The eight paragraphs of the warrant
on a single page referenced a vehicle fire and a carjacking but not the details contained in the first warrant.
It also did not mention the fact that the defendant and
Gantt were arrested together in possession of the stolen
Camry. With regard to the offense for which the warrant
was sought, the attempted murder of Flemming, the
warrant contained a single paragraph indicating that
the police had reported to a shooting in Stamford and
the identity of the victim. Other than a conclusory statement that Gantt and the defendant were developed as
suspects for the ‘‘said crimes’’ and that a judge had
signed arrest warrants for both men in connection with
the shooting of Flemming, there was no factual description of the defendant’s role in or connection to the
offenses that formed the basis for the arrest warrants.
Although the affidavit contained information that the
defendant was in possession of a Samsung cell phone
with a T-Mobile phone number at the time of his arrest
on January 25, 2017, it did not mention how that device
was connected to, or otherwise contained evidence of,
the offense of attempt to commit murder.
The state argues that, because the warrant affidavit
refers to the signed arrest warrant of the defendant that
was issued on facts sufficient to constitute probable
cause that the defendant was involved in the shooting
of Flemming, the judge issuing the search warrant was
entitled to rely on the arrest warrant to establish probable cause. We disagree.
A determination of probable cause for an arrest
requires different findings than a determination of probable cause for a search warrant. An arrest warrant
requires a finding of probable cause that an offense
was committed and that the defendant committed the
offense. A search warrant requires a finding of probable
cause that the particular items sought to be seized are
connected to criminal activity or will assist in a particular conviction and that the items sought to be seized
will be found in the place to be searched. ‘‘In the case of
arrest, the conclusion concerns the guilt of the arrestee,
whereas in the case of search warrants, the conclusions
go [to] the connection of the items sought with crime
and to their present location. This distinction is a critical
one, and is particularly significant in search warrant
cases, for it means that the probable cause determination in that context is a much more complex matter;
the need to determine the probable present location
of certain items, for example, gives rise to a question
concerning the timeliness of the information which is
not ordinarily a matter of concern in arrest cases.’’
(Internal quotation marks omitted.) State v. DeChamplain,
179 Conn. 522, 529–30,
427 A.2d 1338 (1980); see
also State v. Heinz,
193 Conn. 612, 624,
480 A.2d 452
(1984) (‘‘[B]ecause arrests are inherently less apt to be
intrusive than are searches, there is a difference in the
constitutional standards by which probable cause to
arrest and probable cause to search are measured. The
probable cause determination in the context of arrest
warrants requires inquiries that are less complex constitutionally than are those that pertain to search warrants.’’) As we noted previously, ‘‘the information to
establish probable cause must be found within the affidavit’s four corners.’’ State v.
Colon, supra,230 Conn. 34.
The facts related to the defendant’s arrest for attempted
murder were not included in the search warrant affidavit; nor were the contents of the arrest warrant itself.
As such, the search warrant did not contain the factual
allegations and evidence that led to the defendant’s
arrest, which would have enabled the reviewing judge
to determine whether those factual allegations would
establish probable cause to believe that evidence of
an attempted murder existed in the T-Mobile records
relating to the defendant’s Samsung cell phone. We
conclude that the search warrant affidavit did not, on
its own, contain enough information for the trial court
to determine that probable cause existed for the search.
B
Next, even if probable cause had been established,
the defendant contends that the T-Mobile records
search warrant lacked particularity. Although this warrant is markedly different from the Samsung cell phone
warrant, for the reasons stated hereinafter, we lack
sufficient information to assess the validity of this claim.
The standard of review and governing law for the
particularity of a search warrant are detailed previously
in part I B of this opinion. Unlike the first warrant,
the T-Mobile search warrant particularly described the
types of places to be searched and, more specifically,
the phone records associated with a ‘‘white Samsung
cell phone’’ with the defendant’s phone number. Both
the warrant and the incorporated affidavit list the crime
under investigation—the attempted murder of Flemming—and that the sought after data would assist
the investigation.
