State v. Kono ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. DENNIS KONO
(SC 19613)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
Argued March 30—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 attor-
ney, 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).
Opinion
PALMER, J. The issue presented by this appeal is
whether article first, § 7, of the Connecticut constitu-
tion1 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 defen-
dant, 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
I
THE 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 condo-
minium 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 devel-
oper, Corporation for Independent Living (developer),
to request permission to enter the building. The devel-
oper referred Solek to the property manager, Connecti-
cut Real Estate Management, whose owner, Alyssa
Pillion, signed a consent form allowing Solek and Offi-
cer 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 metham-
phetamine. 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 com-
manded 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 war-
rant, the police discovered an indoor greenhouse con-
taining 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.
II
THE TRIAL COURT’S DECISION
The defendant subsequently filed a motion to sup-
press 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 con-
tents, constituted a search under both the fourth amend-
ment and article first, § 7, of the state constitution.
Specifically, the defendant argued that his front door
and the hallway adjacent thereto were within the consti-
tutionally 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., 351, 353 (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., 361
(Harlan, J., concurring) (application of fourth amend-
ment depends on whether individual has ‘‘exhibited an
actual [subjective] expectation of privacy’’ and whether
that subjective expectation is ‘‘one that society is pre-
pared 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 sup-
press. 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 (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 par-
cel 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 sin-
gle-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 Sec-
ond 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 . . . deter-
mine [only] whether a home contains contraband, and
no one has a reasonable expectation of privacy in con-
traband.’’ 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 pur-
poses 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, [707]; or
in a motor vehicle; Illinois v. Caballes, supra, [409];
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. 37.’’ (Internal quotation marks omitted.)
Finally, the trial court rejected the state’s contention
that a warrant was not required because ‘‘the police
were lawfully present in the common hallway outside
the defendant’s front door,’’ an area where, in the state’s
view, the defendant had no reasonable expectation of
privacy or any property interest sufficient to protect
against the officers’ warrantless intrusion. In the trial
court’s view, it was immaterial that the police were
lawfully present in the hallway, or that the defendant
had a diminished expectation of privacy in the common
areas of his condominium complex, because the privacy
interest at stake did not relate to those areas but, rather,
to the inside of the defendant’s home. The trial court
also expressed concern that allowing the police to con-
duct warrantless canine sniffs of the front doors of
apartments and condominium units but not of single-
family homes—the practice found to violate the fourth
amendment in Jardines—would impermissibly appor-
tion constitutional rights on the basis of economic class.
Specifically, the trial court stated: ‘‘The use of a drug
detection dog situated in a common hallway outside
the front door to a condominium [unit] is no less an
intrusion into the privacy of one’s home than the [use
of a] drug detection dog . . . on the front porch of the
single-family residence in Jardines. To rule otherwise
would afford residents of this state who reside in multi-
family apartments less a measure of privacy protected
by the fourth amendment than their more well-off neigh-
bors.’’ The trial court stated further: ‘‘It would also allow
law enforcement to troll through the hallways of apart-
ment buildings, including public housing projects, with
drug sniffing dogs to search for contraband within indi-
vidual apartments. . . . Such arbitrary and unfettered
discretion is assuredly repugnant to the fourth amend-
ment.’’ (Citation omitted.) Thereafter, the trial court
granted the defendant’s motion to dismiss the charges
against him on the ground that none of the state’s evi-
dence would be admissible at a trial.
III
ANALYSIS UNDER ARTICLE FIRST, § 7, OF
THE CONNECTICUT CONSTITUTION
On appeal, the state reasserts its contention that the
canine sniff of the defendant’s front door and the hall-
way adjacent thereto was not a search under article
first, § 7, because the defendant had no reasonable
expectation of privacy in the area searched or in the
contraband inside his home. We are not persuaded by
the state’s argument.
It is well established that this court, in determining
whether the police conducted a search under article
first, § 7, ‘‘employ[s] the same analytical framework
that would be used under the federal constitution. . . .
