State v. Sawyer ( 2020 )

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STATE OF CONNECTICUT v. THOMAS
WILLIAM SAWYER
(SC 20132)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted, on a conditional plea of nolo contendere, of the crime of posses-
sion of child pornography in the second degree, the defendant appealed,
claiming, inter alia, that the warrant authorizing a search of the defen-
dant’s residence and ultimately leading to the seizure of more than 400
images and some videos of suspected child pornography was supported
by probable cause. The affidavit in support of the application for the
search warrant provided that one of the defendant’s roommates called
the police after he observed the defendant looking at his computer
screen, which displayed a photograph of what appeared to be an eight
to nine year boy standing naked with no pubic hair and his genitals
exposed, followed by a photograph of a naked girl with very small
breasts and her hand covering her genital area. The two photographs
appeared to be in a slide projection program, and there appeared to be
other thumbnail photographs that were too small to identify. After the
defendant was arrested on the basis of the seized images and videos,
he filed a motion to suppress, claiming, inter alia, that there was no
probable cause to search his residence for child pornography. The
motion to suppress was denied. On the defendant’s appeal from the
judgment of conviction, held:
1. The court issuing the search warrant correctly found that there was
probable cause to search the defendant’s residence because that court
reasonably could have determined, on the basis of the totality of the
circumstances described in the search warrant affidavit and the reason-
able inferences drawn therefrom, that there was a substantial chance
that a search of the defendant’s residence would uncover evidence of
possession of child pornography: the descriptions in the affidavit of the
two photographs of nude children provided a fair probability that the
defendant was in possession of lascivious images of children, as the
court could have inferred from those descriptions that the defendant
possessed and used for a sexual purpose photographs of nude, coy,
and posed children, and there was no immediately apparent, innocent,
alternative explanation for his behavior; moreover, the affidavit
explained that the defendant’s roommate observed the defendant view-
ing the two photographs in succession, in what appeared to be a
slideshow, as part of a larger collection of thumbnails that were too small
to identify, which provided the basis for inferences that the defendant
possessed and viewed the photographs intentionally, there was a sub-
stantial chance that at least some of the thumbnails were lascivious
depictions of nude children, and the defendant was using the photo-
graphs for a sexual purpose; furthermore, although the defendant
claimed that the court that denied his motion to suppress incorrectly
concluded that whether the two photographs depicted child pornogra-
phy was irrelevant to the probable cause inquiry, this court did not
interpret the trial court’s explanation to mean that whether the photo-
graphs were in fact child pornography could have no bearing on the
probable cause determination but, rather, that the probable cause inquiry
did not require the court issuing the warrant to be able to determine
conclusively that the photographs were in fact pornographic, as it
required the issuing court only to determine from the totality of the
circumstances presented in the affidavit and the reasonable inferences
drawn therefrom that there was a substantial chance that a search of
the defendant’s residence would uncover evidence of possession of
child pornography.
2. The defendant could not prevail on his unpreserved claim that this court
should adopt a more demanding standard under the Connecticut consti-
tution for assessing whether there is probable cause to issue a search
warrant and, specifically, that it should construe probable cause to
require a degree of probability of more probable than not, at least in
cases in which it is unknown when the warrant issues whether a crime
has occurred, because the factors set forth in State v. Geisler (222 Conn.
672) weigh in favor of a more stringent standard: it is well settled that,
under the Connecticut constitution, proof of probable cause requires
less than proof by a preponderance of the evidence, and, in the absence
of a compelling reason to break from the long-standing approach of this
court, as well as the federal courts and a majority of other states,
this court declined to disturb the established probable cause standard;
moreover, this court declined to adopt a more probable than not standard
of probable cause in cases in which it is unknown when the warrant
issues whether a crime has occurred, as the creation of two separate
and distinct probable cause standards would represent a gratuitous and
unnecessary complication of an already complicated area of constitu-
tional law; accordingly, because this court left in place the existing
probable cause standard and determined that the search warrant in the
present case was supported by probable cause, the defendant could not
establish that a constitutional violation existed and, therefore, could
not prevail on his unpreserved claim.
Argued October 16, 2019—officially released March 24, 2020
Procedural History
Information charging the defendant with the crime
of possession of child pornography in the first degree,
brought to the Superior Court in the judicial district
of Ansonia-Milford, geographical area number twenty-
two, where the court, Brown, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the
defendant was presented to the court, Iannotti, J., on
a conditional plea of nolo contendere to the charge of
possession of child pornography in the second degree;
judgment of guilty in accordance with the plea, from
which the defendant appealed. Affirmed.
Richard Emanuel, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Amy L. Bepko, executive assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Thomas William Saw-
yer, was convicted on a conditional plea of nolo conten-
dere; see General Statutes § 54-94a; of possession of
child pornography in the second degree in violation of
General Statutes § 53a-196e. The defendant entered his
plea following the trial court’s denial of his motion
to suppress hundreds of photographs and a smaller
number of videos of suspected child pornography that
the police recovered from computer equipment and
related media storage seized from the defendant’s resi-
dence pursuant to a search warrant. The defendant
appealed from his conviction to the Appellate Court,
and the case was transferred to this court. On appeal,
the defendant argues that the search warrant was not
supported by probable cause because the issuing judge
could not have reasonably inferred from descriptions
in the search warrant affidavit of two photographs of
nude children that the photographs were lascivious.
This case requires us to decide whether the totality of
the circumstances described in the affidavit and the
reasonable inferences drawn therefrom support a find-
ing of probable cause to believe that a search of the
defendant’s residence would uncover evidence of pos-
session of child pornography. Because we conclude
that the affidavit did support this finding, we affirm the
judgment of the trial court.
