State v. Brown

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STATE OF CONNECTICUT v. TERRANCE BROWN

(SC 19960)

Palmer, McDonald, Robinson, D’Auria, Mullins and Kahn, Js.*

Syllabus

Pursuant to statute ([Rev. to 2009] § 54-47aa), a law enforcement official

may request an ex parte order from a Superior Court judge to compel

a telecommunications carrier to disclose basic cell phone subscriber

information and information identifying the origin and destination of

each communication generated or received by the subscriber. The judge

shall grant the order if the law enforcement official states a reasonable

and articulable suspicion that a crime has been or is being committed.

The defendant, who had been charged in multiple informations with various

crimes, including burglary and larceny, for his alleged role in the theft

or attempted theft of automated teller machines from gas stations and

convenience stores, filed motions to suppress the historical and prospec-

tive cell phone call and location data obtained by the state as a result

of three ex parte orders that had been issued pursuant to § 54-47aa. A

police task force had been organized to investigate a series of crimes

in which an individual or individuals, using various stolen vehicles,

had backed those vehicles into the stores or gas stations and removed

freestanding automated teller machines. As a result of information

obtained by the police, an officer conducted a motor vehicle stop of

the defendant, who was released after questioning. After uncovering

further information about the defendant, including his cell phone num-

ber, the police determined that the defendant may have been involved

in the various thefts under investigation. The police then obtained the

first ex parte order, which directed the defendant’s cell phone carrier

to disclose the past three months of his cell phone data and other

basic subscriber information. An analysis of that data led the police to

determine that the defendant had used his cell phone in relevant loca-

tions during times and dates that coincided with dates on which the

various thefts under investigation had occurred. On the basis of this

information, the police obtained two more ex parte orders that were

prospective in nature, requiring the defendant’s cell phone carrier to

disclose caller identification information linked to his cell phone num-

ber, including live updates every ten minutes, for two consecutive early

morning periods and for a later three day period. Based on the cell

phone data that had been obtained pursuant to the orders, J, who had

been in communication with the defendant at certain relevant times,

was arrested and taken into custody in connection with an automated

teller machine theft. During their interview of J, the police revealed to

J that his cell phone number was listed in the defendant’s phone log

and that the cell phone data indicated that the defendant and J had

contacted each other at or around the time of certain of the alleged

thefts or attempted thefts. J then gave a statement implicating himself

and the defendant in connection with many of the thefts and attempted

thefts that had been under investigation. Relying on the state’s conces-

sion that the second and third orders authorizing the disclosure of

prospective cell phone data violated § 54-47aa and its determination

that the first order authorizing the disclosure of historical data also

violated § 54-47aa, the trial court granted the defendant’s motions to

suppress all of the cell phone data, J’s statement to the police, and any

potential testimony by J. The trial court also concluded that the state

had failed to prove that the inevitable discovery exception to the exclu-

sionary rule applied to J’s statement and potential testimony. Thereafter,

the trial court granted the defendant’s motions to dismiss the charges

and rendered judgments thereon, from which the state, on the granting

of permission, appealed. Held:

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 reason-

able 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 circum-

stances,, 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 sup-

pressed 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 applica-

tion 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.

Argued December 15, 2017—officially released April 2, 2019

Procedural History

Informations, in twelve cases, charging the defendant

with nine counts each of the crimes of larceny in the

third degree and criminal mischief in the first degree,

six counts of the crime of burglary in the third degree,

four counts each of the crimes of conspiracy to commit

burglary in the third degree and conspiracy to commit

larceny in the third degree, three counts of the crime

of conspiracy to commit criminal mischief in the first

degree, two counts each of the crimes of attempt to

commit burglary in the third degree and criminal trover

in the first degree, and one count each of the crimes

of burglary in the first degree, larceny in the fourth

degree, conspiracy to commit larceny in the fourth

degree, larceny in the fifth degree and possession of

burglar tools, brought to the Superior Court in the judi-

cial district of New Haven, where the court, Blue, J.,

granted the defendant’s motions to suppress certain

evidence; thereafter, the court, Clifford, J., granted the

defendant’s motions to dismiss the charges and ren-

dered judgments thereon, from which the state, on the

granting of permission, appealed. Affirmed.

Harry Weller, senior assistant state’s attorney, with

whom were John P. Doyle, Jr., senior assistant state’s

attorney, and, on the brief, Patrick J. Griffin, state’s

attorney, Timothy J. Sugrue, assistant state’s attorney,

and Dana Tal, certified legal intern, for the appellant

(state).

Jennifer B. Smith, for the appellee (defendant).

Opinion

KAHN, J. The present case is in large part governed

by the recent decision of the United States Supreme

Court in Carpenter v. United States, U.S. , 138

S. Ct. 2206, 2217, 2221, 201 L. Ed. 2d 507 (2018), in

which the court held that an individual has ‘‘a legitimate

expectation of privacy in the record of his physical

movements as captured through [cell site location infor-

mation]’’ (CSLI), and, therefore, ‘‘the [g]overnment

must generally obtain a warrant supported by probable

cause before acquiring such records.’’ The state

appeals1 from the judgments of dismissal rendered by

the trial court after it granted the oral motion of the

defendant, Terrance Brown, seeking dismissal of all

charges in thirteen separate dockets.2 The state claims

that the trial court improperly granted the defendant’s

motions to suppress any and all ‘‘cellular-telephone-

derived location information’’ obtained by the state as

a result of three ex parte orders that had been granted

pursuant to General Statutes (Rev. to 2009) § 54-47aa.3

In their original briefs and arguments to this court, the

parties focused primarily on whether the trial court

properly granted the defendant’s motions on the basis

of its conclusion that the state obtained the prospective

and historical CSLI in violation of § 54-47aa, and that

suppression of the records was the appropriate remedy.

Following oral argument, however, this court stayed

the appeal pending the decision of the United States

Supreme Court in Carpenter and ordered the parties

to submit supplemental briefs concerning the relevance

of that decision to this appeal. In light of the court’s

holding in Carpenter, we conclude that, because the

state obtained the defendant’s historical CSLI solely

on the basis of a reasonable and articulable suspicion,

rather than on a warrant supported by probable cause,

the records were obtained in violation of the defen-

dant’s fourth amendment rights. We further conclude

that the trial court properly determined that suppres-

sion of both the historical and prospective CSLI—which

the state concedes it obtained in violation of § 54-47aa—

was the appropriate remedy. Finally, we conclude that

the trial court properly rejected the state’s reliance on

the inevitable discovery doctrine. Accordingly, we

affirm the judgments of the trial court.

