State v. Kaminski, No. 27627.

• Decision Date: 26 February 2008
• Docket Number: No. 27627.
• Citation: 106 Conn.App. 114,940 A.2d 844
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John KAMINSKI.

940 A.2d 844

106 Conn.App. 114

STATE of Connecticut v. John KAMINSKI.

No. 27627.

Appellate Court of Connecticut.

Argued November 29, 2007.

Decided February 26, 2008.

Arthur L. Ledford, special public defender, for the appellant (defendant).

Robin S. Schwartz, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, senior assistant state's attorney, for the appellee (state).

McLACHLAN, HARPER and PETERS, Js.

McLACHLAN, J.

The defendant, John Kaminski, appeals from the judgments of conviction, rendered following his conditional pleas of nolo contendere pursuant to General Statutes § 54-94a, of six counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2).¹ On appeal, the defendant claims that the court improperly (1) determined that the warrant to search his apartment did not lack probable cause, (2) denied his motion to suppress all of the evidence seized under the search warrant, (3) made a determination that was beyond the scope allowed under the circumstances of the case and (4) denied his request for a Franks hearing.² We affirm the judgments of the trial court.

The following facts are relevant to our resolution of the defendant's claims on appeal. In the ruling on the defendant's motion to suppress, the court found that "[s]ix months after completing probation for his sexual assault of a fourteen year old girl in 1993, [the defendant], a forty-nine year old man, brought another fourteen year old girl³ to his apartment and took photographs of her." The defendant had agreed with the young girl's mother that he would take photographs of the girl for her modeling career. The mother had signed a written agreement but had not yet had the signature appearing on that agreement notarized. Most importantly, the agreement contained a provision that the mother would be present at all of the photography sessions.

On February 24, 2004, the defendant picked up the girl at an address different from her mother's address and took her to his residence. The defendant had informed the girl that they would be meeting to discuss her modeling career. After they arrived at his residence, however, he asked her to change into a man's button-down shirt so he could take photographs of her. At the defendant's request, the girl went into the defendant's bedroom and selected a button-down shirt. Below her waist, the girl was wearing only thong underpants.⁴ The defendant then proceeded to take thirty photographs of the girl in a variety of poses. In its memorandum of decision on the motion to suppress, the court stated: "The [defendant] told the girl to pose any way she liked. In some of the thirty photographs taken, the girl wore only thong panties on the lower portion of her body; in one of those photographs, which was provided to the court, the girl is pictured sitting down with her knees drawn up to her chin and her crotch area exposed, covered only by the thong panties. In another photograph, the girl is pictured lying on her stomach wearing a man's dress shirt and thong panties, the dress shirt has raised up on her back and a portion of her buttocks is exposed.⁵

"After taking the photographs, the [defendant] sent them via his computer to, an unidentified third person, advising that person [that] he would be taking more pictures on Friday, February 27, 2004, with a better camera and asking the recipient of these photographs to let him know if he wanted those photographs as well." The defendant had asked the girl to meet him on that Friday to take more photographs. For this photography session, the defendant "asked her to wear `little girl type' panties on that date because, he said, the company' liked the models to wear such panties."

The defendant then drove the girl back to the location from which he had retrieved her, the residence of the family friends where she had been staying. After the girl informed these family friends where she had been and showed them the photographs, they became concerned and alerted the police about the defendant's involvement with the girl.

The victim informed the police that while at the defendant's apartment the defendant showed her a web site named "LiL'Amber.com." The court stated: "This web site features young females (preteens and young teenagers) dressed in panties, bathing suits and half shirts." The police could not fully access the web site, which they classified as "child erotica," because it required a fee.

During their investigation, the police discovered that "[i]n 1999, apparently while still on probation for his sexual assault conviction, the [defendant] had used a credit card to purchase access to a web site featuring child pornography. This web site had been the subject of a seizure carried out by the Dallas, Texas, police department in the course of a nationwide investigation of child pornography and the Internet, and the [defendant's] name was found on a listing of individuals who had purchased access to the web site."

Also, while on probation, the defendant informed his probation officer that he was "self-employed in the janitorial and real estate maintenance business ..." Moreover, "he had never mentioned to his probation officer that he was intending to go into the child modeling or photography fields."

On the basis of the defendant's behavior with the fourteen year old girl and his other actions, the police submitted an affidavit to a Superior Court judge in support of an application for a search warrant to search the defendant's residence, which was based on risk of injury to a child. The court stated: "In addition, the affiants, two veteran New Britain detectives, relying on their `training and experience,' informed the issuing judge that, although the images appearing on the `Lil'Amber' web site did not appear to be child pornography, as defined in General Statutes § 53a-193(13), `persons who focus on children as sexual objects often collect these images [known as `child erotica'] as well as child pornography' and often use them in their seduction of child victims. Further, the affiants averred that `persons involved in sending or receiving child erotica or pornography tend to retain it for long periods of time' on their computers and in other formats, such as diskettes or CD-ROMS, that computer hardware, software and documentation are important to a criminal investigation both as storage media for information about crimes and as instrumentalities and/or evidence of the crimes, themselves, that `persons who focus on children as sexual objects often collect sexually explicit materials consisting of photographs, digital images, video files, audio tapes and files or other computer files, depicting children of a particular age group.' Finally, the affiants state that to retrieve data from a computer system, it is necessary for the entire system to be seized and submitted to a computer specialist for examination and analysis in a laboratory setting."

On the basis of this affidavit, the court issued a search and seizure warrant. The search yielded a plethora of incriminating evidence against the defendant, including photographs of the defendant engaged in sexual act with unconscious minors, which led to the six sexual assault charges to which he later pleaded guilty. Subsequently, the defendant moved to suppress the evidence obtained on three grounds: (1) lack of probable cause, (2) lack of particularity in the description of the items seized and (3) material representations made by police in the affidavit that were either intentionally false or made with reckless disregard as to their truth or falsity.

On April 25, 2005, the court, Shortall, J., granted the motion to suppress in part concerning two items⁶ and denied the motion to suppress regarding the other, items. In regard to the other items, the court concluded that the search warrant was valid and "described quite specifically computer and photographic equipment for which adequate probable cause is established in the affidavit supporting the application." The court also drew the same conclusions for the "collections of photographs depicting children in a particular age group in nude or seminude poses, or engaging in sexual activity," on the basis of the defendant's previous conviction and actions taken with the young girl during and after the photography session.

Subsequently, the defendant filed a motion for articulation, and the court issued a supplemental memorandum of decision on May 12, 2005. On September 25, 2005, the defendant moved to reargue the motion to suppress, averring that he had learned information that was not available at the time the motion was filed, heard and decided. According to the defendant, this new information consisted of statements in the search warrant affidavit that the mother had not signed the model release form, when she had in fact signed it, but had failed to have the signature notarized, and that the girl was living not with the mother but at the address where the defendant met her on the day of the photography session.

On September 29, 2005, with the state in agreement, the court granted the defendant's motion to reargue. After granting the motion to reargue, the court heard argument in which the defendant claimed that the police officers who sought the warrant to search his apartment intentionally or recklessly omitted facts from the affidavit, which were material to the finding of probable cause for risk of injury to a child. After analyzing the defendant's claims, the court concluded: "All of [the] facts allow for the reasonable inference that this was a subterfuge devised by the [defendant] to lure this child into a situation harmful to her moral, mental and even physical welfare, and none of them is challenged by the motion to reargue. The claims relied on in the motion to reargue are either unsupported by the exhibits submitted in support of the motion or immaterial...