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State v. Evans
STATE OF CONNECTICUT v. RICHARD EVANS
(SC 21006)
Mullins, C. J., and McDonald, D’Auria,
Ecker, Dannehy and Bright, Js.
Syllabus
Convicted of murder and carrying a pistol without a permit in connection
with the shooting death of the victim, the defendant appealed to this court.
The defendant claimed that the trial court had improperly admitted the
testimony of a lay witness, M, concerning his identification of the defendant
in a photograph that was taken from surveillance video footage captured
around the time of the victim’s murder. The defendant also claimed that
the trial court had improperly denied in part his motion to suppress certain
cell site location information that the police had acquired after obtaining a
search warrant for records relating to the defendant’s cell phone. Held:
Application of the factors articulated in State v. Gore (342 Conn. 129) for
assessing whether a witness is more likely than the fact finder to correctly
identify an individual depicted in a surveillance video or photograph led
this court to conclude that the trial court had not abused its discretion when
it allowed M to testify regarding his identification of the defendant from
the photograph.
Although M had encountered the defendant only once prior to identifying
him from the photograph forty-three days after that encounter, the trial
court appropriately considered the nature of the encounter in determining
that M had more than a minimal degree of familiarity with the defendant,
as M’s focus during the encounter was heavily on the defendant, M had the
opportunity to observe the defendant’s gait and posture, M was able to view
the defendant’s face directly, the encounter took place during the daytime,
and the defendant’s face was unobstructed.
Moreover, the photograph from which M identified the defendant was taken
from surveillance footage captured just four days after M had seen and
spoken with the defendant, and, thus, M would have been familiar with the
defendant’s facial features and other characteristics as they appeared in
the photograph.
Furthermore, there was evidence in the record to support the trial court’s
finding that the defendant’s appearance had changed in the six years between
the murder and the trial, and the quality of the photograph from which M
identified the defendant also favored the admissibility of M’s testimony.
In addition, the trial court provided two cautionary instructions to the jury
following the admission of M’s testimony regarding his identification of the
defendant, clarifying that it was ultimately the jury’s role to determine
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State v. Evans
whether the defendant was the individual who appeared in the photograph
and the surveillance video footage from which the photograph was taken.
The trial court properly denied in part the defendant’s motion to suppress
the cell site location information (CSLI) that the police had acquired after
obtaining the search warrant.
The facts alleged in the affidavit submitted in support of the search warrant,
together with the reasonable inferences that could be drawn therefrom,
established probable cause to believe that the location of the defendant’s
cell phone around the time of the murder would provide evidence of the
defendant’s participation or lack of participation therein and that this evidence would be revealed in the CSLI requested by the police.
Moreover, the trial court properly found that there was probable cause to
obtain CSLI for the three days leading up to the murder, the day of the
murder, and the day after the murder, as such information would have
assisted in securing the defendant’s conviction by connecting the defendant’s
cell phone with his known movements, by providing evidence of his presence
at the crime scene and his flight therefrom, and by providing evidence of
any attempt to evade detection or consciousness of guilt.
The trial court, however, should not have permitted the scope of the warrant
to extend beyond the day after the murder because it was less probable
that the CSLI for any day after the murder would have revealed evidence
relevant to the crime or assisted in the defendant’s apprehension or conviction, but such error was of no consequence because the state introduced
at the defendant’s trial CSLI for only the day of the murder and the day
after the murder.
(Two justices concurring separately in one opinion)
Argued May 16—officially released August 12, 2025
Procedural History
Substitute information charging the defendant with
the crimes of murder, carrying a pistol without a permit,
and criminal possession of a firearm, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Prescott, J., denied in part the defendant’s
motion to suppress certain evidence; thereafter, the
charges of murder and carrying a pistol without a permit
were tried to the jury before Prescott, J.; verdict of
guilty; subsequently, the state entered a nolle prosequi
as to the charge of criminal possession of a firearm;
thereafter, the court, Prescott, J., rendered judgment in
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State v. Evans
accordance with the verdict, and the defendant appealed
to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Rocco A. Chiarenza, senior assistant state’s attorney,
with whom, on the brief, was Joseph Corradino, state’s
attorney, for the appellee (state).
Opinion
DANNEHY, J. The defendant, Richard Evans, appeals1
from the trial court’s judgment of conviction, rendered
after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit
in violation of General Statutes (Rev. to 2017) § 29-35
(a). The defendant claims that the trial court erred (1)
in admitting a lay witness’ testimony identifying him in
a still photograph taken from a surveillance video, and
(2) in denying, in part, his motion to suppress cell site
location information (CSLI) that the police had acquired
after obtaining a search warrant for those records. We
affirm the judgment of the trial court.
I
In 2017, the defendant owned and operated a small
moving business based in Connecticut. The business
consisted of a single moving truck, which he leased
from Joyce Moving and Storage. As the owner and operator, the defendant was responsible for hiring his own
movers to assist him with various jobs. These moving
assignments often required him and his movers to travel
across the country.
During the last week of June, 2017, the defendant
employed Reginald May (Reginald), a longtime friend
of the defendant, and another friend, Soccus Hender-
1
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).
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State v. Evans
son, to help move a client from Mosely, Virginia, to
Spanish Court, Alabama. That job was scheduled to
begin on June 27, 2017, and to conclude no later than
July 1, 2017. On June 28, 2017, while at the jobsite in
Virginia, the defendant and Reginald got into an argument over money. This argument prompted Reginald
to call his brother, John May (May), who at that time
lived in Fredericksburg, Virgina, to pick him up. When
May arrived at the jobsite to pick up his brother, the
defendant and Reginald engaged in a physical altercation. After the fight was over, May went to talk to the
defendant, who told May that Reginald owed him
money. May and Reginald soon left the jobsite, and May
took Reginald to a bus station in Washington, D.C.,
where Reginald took a bus home to Connecticut.
The defendant and Henderson completed the delivery
to Alabama on June 30, 2017. They then drove the moving truck back to Connecticut, arriving in Bridgeport
around 3:20 a.m. on July 2, 2017, and proceeded to the
defendant’s residence. Once there, the defendant left
Henderson and drove off in his Cadillac Escalade.2
Meanwhile, Reginald and his girlfriend, Cherry Williams,3 were watching television and smoking marijuana
inside their shared apartment on Alice Street in Bridgeport. While sitting in their apartment, the alarm in Reginald’s car sounded multiple times, causing Reginald to
leave the apartment to check on his car.4 Shortly after
Reginald went outside, Williams heard multiple gunshots and then heard Reginald calling her name. Wil-
2
At that time, Henderson was living with the defendant.
3
Although the court transcript identifies Williams’ first name as ‘‘Sherry,’’
her signature on a photo that she signed when identifying the defendant in
the surveillance footage depicts her name as ‘‘Cherry.’’