The affidavit set forth the following facts. In July,
2015, the defendant was a brother of The Brothers of
Holy Cross, living with two other brothers in an apart-
ment they rented from Saint John Vianney Church in
West Haven. Each of the three men had his own bed-
room in a four bedroom suite, and they shared a com-
mon living room and kitchen. When the defendant
moved to the apartment approximately ten months
prior, he brought with him two computers, one being
community property of The Brothers of Holy Cross
and the other owned by Holy Cross High School in
Waterbury, where the defendant served as an informa-
tion technology supervisor. Both computers were set
up in the fourth bedroom, which was otherwise used
for guests and storage. The defendant was the only one
of the men who used the computers.
One of the defendant’s roommates, Lawrence Lussier,
called West Haven police after he observed the defen-
dant looking at what Lussier described as ‘‘child pornog-
raphy’’ on a computer in the fourth bedroom. A few
days later, at the request of West Haven detectives,
Lussier went to police headquarters to give a recorded
statement about the incident. He reported that he saw
the defendant sitting at one of his computers with head-
phones on, which was not unusual. On the computer
screen, however, Lussier saw ‘‘a picture of a naked
boy, standing with his genitals exposed, [and] the boy
appeared to be approximately [eight to nine] years old
with no visible pubic hair,’’ followed by ‘‘a picture of
a naked girl, with very small breasts and her hand cov-
ering her genital area.’’ The two photographs ‘‘appeared
to be in a slide projection program . . . because the
pictures went from the left side to the right side [of the
screen] and were only visible for several seconds.’’ He
also saw what appeared to be ‘‘other thumbnail pictures
on the left side of the screen, but they were too small
to identify.’’ Lussier was confident, given his life experi-
ence as a seventy-five year old man and former second-
ary education schoolteacher, that each of the two pho-
tographs depicted young children.
The next day, Detectives Domenic Vinci and William
Conlan applied for a warrant to seize the defendant’s
computer equipment and storage devices and to search
them for evidence of possession of child pornography.
In addition to the previously described facts, the detec-
tives also noted in the affidavit that they had about
forty years of combined experience and that they were
assigned to the investigative services division of the
West Haven Police Department, in which capacity they
had investigated ‘‘numerous incidents of the nature set
forth in [the] [a]ffidavit.’’ They also represented, based
on their knowledge, training, and experience, that com-
puter files or their remnants may be discovered and
recovered years after they are downloaded, deleted, or
viewed on the Internet. The issuing judge, Markle, J.,
determined that there was probable cause to issue the
search warrant. By signing the warrant, the judge
authorized the police to search the defendant’s resi-
dence and to seize and search computers and related
storage devices and equipment for evidence of posses-
sion of child pornography.
The record provides the following additional, undis-
puted facts. The police executed the search warrant
the next day and seized electronics, videotapes, DVDs,
and CDs. At the detectives’ request, the defendant vol-
untarily came to the police station for an interview, in
which he admitted that he ‘‘enjoyed looking at [photo-
graphs] and videos of prepubescent young boys.’’ A
subsequent analysis of the seized items by the state
Computer Crimes and Electronic Evidence Laboratory
revealed more than 400 images and a smaller number
of videos of suspected child pornography. Detectives
then obtained and executed a warrant to arrest the
defendant for possession of child pornography in the
first degree in violation of General Statutes § 53a-196d.
The state initially charged the defendant with posses-
sion of child pornography in the first degree, and the
defendant pleaded not guilty. The defendant moved to
suppress the seized evidence in part on the ground that
the affidavit was insufficient to support probable cause
because the two photographs Lussier saw did not depict
‘‘sexually explicit conduct,’’ which is required to consti-
tute child pornography; General Statutes § 53a-193 (13);
and which, as relevant to the present case, is defined
as ‘‘lascivious exhibition of the genitals or pubic area
. . . .’’ General Statutes § 53a-193 (14) (E).1
At the hearing on the defendant’s motion to suppress,
defense counsel argued that probable cause was lacking
because the affidavit described only a brief observation
of ‘‘several seconds,’’ by a person with no articulated
experience distinguishing between child pornography
and a photograph of a nude child, of two photographs
that the state conceded were not lascivious.2 The court
denied the defendant’s motion to suppress, reasoning
that ‘‘[w]hether the [photographs] actually depicted
‘sexually explicit conduct’ was not a relevant area of
inquiry for the issuing court. The only relevant issue
. . . was whether the affidavit presented sufficient
objective indicia of reliability to justify a finding of
probable cause that the [photographs] depicted minors
engaged in sexually explicit conduct.’’ The court con-
cluded that ‘‘[t]he issuing court was permitted to infer
from Lussier’s statements that he in fact observed [pho-
tographs] of naked children on a computer that was
in the defendant’s possession, and that it was more
probable than not3 that evidence of . . . possession of
child pornography . . . could be found pursuant to a
search of the defendant’s items.’’ (Footnote added.)
Following the suppression hearing, the state
amended its information, charging the defendant with
possession of child pornography in the second degree,
in violation of § 53a-196e. The same day, the defendant
withdrew his not guilty plea and entered a conditional
plea of nolo contendere, reserving the right to appeal
the denial of his motion to suppress. The trial court
rendered judgment in accordance with the plea agree-
ment and sentenced the defendant to ten years impris-
onment, execution suspended after three years,4 and
ten years of probation. The defendant appealed from
the trial court’s judgment to the Appellate Court, and
the appeal was transferred to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
On appeal, the defendant advances two claims. First,
the defendant argues that the trial court incorrectly
concluded that the affidavit provided probable cause
to search his residence for evidence of possession of
child pornography. Second, he argues that this court
should adopt a ‘‘more probable than not’’ standard of
probable cause under article first, § 7, of the Connecti-
cut constitution, and that, even if the search warrant
survives under the current standard, it fails under the
more probable than not standard. We conclude that the
issuing judge correctly found that there was probable
cause to conduct the search because the judge reason-
ably could have determined from the affidavit that there
was a fair probability that a search of the defendant’s
residence would uncover evidence of possession of
child pornography. In addition, we decline to depart
from our well established standard providing that proof
of probable cause requires less than proof by a prepon-
derance of the evidence. Accordingly, we affirm the
judgment of the trial court.