Specifically, we ask whether the defendant has estab-
lished that he had a reasonable expectation of privacy in
the area or thing searched.’’6 (Citations omitted; internal
quotation marks omitted.) State v. Davis, 283 Conn.
280, 310, 929 A.2d 278 (2007). In the absence of ‘‘such
an expectation, the subsequent police action has no
constitutional ramifications. . . . The determination
of whether such an expectation exists is to be made
on a [case-by-case] basis . . . and requires a [two part]
inquiry: first, whether the individual has exhibited an
actual subjective expectation of privacy, and, second,
whether that expectation is one society recognizes as
reasonable. . . . Whether a defendant’s actual expec-
tation of privacy in a particular place is one that society
is prepared to recognize as reasonable involves a fact-
specific inquiry into all the relevant circumstances.
. . .
‘‘The determination that a particular place is pro-
tected under [article first, § 7] requires that it be one
in which society is prepared, because of its code of
values and its notions of custom and civility, to give
deference to a manifested expectation of privacy. . . .
It must be one that society is prepared to recognize as
reasonable. . . . Legitimate expectations of privacy
derive from concepts of real or personal property law
or [from] understandings that are recognized and per-
mitted by society. One of the main rights attaching to
property is the right to exclude others . . . and one
who owns or lawfully possesses or controls property
will in all likelihood have a legitimate expectation of
privacy by virtue of this right to exclude. . . . Of
course, one need not have an untrammeled power to
admit and exclude in order to claim the protection of
[article first, § 7, as] long as the place involved is one
affording an expectation of privacy that society regards
as reasonable.’’7 (Citations omitted; internal quotation
marks omitted.) State v. Mooney, 218 Conn. 85, 94–96,
588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330,
116 L. Ed. 2d 270 (1991).
Additional principles guide our analysis of the state’s
claim, chief among them the bedrock principle that
‘‘[p]rivacy expectations are . . . highest and are
accorded the strongest constitutional protection in the
case of a private home and the area immediately sur-
rounding it.’’ State v. Brown, 198 Conn. 348, 356–57,
503 A.2d 566 (1986); see also Bozrah v. Chmurynski,
303 Conn. 676, 690, 36 A.3d 210 (2012) (‘‘[n]owhere
are expectations of privacy greater than in the home’’
[internal quotation marks omitted]). It is also axiomatic
‘‘that a search or seizure conducted without a warrant
issued upon probable cause is presumptively unreason-
able. Our constitutional preference for warrants is over-
come only in specific and limited circumstances.’’
(Citations omitted; internal quotation marks omitted.)
State v. Waz, supra, 240 Conn. 374 n.16; see also State
v. Miller, 227 Conn. 363, 382, 630 A.2d 1315 (1993)
(‘‘[t]his court’s precedents involving the state constitu-
tion’s warrant requirement express a strong policy in
favor of warrants’’).
Finally, ‘‘[i]n determining the contours of the protec-
tions provided by our state constitution, we employ a
multifactor approach that we first adopted in [State v.
Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992)]. The
factors that we consider are (1) the text of the relevant
constitutional provisions; (2) related Connecticut prec-
edents; (3) persuasive federal precedents; (4) persua-
sive precedents of other state courts; (5) historical
insights into the intent of [the] constitutional [framers];
and (6) contemporary understandings of applicable eco-
nomic and sociological norms [otherwise described as
public policies]. . . . We have noted, however, that
these factors may be inextricably interwoven, and not
every [such] factor is relevant in all cases.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Skok, 318 Conn. 699, 708, 122 A.3d 608 (2015). In the
present case, ‘‘our adjudication of the defendant’s state
constitutional claim is informed principally by those
federal and sister state cases involving the use of a
trained narcotics detection dog.’’8 State v. Waz, supra,
240 Conn. 374. We also consider whether the distinction
that the state would have us draw under article first,
§ 7, between the front door of a single-family residence
and that of a home located in a multiunit building finds
support in our own case law or public policies of this
state. With these principles in mind, we turn to the
relevant federal precedent.