The record reveals the following facts and procedural

background. From July 30 through November 23, 2010,

Connecticut State Police Detective Patrick Meehan was

a member of a task force investigating a series of bur-

glaries and attempted burglaries at a variety of gas

stations and convenience stores in the New Haven,

Waterbury and Fairfield areas. In the late night and

early morning hours, the thieves targeted businesses

that had freestanding ATMs inside a windowed store-

front. Using a stolen vehicle, in many instances a Dodge

Caravan minivan, the thieves backed the vehicle into

the building when the business was closed, smashing

through the glass and, in many cases, knocking over

the ATM. The thieves would then load the ATM into

the back of the vehicle, from which the rear seats had

been removed, and drive away. Several of the ATMs

had subsequently been recovered; those machines

appeared to have been cut open with a reciprocating

saw. Three of the ATMs were recovered in a cemetery

not far from where the defendant lived. The stolen vehi-

cles were later abandoned in different locations from

where the ATMs had been discarded.

Following a task force meeting on September 15,

2010, Meehan learned that, on or about May 26, 2009,

a police officer patrolling in the town of Monroe had

observed a Dodge Caravan swerve over the double yel-

low line in the road several times. The officer pulled

the Caravan over and, because there was heavy traffic,

directed the driver to a nearby parking lot. As the driver

of the Caravan began to pull into the parking lot, a

Lincoln Navigator pulled up alongside the Caravan. The

Lincoln’s driver briefly spoke to the driver of the Cara-

van, then drove away. The Caravan continued into the

parking lot but, while the van was still in gear, the driver

opened the door and fled on foot. Although the officers

attempted to pursue the driver, he was never appre-

hended or identified. The rear seats of the Caravan,

which had been stolen in Bridgeport just prior to the

incident, had been removed. The Lincoln Navigator was

stopped moments later. At the time of the stop, the

defendant, who was driving that vehicle, informed the

officers that he was a student at Southern Connecticut

State University (Southern) and played for the football

team. After being questioned by the officers, the defen-

dant was allowed to leave.

Meehan subsequently began investigating the defen-

dant. From the campus police at Southern, Meehan

obtained the defendant’s cell phone number and his

address in New Haven, a location not far from where

a couple of the stolen vehicles had been recovered.

When Meehan ran a criminal history check on the defen-

dant, he discovered that he previously had been con-

victed of burglary and larceny. Specifically, the

defendant had been convicted of committing two bur-

glaries over the course of several weeks at a gun shop.

Of particular interest to Meehan was the fact that the

defendant had used a vehicle to smash through the

front door to enter the shop.

On October 4, 2010, Meehan and other police officers

conducted overnight surveillance of the defendant.

Sometime after 10 p.m., they observed the defendant

leave his house, get into his car and drive to the ceme-

tery where three of the stolen ATMs had been recovered

approximately two weeks earlier. The officers followed

him to the cemetery, where he remained for a few

minutes. He then returned to his home and did not leave

for the rest of the night.

On the basis of all of this information, Meehan

obtained the first of the three ex parte orders that are

the subject of this appeal and which was the sole order

that authorized the disclosure of historical cell phone

records. In this first ex parte order, issued on October

22, 2010, the court, Holden, J., directed T-Mobile Com-

munications (T-Mobile)4 to disclose telephone records,

including basic subscriber information and call identi-

fying information, pertaining to the defendant’s cell

phone number for the period of July 29 to September

29, 2010. The order specified that basic subscriber infor-

mation included ‘‘name, address, local and long distant

telephone connection records, records of session times

and durations, length of service (including start date,

and types of service utilized), telephone or instrument

number, other subscriber number or identity, assigned

internet protocol addresses, and means and source of

payment for such service including any credit card or

bank account number.’’ ‘‘Call identifying information’’

included ‘‘dialing or signaling information that identifies

the origin, direction, destination or termination of each

communication generated or received by a subscriber

or customer by means of any equipment, facility or

service of telecommunications carrier.’’ The order also

directed the disclosure of ‘‘cellular site/tower informa-

tion including addresses of cellular towers . . . .’’

The remaining two ex parte orders were prospective

in nature. In the second order, issued on November

15, 2010, the court, Shaban, J., directed T-Mobile to

disclose call identifying information for the defendant’s

cell phone number, including live updates from T-

Mobile on cell phone pings every ten minutes between

midnight and 6 a.m. on both November 16 and 17, 2010.

In the third order, issued on November 22, 2010, the

court, Cremins, J., directed T-Mobile to disclose call

identifying information for the defendant’s cell phone

number, including ‘‘E911 pings,’’ every ten minutes from

midnight on November 23, 2010 until 7 a.m. on Novem-

ber 25, 2010.

From the records disclosed as a result of the October

22, 2010 order, following consultation with other offi-

cers who assisted in the analysis of the records, Meehan

noticed that, during the period between July 29 and

September 29, 2010, the defendant’s daily cell phone

calls ordinarily stopped sometime between 10 and 11

p.m. There were some exceptions to that general pat-

tern—certain days when the defendant made several

phone calls between 2 and 4 a.m. Those dates and

times coincided with the dates on which there had been

attempted or completed ATM burglaries. In addition,

Meehan observed that the location information recov-

ered from the cell phone records often ‘‘match[ed] . . .

up’’ with the location of the burglaries or attempts that

had occurred on a given date. That is, during the time

period of the burglaries, the defendant’s cell phone

records showed that his phone was pinging off of nearby

cell towers.

Meehan particularly focused on the defendant’s

phone records for the early morning hours of September

28, 2010, when two attempted or completed ATM bur-

glaries had occurred, both of which had involved stolen

vans smashing through storefronts. An ATM was

removed from a business in Shelton at approximately

2:15 a.m., and there was an attempt to steal an ATM in

Ansonia at 5:04 a.m. At the time that these two incidents

occurred, six phone calls were exchanged between the

defendant’s cell phone and a New Jersey telephone

number. Meehan discovered that the New Jersey tele-

phone number was registered under the name ‘‘Ollie

Twig.’’

On November 23, 2010, Meehan reported to the Wall-

ingford Police Department, where a suspect, Ramon

Johnson, had been arrested and taken into custody in

connection with an ATM burglary. The police had

located Johnson as a result of the real time tracking

of the defendant’s CSLI on that date, pursuant to the

prospective ex parte order granted on November 22,

2010. During his interview of Johnson, Meehan learned

that Johnson, like the defendant, was a student at South-

ern and a member of the school’s football team. Johnson

informed Meehan that, when not at school, he lived in

New Jersey with his grandmother, Ollie Twig. At that

point, Meehan showed Johnson the defendant’s phone

log for September 28, 2010, which he had obtained

pursuant to the October 22, 2010 order, and in the mar-

gins of which Meehan had written ‘‘Ollie Twig’’ and

drawn arrows pointing to the New Jersey phone number

that the defendant had been calling when the Shelton

burglary and the Ansonia attempted burglary were tak-

ing place. Johnson admitted that the phone number in

the log was his and gave a statement implicating himself

and the defendant in connection with the series of ATM

burglaries and attempted burglaries.

The defendant was subsequently arrested and

charged in thirteen separate informations under thir-

teen different docket numbers, with committing numer-

ous offenses, including burglary, attempt to commit

burglary, conspiracy to commit burglary, larceny, con-

spiracy to commit larceny, criminal mischief and pos-

session of burglar tools. See footnote 2 of this opinion.