4
Reginald owned a silver Cadillac, which he had received from his father.
Months before the murder, the defendant assisted Reginald in moving the
car from North Carolina to Connecticut. Reginald’s vehicle had an alarm
that was triggered when somebody physically touched the car.
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State v. Evans
liams looked out the window, saw Reginald lying on
the ground, and immediately dialed 911.
Police officers quickly arrived at the scene, and Reginald was taken to the hospital. Reginald subsequently
died from a gunshot wound that had entered the right
side of his back.
The police began an investigation of the incident,
which involved, among other things, obtaining surveillance footage from around Bridgeport. Among the video
footage obtained was footage from approximately 4:17
a.m. on July 2, 2017, of a large, dark SUV, consistent with
the defendant’s vehicle, circling Reginald’s apartment
building and eventually parking on Alice Street. The
footage also showed a male subject wearing a hooded
sweatshirt exiting the driver’s side of the SUV and walking down the street toward Reginald’s apartment building, eventually entering the parking lot at Reginald and
Williams’ apartment. The man later returned to the SUV
at approximately 4:21 a.m.
The police showed both May and Williams a still
image taken from the video footage of the individual
who had exited from the SUV and walked down the
street. Both May and Williams identified the person in
the still image as the defendant.
On July 13, 2017, Joseph Milone, a professor at Southern Connecticut State University and a part-time park
ranger for the city of New Haven, discovered a firearm
and an extended magazine at the base of a waterfall at
the West Rock Nature Center on the border of New
Haven and Hamden. The Hamden police seized the firearm and sent it to the state forensic science laboratory.
Lab personnel test fired the firearm and submitted the
results to the National Integrated Ballistic Information
Network5 so that law enforcement personnel around
5
The National Integrated Ballistic Information Network is ‘‘a nationwide
investigative system operated by the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives that tracks firearms by the ‘microscopic marks
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State v. Evans
the country would be alerted when a potential link
existed between that firearm and any outstanding
crimes. The Bridgeport police received a notification
from that system that a firearm in possession of the
Hamden police may be connected with evidence found
at the murder scene. On August 24, 2017, a detective
with the Bridgeport Police Department went to the
Hamden Police Department and took possession of
the firearm.
The firearm, the shell casings recovered from the
crime scene,6 the bullet removed from Reginald’s body,
and other ballistic evidence seized from the crime scene
were submitted to Marshall Robinson, a firearm and
toolmark examiner, for analysis. Robinson identified
the firearm as a Glock semiautomatic gun, chambered
to fire nine millimeter Luger cartridges. Robinson determined that each of the shell casings recovered from
around the crime scene had been fired from the same
firearm and concluded, to a reasonable degree of scientific certainty, that they had been discharged from the
Glock firearm that had been submitted to him for examination. As for the bullet removed from Reginald’s body,
Robinson identified it as a nine millimeter full metal
jacketed round that was capable of having been fired
from the same type of firearm as the Glock in question.
Due to insufficient markings on the bullet, however, he
was unable to conclusively link it to a specific firearm.
During the investigation, the police also obtained a
warrant for the defendant’s cell phone records from the
defendant’s cell phone carrier. Special Agent Elizabeth
that are left on bullets and fired cartridge cases.’ ’’ State v. Patterson, 344
Conn. 281, 288 n.13,
278 A.3d 1044 (2022).
6
During their investigation of the crime scene, officers discovered bullet
holes in the fence separating the parking lot on Alice Street where Reginald
was killed from the rear yard of a parcel on Wheeler Avenue, resulting in
the discovery of a secondary crime scene. The police found eight nine
millimeter Luger shell casings in that secondary location.
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State v. Evans
Wheeler of the Federal Bureau of Investigation testified,
based on her review of those records, that the defendant’s cell phone connected to various cell towers in
the early morning hours of July 2 and on July 3, 2017.
She identified eight phone calls occurring between 3:20
and 4:47 a.m. on July 2, 2017. The various connections
were consistent with the defendant’s phone traveling
south from his home beginning around 3:47 a.m., toward
Reginald’s apartment, and then traveling north, back to
his home, connecting with a particular sector of a cell
tower that included his home at 4:30 a.m. The following
day, July 3, 2017, the defendant’s cell phone connected
with various towers between 5:39 and 6:12 a.m., consistent with traveling northbound on the Merritt Parkway,
ultimately connecting to a cell tower at 5:47 a.m. near
West Rock Ridge State Park—the area adjacent to
where the park ranger discovered the firearm.
The defendant was later arrested and charged with
murder and carrying a pistol without a permit.7 A jury
found him guilty of both offenses, and the court sentenced him to a total effective sentence of sixty years
of incarceration. This appeal followed.
II
The defendant claims that the trial court abused its
discretion in admitting evidence of May’s identification
of the defendant from a still photograph taken from
surveillance footage around the time of the shooting.
The defendant argues that May was not at the crime
scene and had seen the defendant only one time prior
to identifying him in the photograph. The defendant
contends that May lacked the requisite familiarity with
him to warrant the admission of May’s identification
testimony. We disagree.
7
The defendant also was charged with criminal possession of a firearm
in violation of General Statutes (Rev. to 2017) § 53a-217 (a). The state subsequently entered a nolle prosequi with respect to this charge.
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State v. Evans
The following additional facts and procedural history
are relevant to the defendant’s claim. On the second
day of trial, May testified that, on June 28, 2017, his
brother, Reginald, contacted him to pick him up from
a jobsite in Virginia. After arriving at the jobsite, May
observed his brother and the defendant engage in a
physical altercation. During the fight, May stood nearby,
positioning himself in front of two other men who were
present, to ensure that they did not join in. May testified
that, toward the end of the altercation, the defendant
said to Reginald, ‘‘I got you; I got you, Reggie . . . .’’
May further stated that, after the fight was over, he
followed the defendant ‘‘because [May] didn’t know
what [the defendant] was going to do.’’ Specifically,
May followed the defendant into the street and had a
conversation with him, during which time May asked
the defendant why he and Reginald had been fighting.
The defendant told May that Reginald ‘‘owe[d] [him]
money.’’ When asked by the prosecutor how long he
was at the jobsite, May estimated that he was there for
thirty to forty-five minutes before leaving with his
brother.
During May’s testimony at trial, the prosecutor asked
him if ‘‘anybody on that moving job [was] present . . .
in the courtroom [that day].’’ May looked around the
courtroom and initially did not recognize the defendant,
stating, ‘‘I mean, I don’t see Richard. He was there.’’
He then followed up this initial response by stating,
‘‘Richard.’’ When asked to point out the person to whom
he referred, he identified the defendant.