I
The defendant first claims that it was unreasonable
to conclude, on the basis of the information in the
affidavit, that there was probable cause to search his
residence for evidence of possession of child pornogra-
phy. Specifically, he argues that the descriptions in the
affidavit of the two photographs of nude children were
insufficient to support an inference that there was a
substantial chance that the photographs were lascivi-
ous, and, thus, the court could not conclude on the
basis of legal images that there was probable cause
to believe that a search would uncover other, illegal
images. The state counters that looking at the totality
of the facts described in the affidavit and the reasonable
inferences drawn therefrom—as the probable cause
inquiry requires—the issuing judge reasonably could
have concluded that there was a fair probability that
a search of the defendant’s residence would uncover
evidence of possession of child pornography. We agree
with the state.
The legal principles guiding our probable cause analy-
sis are well established. Both the fourth amendment to
the United States constitution and article first, § 7, of
the Connecticut constitution prohibit the issuance of a
search warrant in the absence of probable cause. State
v. Shields, 308 Conn. 678, 689, 69 A.3d 293 (2013), cert.
denied, 571 U.S. 1176, 134 S. Ct. 1040, 188 L. Ed. 2d 123
(2014). Probable cause to search is established if there
is probable cause to believe that ‘‘(1) . . . the particu-
lar items sought to be seized are connected with crimi-
nal activity or will assist in a particular . . . conviction
. . . and (2) . . . the items sought to be seized will be
found in the place to be searched.’’ (Internal quotation
marks omitted.) State v. Batts, 281 Conn. 682, 700–701,
916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S. Ct. 667,
169 L. Ed. 2d 524 (2007). There is no ‘‘uniform formula’’
to determine probable cause—it is ‘‘not readily, or even
usefully, reduced to a neat set of legal rules’’—rather,
it turns on ‘‘the assessment of probabilities in particular
factual contexts . . . .’’ (Internal quotation marks
omitted.) State v. Shields, supra, 690. Probable cause
‘‘requires less than proof by a preponderance of the
evidence . . . .’’ (Citation omitted; internal quotation
marks omitted.) Id., 689–90. There need be only ‘‘a prob-
ability or substantial chance of criminal activity, not an
actual showing of such activity. By hypothesis, there-
fore, innocent behavior frequently will provide the basis
for a showing of probable cause . . . . [T]he relevant
inquiry is not whether particular conduct is innocent
or guilty, but the degree of suspicion that attaches to
particular types of noncriminal acts.’’ (Internal quota-
tion marks omitted.) Id., 690, citing Illinois v. Gates,
462 U.S. 213, 243–44 n.13, 103 S. Ct. 2317, 76 L. Ed. 2d
527 (1983). ‘‘The task of the issuing [judge] is simply
to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit . . .
there is a fair probability that contraband or evidence
of a crime will be found in a particular place.’’ Illinois
v. Gates, supra, 238.
In our review of whether there was probable cause
to support the warrant, ‘‘we may consider only the infor-
mation that was actually before the issuing judge . . .
and the reasonable inferences to be drawn therefrom.’’
(Internal quotation marks omitted.) State v. Shields,
supra, 308 Conn. 691. ‘‘The judge is entitled to rely on
his own common sense and the dictates of common
experience, although the standard for determining
probable cause is an objective one.’’ State v. DeCham-
plain, 179 Conn. 522, 528, 427 A.2d 1338 (1980).
‘‘[B]ecause of our constitutional preference for a judi-
cial determination of probable cause, and mindful of
the fact that [r]easonable minds may disagree as to
whether a particular [set of facts] establishes probable
cause . . . we evaluate the information contained in
the affidavit in the light most favorable to upholding
the issuing judge’s probable cause finding.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Shields, supra, 691. We ‘‘review the issuance of a war-
rant with deference to the reasonable inferences that
the issuing judge could have and did draw . . . and
. . . uphold the validity of [the] warrant . . . [if] the
affidavit at issue presented a substantial factual basis
for the [judge’s] conclusion that probable cause
existed.’’ (Citation omitted; internal quotation marks
omitted.) Id. The fact that we might draw different
reasonable inferences from the affidavit than the issuing
judge ‘‘does not alter our conclusion. On the contrary,
we defer to the issuing judge’s reasonable inferences,
even when other inferences also might be reasonable,
or when the issuing judge’s probable cause finding is
predicated on permissible, rather than necessary, infer-
ences.’’ Id., 702. ‘‘In a doubtful or marginal case . . .
our constitutional preference for a judicial determina-
tion of probable cause leads us to afford deference to
the [issuing judge’s] determination.’’5 (Internal quota-
tion marks omitted.) State v. Diaz, 226 Conn. 514, 546,
628 A.2d 567 (1993).
In the present case, we must determine whether, on
the basis of the totality of the circumstances described
in the affidavit and the reasonable inferences drawn
therefrom, the issuing judge reasonably could have con-
cluded that there was a substantial chance that the
defendant was in possession of child pornography. We
think that the affidavit does reasonably support this
conclusion.