The defendant filed motions to suppress any and all

‘‘cellular-telephone-derived location information,’’ both

historical and prospective in nature, as well as any

evidence found to be the fruit of such information,

including any potential testimony by Johnson.5 Included

in the evidence considered by the trial court during the

suppression hearing were stipulated facts submitted

by the parties, including: ‘‘As a result of the real time

tracking of the defendant through the monitoring of

[his] cell site location data, the police were able to track

the defendant’s activities on November 23, 2010, and

to thereby locate [Johnson]. . . . But for the ability

of the police to track [the defendant’s] movements by

monitoring [his] cell phone on a real time basis, Johnson

would never have been stopped, detained, arrested or

interrogated by the police on November 23, 2010.’’

Following the suppression hearing, the trial court

granted the defendant’s motions to suppress in all of

the cases pending against him. In its memorandum of

decision, the court acknowledged that the defendant’s

motions implicated both statutory and constitutional

principles, but, because the constitutional question of

whether the ex parte orders violated the defendant’s

fourth amendment rights had not yet been clearly set-

tled, the court first considered whether the ex parte

orders violated § 54-47aa, and, if so, whether suppres-

sion was the proper remedy.

As to the prospective ex parte orders, issued on

November 15 and 22, 2010, the state conceded that

those orders violated § 54-47aa. The first part of the

court’s inquiry focused, therefore, on whether the Octo-

ber 22, 2010 order, which authorized the disclosure of

the defendant’s historical cell phone records, violated

§ 54-47aa, a question that the court answered in the

affirmative. The court then addressed the second

issue—whether suppression was the appropriate rem-

edy for evidence that the state had obtained in violation

of § 54-47aa. The court acknowledged that suppression

was not always required for evidence obtained in viola-

tion of state law. The court observed, however, that,

because § 54-47aa implicates important fourth amend-

ment privacy interests and because the failure to apply

the exclusionary rule would encourage further viola-

tions, suppression was the appropriate remedy.

Finally, the court considered the defendant’s claim

that, because the state had conceded that, in the

absence of the illegally obtained CSLI, it would not

have interviewed Johnson and obtained his statement

implicating himself and the defendant on November 23,

2010, the court should suppress Johnson’s statement

and potential trial testimony. The court observed that

there was ample evidence in the record to sustain the

defendant’s burden to prove that Johnson’s arrest was

tainted. The remaining question for the court was

whether the state had proven that one of the exceptions

to the exclusionary rule applied. The court began with

the observation that, because Johnson did not testify

at the suppression hearing, ‘‘the record is utterly barren

concerning the circumstances of [his] interrogation and

[his] willingness or unwillingness to give his statements

or to testify.’’ Although the court credited the testimony

and evidence presented by the state that supported a

finding that the state eventually would have identified

and located Johnson even without the CSLI, it noted

that it was unclear whether Johnson would have con-

fessed if he had not been confronted with the damning

CSLI evidence. In light of that lacuna in the record, the

court concluded that the state had failed to prove that

it inevitably would have obtained the statement from

Johnson incriminating himself and the defendant.6

Following the granting of the defendant’s motions to

suppress, the state entered nolles prosequi on all of the

charges against the defendant in the pending cases. In

response, the defendant made an oral motion to dismiss

all charges, which the trial court granted. This appeal

followed.

We consider the question of whether the trial court

properly granted the defendant’s motions to suppress

the CSLI records in two parts. First, we conclude that

those records were obtained illegally. The state’s con-

cession that the prospective orders were issued in viola-

tion of § 54-47aa resolves that question for the two

prospective orders. As for the October 22, 2010 ex parte

order authorizing the disclosure of approximately three

months of the defendant’s historical CSLI, we conclude

that the order violated his fourth amendment rights.

See Carpenter v. United States, supra, 138 S. Ct. 2206.

Second, we conclude that the trial court properly deter-

mined that suppression was the appropriate remedy as

to all three sets of illegally obtained records. Finally,

we conclude that the trial court properly determined

that the suppression of those records also required that

Johnson’s statement and potential testimony be sup-

pressed.

I

We first consider whether the trial court properly

concluded that the state obtained the defendant’s CSLI

illegally. Before proceeding to the substance, we set

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 is clearly erroneous in

view of the evidence and pleadings in the whole record

. . . . [W]hen a question of fact is essential to the out-

come of a particular legal determination that implicates

a defendant’s constitutional rights, [however] and the

credibility of witnesses is not the primary issue, our

customary deference to the trial court’s factual findings

is tempered by a scrupulous examination of the record

to ascertain that the trial court’s factual findings are

supported by substantial evidence. . . . [W]here the

legal conclusions of the court are challenged, [our

review is plenary, and] 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 . . . .’’ (Internal quotation marks omitted.)

State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821

(2014). Because the state’s claim that the trial court

improperly concluded that law enforcement obtained

the CSLI illegally challenges the trial court’s legal con-

clusions, we exercise plenary review. See id.

We begin, as did the trial court, with the state’s con-

cession of the illegality of the two prospective ex parte

orders. Given that concession, we need only resolve

the legality of the October 22, 2010 ex parte order, which

authorized the disclosure of the defendant’s historical

CSLI. That question is resolved by the recent decision

of the United States Supreme Court in Carpenter v.

United States, supra, 138 S. Ct. 2206. In Carpenter, the

court considered whether the state ‘‘conducts a search

under the [f]ourth [a]mendment when it accesses histor-

ical cell phone records that provide a comprehensive

chronicle of the user’s past movements.’’ Id., 2211. The

court answered that question in the affirmative and held

that ‘‘an individual maintains a legitimate expectation

of privacy in the record of his physical movements as

captured through CSLI.’’ Id., 2217. Accordingly, the state

‘‘must generally obtain a warrant supported by probable

cause before acquiring such records.’’ Id., 2221.

It is undisputed that the state did not obtain a warrant

supported by probable cause in order to procure the

defendant’s historical CSLI. Instead, the state relied on

§ 54-47aa (b) to obtain the ex parte order authorizing

the disclosure of those records. At the time of the

offenses, § 54-47aa (b) authorized a judge of the Supe-

rior Court to issue an ex parte order compelling a tele-

communications carrier to disclose call identifying

information and/or basic subscriber information per-

taining to a customer if the law enforcement official

seeking the order swore under oath that there was a

‘‘reasonable and articulable suspicion that a crime has

been or is being committed or that exigent circum-

stances exist and such call-identifying or basic sub-

scriber information is relevant and material to an

ongoing criminal investigation.’’7 General Statutes (Rev.

to 2009) § 54-47aa (b). Accordingly, because the record

is clear that the state obtained the defendant’s historical

CSLI in the absence of a warrant supported by probable

cause, the disclosure of those records violated the

defendant’s fourth amendment rights.8

II

We next address the question of whether the trial

court properly concluded that suppression of the histor-

ical and real time CSLI was the appropriate remedy.