Prior to introducing any pretrial identification evidence, the prosecutor asked the court to excuse the
jury. The prosecutor noted that he intended to introduce
evidence that May previously identified the defendant
from a still photograph that the police had shown him
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State v. Evans
from video surveillance footage.8 The court proceeded
to let the prosecutor lay a foundation for its admission,
and, in doing so, the prosecutor elicited testimony from
May that he had given a statement to the police on
August 10, 2017, that the police had shown him a still
photograph from the video surveillance footage, and
that he had identified the defendant as the person in
that photograph.9 May further testified that he had never
met the defendant before picking up his brother in
Virginia at the jobsite on June 28, 2017, but that he was
at the jobsite that day for ‘‘[m]aybe forty minutes.’’ The
prosecutor confirmed with May that he had spoken with
the defendant that day, had witnessed the altercation
between the defendant and Reginald, and had clearly
seen the defendant, as it had been daytime at the jobsite
and the defendant had not been wearing anything that
obscured his face. When the prosecutor asked May
whether the defendant’s appearance had changed since
he last saw the defendant at the jobsite in 2017, May
stated, ‘‘I guess. I mean, you know, I guess, yeah.’’
The parties then made their arguments regarding the
admissibility of the identification. After making findings
regarding the various factors set forth in this court’s
decision in State v. Gore, 342 Conn. 129, 148,
269 A.3d
1 (2022), which established the requirements for the
admission of lay opinion testimony relating to the identification of persons depicted in surveillance video or
photographs, the court found that May was better positioned to make a reliable identification than the jury
8
The defendant previously had filed a motion in limine seeking to preclude
any testimony identifying him as the person in the surveillance video or
photographs. At a pretrial hearing, the parties agreed with the trial court
that it would be more appropriate to address the defendant’s motion during
the trial, given the fact intensive nature of the inquiry.
9
During the August 10, 2017 meeting, the police also showed May a
sequential photographic array that included a photo of the defendant. After
reviewing the array, May positively identified the defendant as the individual
who fought with Reginald on June 30, 2017.
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State v. Evans
and, therefore, concluded that May could testify as to
his identification of the defendant.10 The jury was then
brought back into the courtroom, and the prosecutor
proceeded to question May about his identification of
the defendant from the surveillance footage. It is the
admission of this identification that the defendant challenges on appeal.
Whether a trial court properly admits a lay witness’
opinion testimony identifying a defendant from a surveillance photograph or video is an evidentiary issue
that we review for an abuse of discretion. See, e.g., id.,
149. ‘‘[I]n determining whether there has been an abuse
of discretion, every reasonable presumption [is] made
in favor of the correctness of the trial court’s ruling,
and we will upset that ruling only for a manifest abuse
of discretion. . . . [A]buse of discretion exists when a
court could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors.’’
(Citations omitted; internal quotation marks omitted.)
State v. Jacobson, 283 Conn. 618, 626–27,
930 A.2d 628
(2007). Challenges to a trial court’s factual findings that
form the basis for its evidentiary decisions are reviewed
for clear error. E.g., State v. Samuel U., 348 Conn. 304,
318, 303 A.3d 1175 (2023). ‘‘A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
10
In Gore, we amended § 7-3 (a) of the Connecticut Code of Evidence to
incorporate an exception to the ultimate issue rule for opinion testimony
that relates to the identification of criminal defendants and other persons
depicted in surveillance video or photographs. State v. Gore, supra, 342
Conn. 133. Our Code of Evidence now reflects that change. See Conn. Code
Evid. § 7-3 (a) (‘‘[t]estimony in the form of an opinion is inadmissible if it
embraces an ultimate issue to be decided by the trier of fact, except that
. . . (2) a lay witness may give an opinion that embraces an ultimate issue
identifying any person in video recordings or photographs, if such testimony
meets the standards for the admissibility of lay witness opinion testimony
in Section 7-1’’). The standard we adopted in Gore is the same whether the
witness is called by the state or the defendant.
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State v. Evans
support it, the reviewing court on the entire [record]
is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks
omitted.) Id.
In Gore, we held that lay ‘‘opinion testimony that
relates to the identification of persons depicted in surveillance video or photographs’’ is admissible so long
as that testimony meets the requirements of § 7-1 of
the Connecticut Code of Evidence. State v. Gore, supra,
342 Conn. 148. Lay witness opinion testimony is admissible under § 7-1 if it is ‘‘rationally based on the perception of the witness and is helpful to a clear
understanding of the testimony of the witness or the
determination of a fact in issue.’’ Conn. Code Evid. § 7-
1. For testimony identifying a defendant in surveillance
video or photographs to be ‘‘helpful’’ under § 7-1, there
must be ‘‘some basis for concluding that the witness is
more likely to correctly identify the defendant from
the photograph [or video] than is the jury.’’ (Internal
quotation marks omitted.) State v. Gore, supra, 150; see
also State v. Davis, 344 Conn. 122, 142,
277 A.3d 1234
(2022); State v. Bruny, 342 Conn. 169, 181,
269 A.3d
38 (2022).
In assessing whether a witness is more likely than
the jury to correctly identify the defendant from a photograph or video, we have directed our courts to consider
the totality of the circumstances. E.g., State v. Gore,
supra, 342 Conn. 150. To guide courts in that analysis,
we identified four nonexhaustive factors to consider:
‘‘(1) the witness’ general level of familiarity with the
defendant’s appearance . . . (2) the witness’ familiarity with the defendant’s appearance, including items of
clothing worn, at the time that the surveillance video
or photographs were taken . . . (3) a change in the
defendant’s appearance between the time the surveillance video or photographs were taken and trial, or the
subject’s use of a disguise in the surveillance footage
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State v. Evans
. . . and (4) the quality of the video or photographs,
as well as the extent to which the subject is depicted
in the surveillance footage.’’ (Citations omitted.) Id.,
151. ‘‘[B]ecause we evaluate the factors under the totality of the circumstances, the failure to satisfy a single
factor is not fatal’’ to the admissibility of the identification. State v. Bruny, supra,342 Conn. 184. Furthermore,
depending on the facts of a particular case, other factors
may be relevant to the inquiry.
The defendant claims that the trial court abused its
discretion in admitting May’s identification of him as
the person in the still photograph. The defendant focuses
his briefing almost exclusively on the general familiarity
factor set forth in Gore, making only passing arguments
related to the other factors. Nonetheless, we consider
the trial court’s conclusions as to each of the factors
in evaluating whether it properly exercised its discretion in admitting May’s identification.
