STATE v. DAVID ESAREY, SC 19004

Judicial District of Fairfield

 Criminal; Search & Seizure; Extraterritorial Warrants; Whether Trial Court Lacked Authority to Issue Warrant to Search Defendant's California E-mail Account.  Monroe police obtained a search warrant for the defendant's e-mail account with Google, Inc., an Internet company located in California.  The warrant was based on an affidavit that alleged that the defendant and the minor victim were known to be exchanging nude photographs and engaging in sexually explicit conversations on Facebook, a social networking website.  The affidavit alleged that the defendant used his cellular telephone and the victim used her home computer to conduct the conversations.  One e-mail found in the defendant’s Google account contained three sexually explicit photos of an unidentified female’s body parts.  The defendant was charged with promoting a minor in an obscene performance and possession of child pornography, and he moved to suppress the evidence obtained from the Google search.  In ruling on that motion, the court first determined that the defendant had a reasonable expectation of privacy in his e-mail account and, therefore, that he had standing to contest the search.  The court went on to deny the motion to suppress, rejecting the defendant’s claim that a Connecticut judge lacked the authority to issue a search warrant to be executed in California.  It determined that the issuing court had such authority because California, by statute, directs its companies that provide electronic communication services to the general public to produce their records when presented with a search warrant issued by another state.  The court also disagreed with the defendant's claim that his communication by cell phone was insufficient to establish probable cause to believe that incriminating evidence would be found in his e-mail account, finding that the facts established that the defendant and the victim were actively engaged in the exchange of sexually explicit electronic communications and that the magistrate who issued the warrant was entitled to infer that the e-mail account was also used in those communications.  This is the defendant's appeal from his convictions.  On appeal, the defendant contends that because there is no multistate, reciprocal agreement addressing the issuance of extraterritorial warrants, California lacked the authority to unilaterally expand the jurisdiction of the Connecticut Superior Court beyond that expressly prescribed in the constitution of Connecticut and the implementing statutory provisions.  He argues that the warrant was therefore void and that the e-mail evidence should have been suppressed as the fruit of an illegal search.  The defendant also challenges the finding that there was probable cause to support the search warrant.  The state claims, among other things, that the defendant lacked any reasonable expectation of privacy in his e-mail account because he had surrendered his e-mail password to a third party.