State v. Hanisko

187 Conn.App. 237

202 A.3d 375

STATE of Connecticut

v.Stephen HANISKO

AC 40831

Appellate Court of Connecticut.

Argued September 21, 2018

Officially released January 15, 2019

Howard I. Gemeiner, New Haven, for the appellant (defendant).

Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).

Prescott, Elgo and Moll, Js.

MOLL, J.

The defendant, Stephen Hanisko, appeals from the judgment of conviction, rendered after a court trial, of possession of child pornography in the second degree in violation of General Statutes (Rev. to 2009) § 53a-196e.¹ On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress evidence seized pursuant to a search and seizure warrant (search warrant) because the information contained in the search warrant affidavit was stale at the time that the search warrant was issued, and (2) the trial court's "evidentiary rulings" were incorrect because the court failed to recognize the oppressive delay between the execution of the search warrant and the issuance of the warrant for his arrest, resulting in a violation of his right to due process. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, which the trial court reasonably could have found, and procedural history are relevant to our resolution of the defendant's claims. On November 14, 2008, the Connecticut State Police Computer Crimes and Electronic Evidence Laboratory (computer crimes laboratory) received a spreadsheet and a DVD from a special agent of the Wyoming Internet Crimes Against Children Task Force (Wyoming special agent). The spreadsheet contained Internet Protocol (IP) addresses that had been captured during an investigation into electronic file sharing of child pornography. Specifically, the spreadsheet indicated that, between November 7 and 14, 2008, the computer associated with a particular IP address (identified computer) was identified as a "download candidate"² for, what appeared to be, twenty-five files of child pornography. The DVD contained files of known child pornography, which the computer crimes laboratory used for comparison against the twenty-five files that were available for download from the identified computer.

While reviewing the data provided by the Wyoming special agent, the Connecticut state police uncovered a match between one of the twenty-five files listed on the spreadsheet and one file on the DVD. The matching files contained two separate clips of two different sets of male and female children, who appeared to be between twelve and fourteen years old, engaging in various sexual acts.

The state police later determined that the holder of the Internet services account associated with the identified computer resided at 50 Carpenter Lane in Wallingford (property). On August 13, 2009, Jonathan Carreiro and David Aresco, detectives with the Connecticut State Police Computer Crimes Unit (computer crimes unit), conducted a surveillance of the property. Detective Carreiro observed, among other things, a black sign labeled with the name "Hanisko" to the left of the driveway. On August 14, 2009, the Connecticut State Police Central Criminal Intelligence Unit confirmed that the Internet services account holder lived at the property and informed Detective Carreiro that several other individuals resided there as well, including the defendant. On August 18, 2009, Detectives Carreiro and Aresco conducted a second surveillance of the property. This time, Detective Carreiro observed a white pickup truck in the driveway, which he later determined was registered to the defendant.

On September 10, 2009, Detectives Carreiro and Aresco obtained a warrant to search the property and to seize certain described categories of evidence of violations of General Statutes §§ 53a-194³ and 53a-196b.⁴ In the search warrant affidavit, Detectives Carreiro and Aresco provided the foregoing details of their investigation and averred to the following additional information. Both detectives are assigned to the computer crimes laboratory and have received training relating to the investigation of Internet related crimes, child pornography crimes, and computer data analysis. The detectives know from their training and experience that so-called peer-to-peer networks are frequently used in the trading of child pornography; individuals using peer-to-peer file sharing networks can choose to install publicly available software that facilitates the trading of images, and such software allows those individuals to search for pictures, movies, and other digital files. The detectives know that information contained within a computer or other media, even if deleted, often remains electronically stored until the computer overwrites the space previously allocated to the deleted file. On the basis of their training and experience, and the training and experience of other law enforcement personnel, the detectives know that individuals who possess child pornography often will store such material for future viewing and will maintain these materials indefinitely if they believe that their illegal activities have gone undetected. In light of the foregoing information, the detectives averred that they had probable cause to believe that evidence of violations of §§ 53a-194 and 53a-196b would be located on the property.

On September 11, 2009, Detectives Carreiro and Aresco, along with other state and local police officers, executed the search warrant at the property. While there, Detective Carreiro explained the purpose of the search warrant to the defendant and asked him several questions. During their conversation, the defendant expressed that he had used Limewire, a peer-to-peer network, to download pornography. Ultimately, the state police seized fifty-six pieces of evidence, including eight hard drives and optical disks containing forty-eight video files. Shortly thereafter, the seized evidence was transported to the computer crimes laboratory for a forensic examination.

Eventually, the state police learned that, as a result of a backlog, the computer crimes laboratory was unable to process evidence that had been seized in multiple cases, including the evidence seized from the property. Consequently, the computer crimes unit began removing the seized items from the computer crimes laboratory in order to conduct its own forensic examination. Between April and August, 2013, Detectives Carreiro and Aresco examined the evidence that had been seized from the property. Their examination uncovered hours of videos depicting child pornography.

On January 21, 2014, the state applied for a warrant to arrest the defendant for possession of child pornography in the second degree in violation of § 53a-196e (arrest warrant). On January 28, 2014, the trial court issued the arrest warrant, and, on March 27, 2014, the defendant was arrested. The matter proceeded to trial approximately three years later.

On the morning of March 22, 2017, the first day of trial, the defendant filed a motion to suppress the evidence seized from the property. The defendant claimed that the evidence was seized in violation of his rights under the United States and Connecticut constitutions and that the information contained in the search warrant affidavit was stale and did not give rise to a finding of probable cause. The trial court heard oral argument with regard to the motion to suppress and issued an oral ruling denying the motion.

A trial to the court commenced immediately thereafter,⁵ and the state called Detectives Carreiro and Aresco to testify. Both detectives testified, among other things, that the delay between when the evidence seized from the property was brought to the computer crimes laboratory and when they began their own forensic examination resulted from the inability of the computer crimes laboratory to process voluminous evidence in many cases in a more timely manner. The state rested at the end of the first day of trial.

On March 23, 2017, the second and final day of the trial, the defendant moved for a judgment of acquittal, reserving argument upon the completion of evidence. The defendant testified in his own defense and did not mention any prejudice that he experienced as a consequence of any delay. After the defense rested, the court heard oral argument on the defendant's motion for a judgment of acquittal. Defense counsel argued that the "totality of the delays"—namely, the delays between the receipt of the information from the Wyoming special agent in November, 2008, the issuance of the search warrant in September, 2009, and the issuance of the arrest warrant in January, 2014—violated the defendant's right to due process. Additionally, defense counsel argued that the "totality of the circumstances" or "cumulative nature of the delays" was "inherently prejudicial." The state argued to the contrary, and the trial court denied the motion.

That same day, the trial court found the defendant guilty of possession of child pornography in the second degree in violation of § 53a-196e and rendered a judgment of conviction for the same. On August 25, 2017, the trial court sentenced the defendant to six years of incarceration, execution suspended after thirty months of incarceration, twenty-four of which are mandatory, followed by ten years of probation. This appeal followed.

I

We first turn to the defendant's claim that the trial court improperly denied his motion to suppress because the information in the search warrant affidavit was stale at the time that the search warrant was issued. The defendant contends that the information was stale because the search warrant affidavit referenced an isolated occurrence from one year earlier. According to the defendant, as a result of the lapse of time and the absence of any similar recurrences, there was no probable cause to believe that the...