We begin with the general familiarity factor. In order
for the witness’ general familiarity with the defendant’s
appearance to weigh in favor of admitting evidence of
the witness’ identification of the defendant, ‘‘the proponent of the testimony [must] demonstrate that the witness possesses more than a minimal degree of
familiarity with the defendant.’’ State v. Gore, supra,
342 Conn. 159. In making that determination, courts
consider the ‘‘particular, relevant circumstances,
including, but not limited to, the frequency, number and
duration of any individual prior contacts; the duration
of the entire course of contacts and the length of time
since the contacts; the relevant viewing conditions; and
the nature of the relationship between the witness and
the defendant, if any.’’ Id.
The defendant claims that May’s single encounter
with him lacked the requisite familiarity required by
Gore. He maintains that this court was critical of deci-
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State v. Evans
sions adopting an unduly low threshold for witness
familiarity, particularly those in which the witness had
seen the defendant only once. The state, on the other
hand, contends that the trial court acted well within its
discretion in concluding that May had a sufficient level
of familiarity with the defendant to support the ultimate
conclusion that May would more likely be able to reliably identify the defendant from the still photograph
than the jury.
The defendant is correct that, in Gore, this court was
critical of decisions that set too low a bar for satisfying
the general familiarity factor. We explained that, rather
than meaningfully assessing whether a witness is familiar with the defendant’s appearance, many state and federal
courts had reduced the inquiry to simply ‘‘ask[ing] whether
the witness has ever, even once, seen the defendant prior
to identifying him in surveillance video or photographs.’’
Id., 157–58. We expressed particular concern with one
case in which a court deemed a witness sufficiently
familiar with the defendant despite the fact that the
witness had never met the defendant and had only once
seen him sleeping on a mutual friend’s porch. Id., 154,
159; see also People v. Thompson, 49 N.E.3d 393, 408
(Ill. 2016). As a result, we adopted a rule that requires
a witness to have ‘‘more than a minimal degree of familiarity with the defendant’’ for this factor to weigh in
favor of admissibility. State v. Gore, supra, 342 Conn.
159. Applying that standard, we were confident that
such a fleeting and passive observation would not suffice. Id. We specifically acknowledged, however, that
we were ‘‘eschewing the [bright-line] rule applied by
other jurisdictions in favor of one that relies on trial
courts to exercise their discretion to determine whether
this factor supports admissibility,’’ and we did not foreclose the ‘‘possibility that, under some circumstances,
a single encounter [would] be sufficient to satisfy this
factor.’’ Id.
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State v. Evans
In the present case, although May had encountered
the defendant only once prior to identifying him from
a still photograph forty-three days later, the trial court
appropriately considered the nature of that encounter
in determining that May had more than a minimal degree
of familiarity with the defendant. May testified that he
was at the jobsite to pick up his brother and remained
there for thirty to forty-five minutes, during which time
he observed a physical altercation between the defendant and Reginald. May described the physical altercation, stating: ‘‘[T]hey was fighting. They was on the
ground. They was hitting each other, and I just was
standing there.’’ May testified that, after the altercation,
he followed the defendant into the street and had a
conversation with him. This interaction suggests that
May had the opportunity to observe the defendant’s
gait and posture and to view his face directly.11 Indeed,
May testified that the events took place during daylight
hours, that he had a clear view of the defendant, and
that the defendant’s face was unobstructed.12
11
During the trial court’s discussion on the record of whether May was
better suited to make a reliable identification than the jury, the court noted
that the jury had seen the defendant only ‘‘for a limited period of time in
this sterile courtroom whereas . . . May would have seen the defendant
moving, from various angles, and would have a better understanding of his
posture and gait and all of the other factors that would go into it.’’ The
defendant argues that May was shown a photograph, not a video, and that
he did not see the person in the photograph in motion. He argues that
neither the parties nor the court asked him if he based his identification
on posture or gait and that the trial court’s conclusion is speculation and
not based on any evidence. We disagree. The defendant’s argument appears
to misunderstand the court’s discussion. The court clearly was indicating
that, on the basis of May’s encounter with the defendant at the jobsite, May
was able to observe the defendant moving around and, therefore, would
have more familiarity with the defendant and how he stands and walks than
the jurors, who simply observed the defendant in the courtroom. This was
fully supported by the evidence in the record and was relevant to the question
of whether there was some basis for concluding that May was more likely
than the jury to correctly identify the defendant from the photograph.
12
In the defendant’s brief, he relies on the science discussed in our decision
in State v. Guilbert, 306 Conn. 218, 234–52,
49 A.3d 705 (2012), which
addressed the propriety of presenting certain expert testimony on the issue
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State v. Evans
The trial court found, based on the direct nature of
the interaction, that May’s focus was heavily on the
defendant.13 This interaction stands in stark contrast to
cases in which the witness had no prior interaction with
the defendant and had merely observed the defendant
in passing on a single occasion. See State v. Gore, supra,
342 Conn. 154, 159 (criticizing Illinois Supreme Court’s
general familiarity conclusion in People v. Thompson,
supra,49 N.E.3d 408). It is also readily distinguishable
from circumstances in which a witness had seen the
defendant on a few occasions, but the record lacked
any information regarding the duration or nature of
those encounters or the conditions under which the
defendant was viewed. See, e.g., State v. Bruny, supra,
342 Conn. 183–84 (concluding that witness who had
seen defendant five or six times did not have general
familiarity with defendant because, inter alia, record
was lacking on length and nature of encounters and
more than one and one-half years had passed between
of eyewitness identification, to argue that May’s identification was unreliable. He recognizes in another portion of his brief, however, that the present
case did not involve an eyewitness identification but a nonpercipient witness’
identification, and that ‘‘[a] nonpercipient witness is unlike a percipient
eyewitness.’’ We are therefore cautious to impute, without qualification,
the science and rationale discussed in Guilbert, which was in relation to
eyewitness identifications, to nonpercipient witness identifications without
clearer record evidence that the same science and rationale apply under
these circumstances.
13
In assessing the general familiarity factor, the trial court stated that,
considering May’s observation of a physical altercation between the defendant and Reginald, ‘‘I think that . . . May’s focus and attention would have
been very heavily on [the defendant] . . . .’’ The defendant contends that
this was clearly erroneous because May testified that he stood in front of
the other persons present while the defendant and Reginald fought. The
defendant’s argument is not persuasive. Contrary to the defendant’s assertion, it was reasonable for the trial court to infer that May focused on the
two participants of the fight while standing between them and the other
persons present. May expressly testified that he observed the physical altercation between the defendant and Reginald. What is more, May testified
that he had followed the defendant into the street and had a conversation
with him, during which time May asked the defendant why he and Reginald
had been fighting.
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when witness last saw defendant and when she first saw
surveillance footage). On the basis of the trial court’s
findings of fact, which were supported by evidence
in the record, and its consideration of the factors we
expressly recognized in Gore as relevant to the familiarity analysis, we cannot conclude that the trial court’s
determination that May was generally familiar with the
defendant was ‘‘so arbitrar[y] as to vitiate logic, or . . .