Importantly, the search warrant requested records
only for a limited duration that were reasonably connected to the attempted murder on January 19, 2017.
Specifically, the warrant requested such records for
between January 7, 2017, at 11:59 p.m., and January 25,
2017, at 11:59 p.m. These dates correlate to approximately one day before the Huang robbery up until the
date the defendant was arrested. Additionally, the warrant identified a specific list of items to be searched
and seized, including ‘‘call records of incoming and
outgoing calls, SMS text messages, [e-mail] information
and messages, social media messages, video recordings,
digital images, voice mail recordings, GPS data, [g]eo-locator, and any other data/information stored on the
[device], [i]nternal memory or removable storage
media, and/or any data the [device] has access to
through a cellular [n]etwork/[Wi-Fi]/Bluetooth connection.’’ These descriptions and time limitation are more
likely to satisfy the fourth amendment’s particularly
requirement. However, given the lack of information in
the affidavit relating to the defendant’s role in the
offense and the device’s role in the commission of the
offense to establish probable cause to believe that the
T-Mobile records would contain evidence of the crime,
we are unable to assess the sufficiency of the particularity requirement as it relates to this warrant.
III
The state next argues that, even if both warrants were
improper, any resulting error was harmless. We agree
with the state that any error was harmless with respect
to the charges concerning the robbery of Huang, the
shooting of Flemming, and interfering with an officer.
We also conclude, however, that the error was harmful
with respect to the charges concerning the robbery and
shooting of Chen, the related larceny of the Camry, and
the charges related to the arson of the Forester.
We begin with the applicable standard of review. ‘‘It
is well settled that constitutional search and seizure
violations are not structural improprieties requiring
reversal, but rather, are subject to harmless error analysis. . . . The harmlessness of an error depends [on] its
impact on the trier and the result . . . and the test
is whether there is a reasonable possibility that the
improperly admitted evidence contributed to the conviction. . . . In determining whether illegally obtained
evidence is likely to have contributed to the defendant’s
conviction, we review the record to determine, for
example, whether properly admitted evidence is overwhelming or whether the illegally obtained evidence is
cumulative of properly admitted evidence. . . . Simply
stated, we look to see whether it is clear beyond a
reasonable doubt that the outcome would not have been
altered had the illegally obtained evidence not been
admitted.’’ (Citations omitted; internal quotation marks
omitted.) State v. Esarey, 308 Conn. 819, 832,
67 A.3d
1001 (2013).
The following evidence was introduced at trial from
the Samsung cell phone data extraction search warrant:
(1) an extraction summary generated by Cellebrite14
revealing information such as the cell phone’s number
and the Facebook account linked to the cell phone;15
(2) a multimedia message service (MMS) message sent
by Gantt to the defendant at 3:11 p.m. on January 22,
2017, which contained an attached photograph of Gantt
inside the Shell gas station that the Norwalk police had
disseminated to the public in an effort to identify Chen’s
assailant and the person who set fire to the Forester;
(3) a text message sent on January 16, 2017, from the
defendant to Gantt in which the defendant told Gantt
to watch a report on the news about a robbery and
shooting on Rolling Lane (the scene of the Chen shooting); and (4) a text message conversation between the
defendant and Gantt that occurred between 6:58 a.m.
and 3:52 p.m. on January 14, 2017. In the January 14
conversation, the defendant and Gantt expressed their
admiration for one another, and the defendant asked
Gantt to ‘‘beat the life’’ out of someone. Gantt also
stated, ‘‘I’m going to jail,’’ and Gantt made a reference
to being in the Milla Death Row gang.
With respect to the search warrant for the records
from T-Mobile, the evidence introduced at trial comprised records from T-Mobile that included the dates
and times of calls and text messages made from or
received by the defendant’s cell phone, and the locations of the cell towers utilized by the cell phone. The
call records from the defendant’s cell phone were provided to James Wines, a special agent within the Federal
Bureau of Investigation. Through historical cell site
analysis, Wines created a report plotting the approximate location of cell towers and the defendant’s cell
phone around the times of the various crimes. Wines’
report revealed that the defendant’s cell phone activated near the scene of the Chen robbery and shooting
in Norwalk, the drive-by shooting and attempted murder of Flemming in Stamford, and the flight from the
police officers in Bridgeport. The cell phone did not,
however, activate near the scenes of either the Huang
robbery in Norwalk or the arson of the Forester in
Stamford.
