State v. Shields

• Decision Date: 26 October 2010
• Docket Number: No. 30560.,30560.
• Citation: 5 A.3d 984,124 Conn.App. 584
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert SHIELDS III.

5 A.3d 984

124 Conn.App. 584

STATE of Connecticut

v.Robert SHIELDS III.

No. 30560.

Appellate Court of Connecticut.

Argued June 2, 2010.

Decided Oct. 26, 2010.

Richard Emanuel, New Haven, with whom, on the brief, was Robert M. Casale, Branford, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellee (state).

ROBINSON, ALVORD and PELLEGRINO, Js.

ROBINSON, J.

The defendant, Robert Shields III, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere pursuant to General Statutes § 54-94a,¹ of possession of child

[5 A.3d 987, 124 Conn.App. 586]

pornography in the first degree in violation of General Statutes § 53a-196d.² On appeal, the defendant claims that the trial court improperly (1) denied his motions to suppress because the affidavit in support of the search warrant application failed to establish probable cause for the search of his home and the seizure of his property therein, and (2) determined that the warrant authorized a forensic examination of the evidence. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On November 15, 2005, as the result of a criminal investigation that began in Pennsylvania, Officer Christopher Grillo of the Southbury police department and Trooper Gerard Johansen of the Connecticut state police prepared a search warrant application and affidavit for the search of the defendant's residence at 141 Rocky Mountain Road in Southbury.

The affidavit stated that on November 4, 2005, Grillo received a telephone call from Brian Sprinkle, a detective with the Ferguson Township police department,located in State College, Pennsylvania. Sprinkle informed Grillo that through his investigation of Brian Gayan, a Pennsylvania resident accused of having unlawful contact with minors through the Internet, he learned of an online conversation between Gayan and Jerome Cariaso, also of 141 Rocky Mountain Road. During the conversation, Cariaso made comments regarding sexual contact between him and his eight year old son. Immediately after the call, Grillo confirmed that Cariaso resided at the address provided by Sprinkle.

On November 10, 2005, Grillo received a letter from Sprinkle ³ that revealed that Trooper Glenn Brad of the Pennsylvania state police executed search warrants at Gayan's place of residence and place of employment. A forensic search of his computers revealed that Gayan, using thescreen name "Centralpamaster," had contact with seventy-five screen names belonging either to minors or suspects who had spoken with him about abusing their own children or children they knew. Sprinkle obtained a court order, which asked Yahoo, Inc., to provide log-in Internal protocol (IP) addresses for the screen name "Bi06488." Yahoo, Inc., revealed that there was a recent log of IP addresses listed under that screen name. It was found that the IP addresses were owned by Charter Communications, and, on November 4, 2005, Charter Communications indicated that Cariaso, of 141 Rocky Mountain Road, Southbury, was the subscriber for the IP address of 24.151.2.100, the IP address in question.

Additionally, Sprinkle provided Grillo with a transcript of a Yahoo, Inc., messenger conversationbetween "Centralpamaster" and "Bi06488," in which "Bi06488" asked "Centralpamaster" for pornographic photographs of "Centralpamaster's" son. The person using the "Bi06488" screen name informed "Centralpamaster" that they could not swap photographs because he did not currently have pornographic photographs of his son on his computer.⁴

On November 14, 2005, Grillo obtained land records from the Southbury assessor's office indicating that the property located at 141 Rocky Mountain Road was owned by Cariaso, the defendant and Rosalie Shields.⁵ Based on the foregoing investigation, Grillo and Johansen submitted a search warrant application seeking to search the subject residence. The warrant affidavit alleged that there was probable cause to believe that Cariaso had violated the following statutes: General Statutes § 53-21, risk of injury to a child; § 53a-196d, possession of child pornography in the first degree; and General Statutes § § 53a-49 and 53a-196d, attempt to possess child pornography in the first degree. The court, Brown, J., issued the warrant on the same day, authorizing a search of the residence located at 141 Rocky Mountain Road, the seizure and subsequent investigative review of any computer systems found for evidenceof violations of § 53-21, § 53a-196d, and §§ 53a-49 and 53a-196d, and the transport of the computer systems to the Connecticut state police computer crime and electronics evidence unit (evidence unit).

On November 16, 2005, the police executed the warrant. Upon entering the residence, the police found the defendant, Rosalie Shields and Cariaso. The police seized numerous computer systems from the residence. The evidence unit completed a forensic examination of the defendant's computers and found numerous still and video images depicting child pornography. The forensic examination also revealed extensive evidence that the computers were used by the defendant and not Cariaso. The defendant was arrested and charged with possession of child pornographyin the first degree in violation of § 53a-196d and importing child pornography in violation of § 53a-196c. ⁶

On August 16, 2006, the defendant filed a motion to suppress the evidence that had been seized, arguing, inter alia, that the search was unlawful because the warrant failed to establish probable cause to believe that child pornography was located within the subject residence. The defendant further argued that the affidavit attached to the warrant failed to establish a connection between the screen name "Bi06488," the IP address and the subject premises. On June 8, 2007, the court, Cremins, J., denied the defendant's motion ⁷ and concluded that the affidavit supported a reasonable inference that "Bi06488" requested the receipt of pornographic images and that this inference provided the issuing magistrate with a substantial basis from which to conclude that evidence of child pornography would be found in the residence.

The defendant filed a second motion to suppress on September 11, 2008. He alleged that information discovered subsequent to the court's ruling on the first motion to suppress defeated a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (holding that when defendant makes substantial preliminary showing that false statement knowingly and intentionally, or with reckless disregard for truth, included by affiant in warrant affidavit, and allegedly false statement necessary to find probable cause, fourth amendment, as incorporated against states by fourteenth amendment, requires hearing be held at defendant's request). On September 16, 2008, the court, Alander, J., heard argument on, and subsequently denied, the defendant's motion. Following the denial of the second motion to suppress, the defendant, on September 17, 2008, entered a written, conditional plea of nolo contendere to possession of child pornography in the first degree. In accordance with the plea agreement, he was sentenced to a term of imprisonment of twenty years, execution suspended after five years, and ten years probation, with conditions including sex offender evaluation and treatment, and registration as a sex offender. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant's claims pertaining to his motions to suppress. "The standard of review in connection with the court's denial of a motion to suppress is well settled. As stated by our Supreme Court: This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determinewhether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court's judicial review of decisions of the trial court. Beyond that, we will not go.... In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary,and we must decide whether those conclusions are legally and logically correct in light of the findings of fact." (Internal quotation marks omitted.) State v. Kaminski, 106 Conn.App. 114, 124-25, 940 A.2d 844, cert. denied, 287 Conn. 909, 950 A.2d 1286 (2008).

"It is undisputed that [p]robable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.... Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... [I]t is axiomatic that [a] significantly lower quant[um] of proof is required to establish probable cause [rather] than guilt.... [P]robable cause requires 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; to require...