[was] based on improper or irrelevant factors.’’ (Internal quotation marks omitted.) State v. Jacobson, supra,283 Conn. 627. We are satisfied that the nature of May’s
encounter and interaction with the defendant gave May
more than a minimal degree of familiarity with the
defendant, which weighs in favor of admitting testimony of May’s identification of the defendant.
The second factor—May’s familiarity with the defendant’s appearance at the time the surveillance footage
was recorded—also weighs in favor of admission. The
still image shown to May was taken from footage captured in the early morning hours of July 2, 2017, just
four days after May had seen and spoken with the defendant in person. Given this close temporal proximity,
May would have been familiar with the defendant’s
facial features and other identifying characteristics as
they appeared in the surveillance photograph. See, e.g.,
State v. Bruny, supra,342 Conn. 184.
The third factor—whether the defendant’s appearance had changed in the six years between the time
the surveillance photograph was taken and the time of
trial—is a closer question. As the trial court appropriately noted, the record contains limited evidence
regarding the defendant’s appearance in 2017. That said,
the record is not entirely silent on the matter.
To start, the prosecutor asked May whether he recognized anyone in the courtroom who had been present
at the June 28, 2017 moving job when he witnessed
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the altercation between his brother, Reginald, and the
defendant. In response, the trial court observed that
May ‘‘looked around the courtroom a couple times and,
at least initially, did not recognize the defendant as
the person who was involved in [the] altercation with
[Reginald].’’ May then apparently settled his view on
the defendant and uttered the defendant’s first name.
The prosecutor then asked May to point to the individual and to describe what he was wearing. After May
did so, the prosecutor noted for the record that ‘‘the
witness has identified the defendant . . . .’’ The prosecutor subsequently asked May whether the defendant’s
appearance had changed between 2017 and the time of
trial, to which May responded, ‘‘I guess. I mean, you
know, I guess, yeah.’’ Although this response was not
emphatic, it showed that May perceived some change
in the defendant’s appearance. The trial court found
May’s initial hesitation in identifying the defendant significant and that it was highly suggestive of a change
in the defendant’s appearance over the preceding six
years.
The defendant argues that ‘‘[t]he [trial] court speculated about why May had looked around’’ and that its
finding of a changed appearance was unsupported by
the evidence. We disagree that the finding of changed
appearance was based on speculation and conclude that
there was sufficient evidence in the record to support
it. First, the trial court observed May looking around
the courtroom to determine whether he saw anyone
from the moving job, as well as May’s delay in concluding that the defendant was, in fact, one of the persons
present at the jobsite. Although there may be other
inferences that can be drawn from May’s initial hesitation in identifying the defendant, a trial court is not
engaged in speculation merely because other inferences
could be drawn from the same facts. See, e.g., State
v. Lawrence, 282 Conn. 141, 155,
920 A.2d 236 (2007)
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(explaining that fact finder is entitled to weigh evidence,
assess credibility based on witness’ conduct, demeanor
and attitude, and draw reasonable inferences therefrom). Second, although not emphatic in his response,
May testified that the defendant’s appearance had
changed. The trial court was able to observe May’s
demeanor and manner during this time and to evaluate
his credibility. See, e.g., State v. Patrick M., 344 Conn.
565, 576,
280 A.3d 461 (2022) (‘‘[I]t is well established
that [w]e may not substitute our judgment for that of
the [finder of fact] when it comes to evaluating the
credibility of a witness. . . . It is the exclusive province of the [finder] of fact to weigh conflicting testimony
and make determinations of credibility, crediting some,
all or none of any given witness’ testimony.’’ (Internal
quotation marks omitted.)). Finally, the trial court considered the passage of time from the day of the altercation to the trial. On the basis of this record, we cannot
conclude that the trial court abused its discretion in
determining that the defendant’s appearance had
changed over the past six years.
As to the fourth factor, the quality of the photograph
in question, it clearly falls within a range that favors
the admissibility of May’s testimony. Indeed, the photograph in the present case is ‘‘[neither] so unmistakably
clear [nor] so hopelessly obscure that the witness is no
[better suited] than the jury to make the identification.’’
(Internal quotation marks omitted.) State v. Bruny,
supra,342 Conn. 185.
Lastly, we note that, following the admission of May’s
identification of the defendant at trial, the trial court
gave not only one but two cautionary instructions to
the jury. See State v. Gore, supra, 342 Conn. 163 (explaining that trial courts may exercise discretion and ‘‘provide a cautionary jury instruction’’ regarding reliability
of identification). First, following the admission of
May’s testimony identifying the defendant from the still
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photograph, the trial court informed the jurors that it
was ‘‘ultimately . . . [their] role to decide whether
. . . that is the defendant [who] is depicted in that
video. You certainly can consider the testimony of . . .
May in assessing both the reliability of his identification
of the person in the video and also use your own powers
of observation of the defendant in reviewing the video
and the [still photograph] as well. It’s ultimately your
decision to decide whether . . . that is, indeed, the
defendant.’’ In its final charge, the trial court again
explained to the jury that ‘‘[i]t is for you to determine
whether the person in the [still photograph] is the
defendant.’’
In the present case, the trial court carefully and
thoughtfully followed the law by applying the relevant
factors articulated in Gore and raised by the parties. In
addition, the court exercised its discretion in providing
two cautionary instructions to the jury. On the record
before us, we cannot conclude that the trial court
abused its discretion in allowing May to testify regarding his identification of the defendant from the still photograph.
We note, finally, that the four factors that this court
identified in Gore—and applied in the present case—
are not exhaustive. The standard we have adopted is a
totality of the circumstances test, and the four factors
discussed in Gore may not capture the full range of
considerations relevant in every case. Other factors may
well be pertinent, depending on the context, and courts
should remain attentive to them and make a record
for them, particularly when raised by the parties, in
determining whether there is some basis for concluding
that the witness is more likely than the jury to correctly
identify the defendant from the applicable photograph
or video.14
14
For example, in arguing that a lay witness’ opinion testimony identifying
a defendant from a photograph or video surveillance footage should not be
admitted, a defendant may raise the sequencing of any photographic array
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III
The defendant next claims that the trial court erred
by denying, in part, his motion to suppress CSLI records
that the police acquired after obtaining a search warrant
for those records. We disagree.
On July 20, 2017, the Bridgeport police sought and
obtained a search warrant for cell phone records relating to the defendant’s cell phone number. The following
information was requested: ‘‘TELEPHONE RECORDS,
BASIC SUBSCRIBER INFORMATION and CALL-IDENTIFYING INFORMATION (incoming, outgoing, numbers dialed, text messaging) for cellular phone number
203-8xx-xxxx15 and are requesting the information from
June 01, 2017 through 07/20/17. Any information regarding cell site activation, geographical positioning (GPS)
or any other information that would be able to pinpoint
the cell phone’s location during calls is also requested.