In determining whether an error is harmless beyond
a reasonable doubt, various factors are considered,
including the importance of the evidence, whether such
evidence was cumulative of other evidence, the extent
of cross-examination addressing such evidence, and the
overall strength of the state’s case. See, e.g., State v.
Armadore,
338 Conn. 407, 437,
258 A.3d 601 (2021).
To determine whether the evidence obtained from the
warrants was cumulative and to evaluate the strength
of the state’s case against the defendant, we must examine the other evidence admitted at trial.
The state called a cooperating witness, Parker, who
testified that he personally observed and participated
in the Huang robbery in Norwalk, the drive-by shooting,
and the subsequent shooting of Flemming in the convenience store. Parker, however, was not present at and
did not testify about the Chen robbery or the arson of
the Forester. Parker identified the defendant’s role in
the robberies and the shootings for which Parker was
present. Parker testified that he had served as the getaway driver during the Huang robbery, while Gantt and
the defendant committed the robbery, as the defendant
was holding a .25 caliber gun. Parker also described
the drive-by shooting targeting Flemming and identified
the defendant as the one who shot Flemming. He testified that the defendant used the same .25 caliber gun
that he had used to commit the robbery of Huang in
both of the shooting incidents involving Flemming.
The state also introduced evidence of video footage
from the evening Flemming was shot, in which Parker
identifed the participants. One video from an apartment
complex in Stamford shows Gantt, Parker, Ranero, and
the defendant riding together in an elevator approximately one hour before the shooting of Flemming. In
that video, the defendant can be seen wearing black
shoes, black pants, a black hoodie, a black jacket that
appears to have a zippered pocket on the left sleeve,
and black gloves. The defendant is also wearing a black
‘‘skully,’’16 which was consistent with the black face
mask found on the defendant when he was arrested.
The other people in the elevator were wearing clothing
distinctive from that worn by the defendant. A second
video introduced by the state depicts the West Main
Street store where Flemming was shot. In that video,
Flemming can be seen standing by the counter of the
store and wearing pants with reflective stripes on them,
which are also visible in a video the state introduced
of Flemming running away from the drive-by shooting.
The video depicts a man wearing black shoes, black
pants, a black hoodie, a black jacket that appears to
have a zippered pocket on the left sleeve, black gloves,
and a black ski mask approaching Flemming and shooting him multiple times. In addition to Parker’s testimony
about the defendant’s role as the shooter, the jury was
presented with and able to compare the video of the
defendant on the elevator with Parker and Gantt about
one hour before the shooting with the video of the
shooting of Flemming inside the store.
Finally, the state also introduced forensic evidence
indicating that .25 caliber shell casings recovered from
the scenes of the High Street and 417 West Main Street
store shootings in Stamford were fired from the same
firearm as shell casings recovered from the January 14,
2017 shooting of Chen in Norwalk.
To begin our analysis, we note that the evidence
adduced by the state against the defendant with respect
to the Huang robbery was principally derived from Parker’s testimony. Neither the CSLI evidence from the
defendant’s cell phone service provider nor the data
recovered from the search of the defendant’s phone
itself related to that particular offense. As such, we
conclude that any error relating to the admission of
that evidence was harmless with respect to the charges
arising out of that incident.
Second, the video footage from the elevator and the
shooting at the store corroborate Parker’s testimony
related to the shooting of Flemming. See, e.g., State v.
Armadore, supra, 338 Conn. 455–56 (witness’ testimony
was bolstered by corroborating evidence). The clothing
the defendant wore in the elevator was identical to the
clothing worn by Flemming’s shooter only one hour
later. Parker’s testimony was further corroborated by
the video of Flemming running away from the drive-by
shooting. Parker testified that he and the other occupants of the Camry were able to identify Flemming the
night of the shooting by the ‘‘reflectors on his sweatpants . . . .’’ The video evidence clearly shows Flemming wearing clothing matching that description, giving
credence to Parker’s testimony about the events that
evening.
