State v. Kono

324 Conn. 80

152 A.3d 1

STATE of Connecticut

v.Dennis KONO

SC 19613

Supreme Court of Connecticut.

Argued March 30, 2016

Officially released December 22, 2016^*

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and David N. Clifton, assistant state's attorney, for the appellant (state).

Daniel M. Erwin, with whom, on the brief, were Norman A. Pattis and Frederick M. O'Brien, for the appellee (defendant).

Rogers, C.J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.

PALMER, J.

The issue presented by this appeal is whether article first, § 7, of the Connecticut constitution¹ prohibits the police from conducting a warrantless canine sniff of the front door of a condominium in a multiunit condominium complex, and the common hallway adjacent thereto, for the purpose of detecting marijuana inside the condominium. The state appeals² from the judgment of the trial court, which suppressed evidence seized from the condominium of the defendant, Dennis Kono, following such a canine sniff. The trial court concluded that the canine sniff constituted a search within the meaning of the fourth amendment to the United States constitution and, therefore, required a warrant predicated on probable cause. We conclude that the canine sniff violated article first, § 7, and, accordingly, we affirm the judgment of the trial court.³

ITHE FACTS

The record reveals the following undisputed facts. In May, 2012, the Berlin Police Department received an anonymous tip that the defendant was boasting about growing marijuana at a condominium complex on Main Street in the town of Berlin. The case was assigned to Detective Shaun Solek, who determined that the condominium complex in question was a former factory located at 10 Main Street. Solek also discovered that the defendant lived in unit 204. Because the complex was still under construction, Solek contacted the developer, Corporation for Independent Living (developer), to request permission to enter the building. The developer referred Solek to the property manager, Connecticut Real Estate Management, whose owner, Alyssa Pillion, signed a consent form allowing Solek and Officer Eric Chase, a canine handler with the Berlin Police Department, to conduct a canine examination of the common areas of the building.

On the afternoon of May 29, 2012, Solek and Chase went to the condominium complex and were admitted into the building by Stephen Martino, the developer's property manager. As the trial court found, "[t]he first two floors contained thirty-four residential units, only a portion of which [was] completed and occupied. The outside doors to the multiunit building are normally locked, and access is gained through a keypad. Chase, who is a trained canine handler, was accompanied by his German Shepherd dog, Zeusz. Zeusz had been trained to detect eight substances including marijuana, hash [ish], crack cocaine, cocaine, ecstasy, and methamphetamine. Prior to the search of the complex, Chase was not informed ... which condominium unit was under investigation.

"Chase first had Zeusz conduct a presearch of the first floor common hallway. During the presearch, Zeusz is allowed to walk throughout the hallway without direction from his handler. After the presearch, Chase conducted a directed search in which Zeusz was commanded to sniff at the bottom of the front door of each condominium [unit] on the first floor. The same presearch and directed search procedures were also conducted on the second floor. When Zeusz performed his sniff at the bottom of the door to unit 204, the dog sat down in front of the door, which constituted a passive alert that [Zeusz] had detected contraband. Chase directed Zeusz to perform a second directed search on the second floor and Zeusz again gave a passive alert for drugs at unit 204. Chase knocked on the door but received no response. Chase remained at the door to [e]nsure that no one entered the premises, and Solek left to prepare a search warrant for [the] unit .... Approximately four hours later, Solek returned with a signed search warrant. Upon executing the warrant, the police discovered an indoor greenhouse containing marijuana plants, as well as seeds, lighting equipment and various firearms." The defendant was arrested and charged with several drug offenses and illegal possession of an assault weapon.