The issue presents a question of law over which we

have plenary review. See, e.g., State v. Kendrick, supra,

314 Conn. 222. Because the illegality of the historical

CSLI is grounded on our conclusion that the disclosure

of those records violated the defendant’s fourth amend-

ment rights, we first consider whether those records

properly were suppressed. The state contends that,

because the officers acted in reasonable reliance on

the court’s ex parte order, they acted in good faith and

the purpose of the exclusionary rule—to deter police

misconduct—does not apply. In response, the defen-

dant relies on the greater protection provided under

the state constitution for fourth amendment violations.

That is, relying on this court’s decision in State v. Mar-

sala, 216 Conn. 150, 171, 579 A.2d 58 (1990), the defen-

dant responds that Connecticut has rejected the good

faith exception to the application of the exclusionary

rule. We agree with the defendant.

We have recognized that, ‘‘[a]s a general principle,

the exclusionary rule bars the government from intro-

ducing at trial evidence obtained in violation of the

fourth amendment to the United States constitution.

See Wong Sun v. United States, 371 U.S. 471, 485, 83

S. Ct. 407, 9 L. Ed. 2d 441 (1963). [T]he rule’s prime

purpose is to deter future unlawful police conduct and

thereby effectuate the guarantee of the [f]ourth

[a]mendment against unreasonable searches and sei-

zures. United States v. Calandra, 414 U.S. 338, 347, 94

S. Ct. 613, 38 L. Ed. 2d 561 (1974).’’ (Internal quotation

marks omitted.) State v. Brunetti, 279 Conn. 39, 72–73,

901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.

Ct. 1328, 167 L. Ed. 2d 85 (2007).

Under the ‘‘[good faith] exception’’ to the exclusion-

ary rule under the federal constitution, suppression of

‘‘reliable physical evidence seized by officers reason-

ably relying on a warrant issued by a detached and

neutral magistrate’’ is not required. United States v.

Leon, 468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677

(1984). In Marsala, however, this court categorically

rejected the good faith exception, holding that it is

‘‘incompatible with article first, § 7, of our state consti-

tution, which provides: ‘The people shall be secure in

their persons, houses, papers and possessions from

unreasonable searches or seizures; and no warrant to

search any place, or to seize any person or things, shall

issue without describing them as nearly as may be, nor

without probable cause supported by oath or affirma-

tion.’ ’’ State v. Marsala, supra, 216 Conn. 159. Nothing

in our decision in Marsala suggested that we intended

courts to accord the higher level of protection to defen-

dants on a case-by-case basis. Instead, the decision

established a bright-line rejection of the good faith

exception under our state constitution. Id., 171.

Our subsequent decisions citing to Marsala uniformly

have characterized Marsala as categorically rejecting

the good faith exception—not, as suggested by the state,

on a case-by-case basis. See, e.g., State v. Kelly, 313

Conn. 1, 15 n.13, 95 A.3d 1081 (2014) (in Marsala, court

declined ‘‘to recognize, for purposes of state constitu-

tion, good faith exception applicable to fourth amend-

ment exclusionary rule’’); State v. Buie, 312 Conn. 574,

584, 94 A.3d 608 (2014) (summarizing holding of Mar-

sala as ‘‘good faith exception to warrant requirement

does not exist under article first, § 7, of state constitu-

tion’’); State v. Jenkins, 298 Conn. 209, 291, 3 A.3d

806 (2010) (Katz, J., dissenting) (noting that Marsala

‘‘reject[ed] good faith exception to exclusionary rule

adopted by United States Supreme Court’’); State v.

Lawrence, 282 Conn. 141, 205–206, 920 A.2d 236 (2007)

(citing general principle relied on in Marsala for rejec-

tion of good faith exception: ‘‘[a]lthough we recognize

that the exclusionary rule exacts a certain cost from

society in the form of the suppression of relevant evi-

dence in criminal trials, we conclude, nevertheless, that

this cost is not sufficiently substantial to overcome the

benefits to be gained by our disavowal of the Leon

court’s good faith exception to the exclusionary rule’’

[internal quotation marks omitted]). Accordingly,

because the only exception on which the state relies

is one that this court expressly and consistently has

held is not recognized in Connecticut, the trial court

properly suppressed the CSLI obtained pursuant to the

October 22, 2010 ex parte order.

As to the two prospective ex parte orders issued on

November 10 and 22, 2010, once again we begin with

the state’s concession that those two orders were

obtained in violation of § 54-47aa.9 Notwithstanding that

concession, the state contends that, because § 54-47aa

does not identify suppression as an available remedy

for a violation of the statute, the trial court improperly

granted the motion to suppress the CSLI obtained as a

result of those two orders. The defendant responds that

the trial court properly concluded that, because § 54-

47aa implicates important fourth amendment interests,

suppression of the CSLI obtained as a result of the

two prospective orders is required. We conclude that,

although the plain language of § 54-47aa is unclear as

to whether suppression is available as a remedy for a

violation of the statute, the legislative history provides

strong, albeit not conclusive, support for the conclusion

that the legislature intended the remedy to be available

for violations. We find further support for interpreting

§ 54-47aa to provide for suppression as the appropriate

remedy in the policy principles underlying the exclu-

sionary rule itself. That is, we conclude that the real time

tracking of the defendant’s cell phone, in the absence

of a showing of probable cause and in violation of § 54-

47aa, implicated important fourth amendment interests,

requiring the application of the exclusionary rule. We

therefore conclude that the trial court properly deter-

mined that the violation of § 54-47aa required the sup-

pression of the CSLI obtained from the two prospective

ex parte orders.

The question of whether § 54-47aa provides suppres-

sion as a remedy for a violation presents a question of

statutory interpretation, over which we exercise ple-

nary review, guided by well established principles

regarding legislative intent. See, e.g., Kasica v. Colum-

bia, 309 Conn. 85, 93, 70 A.3d 1 (2013) (explaining plain

meaning rule under General Statutes § 1-2z and setting

forth process for ascertaining legislative intent). We

turn first to the statutory text, which does not clarify

whether the legislature intended to require or allow

suppression for a violation of § 54-47aa. The statute

neither expressly identifies nor precludes any remedies

for violations of the statute. See footnote 3 of this opin-

ion. By contrast, as the state points out, General Statutes

§ 54-41m expressly provides that a person aggrieved by

a communication that was allegedly ‘‘unlawfully inter-

cepted’’ pursuant to chapter 959a, which governs wire-

tapping and electronic surveillance, may file a motion

to suppress.10 The state contends that the provision of

suppression as a remedy for a violation of the wiretap-

ping statutes,11 contrasted with the absence of a similar

provision for a violation of § 54-47aa, supports its posi-

tion that suppression is not available as a remedy pursu-

ant to § 54-47aa.