Any text messaging data is also requested.’’ (Footnote added.)
The search warrant affidavit provided, among other
things, that detectives responded to Alice Street around
4:27 a.m. on July 2, 2017, for a homicide that occurred
and still photo identification or any other factor that may be relevant to the
determination of whether the witness is, in fact, more likely than the jury
to correctly identify the defendant from the photograph. In the present case,
although May identified the defendant from a photographic array during the
same meeting with the police at which May identified the defendant in the
still photo, there is no testimony in the record from the police as to the
order in which the photographic array and still photograph were shown to
him. There is an implication by the prosecutor in the form of one question
that the photographic array came first, but it is not clear if that is a suggestion
as to the actual order of display or the order that the prosecutor intended
to show the exhibits to May at trial. More important, defense counsel did
not argue before the trial court that the procedure used by the police
undermined the reliability of May’s identification of the defendant in the
still photo. Instead, the defendant simply raised in the trial court the four
factors specifically enumerated in Gore.
15
In the interest of privacy, we have redacted the defendant’s cell phone
number throughout this opinion.
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in the parking lot of that location. Reginald was transported to the hospital for a gunshot wound to the chest
and was later pronounced dead. The affidavit further
stated that video surveillance footage captured ‘‘a dark
skinned male, thin, having a goatee and beard, wearing
a hooded sweatshirt,’’ walk into the parking lot on Alice
Street at 4:19 a.m. and exit approximately thirty seconds
later. Video surveillance footage also captured a dark
colored SUV, consistent with the defendant’s vehicle,
in the area of Alice Street around the time of the crime.
Reginald’s girlfriend, Williams, and another person,
Henderson, identified the person in the surveillance
footage as the defendant. Henderson was interviewed
by the police and stated that he was with the defendant
and Reginald days earlier on a jobsite in Virginia, during
which time the defendant and Reginald had engaged in
a physical altercation, which led to Reginald’s leaving
and returning to Connecticut. The affiants averred that,
‘‘[t]hrough investigative measures, detectives learned
that the cellular phone number for [the defendant] was
given as (203) 8xx-xxxx. This number was listed as the
contact number for [the defendant] with [the] Offices
of Adult Probation (Bridgeport). . . . Through investigative measures, it was learned that 203-8xx-xxxx is a
cellular number with the Custodian of Records is Sprint
. . . . Your affiants believe that [the defendant] communicated using his cellular number . . . and that call
records, GPS, and text messaging, will show that he
was back in Bridgeport . . . on the morning of [July
2, 2017], among other things, which will greatly assist
in this ongoing homicide investigation and respectfully
request this warrant be granted.’’ (Emphasis in original.)
Prior to trial, the defendant filed a motion to suppress
the CSLI records obtained by the police, arguing that
the warrant was not supported by probable cause, was
not particularized, and was overbroad. The crux of his
argument was that the search warrant affidavit did not
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establish that the perpetrator actually used a cell phone
before, during, or after the crime. He further argued
that the scope of the search—from June 1 through July
20, 2017—was overbroad because the warrant primarily
focused on one date—July 2, 2017—the date of the shooting.
The state argued that the search warrant affidavit not
only sufficiently articulated facts linking the defendant
to the shooting but also established a sufficient nexus
between the defendant, his cell phone, and the alleged
criminal activity. The state pointed out that the affidavit
stated that the ‘‘affiants believe[d] that [the defendant]
communicated using his cellular number (203-8xx-xxxx) and that call records, GPS, and text messaging,
will show that he was back in Bridgeport . . . on the
morning of [July 2, 2017], among other things, which
will greatly assist in this ongoing homicide investigation
. . . .’’ It also pointed out that the affidavit stated that
the cell phone number had been given to the Office of
Adult Probation by the defendant as a contact number.
The state argued that it was reasonable for the issuing
judge to infer from these facts, as well as from other
facts, including that the defendant had been working
out of state for a few days prior to the crime, that the
defendant had his cell phone on his person before,
during, and after the crime. This inference, the state
asserted, was especially warranted given the ubiquity
of cell phone usage in modern life, as discussed by
the United States Supreme Court in cases like Riley v.
California, 573 U.S. 373, 395,
134 S. Ct. 2473,
189 L.
Ed. 2d 430 (2014) and Carpenter v. United States,
585
U.S. 296, 311,
138 S. Ct. 2206,
201 L. Ed. 2d 507 (2018).
Following a suppression hearing, the trial court
granted in part and denied in part the defendant’s
motion to suppress. The court disagreed with the defendant that the state failed to establish probable cause
that certain cell phone records would produce evidence
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of the crime. Although it acknowledged that the warrant
application did not specifically indicate that any surveillance footage captured, or any eyewitness observed,
the perpetrator using a cell phone in the minutes before
or after the shooting, and also did not provide a more
general statement that the perpetrators of crime typically carry their cell phones with them during the commission of a crime and for some period thereafter, the
trial court explained that the issuing court could have
reasonably inferred that the perpetrator had a cell
phone with him before, during, and after the commission of the offense, given the ubiquity of cell phones
in modern society. The trial court ultimately concluded,
however, that there was probable cause for records
relating to the identity of the subscriber and his location
only for the period from June 29 through July 5, 2017.
The period began during the defendant’s work trip and
ended when the police located a car in the defendant’s
driveway that was consistent in appearance with the
vehicle depicted in the surveillance video. The court
explained that there was no probable cause to seize
CSLI records outside that time period or records that
showed the numbers called and received by the designated cell phone number. The court severed the warrant accordingly.
‘‘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
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on the assessment of probabilities in particular factual
contexts . . . . Probable cause requires less than
proof by a preponderance of the evidence . . . . The
task of the issuing [judge] is simply to make a practical,
[commonsense] 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.’’ (Internal quotation
marks omitted.) State v. Smith, 344 Conn. 229, 244–45,
278 A.3d 481 (2022).
In evaluating whether the warrant was predicated on
probable cause, the reviewing court may consider ‘‘only
the information that was actually before the issuing
judge’’ at the time he or she signed the warrant. (Internal
quotation marks omitted.) State v. Sawyer, 335 Conn.
29, 38,
225 A.3d 668 (2020). This is generally limited to
the information contained within ‘‘the four corners of
the affidavit.’’ State v. Batts, 281 Conn. 682, 700,
916
A.2d 788, cert. denied,
552 U.S. 1047,
128 S. Ct. 667,
169
L. Ed. 2d 524 (2007). Courts 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.’’ (Internal quotation marks omitted.) State v.