IITHE TRIAL COURT'S DECISION

The defendant subsequently filed a motion to suppress the evidence seized from his condominium on the ground that a canine sniff of the threshold of his home, for the purpose of investigating the home's contents, constituted a search under both the fourth amendment and article first, § 7, of the state constitution. Specifically, the defendant argued that his front door and the hallway adjacent thereto were within the constitutionally protected curtilage of his condominium unit such that the entry of a dog into that area for the purpose of conducting a drug sniff constituted a trespass. The defendant further argued that a sniff by a well trained narcotics dog for the purpose of detecting drugs inside his home violated his reasonable expectation of privacy under Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See id., at 351, 353, 88 S.Ct. 507 (inquiry for fourth amendment purposes is whether individual "seeks to preserve [something] as private" and whether that subjective expectation of privacy is objectively "justifiabl[e]" under circumstances); see also id., at 361, 88 S.Ct. 507 (Harlan, J., concurring) (application of fourth amendment depends on whether individual has "exhibited an actual [subjective] expectation of privacy" and whether that subjective expectation is "one that society is prepared to recognize as ‘reasonable’ "). The trial court agreed that the canine sniff violated the defendant's reasonable expectation of privacy under the fourth amendment and granted the defendant's motion to suppress. In light of its determination that the police had violated the federal constitution, the court did not reach the defendant's claim under the state constitution. The trial court did note, however, that this court "has to date [declined to rule] on whether a canine sniff is ... a search under article first, § 7, of the Connecticut constitution ...." (Citations omitted.) State v. Kono , Superior Court, judicial district of New Britain, Docket No. H15N–CR–12–0264061–S, 2014 WL 7462049 (November 18, 2014) ; see, e.g., State v. Waz , 240 Conn. 365, 371, 692 A.2d 1217 (1997) (declining to decide whether canine sniff of parcel constituted search under article first, § 7, because, "even if it did, the state constitution requires no more than a showing that the investigating officers had a reasonable and articulable suspicion that the parcel contained contraband").⁴

In reaching its determination, the trial court relied on United States v. Thomas , 757 F.2d 1359, 1367 (2d Cir.), cert. denied sub nom. Fisher v. United States , 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985), and cert. denied sub nom. Wheelings v. United States , 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985), and cert. denied sub nom. Rice v. United States , 479 U.S. 818, 107 S.Ct. 78, 93 L.Ed.2d 34 (1986), in which the Second Circuit held that a canine sniff of a person's front door in a multiunit apartment building, for the purpose of detecting drugs inside the apartment, constituted a search within the meaning of the fourth amendment. The trial court also relied on Florida v. Jardines , ––– U.S. ––––, 133 S.Ct. 1409, 1417–18, 185 L.Ed.2d 495 (2013), and Kyllo v. United States , 533 U.S. 27, 34–35, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), in which the United States Supreme Court held that a canine sniff conducted within the curtilage of a single-family residence (Jardines ) and the thermal imaging of a single-family residence (Kyllo ), for purposes of detecting marijuana therein, violated the fourth amendment to the United States constitution. Describing the holding in Thomas as "prescient," the trial court noted that, although the Second Circuit's view was once considered an outlier, Kyllo and Jardines had vindicated the Second Circuit's determination that a canine sniff of the exterior of a person's home, even one located in a multiunit apartment building, violates the fourth amendment if the purpose of the canine sniff is to detect drugs inside the home.

The trial court also rejected the state's contention that the search did not require a warrant supported by probable cause "because a dog sniff can ... determine [only] whether a home contains contraband, and no one has a reasonable expectation of privacy in contraband." In support of this contention, the state relied on United States v. Place , 462 U.S. 696, 698, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and Illinois v. Caballes , 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), which held, respectively, that a canine sniff of luggage at a public airport and a canine sniff of a motor vehicle are not searches for fourth amendment purposes because a subjective expectation of privacy in contraband is not recognized as reasonable, and a canine sniff for illegal drugs reveals only the existence of that contraband and nothing more.⁵ The trial court explained that, although "it is true that a canine sniff is not a search when used to detect drugs in luggage at an airport; United States v. Place , supra, [at 707], 103 S.Ct. 2637; or in a motor vehicle; Illinois v. Caballes , supra, [at 409], 125 S.Ct. 834 ; Jardines teaches us that the use of a drug detection dog is a search when [the dog] is used to investigate the contents of someone's home. We also know from Kyllo that the contraband distinction stops at the front door of a home because, in the home ... all details are intimate details .... Kyllo v. [United States ], supra, 533 U.S. at 37, 121 S.Ct. 2038." (Internal quotation marks omitted.)

Finally, the trial...