State v. SmithState v. Smith
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
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.
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
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 pay-as-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
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-
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
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
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-
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
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
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
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
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-
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-
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.
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.
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 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.
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.
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’
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
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
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-
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.