We begin our analysis with the nature of the photo-
graphs described in the affidavit. Under § 53a-193 (13),
‘‘child pornography’’ means a ‘‘visual depiction’’ involv-
ing a person under sixteen years old engaging in ‘‘sexu-
ally explicit conduct . . . .’’ In this case, whether the
photographs described by Lussier depict ‘‘sexually
explicit conduct’’ depends on whether they involve a
‘‘lascivious exhibition of the genitals or pubic area
. . . .’’ General Statutes § 53a-193 (14) (E). The statute
does not define ‘‘lascivious,’’ but Black’s Law Dictionary
defines it as ‘‘tending to excite lust; lewd; indecent;
obscene.’’ Black’s Law Dictionary (11th Ed. 2019) p.
1053.
We have not previously had occasion to consider
what analytical framework should be employed to
determine whether a description of a photograph sup-
ports an inference that the photograph could be lascivi-
ous. A majority of federal circuit courts of appeals,
however, have found useful the factors first set forth
in United States v. Dost, 636 F. Supp. 828 (S.D. Cal.
1986), aff’d, 813 F.2d 1231 (9th Cir. 1987), and aff’d sub
nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.),
cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d
118 (1987). See, e.g., United States v. Rivera, 546 F.3d
245, 253 (2d Cir. 2008) (permitting use of Dost factors
in jury deliberations), cert. denied, 555 U.S. 1204, 129
S. Ct. 1395, 173 L. Ed. 2d 644 (2009); United States v.
Hill, 459 F.3d 966, 972 (9th Cir. 2006) (noting that Dost
factors had ‘‘utility’’ in context of case), cert. denied,
549 U.S. 1299, 127 S. Ct. 1863, 167 L. Ed. 2d 353 (2007);
United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999)
(‘‘we find helpful the six criteria suggested in . . .
Dost’’), cert. denied, 529 U.S. 1029, 120 S. Ct. 1442, 146
L. Ed. 2d 330 (2000); United States v. Amirault, 173
F.3d 28, 32 (1st Cir. 1999) (‘‘[w]e believe that the Dost
factors are generally relevant and provide some guid-
ance’’); United States v. Villard, 885 F.2d 117, 122 (3d
Cir. 1989) (adopting Dost factors because they ‘‘provide
specific, sensible meaning to the term ‘lascivious’ ’’).
But see United States v. Price, 775 F.3d 828, 831 (7th
Cir. 2014) (discouraging use of Dost factors because
they are ‘‘unnecessary’’ given clear statutory definition
of ‘‘ ‘sexually explicit conduct’ ’’).6 The Dost factors con-
sider (1) ‘‘whether the focal point of the visual depiction
is on the child’s genitalia or pubic area,’’ (2) ‘‘whether
the setting of the visual depiction is sexually suggestive,
i.e., in a place or pose generally associated with sexual
activity,’’ (3) ‘‘whether the child is depicted in an unnat-
ural pose, or in inappropriate attire, considering the
age of the child,’’ (4) ‘‘whether the child is fully or
partially clothed, or nude,’’7 (5) ‘‘whether the visual
depiction suggests sexual coyness or a willingness to
engage in sexual activity,’’ and (6) ‘‘whether the visual
depiction is intended or designed to elicit a sexual
response in the viewer.’’ United States v. Dost, supra,
832.
We agree with the First Circuit that ‘‘the Dost factors
are generally relevant and provide some guidance in
evaluating whether the display in question is lascivious.
We emphasize, however, that these factors are neither
comprehensive nor necessarily applicable in every situ-
ation. . . . The inquiry will always be case-specific.’’
United States v. Amirault, supra, 173 F.3d 32. Although
they should not be rigidly or mechanically applied, the
Dost factors are helpful in a case like this one, in which
probable cause depends in part on whether the descrip-
tion in a search warrant affidavit of possibly lascivious
images supports, as part of the totality of the circum-
stances, a reasonable inference that evidence of a crime
will be found in the place to be searched.
United States v. Hill, supra, 459 F.3d 966, is an illus-
trative example of a court’s useful application of the
Dost factors in this context. In that case, the Ninth
Circuit upheld a search warrant as supported by proba-
ble cause on the basis of the following two descriptions
of photographs in the affidavit. First, ‘‘a color picture
of a female, white, approximately [fifteen] years old,
with long dark brown hair. The female is in a room
standing between a couch and a coffee table. There is
a framed picture on the wall above the couch. She is
wearing only a long blouse and pair of socks. The blouse
is open and she is exposing her breast and pubic area
to the camera, which she is facing while leaning to
her left.’’ (Internal quotation marks omitted.) Id., 968.
Second, ‘‘a color picture of . . . two females, white,
approximately [seven to nine] years of age, both with
dirty blond hair. These females are standing on a beach
during the daytime. The shorter of the two females is
standing to the right of the picture while the other
female is standing behind her. Both females are facing
the camera askew and wearing only a robe, which is
open exposing the undeveloped breast and pubic area
of both girls. They both are turning their faces away
from the camera preventing the viewer from seeing
their faces.’’ (Internal quotation marks omitted.) Id.,
968–69. Applying the Dost factors to the descriptions,
the court concluded that the affidavit provided a ‘‘fair
probability’’ that the photographs were lascivious
because it described ‘‘three partially nude children, who
were provocatively and unnaturally dressed in light of
the photographs’ settings,’’ and whose ‘‘clothing was
opened so as to reveal their breasts and pubic areas,
with the girls appearing in sexually suggestive poses.’’
Id., 972–73. The court also observed that the descrip-
tions ‘‘did not raise doubts’’ that the images could serve
an innocent, nonsexual purpose. Id., 973.