Further, the state established a motive for the shootings by introducing evidence that the Milla Death Row
gang, of which the defendant was a member, had a
‘‘beef’’ with Flemming. Therefore, we conclude that the
state has met its burden of establishing that the trial
court’s admission of the evidence obtained from the
two search warrants, including the CSLI and the data
extracted from the cell phone, was harmless beyond a
reasonable doubt with respect to the shootings of
Flemming.
Third, the charge of interfering with an officer, in
connection with events that had occurred on January
25, 2017, was clearly unaffected by the search warrants
because Stamford police officers discovered the defendant as a passenger in the stolen Camry and witnessed
him attempt to evade police capture. Moreover, the
defendant’s fingerprints were discovered on the right
rear passenger door of the Camry. It is highly unlikely
that the defendant’s CSLI putting him in the area where
the stolen Camry was stopped would have affected the
jury’s decision with respect to the charge of interfering
with an officer in light of the fact that the police apprehended him after he exited that car.
On the other hand, we find that, insofar as the CSLI
was the only evidence placing the defendant at the
scene of the Chen robbery and assault, the state has
not met its burden of proving that the admission of that
evidence was harmless beyond a reasonable doubt with
respect to those crimes. Parker testified that he was
not at the scene of the Chen robbery on January 14,
2017, and, thus, gave no account of who was present
or what occurred. The CSLI is the key, if not the only
evidence, placing the defendant at the scene of the
Chen robbery, assault, and the subsequent arson of the
Forester. The state claims that other evidence serves
to prove that the defendant was involved in that scheme,
including an argument that the scheme was almost identical to the Huang robbery, Chen’s testimony that two
perpetrators were involved, the fact that the shell casings were identical to those found at the scene of the
Flemming shooting, and the fact that the defendant was
found with Gantt in the stolen Camry. Although those
pieces of evidence could have influenced the jury’s findings, the defendant’s CSLI was the most concrete and
direct evidence placing the defendant at the scene of
those crimes. Accordingly, we cannot conclude that the
jury’s determination of guilt with respect to either the
robbery and assault of Chen, or the subsequent larceny
of the Camry, was uninfluenced by the CSLI evidence.
This same logic extends to the arson of the Forester.
The evidence offered by the state at trial tends to show
that the perpetrators of the crimes against Chen drove
directly to the Shell gas station, then set the Forester
ablaze. Although Parker was able to identify Gantt in the
gas station video footage, there was no identification
of the defendant in that video. The omission of the
defendant’s CSLI from the state’s case significantly
weakens the evidence tending to show that the defendant was at the scene of the Chen robbery and, thus,
also reduces the certainty that he was involved in the
subsequent arson relating to the Forester.
For the foregoing reasons, we affirm the defendant’s
conviction of (1) robbery in the first degree and conspiracy to commit robbery in the first degree for the robbery
of Huang in Norwalk on January 9, 2017, (2) two counts
of attempt to commit murder and one count of conspir-
acy to commit murder for the January 19, 2017 shooting
incidents in Stamford involving Flemming, and (3)
interfering with an officer in connection with the defendant’s flight from the police on January 25, 2017.
We also conclude, however, that the CSLI evidence
from the service provider warrant was harmful with
respect to the defendant’s conviction of (1) robbery in
the first degree, conspiracy to commit robbery in the
first degree, and assault in the first degree for the robbery and shooting of Chen in Norwalk, (2) larceny in
the third degree for the related theft of the Camry,
and (3) arson in the second degree and conspiracy to
commit arson in the second degree for the defendant’s
involvement with setting the Forester on fire.17
The judgment of conviction of robbery in the first
degree, conspiracy to commit robbery in the first
degree, and assault in the first degree in the case involving the robbery and shooting of Chen, and the judgment
of conviction of arson in the second degree and conspiracy to commit arson in the second degree in the case
involving the burning of the Forester are reversed, the
judgment of conviction in the case involving the events
of January 25, 2017, is reversed with respect to the
conviction of larceny in the third degree, and the case
is remanded for a new trial with respect to only those
offenses; the judgment of conviction of two counts of
attempt to commit murder and one count of conspiracy
to commit murder in the case involving the shootings
of Flemming and the judgment of conviction of robbery
in the first degree and conspiracy to commit robbery
in the first degree in the case involving the robbery of
Huang are affirmed, and the judgment of conviction in
the case involving the events of January 25, 2017, is
affirmed with respect to the conviction of interfering
with an officer.