We observe, however, that a comparison of § 54-47aa

with the federal Stored Wire and Electronic Communi-

cations and Transactional Records Access Act (SCA),

one of the statutory schemes on which § 54-47aa gener-

ally was modeled, yields a different contrast. Unlike

§ 54-47aa, the SCA lists the remedies available for a

violation of that act. See 18 U.S.C. § 2707 (b) (2012)

(authorizing persons aggrieved by violations of SCA

to bring civil action and listing ‘‘appropriate relief,’’

including equitable or declaratory relief, damages and

attorney’s fees). Suppression of illegally obtained evi-

dence is not one of the listed remedies. Furthermore,

the SCA includes an exclusivity of remedies provision:

‘‘The remedies and sanctions described in this chapter

are the only judicial remedies and sanctions for noncon-

stitutional violations of this chapter.’’ 18 U.S.C. § 2708

(2012). By contrast, as we have noted, § 54-47aa neither

specifies available remedies nor limits them. The legis-

lature easily could have incorporated the SCA’s limited

list of remedies into § 54-47aa, along with the SCA’s

exclusivity of remedies provision. The failure to do so

supports the conclusion that the legislature did not

intend to limit the remedies available for a violation of

§ 54-47aa.12 At best, therefore, the plain language of the

statute is ambiguous as to whether suppression is an

available remedy.

Because the plain language of the statute is ambigu-

ous, we turn to the legislative history, which provides

at least some support for the conclusion that the legisla-

ture intended that suppression would be available as a

remedy for abuses of § 54-47aa. Section 54-47aa was

first enacted through No. 05-182 of the 2005 Public Acts

in order to address the difficulties encountered by law

enforcement in gaining access to the basic subscriber

information associated with a telephone number. Pre-

viously, that information had been readily obtained

from local telephone companies. With the expansion

of the telecommunications industry and the increasing

prevalence of cell phones, however, law enforcement

personnel increasingly found themselves dealing with

out of state providers that were less cooperative in

providing that basic information. See 48 S. Proc., Pt.

11, 2005 Sess. pp. 3435–36, remarks of Senator Andrew

J. McDonald.

One of the primary concerns in crafting the legislation

was to strike the proper balance between the need for

law enforcement to have access to such information and

the need to safeguard the legitimate privacy interests

of citizens. See 48 H.R. Proc., Pt. 26, 2005 Sess., pp.

7869, 7871, remarks of Representative Michael P.

Lawlor. During the public hearing on the bill, Fanol

Bojka, an attorney speaking on behalf of the Connecti-

cut Criminal Defense Lawyers Association, spoke in

opposition to the bill, expressing concern that the stan-

dard required in the proposed legislation was merely a

reasonable suspicion rather than probable cause. Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 14,

2005 Sess., pp. 4122, 4124–25. In light of the lower stan-

dard and the absence of any express language speci-

fying any recourse available to aggrieved parties, Bojka

questioned: ‘‘What is the remedy under this bill . . . if

there are abuses?’’ Id., 4125. Representative Robert Farr

responded immediately that suppression would be the

appropriate remedy. Id. Nothing in the legislative his-

tory counters that representation.

Representative Farr’s assertion that suppression is

available as a remedy for a violation of § 54-47aa is

consistent with the legal principles governing suppres-

sion. As the trial court correctly noted, the ‘‘Connecticut

Code of Evidence does not prescribe a specific rule

governing the admissibility of evidence obtained under

these circumstances. ‘Where the code does not pre-

scribe a rule governing the admissibility of evidence,

the court shall be governed by the principles of common

law as they may be interpreted in the light of reason

and experience.’ Conn. Code Evid. § 1-2 (b).’’ Reason

and experience counsel that the exclusionary rule

requires the suppression of prospective CSLI obtained

in violation of § 54-47aa. Although the United States

Supreme Court has applied ‘‘the exclusionary rule pri-

marily to deter constitutional violations’’; Sanchez-Lla-

mas v. Oregon, 548 U.S. 331, 348, 126 S. Ct. 2669, 165

L. Ed. 2d 557 (2006); it has identified narrow circum-

stances under which the rule properly applies to

exclude evidence obtained in violation of statutory law.

The circumstances under which the exclusionary rule

may be applied to statutory violations, however, has

been limited to those violations that implicate

‘‘important [f]ourth [or] [f]ifth [a]mendment inter-

ests.’’ Id.13

In the present case, the evidence obtained in violation

of § 54-47aa—the prospective CSLI yielded from the

real time tracking of the defendant’s cell phone—impli-

cates important privacy interests that are traditionally

the type protected by the fourth amendment. In fact,

as one court has observed, much of the rationale that

the court relied on in Carpenter to hold that accessing

historical CSLI implicates legitimate privacy interests

applies with equal force to CSLI obtained by real time

tracking, because the two types of records are not

‘‘meaningfully different . . . .’’ Sims v. State, Docket

No. PD-0941-17, 2019 WL 208631, *7 n.15 (Tex. Crim.

App. January 16, 2019). In Carpenter, the court began

its analysis by describing the nature of the interests

implicated, explaining: ‘‘A person does not surrender

all [f]ourth [a]mendment protection by venturing into

the public sphere. To the contrary, what [one] seeks to

preserve as private, even in an area accessible to the

public, may be constitutionally protected. . . . A

majority of this [c]ourt has already recognized that indi-

viduals have a reasonable expectation of privacy in the

whole of their physical movements. [United States v.

Jones, 565 U.S. 400, 430, 132 S. Ct. 945, 181 L. Ed. 2d

911 (2012) (Alito, J., concurring); id., 415 (Sotomayor, J.,

concurring)]. Prior to the digital age, law enforcement

might have pursued a suspect for a brief stretch, but

doing so for any extended period of time was difficult

and costly and therefore rarely undertaken. Id., [429

(Alito, J., concurring)]. For that reason, society’s expec-

tation has been that law enforcement agents and others

would not—and indeed, in the main, simply could not—

secretly monitor and catalogue every single movement

of an individual’s car for a very long period.’’ (Citation

omitted; internal quotation marks omitted.) Carpenter

v. United States, supra, 138 S. Ct. 2217. The court further

observed that, ‘‘like GPS monitoring, cell phone

tracking is remarkably easy, cheap, and efficient com-

pared to traditional investigative tools.’’ Id., 2217–18.

Cell phone tracking, the court observed, presented

‘‘even greater privacy concerns than the GPS monitor-

ing of a vehicle [it] considered in Jones. Unlike [a]

bugged container . . . or the car in Jones, a cell

phone—almost a feature of human anatomy . . .

tracks nearly exactly the movements of its owner. While

individuals regularly leave their vehicles, they compul-

sively carry cell phones with them all the time. A cell

phone faithfully follows its owner beyond public thor-

oughfares and into private residences, doctor’s offices,

political headquarters, and other potentially revealing

locales. . . . Accordingly, when the [g]overnment

tracks the location of a cell phone it achieves near

perfect surveillance, as if it had attached an ankle moni-

tor to the phone’s user.’’ (Citations omitted; internal

quotation marks omitted.) Id., 2218.