Not all courts agree as to the level of detail—or,
when applied, the number of Dost factors—that must
be present for a description of an image to support
an inference that the image could be lascivious. Com-
pare United States v. Villard, supra, 885 F.2d 122
(‘‘[a]lthough more than one [Dost] factor must be pres-
ent in order to establish ‘lasciviousness,’ all six factors
need not be present’’), with United States v. Wolf, 890
F.2d 241, 245 n.6 (10th Cir. 1989) (expressly declining
to hold that ‘‘more than one Dost factor must be pres-
ent’’). We find instructive, however, two cases in which
the Seventh Circuit concluded that a description in a
search warrant affidavit supported a reasonable infer-
ence that there was a substantial chance that the respec-
tive depictions could be lascivious. First, in United
States v. Griesbach, 540 F.3d 654 (7th Cir. 2008), cert.
denied, 555 U.S. 1122, 129 S. Ct. 960, 173 L. Ed. 2d 151
(2009),8 the Seventh Circuit upheld a search warrant as
supported by probable cause on the basis of the follow-
ing image description in the warrant affidavit: ‘‘[A]
naked female [is] exposing her vagina. The female is
lying on her back and her vagina is the primary focus
. . . .’’ (Internal quotation marks omitted.) Id., 655. In
concluding that ‘‘the verbal description was sufficient
to justify an inference that a search of the defendant’s
computer files would turn up pornographic images,’’ the
court emphasized the fact that the ‘‘ ‘primary focus’ ’’
of the photograph was on the child’s vagina. Id., 656.
Similarly, in United States v. Shelton, 418 Fed. Appx.
514 (7th Cir.), cert. denied, 565 U.S. 903, 132 S. Ct. 301,
181 L. Ed. 2d 184 (2011),9 the Seventh Circuit upheld a
search warrant as supported by probable cause on the
basis of the following description in the warrant affida-
vit: ‘‘[A] video of a young girl appearing to be about
[twelve] years of age undressing to complete nudity.
The background for the video scene appeared to be a
bedroom.’’ (Internal quotation marks omitted.) Id., 515.
The court opined that the fact that the video was set
in a bedroom, along with the fact that the child
undressed to complete nudity, provided ‘‘commonsense
support’’ that the defendant might have been in posses-
sion of child pornography. Id., 518.
The descriptions of the two photographs in the pres-
ent case likewise provide a ‘‘fair probability’’; Illinois
v. Gates, supra, 462 U.S. 238; or a ‘‘substantial chance’’;
(internal quotation marks omitted) State v. Shields,
supra, 308 Conn. 690; that the defendant was in posses-
sion of lascivious images of children. The affidavit
averred that Lussier saw ‘‘a picture of a naked boy,
standing with his genitals exposed, [and] the boy
appeared to be approximately [eight to nine] years old
with no visible pubic hair,’’ followed by ‘‘a picture of
a naked girl, with very small breasts and her hand cov-
ering her genital area.’’ At least three of the Dost factors
are implicated here. The fourth Dost factor is implicated
because both children are nude, one with his genitals
showing. As discussed previously, nudity, in and of
itself, is not pornographic. See footnote 7 of this opin-
ion. Nevertheless, the issuing judge reasonably could
have inferred from the description of the girl’s ‘‘hand
covering her genital area’’ that the photograph sug-
gested coyness, and that the girl was posed in that
manner by the photographer, implicating two additional
Dost factors, namely, the fifth and sixth factors. See,
e.g., United States v. Overton, 573 F.3d 679, 687 (9th
Cir.) (‘‘The hair in the child’s face and arms partially
covering her breasts suggests sexual coyness or reluc-
tance. The victim testified that [the defendant] directed
her regarding where to place her hands. Thus, the
image’s depiction of sexual coyness was intended and
the image was likely designed to elicit a sexual response
in the viewer.’’ (Internal quotation marks omitted.)),
cert. denied, 558 U.S. 977, 130 S. Ct. 480, 175 L. Ed. 2d
321 (2009); United States v. Rivera, supra, 546 F.3d 251
(‘‘an innocent child can be coaxed to assume poses
or expressions that bespeak sexual availability when
viewed by certain adults, resulting in an image that
‘suggests sexual coyness or a willingness to engage in
sexual activity’ regardless of the child’s own character-
istics’’).
To be certain, these are not the only inferences a
judge could reasonably draw. For instance, it would
also be reasonable to infer that the girl covered her
genitals out of modesty or embarrassment, so that they
would not be exposed in the photograph. But, as we
explained previously, our task in determining whether
a search warrant is supported by probable cause is not
to substitute our own judgment for that of the issuing
court; rather, our task is to determine whether the issu-
ing court could have reasonably made particular infer-
ences. See State v. Shields, supra, 308 Conn. 702. It
is not a question of whether a particular inference is
necessary or whether it is the strongest inference avail-
able—it is only whether the inference is permissible.
See id. In light of this deferential standard of review,
we think the issuing judge reasonably could have con-
cluded that there was a substantial chance that the
defendant was in possession of lascivious images of
children.
We recognize that it is a close call whether the
descriptions of the photographs are sufficient to sup-
port a reasonable inference that there is a substantial
chance that the two photographs themselves are lascivi-
ous—more detail certainly would have been helpful to
understand the context. But whether there was proba-
ble cause to search did not depend solely on the descrip-
tions of the photographs; the probable cause determina-
tion involves an inquiry into the totality of the
circumstances presented to the issuing judge. See, e.g.,
Illinois v. Gates, supra, 462 U.S. 238. Indeed, several
courts have upheld probable cause determinations on
the basis of the totality of the circumstances even
though the issuing judge could not conclude from the
affidavit that there was a fair probability that an image
depicted child pornography. See, e.g., United States v.
Strausbaugh, 534 Fed. Appx. 178, 183 (3d Cir. 2013)
(‘‘Even if the [photograph of a nude infant] was not
‘lascivious’ under [Dost]—which is not a foregone con-
clusion, as it appears that several Dost factors are satis-
fied—we must look at the totality of the circumstances.