On balance, we believe that federal precedent pro-
vides support for the defendant’s claim of a state consti-
tutional violation. As we previously noted, the Second
Circuit Court of Appeals decided more than thirty years
ago that a canine sniff of the common hallway of a
multiunit apartment building, for the purpose of
detecting drugs inside one of the apartments, consti-
tutes a search within the meaning of the fourth amend-
ment. United States v. Thomas, supra, 757 F.2d 1367.
Thomas not only remains good law in the Second Cir-
cuit; see United States v. Hayes, 551 F.3d 138, 144 (2d
Cir. 2008) (distinguishing Thomas but reaffirming that
canine sniff of apartment door in multiunit apartment
building is subject to constraints of fourth amendment);
but it has been strengthened by recent federal prece-
dent. See United States v. Whitaker, 820 F.3d 849,
852–54 (7th Cir. 2016) (reasonable expectation of pri-
vacy in home prohibits canine sniff of apartment door
in multiunit building); and presumptively carries partic-
ular weight with this court.9
Although the United States Supreme Court has never
resolved the issue decided in Thomas,10 we agree with
the trial court that Kyllo and Jardines tend to favor the
defendant’s position. In Kyllo, federal agents suspected
that the petitioner, Danny Kyllo, was growing marijuana
inside his home in a three-family residence. Kyllo v.
United States, supra, 533 U.S. 29. During their investiga-
tion, the agents ‘‘used an Agema Thermovision 210 ther-
mal imager to scan the [three-family residence]. . . .
The scan . . . showed that the roof over the garage
and a side wall of [Kyllo’s unit] were relatively hot
compared to the rest of the home and substantially
warmer than neighboring homes in the [three-family
residence].’’ Id., 29–30. On the basis of this information
and certain other facts, the agents obtained a warrant
to search Kyllo’s unit and there discovered more than
100 marijuana plants growing under grow lights. Id., 30.
After the Ninth Circuit Court of Appeals upheld the
trial court’s denial of Kyllo’s motion to suppress; see
id., 30–31; the United States Supreme Court granted
Kyllo’s petition for a writ of certiorari and reversed.
Id., 31, 41. In doing so, the court began its discussion
of the government’s claim by noting that, ‘‘[a]t the very
core of the [f]ourth [a]mendment stands the right of a
man to retreat into his own home and there be free
from unreasonable governmental intrusion. . . . With
few exceptions, the question whether a warrantless
search of a home is reasonable and [thus] constitutional
must be answered no.’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 31. It then explained that
‘‘[t]he . . . case involves officers on a public street
engaged in more than [naked eye] surveillance of a
home. [The court has] previously reserved judgment as
to how much technological enhancement of ordinary
perception from such a vantage point, if any, is too
much. [Although the court had] upheld enhanced aerial
photography of an industrial complex in Dow Chemical
[Co. v. United States, 476 U.S. 227, 234–35, 239, 106 S.
Ct. 1819, 90 L. Ed. 2d 226 (1986)] . . . [the court] found
it important that [the searched area was] not an area
immediately adjacent to a private home, where privacy
expectations are most heightened . . . .’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) Kyllo v. United States, supra, 533 U.S. 33.
‘‘[O]btaining by [sense enhancing] technology any infor-
mation regarding the interior of the home that could
not otherwise have been obtained without physical
intrusion into a constitutionally protected area . . .
constitutes a search—at least [when, as in Kyllo] the
technology in question is not in general public use. This
assures preservation of that degree of privacy against
government that existed when the [f]ourth [a]mend-
ment was adopted. On the basis of this criterion, the
information obtained by the thermal imager . . . was
the product of a search.’’ (Citation omitted; internal
quotation marks omitted.) Id., 34–35.
In reaching its conclusion, the court rejected the gov-
ernment’s contention that the thermal imaging was not
a search because it did not reveal ‘‘private activities
occurring in private areas . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id., 37. As the court
explained, ‘‘[t]he [f]ourth [a]mendment’s protection of
the home has never been tied to measurement of the
quality or quantity of information obtained. . . . In the
home . . . all details are intimate details, because the
entire area is held safe from prying government eyes.’’
