CT: 2010 CSLI in violation of state statute and later Carpenter suppressed

The state got prospective CSLI in 2010 which it ultimately admitted was obtained in violation of state statute. The statute, moreover, permitted the state’s discovery of CSLI on reasonable suspicion. Carpenter was violated, although it came in 2018, as well as the statute, and the good faith exception would not be applied. Inevitable discovery also didn’t apply. State v. Brown, 2019 Conn. LEXIS 79 (Apr. 2, 2019). Summary by the Court:

1. The trial court correctly concluded that the state obtained the defendant’s cell phone data illegally; the state had conceded that the two court orders authorizing the disclosure of prospective cell phone data were obtained in violation of § 54-47aa, and the disclosure of historical cell phone data pursuant to the first ex parte order violated the defendant’s fourth amendment rights in light of the United States Supreme Court’s recent decision in Carpenter v. United States (138 S. Ct. 2206), in which the court held that an individual has a legitimate expectation of privacy in the historical record of his physical movements as captured through cell phone data and that the government must generally obtain a warrant supported by probable cause before acquiring such data, because the police obtained the defendant’s historical data on the basis of a reasonable and articulable suspicion, rather than on the basis of a warrant supported by probable cause.

2. The trial court correctly concluded that the suppression of the historical and prospective cell phone data that had been illegally obtained by the state was the appropriate remedy: notwithstanding the state’s claim that, because the police officers acted in reasonable reliance on the court’s order authorizing the disclosure of the historical cell phone data, they acted in good faith, and that the purpose of the exclusionary rule, namely, to deter police misconduct, did not apply under these circumstances, this court’s prior case law has uniformly established a bright-line rejection of the good faith exception to the exclusionary rule under the state constitution, and, accordingly, the trial court properly suppressed the defendant’s historical cell phone data; moreover, the state could not prevail on its claim that, with respect to the disclosure of the prospective cell phone data, suppression was not a remedy for a violation of § 54-47aa, this court having determined, after reviewing the statute’s text and legislative history, as well as related statutes, that the statute’s legislative history provided strong support for the conclusion that the legislature intended that suppression would be an appropriate remedy for violations of § 54-47aa and that the tracking of the defendant’s cell phone, in the absence of a showing of probable cause and in violation of § 54-47aa, implicated important privacy interests that are traditionally the type protected by the fourth amendment, which required the application of the exclusionary rule and the suppression of the prospective cell phone data.

3. The trial court correctly determined that the state failed to meet its burden of proving that the inevitable discovery exception to the exclusionary rule applied to J’s statement to the police implicating the defendant and J’s potential testimony, which the trial court suppressed on the ground that the state conceded that, in the absence of the illegally obtained cell phone data, the police would not have interviewed J and obtained his statement; the trial court properly determined that the state, in order to bear its burden of proving that that inevitable discovery exception applied, was required to prove by a preponderance of the evidence not only that the police would have identified and located J by legal means, but also that J would have cooperated and provided the same information in the absence of the illegally obtained cell phone data, and, although the state presented credible evidence at the defendant’s suppression hearing that it inevitably would have discovered J by lawful means, it failed to present any evidence to demonstrate that J would have similarly cooperated with the police in the absence of being confronted with the illegally obtained cell phone data.

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