We also must remember that the test is whether there is
a ‘fair probability’—not absolute certainty—of criminal
activity.’’), cert. denied, 574 U.S. 843, 135 S. Ct. 99, 190
L. Ed. 2d 81 (2014); United States v. Ogden, United
States District Court, Docket No. 06-20033 (W.D. Tenn.
May 28, 2008) (concluding that description of photo-
graph of minor ‘‘standing fully nude, smiling, or lying
on her bed’’ satisfied at least two Dost factors but basing
probable cause determination on totality of circum-
stances described in affidavit (internal quotation marks
omitted)); United States v. Hernandez, 183 F. Supp. 2d
468, 475–76 (D.P.R. 2002) (upholding search warrant as
supported by probable cause on basis of totality of
circumstances despite being unable to conclude from
description—‘‘a blond girl with no clothes on, trying to
put on a ballerina outfit, with lots of necklaces around
her neck’’—that photograph was lascivious (internal
quotation marks omitted)).
Here, circumstances beyond Lussier’s descriptions
of the photographs further support a finding of probable
cause. For example, the affidavit also explained that
Lussier saw the defendant viewing the two photographs
in succession, in what appeared to be a slideshow, as
part of a larger collection of thumbnails that were too
small to identify. This observation provides the basis
for three important, permissible inferences. First, the
defendant possessed and viewed the photographs inten-
tionally. It is reasonable to expect that a person sud-
denly and unexpectedly presented with photographs of
nude children would register some reaction, but Lussier
reported no such reaction. He did not indicate, for
instance, that the defendant appeared startled or
alarmed by what was on the screen. Second, the fact
that Lussier saw the defendant viewing in succession
the two previously described photographs, along with
a set of thumbnails too small to identify, supports a
reasonable inference that there was a substantial
chance that at least some of the thumbnails were lascivi-
ous depictions of nude children. Third, it is reasonable
to infer that the defendant was using the photographs
for a sexual purpose. Although it might be suspicious
to observe an individual looking at even a single photo-
graph of a nude child, viewing a slideshow of several
nude children in succession undoubtedly supports the
issuing court’s conclusion that there was a substantial
chance that the defendant possessed child pornogra-
phy. Cf. United States v. Hill, supra, 459 F.3d 973 (‘‘the
descriptions [of the photographs] did not raise doubts
that the images served some [innocent] purpose’’).
The inference that the defendant had a sexual pur-
pose is further supported by the fact that he and Lussier
had been living together for ten months, and Lussier
was concerned enough by what he saw to call the police.
Because they had lived together for almost one year,
it would be reasonable to think that Lussier would know
if the defendant had, for example, children or grandchil-
dren of his own and, thus, a plausibly innocuous reason
to possess photographs of nude children. The issuing
judge could infer that there was no such explanation
in this context. The absence of an innocent explanation
increases the likelihood that the defendant possessed
and used the photographs for a sexual purpose.
In sum, the totality of the circumstances described
in the affidavit and the reasonable inferences drawn
therefrom paint the following picture: the defendant
possessed and used for a sexual purpose photographs
of nude, coy, and posed children, he had a collection
of such photographs on his computer, and there was
no immediately apparent, innocent, alternative explana-
tion for his behavior.10 Given these circumstances, the
issuing court reasonably could have concluded—in the
practical, commonsense inquiry that probable cause
demands—that there was a substantial chance that a
search of the defendant’s residence would uncover evi-
dence of possession of child pornography. See Illinois
v. Gates, supra, 462 U.S. 238.
The defendant argues that the court that denied his
motion to suppress incorrectly concluded that whether
the two photographs depicted child pornography was
irrelevant to the probable cause inquiry. The court
explained that ‘‘[w]hether the [photographs] actually
depicted ‘sexually explicit conduct’ was not a relevant
area of inquiry for the issuing court. The only relevant
issue . . . was whether the affidavit presented suffi-
cient objective indicia of reliability to justify a finding of
probable cause that the [photographs] depicted minors
engaged in sexually explicit conduct.’’ We do not inter-
pret the court’s statement to mean that whether the
photographs were in fact child pornography could have
no bearing on the probable cause determination—it
goes without saying that if, for example, the issuing
court were able to conclude from the affidavit that the
photographs were in fact pornographic, there would
be a particularly strong case for probable cause to
search the defendant’s residence. But the probable
cause inquiry did not require the issuing court to be
able to determine conclusively that the photographs
were in fact pornographic; it only required the issuing
court to be able to determine from the totality of the
circumstances presented in the affidavit and the reason-
able inferences drawn therefrom that there was a sub-
stantial chance that a search of the defendant’s resi-
dence would uncover evidence of possession of child
pornography. See State v. Shields, supra, 308 Conn. 690;
see also Illinois v. Gates, supra, 462 U.S. 244 n.13 (‘‘the
relevant inquiry is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that
attaches to particular types of noncriminal acts’’).
II
We turn next to the defendant’s claim that we should
adopt a more demanding standard under article first,
§ 7, of the Connecticut constitution for assessing
whether there is probable cause to issue a search war-
rant. Specifically, the defendant argues that we should
construe ‘‘probable cause’’ to require a degree of proba-
bility of ‘‘ ‘more probable than not,’ ’’ at least in cases
in which it is unknown at the time the warrant issues
whether a crime has occurred, because the factors first
set forth in State v. Geisler, 222 Conn. 672, 684–85, 610
A.2d 1225 (1992), weigh in favor of a more stringent
standard. The defendant raises this claim for the first
time on appeal, but he asserts that we should reach the
merits of the issue under State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989). Because we decline to depart
from our consistent and long-standing recognition that
proof of probable cause requires a lesser showing than
a preponderance of the evidence, the defendant cannot
establish that there exists a constitutional violation, and
his claim thus fails under the third prong of Golding.
See id., 240.