In this opinion the other justices concurred.
1
The judgments of conviction in the present case arose from a consolidated trial of five related criminal proceedings against the defendant. In the
first case, which arose out of a robbery in Norwalk on January 9, 2017, the
defendant was convicted of robbery in the first degree in violation of General
Statutes §§ 53a-8 (a) and 53a-134 (a) (4) and conspiracy to commit robbery
in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134
(a) (4). In the second case, which related to a second robbery in Norwalk
on January 14, 2017, the defendant was convicted of robbery in the first
degree in violation of §§ 53a-8 (a) and 53a-134 (a) (1), conspiracy to commit
robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (1),
and assault in the first degree in violation of General Statutes §§ 53a-8 (a)
and 53a-59 (a) (1). In the third case, which followed the discovery of a
burned-out motor vehicle in Stamford shortly after the second robbery, the
defendant was convicted of arson in the second degree in violation of
General Statutes §§ 53a-8 (a) and 53a-112 (a) (1) (B) and conspiracy to
commit arson in the second degree in violation of §§ 53a-48 (a) and 53a-
112 (a) (1) (B). In the fourth case, which arose out of the shootings in
Stamford on January 19, 2017, the defendant was convicted of two counts
of attempt to commit murder in violation of General Statutes §§ 53a-49 (a)
(2) and 53a-54a, and one count of conspiracy to commit murder in violation
of §§ 53a-48 (a) and 53a-54a. Finally, in the fifth case, which related to the
defendant’s presence in a stolen vehicle and subsequent flight from the
police in Bridgeport on January 25, 2017, the defendant was convicted of
larceny in the third degree in violation of General Statutes §§ 53a-8 (a) and
53a-124 (a) (1) and interfering with an officer in violation of General Statutes
§ 53a-167a (a).
2
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.’’
The fourth amendment’s guarantee against unreasonable searches and
seizures is made applicable to the states through the due process clause of
the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655,
81 S. Ct. 1684,
6 L. Ed. 2d 1081 (1961).
3
The Milla Death Row gang is a self-identifying faction within the larger
Bloods enterprise.
4
The homeowner of 3 Rolling Lane in Norwalk testified that, at approximately 7 p.m. on January 9, 2017, she observed a ‘‘red Subaru Forester’’
parked near her house.
5
Flemming was a member of the High Street gang, also known as the
Project Boys, which is aligned with the Crypts.
6
At approximately 6:45 p.m., Stamford police responded to 34 High Street
after reports of ‘‘shots fired, with a black male running, with dreads . . .
south on High Street across West Main Street.’’ Further, video surveillance
footage of the vicinity of 34 High Street captured ‘‘a four door dark colored
sedan’’ with ‘‘an orange plate, believed to be a New York plate’’ moments
before the shooting.
7
The sentence broke down as follows: (1) twenty years for each of the
attempt to commit murder counts and twenty years for the conspiracy to
commit murder count, to run concurrently with each other; (2) ten years
followed by ten years of special parole for the assault of Chen, and ten
years for the robbery and conspiracy to commit robbery of Chen, to run
concurrently with the assault sentence but to run consecutively to the
sentence imposed for the attempt to commit murder counts; (3) five years
for the larceny of the Camry and one year for interfering with an officer, to
run concurrently with each other and concurrently with the other sentences
imposed; (4) five years each for the robbery and conspiracy to commit
robbery of Huang, to run concurrently with each other but consecutively
to the sentences previously imposed; and (5) ten years each for arson
and conspiracy to commit arson, to run concurrently with each other and
concurrently with the other sentences imposed.