The concerns expressed by the court in Carpenter

regarding historical CSLI apply with equal force to pro-

spective CSLI. As that court observed, ‘‘the time-

stamped data provides an intimate window into a per-

son’s life, revealing not only his particular movements,

but through them his familial, political, professional,

religious, and sexual associations.’’ (Internal quotation

marks omitted.) Id., 2217. An individual’s cell phone

has the ability to disclose increasingly exhaustive infor-

mation regarding that person’s movements, revealing

the most intimate details of that individual’s life. See

generally J. Valentino-DeVries et al., ‘‘Your Apps Know

Where You Were Last Night, and They’re Not Keeping

It Secret,’’ N.Y. Times, December 10, 2018, p. A1

(describing abilities of smartphone apps to track indi-

viduals’ movements and discussing privacy implications

of smartphone technology). We therefore conclude that

the trial court properly granted the defendant’s motions

to suppress the CSLI obtained from the two prospective

ex parte orders.14

III

Finally, we address the state’s claim that, although,

as the state concedes, Johnson’s arrest was tainted by

the illegally obtained CSLI, the trial court improperly

concluded that the state had failed to prove that, in

the absence of the illegally obtained CSLI, it inevitably

would have obtained Johnson’s postarrest statement

through lawful means. Therefore, the state contends,

the trial court improperly suppressed Johnson’s poten-

tial trial testimony.15 The state argues that, in arriving

at that conclusion, the trial court improperly concluded

that in order to prove inevitable discovery, the state

was required to prove that Johnson would have testified

in a manner similar to and consistent with the statement

that he gave to the police when he was confronted with

the illegally obtained CSLI.16 The state claims that all

it was required to prove under the inevitable discovery

doctrine was that it would inevitably have identified

and located Johnson. The defendant responds that the

trial court correctly concluded that the state failed to

meet its burden to prove that the inevitable discovery

doctrine applied under the facts of the present case.

The trial court credited the testimonial evidence pre-

sented by the state at the suppression hearing in support

of its claim that, even if it had not relied on the illegally

obtained CSLI, it inevitably would have discovered

Johnson by lawful means. The court further found, how-

ever, that the state failed to sustain its burden to prove

that, in the absence of the illegally obtained CSLI, it

would have obtained the same information from John-

son. We conclude that the trial court properly deter-

mined that, in order to bear its burden to prove that

the inevitable discovery exception to the exclusionary

rule applied, the state was required to prove by a pre-

ponderance of the evidence not only that it inevitably

would have identified and located Johnson by legal

means, but also that, under the different circumstances,

Johnson would have cooperated and provided the

same information.

We have explained that ‘‘ ‘[a]pplication of the exclu-

sionary rule . . . is not automatic.’ ’’ State v. Spencer,

268 Conn. 575, 599, 848 A.2d 1183, cert. denied, 543 U.S.

957, 125 S. Ct. 409, 160 L. Ed. 2d 320 (2004). ‘‘Under

the inevitable discovery rule, evidence illegally secured

in violation of the defendant’s constitutional rights need

not be suppressed if the state demonstrates by a prepon-

derance of the evidence that the evidence would have

been ultimately discovered by lawful means.’’ State v.

Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied,

479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The inevitable discovery doctrine is ‘‘based on the prem-

ise that the interest of society in deterring unlawful

police conduct and the public interest in having juries

receive all probative evidence of a crime are properly

balanced by putting the police in the same, not a worse,

position that they would have been in if no police error

or misconduct had occurred.’’ (Emphasis omitted; inter-

nal quotation marks omitted.) State v. Vivo, 241 Conn.

665, 672, 697 A.2d 1130 (1997).

This court has not addressed the question of whether

the state must prove not only that it would inevitably

have discovered the witness but also that it would have

obtained the testimony or statements of that witness

that were procured through illegal means. The decisions

of the United States Court of Appeals for the Second

Circuit discussing the state’s burden to prove that the

inevitable discovery exception to the exclusionary rule

applies in a given case, however, are instructive. See

Martinez v. Empire Fire & Marine Ins. Co., 322 Conn.

47, 62, 139 A.3d 611 (2016) (‘‘[w]hen addressing ques-

tions of federal law, we give special consideration to

the decisions of the Second Circuit’’). Specifically, the

Second Circuit has explained that ‘‘proof of inevitable

discovery involves no speculative elements but focuses

on demonstrated historical facts capable of ready verifi-

cation or impeachment, United States v. Eng, 971 F.2d

854, 859 (2d Cir. 1992), quoting [Nix v. Williams, 467

U.S. 431, 445 n.5, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)].

The focus on demonstrated historical facts keeps specu-

lation to a minimum, by requiring the [D]istrict [C]ourt

to determine, viewing affairs as they existed at the

instant before the unlawful search occurred, what

would have happened had the unlawful search never

occurred. . . . Evidence should not be admitted, there-

fore, unless a court can find, with a high level of confi-

dence, that each of the contingencies necessary to the

legal discovery of the contested evidence would be

resolved in the government’s favor.’’ (Citations omitted;

emphasis altered; internal quotation marks omitted.)

United States v. Stokes, 733 F.3d 438, 444 (2d Cir. 2013),

citing United States v. Cabassa, 62 F.3d 470, 472–73

(2d Cir. 1995).

The United States District Court for the Southern

District of New York has applied the standard set forth

by the Second Circuit to conclude that one of the contin-

gencies that the state must establish is that a witness

whose statement had been obtained by illegal means

would have been cooperative if the state had identified,

located and questioned the witness through legal

means. United States v. Ghailani, 743 F. Supp. 2d 242,

254 (S.D.N.Y. 2010). The court reasoned that, pursuant

to the standard that was first announced in United

States v. Cabassa, supra, 62 F.3d 472–73, ‘‘[i]nevitable

discovery analysis . . . requires a court to examine

each of the contingencies that would have had to have

been resolved favorably to the government in order for

the evidence to have been discovered legally and to

assess the probability of that having occurred.’’

(Emphasis in original; internal quotation marks omit-

ted.) United States v. Ghailani, supra, 253–54.

The requirement that the state prove that each contin-

gency would have been resolved in its favor demands

that, at the least, the state had to prove at the suppres-

sion hearing that it would have identified, located and

secured the same level of cooperation from Johnson

in the absence of the illegally obtained CSLI. The trial

court found that the state had established that it would

have identified and located Johnson. The court

grounded its rejection of the state’s reliance on the

inevitable discovery doctrine, however, on the state’s

failure to prove that, if found by legal means and if

questioned without the reliance on the illegally obtained

CSLI, Johnson would have cooperated to the same

extent. Johnson’s cooperation was a contingency upon

which the procurement of a statement incriminating

himself and the defendant depended. The state bore

the burden, therefore, to prove that this contingency

would have resolved in its favor.

The state failed, however, to present any evidence

to demonstrate that Johnson would have similarly coop-

erated in the absence of being confronted with the

illegally obtained CSLI. For example, as the trial court

observed, the state did not present Johnson’s testimony

at the hearing. Due to that failure, the court observed,

‘‘the record is utterly barren concerning the circum-

stances of [his] interrogation and [his] willingness or

unwillingness to give his statements or to testify.’’ We

further observe that the state failed to present any evi-

dence at the suppression hearing as to how it would

have obtained the same cooperation from Johnson in

the absence of the illegally obtained CSLI and did not

make a proffer or otherwise articulate what other

sources or means it had available that would have led

the state to discover the same information it obtained

from Johnson. Because the state failed to present any

evidence regarding the likelihood of Johnson’s coopera-

tion under different circumstances, the trial court prop-

erly reasoned that any conclusion regarding Johnson’s

cooperation would have rested on pure speculation.