Smith, supra,344 Conn. 245.
‘‘Whether the trial court properly found that the facts
submitted were enough to support a finding of probable
cause is a question of law. . . . The trial court’s determination on [that] issue, therefore, is 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).
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State v. Evans
A
The defendant does not dispute that the state established probable cause to believe that he committed the
murder. Instead, he claims that the affidavit failed to
establish the requisite nexus between the alleged murder and the CSLI because it did not establish that the
defendant actually used or possessed his cell phone
before, during, or after the commission of the crime.
Without an allegation showing that the defendant likely
used his phone in temporal proximity to the murder,
he argues that there was no probable cause to support
the state’s request. We disagree.
It is well known that a search warrant affidavit must
establish ‘‘probable cause to believe that . . . the particular items sought to be seized are connected with
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.’’ (Internal quotation
marks omitted.) State v. Smith, supra,344 Conn. 244.
In the present case, the CSLI records at issue contain
information regarding the location of the cell phone
itself, not any information stored on the device. See,
e.g., Carpenter v. United States, supra, 585 U.S. 306
(‘‘[t]he case before us involves the [g]overnment’s acquisition of wireless carrier [cell site] records revealing
the location of [the defendant’s] cell phone whenever
it made or received calls’’ (emphasis added)). Given
the ubiquity of cell phone usage in modern society, a
person’s cell phone location can reasonably be presumed to reflect that person’s physical whereabouts.
See, e.g., Riley v. California, supra, 573 U.S. 385 (‘‘modern cell phones . . . are now such a pervasive and
insistent part of daily life that the proverbial visitor from
Mars might conclude they were an important feature
of human anatomy’’); see also, e.g., State v. Smith,
supra, 249 (explaining that United States Supreme
Court in Riley noted that ‘‘nearly [three quarters] of
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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’’ (internal
quotation marks omitted)). As the United States Supreme
Court has recognized, because people tend to carry their
phones with them everywhere they go, tracking a cell
phone’s location enables the government to conduct
‘‘near perfect surveillance’’ of a person. Carpenter v.
United States, supra, 311–12.
Given the inextricable connection between people
and their cell phones, an affidavit establishing probable
cause that a suspect committed a crime and facts that
the suspect is known to use or possess a particular cell
phone—together with the reasonable inferences that
can be drawn from those facts—provides a substantial
factual basis for a judge to conclude that there is probable cause to believe that the CSLI for that cell phone
will provide evidence connected to the criminal activity.
See, e.g., Commonwealth v. Hobbs, 482 Mass. 538, 547,
125 N.E.3d 59 (2019) (‘‘the location of a suspect’s cell
phone at the time of the criminal activity provides evidence directly related to his or her participation, or
lack thereof, in the criminal activity, and the location
of the cell phone at that time can reasonably be expected
to be found in the CSLI records requested’’).
Here, the affidavit established probable cause that
the defendant committed the murder and that he was
known to use or possess a particular cell phone. The
warrant affidavit explained that, ‘‘[t]hrough investigative measures, detectives learned that the cellular
phone number for [the defendant] was given as (203)
8xx-xxxx. This number was listed as the contact number for [the defendant] with [the Office] of Adult Probation (Bridgeport).’’ This fact provided a reasonable
basis for the issuing judge to conclude that the defendant used or possessed the cell phone assigned to that
number, as probation offices require accurate and up-
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to-date contact information for monitoring and communication purposes.16 Although the affidavit did not include
a general assertion about the ubiquity of cell phones
or that the defendant’s cell phone location could reasonably be presumed to reflect the defendant’s physical
location, based on cell phone use in today’s world, as
well as established case law from the United States
Supreme Court and this court, the issuing judge was
well positioned to employ his own common sense to
make those inferences. Accordingly, we conclude that
the facts in the affidavit, together with the reasonable
inferences that could be drawn therefrom, established
probable cause17 that the location of the defendant’s
cell phone for a reasonable period around the time of
the murder would provide evidence of his participation
or lack thereof in the criminal activity and that this
information would be found in the CSLI data requested.
Contrary to the defendant’s assertions, in the present
case, there was no requirement for the state to provide
facts from which a judge could find probable cause that
the defendant actually used his cell phone around the
time of the criminal activity.18
16
The defendant argues in his brief that he was not on probation in 2017
and questions why the state alleged that he was. He states that his last
conviction was in 2000. The affidavit did not provide that the defendant
was on probation but, rather, simply that the defendant’s cell phone number
was listed as his contact number with the Office of Adult Probation (Bridgeport). The defendant did not raise in the trial court any claim of staleness.
17
The defendant also contends that the affidavit did not sufficiently detail
the scientific manner in which cell phones communicate with cell phone
towers and generate CSLI. We conclude that this omission did not result
in a warrant that lacked probable cause. Although a layperson may not
necessarily know the technical terminology or precise process of how that
information is generated, the fact that cell phones communicate with cell
towers and can establish a user’s location is common knowledge. See, e.g.,
United States v. Batista, 558 Fed. Appx. 874, 876 (11th Cir. 2014) (‘‘[i]t is
common knowledge that cell phones connect wirelessly to a nearby cell
phone tower’’).
18
We note that a request for CSLI without a direct observation of a suspect’s actual use or possession of the cell phone at or around the time of
the crime does not raise the same nexus concerns that may exist in other
contexts, such as when the police seek to access the contents of a cell
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The defendant argues that, because the warrant
sought location data only during periods of active phone
use (when the phone made or received a call) rather
than CSLI, which is automatically and continuously generated, the affidavit needed to establish probable cause
that the defendant in fact used the phone during the
time of the crime. This argument, however, is based
on an incorrect reading of the warrant. Although the
warrant does, in part, request ‘‘any other information
that would be able to pinpoint the cell phone’s location
during calls,’’ it also seeks ‘‘[a]ny information regarding
cell site activation,’’ which is a broader request for CSLI
beyond periods of active use. But even if the state had
requested only what the defendant calls ‘‘active’’ CSLI,
as we have explained, the affidavit established probable
cause to believe that CSLI data for a reasonable period
around the time of the murder would contain evidence
of his participation or lack thereof in the criminal activity based in part on the defendant’s possession and
general use of the cell phone together with the reasonable inferences that can be drawn from those facts
(i.e., the ubiquitous nature of cell phone usage). Finally,
because active use of a cell phone is a subset of all
use, we fail to see how a request for the smaller data set
constitutes a greater infringement on the defendant’s
privacy than would a broader request. Accordingly, the
defendant’s claim fails.
phone. See, e.g., State v. Smith, supra, 344 Conn. 249–50. In cases in which
the police seek access to the contents of a cell phone, the absence of a
particularized showing risks granting the police broad access to extensive
and highly personal information—such as call history, messages, photographs, Internet activity, and application data—without a sufficient connection to the alleged offense. The fourth amendment demands a heightened
nexus in that context to guard against exploratory searches. By contrast,
CSLI, although still entitled to some degree of constitutional protection
because it reveals information about a person’s movements and associations,
presents a narrower privacy intrusion. Because CSLI does not expose the
intimate contents of the phone, the requisite nexus between the phone
and the crime is less. See, e.g., Commonwealth v. Hobbs, supra, 482 Mass.