(Emphasis in original.) Id. After observing that the ther-
mal imager could detect lawful activity, even intimate
details such as ‘‘at what hour each night the lady of the
house takes her daily sauna and bath’’; id., 38; the court
concluded: ‘‘[T]he [f]ourth [a]mendment draws a firm
line at the entrance to the house . . . . That line . . .
must be not only firm but also bright—which requires
clear specification of those methods of surveillance that
require a warrant. [Although] it is certainly possible to
conclude from the . . . thermal imaging [scan] . . .
that no significant compromise of the homeowner’s
privacy ha[d] occurred, [the court] must take the long
view . . . from the original meaning of the [f]ourth
[a]mendment forward.’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 40. When, as in Kyllo, ‘‘the
[g]overnment uses a device that is not in general public
use, to explore details of the home that would pre-
viously have been unknowable without physical intru-
sion, the surveillance is a search and is presumptively
unreasonable without a warrant.’’ (Internal quotation
marks omitted.) Id.
More recently, in Jardines, the court was asked to
decide ‘‘whether using a [drug sniffing] dog on a home-
owner’s porch to investigate the contents of the home
is a search within the meaning of the [f]ourth [a]mend-
ment.’’ (Internal quotation marks omitted.) Florida v.
Jardines, supra, 133 S. Ct. 1413. In that case, the police
received a tip that the respondent, Joelis Jardines, was
growing marijuana inside his single-family residence.
Id. On the basis of that information, a police drug detec-
tion dog and his handler were dispatched to Jardines’
home to conduct a sniff test of the exterior of the
residence. Id. As the court explained, ‘‘[t]he dog was
trained to detect the scent of marijuana, cocaine, her-
oin, and several other drugs, indicating the presence of
any of these substances through particular behavioral
changes recognizable by his handler.’’ Id. ‘‘As the dog
approached Jardines’ front porch, he apparently sensed
one of the odors he had been trained to detect, and
began energetically exploring the area for the strongest
point source of that odor.’’ Id. ‘‘After sniffing the base
of the front door, the dog sat, which is the trained
behavior [that the dog exhibits when he discovers] the
odor’s strongest point.’’ Id. On the basis of the dog’s
reaction, the police obtained a warrant to search Jar-
dines’ residence, where they found several marijuana
plants. Id.
Jardines was charged with trafficking in cannabis
and later moved to suppress the evidence seized from
his home on the ground that the officers’ use of a dog
to detect drugs inside the home violated the fourth
amendment. See id. The trial court agreed and granted
the motion. See id. That judgment, however, was
reversed by the Florida District Court of Appeal, whose
judgment, in turn, was reversed by the Florida Supreme
Court. See id. The United States Supreme Court then
granted Florida’s petition for a writ of certiorari; see
id., 1414; ‘‘limited to the question of whether the officers’
behavior was a search within the meaning of the [f]ourth
[a]mendment.’’ Id. The court concluded that it was.
Id., 1417–18.
In doing so, however, the court did not apply the
reasonable expectation of privacy test recognized in
Katz, as it did in Kyllo, but opted instead to view the
matter through a common-law property lens. See id.,
1414. The court explained: ‘‘The [fourth] [a]mendment
establishes a simple baseline, one that for much of our
history formed the exclusive basis for its protections:
When the [g]overnment obtains information by physi-
cally intruding on persons, houses, papers, or effects,
a search within the original meaning of the [f]ourth
[a]mendment has undoubtedly occurred.’’ (Internal
quotation marks omitted.) Id. ‘‘That principle renders
this case a straightforward one. The officers were gath-
ering information in an area belonging to Jardines and
immediately surrounding his house—in the curtilage of
the house, which [the court has] held enjoys protection
as part of the home itself. And they gathered that infor-
mation by physically entering and occupying the area
to engage in conduct not explicitly or implicitly permit-
ted by the homeowner.’’ Id.