The court properly concluded that the state failed to

sustain its burden to prove that the inevitable discovery

exception applied.

The judgments are affirmed.

In this opinion the other justices concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1

The state appealed to the Appellate Court, and we transferred the appeal

to this court pursuant to General Statutes § 51-199 (c) and Practice Book

§ 65-1.

2

The defendant was charged in twelve of the informations with, inter

alia, various burglary and larceny charges. As to the thirteenth information,

Docket No. CR-XX-XXXXXXX-S, referenced in the trial court’s corrected consoli-

dated memorandum of decision, the record contains neither the information

nor the judgment file for that docket. Nor is there any other document in

the record that identifies the charges filed against the defendant in that

docket. We observe that, although the trial court, Clifford, J., subsequently

indicated that it was granting dismissal in all thirteen dockets, in its appeal

form, the state did not list the judgment in Docket No. CR-XX-XXXXXXX-S as

a judgment from which the state is appealing. The state appeals only from

the judgments in the remaining twelve dockets.

3

General Statutes (Rev. to 2009) § 54-47aa provides in relevant part:

‘‘(a) For the purposes of this section:

‘‘(1) ‘Basic subscriber information’ means: (A) Name, (B) address, (C)

local and long distance telephone connection records or records of session

times and durations, (D) length of service, including start date, and types

of services utilized, (E) telephone or instrument number or other subscriber

number or identity, including any assigned Internet protocol address, and

(F) means and source of payment for such service, including any credit

card or bank account number;

‘‘(2) ‘Call-identifying information’ means dialing or signaling information

that identifies the origin, direction, destination or termination of each com-

munication generated or received by a subscriber or customer by means of

any equipment, facility or service of a telecommunications carrier;

...

‘‘(b) A law enforcement official may request an ex parte order from a

judge of the Superior Court to compel (1) a telecommunications carrier to

disclose call-identifying information pertaining to a subscriber or customer,

or (2) a provider of electronic communication service or remote computing

service to disclose basic subscriber information pertaining to a subscriber

or customer. The judge shall grant such order if the law enforcement official

states a reasonable and articulable suspicion that a crime has been or is being

committed or that exigent circumstances exist and such call-identifying or

basic subscriber information is relevant and material to an ongoing criminal

investigation. The order shall state upon its face the case number assigned

to such investigation, the date and time of issuance and the name of the

judge authorizing the order. The law enforcement official shall have any ex

parte order issued pursuant to this subsection signed by the authorizing judge

within forty-eight hours or not later than the next business day, whichever

is earlier. . . .’’

Unless otherwise indicated, all subsequent references to § 54-47aa in this

opinion are to the 2009 revision.

4

The November 15 and 22, 2010 ex parte orders were directed to T-Mobile

USA, Inc., at the same business address as the October 22, 2010 order. The

record does not clarify any reason for the difference in corporate name,

and we refer in this opinion to the telecommunications carrier as T-Mobile.

5

The trial court noted that the defendant had filed identical motions to

suppress in four of the criminal dockets and further noted that, ‘‘[a]lthough

no written suppression motions have been filed in the remaining files, the

parties agreed at the hearing that the already filed motions address issues

common to all files.’’ Accordingly, the court considered the defendant to

have filed motions to suppress in the remaining files.

6

The trial court also concluded that the state had failed to prove that

Johnson’s statement and potential testimony were sufficiently attenuated

from the tainted arrest. The state claims that the attenuation doctrine is

not implicated under the facts of the present case and challenges only the

trial court’s finding that it failed to prove that the inevitable discovery

exception to the exclusionary rule applied. Accordingly, we consider only

whether the trial court properly analyzed the inevitable discovery doctrine.

7

The statute has subsequently been amended to clarify that a judge of

the Superior Court must make a finding of probable cause prior to issuing

an order compelling a telecommunications carrier to disclose ‘‘the geo-

location data associated with such subscriber’s or customer’s call-identifying

information . . . .’’ General Statutes § 54-47aa (b); see Public Acts 2016,

No. 16-148, § 1.

8

The state contends that we should not apply Carpenter to this appeal

unless we first conclude that the October 22, 2010 ex parte order was issued

in violation of § 54-47aa (b). The state relies on the principle that this court

‘‘eschew[s] unnecessarily deciding constitutional questions . . . .’’ (Cita-

tions omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 560,

964 A.2d 1213 (2009). The jurisprudential principles underlying that policy

are not implicated in the present case, however, where Carpenter is clearly

dispositive of the issue of whether the state obtained the defendant’s histori-

cal CSLI in violation of the fourth amendment.

In the alternative, the state contends that Carpenter would not prohibit

the October 22, 2010 ex parte order. The state points to the majority’s

response in Carpenter to Justice Kennedy’s claim in his dissent that the

majority had established ‘‘an arbitrary [six day] cutoff . . . [that] suggests

that less than seven days of location information may not require a warrant.’’

Carpenter v. United States, supra, 138 S. Ct. 2234 (Kennedy, J., dissenting).

The majority rejected that characterization, responding that ‘‘we need not

decide whether there is a limited period for which the [g]overnment may

obtain an individual’s historical CSLI free from [f]ourth [a]mendment scru-

tiny, and if so, how long that period might be. It is sufficient for our purposes

. . . to hold that accessing seven days of CSLI constitutes a [f]ourth amend-

ment search.’’ Id., 2217 n.3. We believe that a fair reading of the decision

is that accessing CSLI for seven days or more is clearly a search for purposes

of the fourth amendment. What the court left unsettled is whether accessing

CSLI for fewer than seven days constitutes a search. At best, therefore,

Carpenter leaves unanswered the question of whether an order targeting a

very short time frame would be permitted under the fourth amendment.

More importantly for purposes of the present case, however, is that, even

if the state were correct that Carpenter is limited to cases in which the

state accesses more than six days of CSLI, the October 22, 2010 ex parte

order falls well within that rule. As the state acknowledges, that order

authorized the disclosure of sixty-two days of historical CSLI, from July 29

to September 29, 2010.

Finally, we observe that the state appears to suggest that, if it is correct

that the holding in Carpenter is limited to instances in which the state has

accessed seven days or more of historical CSLI, this court should remand

to the trial court for a hearing to determine which six days of historical

CSLI the state would have sought if they had been aware of the supposed

six day limit. Even if we agreed with the state’s reading of Carpenter, we

would categorically reject that claim. We find the procedure requested by

the state to be inappropriate in the present case, in which the state seeks

the opportunity to return to the trial court so that it may belatedly attempt

to ‘‘correct’’ the infringement with the benefit of having reviewed all the

data for the critical pieces of evidence.