Golding provides that a defendant may prevail on an
unpreserved claim when ‘‘(1) the record is adequate to
review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fun-
damental right; (3) the alleged constitutional violation
. . . exists and . . . deprived the defendant of a fair
trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt.’’ (Footnote omitted.) Id., 239–40; see also In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying third prong of Golding by eliminating word
‘‘clearly’’ before ‘‘exists’’ and ‘‘deprived’’).
Here, the defendant’s unpreserved claim is review-
able because (1) the record is adequate to review the
alleged claim of error, and (2) the claim is of a constitu-
tional magnitude alleging the violation of a fundamental
right. See, e.g., State v. Peeler, 271 Conn. 338, 360, 857
A.2d 808 (2004) (‘‘[t]he first two [prongs of Golding]
involve a determination of whether the claim is review-
able; the second two . . . involve a determination of
whether the defendant may prevail’’ (internal quotation
marks omitted)), cert. denied, 546 U.S. 845, 126 S. Ct.
94, 163 L. Ed. 2d 110 (2005). We thus turn to the third
prong to determine whether the alleged constitutional
violation exists and deprived the defendant of a fair
trial.
In construing the Connecticut constitution to deter-
mine whether it provides our citizens with greater pro-
tections than the federal constitution, ‘‘we employ a
multifactor approach that we first adopted in [State v.
Geisler, supra, 222 Conn. 685]. The factors that we
consider are (1) the text of the relevant constitutional
provisions; (2) related Connecticut precedents; (3) per-
suasive federal precedents; (4) persuasive precedents
of other state courts; (5) historical insights into the
intent of [the] constitutional [framers]; and (6) contem-
porary understandings of applicable economic and
sociological norms [otherwise described as public poli-
cies].’’ (Internal quotation marks omitted.) State v. Pur-
cell, 331 Conn. 318, 341–42, 203 A.3d 542 (2019).
The defendant’s Geisler analysis can be summarized
as follows: (1) the textual approach favors a common
interpretation of the probable cause provisions in the
federal and the state constitutions; (2) this court has
recognized in several contexts that probable cause
requires a showing of less than a preponderance of the
evidence, but it has also held in several contexts that
article first, § 7, of the Connecticut constitution pro-
vides greater protection than the fourth amendment to
the federal constitution; (3) federal courts have ‘‘essen-
tially rejected’’ the more probable than not standard;
(4) a majority of states have declined to adopt a more
probable than not standard; (5) our state constitutional
history is sparse, but Connecticut common law demon-
strates a commitment to privacy and careful scrutiny
of warrants that predates our state constitution; and
(6) the home is sacred, and our computers are intensely
private, and, thus, the balance between privacy and law
enforcement needs is best served by a more probable
than not standard of probable cause. The defendant’s
arguments leave us unpersuaded.
It is well settled that, under the Connecticut constitu-
tion, like the federal constitution, ‘‘[p]roof of probable
cause requires less than proof by a preponderance of
the evidence . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Shields, supra, 308 Conn.
689–90. Indeed, the defendant cites a dozen cases in
which we have made this observation in various con-
texts, including cases involving probable cause for
search warrants. See, e.g., id. (probable cause for search
warrant); State v. Johnson, 286 Conn. 427, 435, 944 A.2d
297 (probable cause for warrantless felony arrest), cert.
denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144
(2008); State v. Brown, 279 Conn. 493, 523, 903 A.2d
169 (2006) (probable cause under ‘‘plain view’’ doc-
trine); State v. Munoz, 233 Conn. 106, 135, 659 A.2d 683
(1995) (probable cause at statutory hearing in proba-
ble cause).
We recognize, of course, that we need not interpret
the Connecticut constitution the same way the United
States Supreme Court interprets the federal constitu-
tion. State v. Dukes, 209 Conn. 98, 113, 547 A.2d 10
(1988) (‘‘this court has never considered itself bound
to adopt the federal interpretation in interpreting the
Connecticut constitution’’). We are also mindful of the
fact that, as the defendant points out, in other contexts,
we have interpreted article first, § 7, of the Connecticut
constitution to provide greater protections than our
citizens enjoy under the fourth amendment to the
United States constitution. See, e.g., State v. Marsala,
216 Conn. 150, 167–71, 579 A.2d 58 (1990) (rejecting
‘‘good faith’’ exception to exclusionary rule recognized
by United States Supreme Court in United States v.
Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984)). Nevertheless, in the absence of a compelling
reason to break with the long-standing approach of this
court, the federal courts, and a majority of our sister
states, we decline to disturb our established probable
cause standard. Because we leave in place our existing
standard, and in light of our conclusion in part I of
this opinion that the search warrant was supported by
probable cause, the defendant cannot establish that a
constitutional violation exists, and, thus, his claim must
fail under the third prong of Golding.
The defendant argues in the alternative that, if we
decline to adopt an across-the-board more probable
than not standard of probable cause, we should at least
do so in cases in which it is unknown at the time the
warrant issues whether a crime has occurred. As we
have stated previously, ‘‘probable cause is probable
cause is probable cause. . . . The creation of two
separate and distinct probable cause standards would
represent a gratuitous and unnecessary complication
of an already complicated area of constitutional law.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Johnson, supra, 286 Conn. 447. We decline to
create a second, distinct probable cause standard today.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant also challenged the probable cause determination on the
ground that the photographs did not depict persons under the age of sixteen.
He does not pursue that claim on appeal.
2
On appeal, the parties disagree as to whether the state actually conceded,
as the defendant alleges, that the descriptions of the photographs did not
suggest a lascivious exhibition of the genitals. We need not resolve this
dispute because, as appellate defense counsel acknowledged at oral argu-
ment, even if the state did so concede, we would not be bound by its
concession. See, e.g., Coley v. Hartford, 312 Conn. 150, 169 n.14, 95 A.3d
480 (2014) (‘‘[t]o the extent that the defendant’s statements at oral argument
arguably could be construed as a concession of the central issue in the
present case . . . we are not bound by that concession’’).