Having determined that the officers intruded on con-
stitutionally protected curtilage, the court next consid-
ered whether Jardines ‘‘had given his leave (even
implicitly) for them to do so.’’ Id., 1415. The court con-
cluded that he had not, stating in relevant part: ‘‘[The
court has] . . . recognized that the knocker on the
front door is treated as an invitation or license to
attempt an entry, justifying ingress to the home by solic-
itors, hawkers and peddlers of all kinds. . . . This
implicit license typically permits the visitor to approach
the home by the front path, knock promptly, wait briefly
to be received, and then (absent invitation to linger
longer) leave. Complying with the terms of that tradi-
tional invitation does not require fine-grained legal
knowledge; it is generally managed without incident by
the [n]ation’s Girl Scouts and trick-or-treaters. Thus, a
police officer not armed with a warrant may approach
a home and knock, precisely because that is no more
than any private citizen might do. . . .
‘‘But introducing a trained police dog to explore the
area around the home in hopes of discovering incrimi-
nating evidence is something else. There is no custom-
ary invitation to do that. An invitation to engage in
canine forensic investigation assuredly does not inhere
in the very act of hanging a knocker. To find a visitor
knocking on the door is routine (even if sometimes
unwelcome); to spot that same visitor exploring the
front path with a metal detector, or marching his blood-
hound into the garden before saying hello and asking
permission, would inspire most of us to . . . call the
police. The scope of a license—express or implied—is
limited not only to a particular area but also to a specific
purpose. . . . Here, the background social norms that
invite a visitor to the front door do not invite him there
to conduct a search.’’ (Citations omitted; emphasis
omitted; footnotes omitted; internal quotation marks
omitted.) Id., 1415–16.11
In a concurring opinion joined by Justices Ginsburg
and Sotomayor, Justice Kagan explained that she ‘‘could
just as happily have decided [the case] by looking to
Jardines’ privacy interests.’’ Id., 1418 (Kagan, J., concur-
ring). Such a decision, she asserted, would have looked
very much like the majority opinion. See id., 1418–19
(Kagan, J., concurring) ‘‘It would have talked about the
right of a man to retreat into his own home and there
be free from unreasonable governmental intrusion.
. . . It would have insisted on maintaining the practical
value of that right by preventing police officers from
standing in an adjacent space and trawl[ing] for evi-
dence with impunity. . . . It would have explained that
privacy expectations are most heightened in the home
and the surrounding area. . . . And it would have
determined that police officers invade those shared
expectations when they use trained canine assistants
to reveal within the confines of a home what they could
not otherwise have found there.’’ (Citations omitted;
internal quotation marks omitted.) Id.
Justice Kagan also explained that ‘‘the sentiment ‘my
home is my own,’ while originating in property law,
now also denotes a common understanding—extending
even beyond that law’s formal protections—about an
especially private sphere. Jardines’ home was his prop-
erty; it was also his most intimate and familiar space.
The analysis proceeding from each of those facts . . .
runs mostly along the same path.
‘‘I can think of only one divergence: If [the court]
had decided this case on privacy grounds, [it] would
have realized that Kyllo . . . already resolved it. The
[court in] Kyllo . . . held that police officers con-
ducted a search when they used a [thermal imaging]
device to detect heat emanating from a private home,
even though they committed no trespass. Highlighting
[the court’s] intention to draw both a ‘firm’ and a ‘bright’
line at ‘the entrance to the house’ . . . [it] announced
the following rule:
‘‘ ‘Where, as here, the [g]overnment uses a device that
is not in general public use, to explore details of the
home that would previously have been unknowable
without physical intrusion, the surveillance is a
‘‘search’’ and is presumptively unreasonable without a
warrant.’ . . .