8
Only the search of the white Samsung phone is at issue in this appeal.
9
‘‘Facebook Live is a feature of Facebook, an online social networking
platform, that allows users to ‘[g]o live on Facebook to broadcast a conversation, performance, Q & A or virtual event.’ ’’ State v. Segrain, 243 A.3d
1055, 1059 n.8 (R.I. 2021), quoting Meta, Facebook Live, available at https://
www.facebook.com/formedia/solutions/facebook-live (last visited July 29,
2022). This feature allows users to livestream directly to the social network
platform and allows viewers to comment or otherwise react to the stream.
A recording of the video will be posted to the user’s page or profile and
can be viewed later. See United States v. Westley, Docket No. 3:17-CR-171
(MPS),
2018 WL 3448161, *4 n.2 (D. Conn. July 17, 2018) (‘‘Facebook Live
is a feature provided by Facebook that allows users to share live video with
their followers and friends on Facebook. After the live video ends, the video
is published to the user’s profile so that the user’s Facebook friends can
watch it at a later time.’’).
10
A recorded Facebook Live video of Gantt and the defendant was introduced at trial. Because the warrant lacks any detail about the Facebook
Live video, it is not clear whether the warrant referred to the same video
that was ultimately admitted into evidence. At trial, the state offered a
recording of a Facebook Live video posted on Gantt’s Facebook page, which
depicts Gantt and the defendant walking together in Bridgeport within an
hour of the shooting of Flemming. In that video, Gantt and the defendant
are singing and speaking to a virtual audience. Officer Nicholas Gentz, who
was monitoring Gantt’s Facebook account shortly after the shooting of
Flemming, testified about the content of the posting and his knowledge of
the feud between the victim and the defendant’s group. On the basis of his
expertise and knowledge, he explained that Gantt and the defendant were
talking about having been with the opposing group, or their ‘‘ops,’’ and
having done something to them.
11
Such affidavits should generally contain, at a minimum, a description
of the device’s role in the offense and a summary of the relevant technology.
See, e.g., Regional Computer Forensic Laboratory, Cellphone (Mobile Device)
Search Warrant Affidavit (July 17, 2018) pp. 2, 4–5, available at https://
www.rcfl.gov/north-texas/documents-forms/sample_app_mobile_device.pdf
(last visited July 29, 2022). That statement would necessarily describe whether
the electronic device was evidence of a crime, contraband, or an instrumentality of the crime in and of itself, and/or whether it contained data falling
within one of those descriptions. Id., pp. 4–5. When appropriate and accurate,
a law enforcement officer may state that such devices are frequently used
by persons engaged in the particular type of criminal conduct alleged. Id.,
p. 5; see also, e.g., State v. Sayles,
202 Conn. App. 736, 764,
246 A.3d 1010
(probable cause to seize cell phone was partially based on police officer’s
general knowledge that coconspirators ‘‘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’’), cert. granted,
336 Conn. 929,
247 A.3d 578 (2021).
12
According to the CTIA’s 2021 annual survey, the trend of pervasive
cell phone use continues to increase. Indeed, ‘‘American consumers have
continued to use wireless networks to stay connected, especially while
social distancing—we exchanged over 119 billion more messages last year,
for a total of 2.2 trillion SMS and MMS messages, driven by a 28 [percent]
increase in GIFs, memes, videos, and other MMS messages. Voice traffic
saw 2.9 trillion minutes of use.’’ CTIA, 2021 Annual Survey Highlights (July 27,
2021), available at https://www.ctia.org/news/2021-annual-survey-highlights
(last visited July 29, 2022). The same report also noted that ‘‘[m]obile wireless
data traffic had another record year, topping 42 trillion [megabytes]—a 208
[percent] increase since 2016. Over the past decade, Americans have driven
a 108 [times] increase in mobile data traffic.’’ Id.