3
Despite the court’s use of the phrase ‘‘more probable than not,’’ probable
cause requires ‘‘less than proof by a preponderance of the evidence . . . .’’
(Citation omitted; internal quotation marks omitted.) State v. Shields, 308
Conn. 678, 689–90, 69 A.3d 293 (2013), cert. denied, 571 U.S. 1176, 134 S.
Ct. 1040, 188 L. Ed. 2d 123 (2014). Even if the trial court applied the more
stringent standard, of course, there would be no harm to the defendant. Cf.
State v. Munoz, 233 Conn. 106, 135–36, 659 A.2d 683 (1995) (‘‘The probable
cause court found that the state had established, by a preponderance of the
evidence, that the defendant had committed the murder of [the victim]. This
was an improper standard of proof, because probable cause is not the same
as a preponderance of the evidence. This impropriety, however, could not
have harmed the defendant, because proof of probable cause requires less
than proof by a preponderance of the evidence. . . . The court’s finding
by a preponderance of the evidence, therefore, necessarily also encompassed
a finding by the less demanding standard of probable cause.’’ (Citations
omitted; footnote omitted.)).
4
Both parties note that, although the mandatory minimum sentence under
§ 53a-196e (c) is two years imprisonment, the judgment of conviction incor-
rectly calls for a mandatory minimum prison term of three years. The defen-
5
We have made clear, however, that this deferential standard should not
encourage an issuing court to conclude that a barely sufficient warrant
application is ‘‘ ‘good enough’ ’’ to be upheld on review. State v. Marsala,
216 Conn. 150, 171, 579 A.2d 58 (1990); see State v. Diaz, 226 Conn. 514,
544–45, 628 A.2d 567 (1993) (‘‘[Judges have] constitutional obligations to
consider carefully the sufficiency of the affidavit supporting warrant applica-
tions. . . . [O]ur decision in . . . Marsala . . . in which we concluded
that article first, § 7, [of the Connecticut constitution] does not contain a
good faith exception to the exclusionary rule, has created an important
incentive for issuing judges to scrutinize warrant applications closely
because the significant cost of an error will be exclusion of the evidence
seized pursuant to the warrant. This important incentive helps to ensure
that the issuing judge’s ex parte probable cause determination . . . will be
sufficiently reliable so as to be entitled to the normal deference a reviewing
court ordinarily gives to judicial factual findings.’’ (Footnote omitted.)).
6
We note that the federal statutory definitions of ‘‘sexually explicit con-
duct’’ at issue in these cases are very similar or identical to the Connecticut
statute at issue in the present case. Compare General Statutes § 53a-193
(13) and (14) with 18 U.S.C. § 2256 (2) (A) and (B) and (8) (2012); see also,
e.g., 18 U.S.C. § 2256 (2) (A) (2012) (‘‘ ‘sexually explicit conduct’ means . . .
(v) lascivious exhibition of the genitals or pubic area of any person’’). As
such, the Dost factors are readily applicable to our state law. See State v.
Whited, 506 S.W.3d 416, 433, 437 (Tenn. 2016) (rejecting use of Dost factors
in Tennessee but citing cases from Arkansas, Louisiana, Massachusetts,
Mississippi, Nebraska, New Hampshire, South Dakota, Texas, and Utah
applying Dost factors to each state’s respective laws).
7
It is well established that nudity alone is not pornographic, even when
it comes to children. See, e.g., United States v. Doyle, 650 F.3d 460, 473
(4th Cir. 2011) (‘‘mere . . . nudity . . . even child nudity, does not consti-
tute child pornography [under] Virginia law’’); United States v. Hill, supra,
459 F.3d 970 (‘‘not all images of nude children are pornographic’’); United
States v. Amirault, supra, 173 F.3d 33 (‘‘mere nudity’’ does not make image
lascivious under federal law).
8
In Griesbach, the search warrant was based on a suspected violation of
the Wisconsin child pornography statute. United States v. Griesbach, supra,
540 F.3d 655. The Wisconsin definition of ‘‘sexually explicit conduct’’ is
nearly identical to both the Connecticut and federal statutes. See Wis. Stat.
§ 948.01 (7) (2007–2008).
9
In Shelton, the search warrant was based on a suspected violation of
the Indiana child pornography statute. United States v. Shelton, supra, 418
Fed. Appx. 515. At the time, the Indiana statute defined ‘‘sexual conduct’’
in relevant part as ‘‘exhibition of the uncovered genitals intended to satisfy
or arouse the sexual desires of any person . . . .’’ Ind. Code Ann. § 35-42-
4-4 (a) (LexisNexis 2004).
10
The following additional facts are not in dispute on appeal and further
support a finding of probable cause. First, the defendant concedes that
Lussier ‘‘appears to be a ‘citizen-informant’ of the type whose veracity is
generally assumed . . . .’’ (Footnote omitted.) See, e.g., State v. Daley, 189
Conn. 717, 724, 458 A.2d 1147 (1983) (‘‘[i]t is generally agreed . . . that [it
is unnecessary] to establish veracity when the information comes from an
average citizen who is in a position to supply information by virtue of having
been a crime victim or a witness’’ (internal quotation marks omitted)).
Second, on the basis of Lussier’s experience as a secondary schoolteacher,
the issuing judge could credit Lussier’s statement that the people depicted
in the photographs were young children. Third, the affiants averred, based
on their knowledge, training, and experience, that computer files or their
remnants may be recovered from a computer even years after they are
viewed or deleted. Thus, even if the defendant had attempted to delete the
photographs, the police would still be able to find evidence of them on
his computers.