9

As we noted previously in this opinion, the state’s concession that the

two prospective orders violated § 54-47aa has rendered it unnecessary to

resolve whether those orders also violate the fourth amendment. Moreover,

it is at best unclear whether the holding in Carpenter would extend to the

two prospective orders. Neither of the two orders authorized the release

of more than three days of CSLI and both applied prospectively. Although

we see no difficulty in extending the rationale of Carpenter as applied to

historical CSLI to prospective orders, the court expressly declined to resolve

whether its holding would extend to orders authorizing the disclosure of

fewer than seven days of CSLI. Carpenter v. United States, supra, 138 S. Ct.

2217 n.3. See footnote 8 of this opinion. This court ‘‘eschew[s] unnecessarily

deciding constitutional questions . . . .’’ (Citations omitted.) Hogan v. Dept.

of Children & Families, 290 Conn. 545, 560, 964 A.2d 1213 (2009). Accord-

ingly, in light of the state’s concession and the court’s failure in Carpenter

to provide a clear resolution of the constitutional question—at least as to

the two prospective orders—we confine our analysis to considering whether

application of the exclusionary rule is the proper remedy for a violation of

§ 54-47aa.

10

General Statutes § 54-41m provides: ‘‘Any aggrieved person in any trial,

hearing or proceeding in or before any court, department, officer, agency,

regulatory body or other authority of the state of Connecticut, or of a political

subdivision thereof, may move to suppress the contents of any intercepted

wire communication, or evidence derived therefrom, on the grounds that

the communication was unlawfully intercepted under the provisions of this

chapter; the order of authorization or approval under which it was inter-

cepted is insufficient on its face; or the interception was not made in confor-

mity with the order of authorization or approval. Such motion shall be made

before the trial, hearing or proceeding unless there was no opportunity to

make such motion or the person was not aware of the grounds of the motion,

in which case such motion may be made at any time during the course of

such trial, hearing or proceeding. If the motion is granted, the contents of

the intercepted wire communication, or evidence derived therefrom, shall

be treated as having been obtained in violation of this chapter and shall not

be received in evidence in any such trial, hearing or proceeding. The panel,

upon the filing of such motion by the aggrieved person, shall make available

to the aggrieved person or his counsel for inspection the intercepted commu-

nication and evidence derived therefrom.’’

11

Other statutes to which the state refers that expressly provide for sup-

pression as a remedy include General Statutes §§ 54-41l, 54-1c, 46b-137 (a)

and 14-227a (b).

12

The state claims that the reporting requirement in § 54-47aa (g) suggests

a remedy other than suppression. Subsection (g) requires the chief state’s

attorney to submit an annual report itemizing certain statistics regarding

orders issued pursuant to § 54-47aa, including the number of motions to

vacate that were filed, and the number of such motions granted and denied.

See General Statutes (Rev. to 2009) § 54-47aa (g) (6).

The state’s suggestion, however, that a motion to vacate could serve as

a remedy for an order granted in violation of § 54-47aa, cannot be reconciled

with the nature of the order—it is ex parte. Notice of the order is only

required to be provided to the subscriber forty-eight hours after the order

is issued, and there are numerous bases upon which a law enforcement

officer may request that notice not be given. See General Statutes (Rev. to

2009) § 54-47aa (d). Given the delayed notice available to a subscriber, a

motion to vacate can hardly be considered an efficacious remedy.

13

We find unpersuasive the state’s reliance on Virginia v. Moore, 553 U.S.

164, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008), for the proposition that this

court cannot conclude that suppression is an appropriate remedy for a

violation of a statute that implicates the same important interests that are

protected by the fourth amendment. The state’s argument relies on a misread-

ing of Moore. That case involved the question of whether ‘‘a police officer

violates the [f]ourth [a]mendment by making an arrest based on probable

cause but prohibited by state law.’’ Id., 166. In Moore, the defendant was

arrested for the misdemeanor of driving with a suspended license. Id., 167.

Under applicable state law, however, the officers should have issued the

defendant a summons instead of arresting him. Id. In a search incident to

the arrest, the officers discovered that the defendant had crack cocaine on

his person. Id. The defendant sought suppression of the crack cocaine on

the basis that, because the arrest violated state statutory law, it automatically

violated the defendant’s fourth amendment rights, and, therefore, he was

entitled to the protection of the exclusionary rule. Id., 167–68. The court

rejected that argument, explaining, ‘‘[w]e are aware of no historical indica-

tion that those who ratified the [f]ourth [a]mendment understood it as a

redundant guarantee of whatever limits on search and seizure legislatures

might have enacted.’’ Id., 168. The court explained further that the problem

is that ‘‘the [f]ourth [a]mendment’s meaning [does] not change with local

law enforcement practices—even practices set by rule. While those practices

vary from place to place and from time to time, [f]ourth [a]mendment

protections are not so variable and cannot be made to turn upon such

trivialities.’’ (Internal quotation marks omitted.) Id., 172.

In contrast to Moore, we are not presented in this appeal with the question

of whether a violation of § 54-47aa automatically constitutes a violation of

the fourth amendment, thus entitling the defendant to the protection of the

exclusionary rule. The defendant’s argument is that the violation of § 54-

47aa triggers the rule’s protections because of the important nature of the

interests implicated by the statute, interests that are also protected by the

fourth amendment. Accordingly, the concerns expressed by the court in

Moore do not apply in the present case, in which we hold only that suppres-

sion is required for a violation of § 54-47aa because the statute implicates

important interests protected by the fourth amendment. It is the importance

of the protected interests—not the force of the fourth amendment itself—

that requires suppression in the present case. Our decision does not reduce

the fourth amendment to a redundancy; it simply recognizes that the fourth

amendment is not the only means by which those important interests are pro-

tected.

14

To the extent that the state’s brief may be read to suggest that the good

faith exception to the exclusionary rule applies in Connecticut when the

basis for the rule’s application is a statutory, rather than a constitutional

violation, we reject that argument. As we have explained in this opinion,

in State v. Marsala, supra, 216 Conn. 171, we categorically rejected the good

faith exception to the exclusionary rule.

15

The state does not challenge the portion of the trial court’s ruling sup-

pressing Johnson’s postarrest statement and concedes that Johnson’s state-

ment was obtained illegally. We observe that, although the state challenges

only the portion of the trial court’s ruling suppressing Johnson’s potential

testimony, if called to testify, he would have had to testify consistent with

his prior statement to the police or risk negative consequences, including

further charges. Accordingly, we question the efficacy of the state’s conces-

sion of the inadmissibility of Johnson’s statement in light of its challenge

to his potential testimony.

16

The state claims that, in concluding that the inevitable discovery doctrine

required the state to prove that Johnson would have testified in a similar

manner, the trial court improperly conflated the attenuation and inevitable

discovery doctrines. Because we conclude that the trial court properly

applied the inevitable discovery doctrine, we need not resolve the state’s

claim that the court conflated the two doctrines.