13
During oral argument, the state acknowledged that a team had been
developing protocols to provide law enforcement with guidance on particularity requirements for cell phone warrants. Additional guidance available
to law enforcement recommends that warrants contain information about
the ‘‘exact brand and model of the device,’’ if they are known, and ‘‘tailor
a description of its specific capabilities,’’ and indicates that such ‘‘information is [often] available from the manufacturer or [online].’’ See, e.g., Regional
Computer Forensic Laboratory, Cellphone (Mobile Device) Search Warrant
Affidavit (July 17, 2018) p. 2, available at https://www.rcfl.gov/north-texas/
documents-forms/sample_app_mobile_device.pdf (last visited July 29, 2022).
If the specific identity of the cellular device is not available, there are generic
descriptions that can be used to describe the typical capabilities of cell
phones. See id., pp. 2–3 (The use of the following generic description is
suggested ‘‘as necessary depending on [the] target of warrant . . . [for a
cell phone] . . . . A [cell phone] or mobile telephone is a handheld wireless
device used primarily for voice communication through radio signals. These
telephones send signals through networks of transmitter/receivers called
‘cells,’ enabling communication with other [cell phones] or traditional ‘land
line’ telephones. A [cell phone] usually includes a ‘call log,’ which records
the telephone number, date, and time of calls made to and from the phone.
. . . In addition to enabling voice communications, [cell phones] now offer
a broad range of capabilities. These capabilities include, but are not limited
to: storing names and phone numbers in electronic ‘address books;’ sending,
receiving, and storing text messages and [e-mail]; taking, sending, receiving,
and storing still photographs and moving video; storing and playing back
audio files; storing dates, appointments, and other information on personal
calendars; and accessing and downloading information from the Internet.
[Cell phones] may also include global positioning system . . . technology
for determining the location of the device.’’).
14
Cellebrite software was used to extract data from the defendant’s cell
phone and categorized it into separate ‘‘container file[s]’’ by placing, for
example, text messages into a text messages folder and call logs into a call
logs folder. Once the data is categorized, the police can then search the
files to ‘‘see what’s on the phone.’’
15
A Facebook account for ‘‘Shellz Row’’ was linked to the phone.
16
Parker testified that a ‘‘skully’’ is a ski mask, which would cover the
wearer’s face, that can be rolled up into a hat that would not obscure the
wearer’s face. In the video footage from the elevator, the defendant is
wearing his skully rolled up into a hat.
17
In its brief, the state asserts that the present case should be remanded
for a hearing on the inevitable discovery and independent source exceptions
to the exclusionary rule. We disagree. Although it may be true that ‘‘much
of the challenged information could have been obtained through search
warrants for the codefendants’ phones,’’ that argument cannot logically be
extended to the defendant’s own CSLI. There was no testimony from Parker
or other witnesses that placed the defendant with the codefendants on the
date of or at the scene of the Chen robbery and assault, or the arson. Cf.
State v. Tyus, 342 Conn. 784, 805,
272 A.3d 132 (2022) (CSLI of codefendant
was admitted into evidence when defendant and codefendant admitted to
being together entire evening during which crime was committed). The
state’s assertion that the Norwalk Police Department would have, at some
indeterminate point in the future, obtained a lawful warrant in the course of
its own investigation is likewise unavailing. Accepting such a bare argument,
without more, would render the protections afforded by the warrant requirement largely illusory.
This court has, on occasion, remanded a case for a hearing related to the
application of these exceptions in cases in which the trial court or the
parties could not have raised a claim under those doctrines and they are
raised for the first time on appeal. See, e.g., State v. Correa,
340 Conn. 619,
635–36, 639,
264 A.3d 894 (2021). The claim the state now raises, however,
does not fall under the auspices of State v. Golding,
213 Conn. 233, 239–40,
567 A.2d 823 (1989). The state had an adequate opportunity to assert a
factual basis for the applicability of these doctrines in responding to the
defendant’s motion to suppress the evidence that was obtained pursuant to
the warrants. Its decision to forgo that opportunity obviates the need for a
more limited remand.