547–48 n.11.
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B
The defendant argues that, even if this court determined that the affidavit established probable cause to
search and seize CSLI data, the search warrant was
nevertheless overbroad because the affidavit failed to
establish the requisite nexus between the murder and
the CSLI for the entirety of the seven day period (June
29 through July 5, 2017) for which the trial court found
probable cause. He primarily takes issue with the trial
court’s finding of probable cause for CSLI for July 3,
2017—the day after the murder. The state introduced
CSLI at trial from that day, showing that the defendant’s
cell phone connected to a cell tower near West Rock
Ridge State Park, near where a firearm connected to
the crime was recovered. The defendant contends that
the trial court should have severed the warrant to a
period of time ‘‘shortly before, during, and after the
crime, not . . . the next day.’’
The state argues that the trial court did not err in
severing the warrant to permit CSLI for the period that
it did. It contends that the defendant ‘‘offers no meaningful argument’’ as to why suppression of CSLI for the
day or days after the crime would be necessary. The
state contends that, ‘‘[when] probable cause exists to
believe that a particular individual committed the crime
in question, a fair probability exists that CSLI data in
the days and weeks after the crime may assist in the
apprehension or conviction of the defendant by leading
the police to areas where evidence may have been
disposed.’’19
19
The state notes in a footnote of its brief that it disagrees with the trial
court’s conclusion that there was probable cause for the CSLI only for the
period from June 29 through July 5, 2017. It contends that the period of
time it requested in the warrant—June 1 to July 20, 2017—was supported
by probable cause. Nevertheless, the state notes that, because it indicated
before the trial court that it intended to offer CSLI for only July 2 and
3, 2017, it does not challenge the trial court’s decision because ‘‘no live
controversy exists as to whether any additional information should have
also been admissible . . . .’’
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In Carpenter v. United States, supra, 585 U.S. 312–15,
the United States Supreme Court recognized that CSLI
can reveal personal details of an individual’s life, including their movements and associations. In light of these
privacy concerns, the court held that ‘‘the [g]overnment
must generally obtain a warrant supported by probable
cause’’ before acquiring CSLI. Id., 316. Since Carpenter,
this court has been cognizant of the sensitive nature of
CSLI. In State v. Tyus, 342 Conn. 784,
272 A.3d 132
(2022), for example, we assumed without deciding that
the collection of CSLI for a period of three days, which
was less time than the seven day period in Carpenter,
was nonetheless a search given the sensitive nature of
that information. See id., 803–804 and n.12. We noted
that ‘‘[a]llowing CSLI collection for a period of three
days, in the absence of compelling reasons or exigent
circumstances, may not adequately alleviate’’ the privacy concerns articulated in Carpenter. Id., 803 n.12.
Given these privacy concerns, courts must ensure that
the breadth of a warrant is justified by the breadth of
the probable cause.
We acknowledge that defining the permissible temporal parameters of CSLI searches can be a difficult task
and is an evolving issue in fourth amendment jurisprudence. See, e.g., United States v. Disla Ramos, Docket
No. 22-CR-431 (LJL), 2022 WL 17830637, *11 (S.D.N.Y.
December 21, 2022) (‘‘[thoughtful] and competent judges
might disagree on where to draw the line’’ for scope of
warrant for CSLI (internal quotation marks omitted));
Commonwealth v. Hobbs, supra,482 Mass. 549 (‘‘[w]e
recognize . . . that defining the permissible parameters of time for CSLI searches that are justified by probable cause is difficult’’). Courts, however, are particularly
well suited to undertake that fact intensive inquiry, resolving questions of probable cause based on the particular
facts of a given case. See, e.g., State v. Holley, 324 Conn.
344, 352,
152 A.3d 532 (2016) (issuing judges must assess
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‘‘ ‘all of the information set forth in the warrant affidavit
and should make a practical, nontechnical decision
whether . . . there is a fair probability that contraband
or evidence of a crime will be found in a particular
place’ ’’).
We conclude that the trial court properly found that
there was probable cause for CSLI for the period from
June 29 to July 3, 2017, but not for the days after that
period. The affidavit established that the defendant was
in Virginia on June 28, 2017, just days prior to the murder, during which time he and Reginald engaged in a
physical altercation. CSLI for the three days leading up
to the murder would have revealed pertinent evidence,
including that the defendant traveled back to Connecticut and was near Reginald’s apartment at the time of
the shooting. The location of the defendant’s cell phone
during those days before the murder also would have
assisted in securing the defendant’s conviction by connecting the defendant’s cell phone with his known
movements to further demonstrate that he was the individual in possession of the phone on the night of the
crime. CSLI for the day of and the day after the murder—
July 2 and 3, 2017, respectively—would have likely provided crucial evidence showing the defendant’s presence at the crime scene as well as his flight from that
location, including evidence of any attempt to evade
detection or consciousness of guilt. Indeed, the affidavit
itself indicated that an SUV similar to the defendant’s
vehicle was captured on surveillance footage leaving
the area of the crime scene with its lights off, suggesting
that the suspect was immediately attempting to evade
detection. Thus, the defendant’s contention that there
was no probable cause for CSLI on the day following
the murder is unavailing.
For the days beyond July 3, 2017, however, we cannot
conclude that there was a sufficient nexus between the
murder and the CSLI. The more time that passes after
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the date of a crime, the less probable it becomes that
the CSLI will reveal evidence relevant to the crime or
assist in the defendant’s apprehension or conviction.
Of course, if there were specific assertions in the affidavit that demonstrated that the defendant’s movements
on those dates were somehow connected to the homicide or that the CSLI would somehow assist in the
apprehension or conviction of the defendant, that
would be one thing. But there were no such facts contained in the affidavit for those later days. Accordingly,
the trial court should have limited the scope of the
warrant for CSLI to the period from June 29 through
July 3, 2017. Nevertheless, because the state introduced
CSLI evidence from only July 2 and July 3, 2017, and the
trial court properly concluded that there was probable
cause for the CSLI for those dates, the court’s error is
of no consequence.
The judgment is affirmed.
In this opinion MULLINS, C. J., and D’AURIA and
BRIGHT, Js., concurred.