‘‘That ‘firm’ and ‘bright’ rule governs this case: The
police officers . . . conducted a search because they
used a ‘device . . . not in general public use’ (a trained
[drug detection] dog) to ‘explore details of the home’
(the presence of certain substances) that they would
not otherwise have discovered without entering the
premises.’’ (Citations omitted; footnote omitted.) Id.,
1419 (Kagan, J., concurring). At the very least, therefore,
Jardines makes clear that warrantless canine sniffs
of the home are frequently unconstitutional. Justice
Kagan’s concurrence suggests that they are, in fact,
never constitutional—at least in the absence of exigent
circumstances.
Since Jardines, only one federal circuit court of
appeals has considered whether a canine sniff of an
apartment door in a multiunit apartment building, for
the purpose of detecting drugs inside of the apartment,
constitutes a search under the fourth amendment. See
United States v. Whitaker, supra, 820 F.3d 850. In that
case, the Seventh Circuit concluded that it was a search.
Id., 854. The facts of Whitaker are no different from
the facts in the present case: ‘‘Acting on information
that drugs were being sold from a certain apartment
in Madison, Wisconsin, law enforcement obtained the
permission of the apartment property manager [to
bring] a [narcotics detecting] dog to the locked, shared
hallway of the apartment building. The dog alerted to
the presence of drugs at a nearby apartment door and
then went to the targeted apartment where [the defen-
dant, Lonnie] Whitaker, was residing. After the officers
obtained a search warrant, Whitaker was arrested and
charged with drug and firearm crimes based on evi-
dence found in the apartment.’’ Id., 850.
Whitaker moved to suppress the evidence seized from
his apartment, arguing, inter alia, that the use of the
dog to detect contraband inside his home was a search
under the fourth amendment and Jardines. Id., 851; see
id., 850, 852. After the trial court denied his motion,
Whitaker entered a conditional guilty plea, reserving
his right to appeal from the trial court’s ruling. Id., 850.
On appeal, ‘‘Whitaker argue[d] that Jardines should be
extended to the hallway outside his apartment door
because . . . law enforcement took the dog to his door
for the purpose of gathering incriminating forensic evi-
dence.’’ Id., 852. Recognizing, however, ‘‘that Jardines
was premised on trespass to property, he also argue[d]
that this use of a [drug detection] dog violated his pri-
vacy interests under Kyllo . . . and Katz . . . .’’ (Cita-
tions omitted.) Id. The Seventh Circuit agreed with the
latter contention, stating in relevant part: ‘‘The use of
a [drug sniffing] dog . . . clearly invaded reasonable
privacy expectations, as . . . Justice [Kagan explained
in her] concurring opinion in Jardines. The police in
Jardines could reasonably and lawfully walk up to the
front door of the house in that case to knock on the
door and ask to speak to the residents. The police were
not entitled, however, to bring a ‘[super sensitive]
instrument’ to detect objects and activities that they
could not perceive without its help. . . . The police
could not stand on the front porch and look inside with
binoculars or put a stethoscope to the door to listen.
Similarly, they could not bring the [super sensitive] dog
to detect objects or activities inside the home. As Justice
Kagan explained, viewed through a privacy lens, Jar-
dines was controlled by Kyllo, which held that police
officers conducted a search by using a [thermal
imaging] device to detect heat emanating from within
the home, even without trespassing on the property.’’
(Citations omitted.) Id., 852–53. The Seventh Circuit
concluded that ‘‘[a] dog [sniff] conducted from an apart-
ment hallway comes within this rule’s ambit.’’ Id., 853.
The Seventh Circuit noted, moreover, just as the Sec-
ond Circuit did in Thomas, that ‘‘the fact that this was
a search of a home distinguishes this case from dog
sniffs in public places in United States v. Place, [supra,
462 U.S. 698] (luggage at airport), and Illinois v.
Caballes, [supra, 543 U.S. 406] (traffic stop). Neither
case implicated the [f]ourth [a]mendment’s core con-
cern of protecting the privacy of the home. It is true
that Whitaker did not have a reasonable expectation of
complete privacy in his apartment hallway. . . . [But]
Whitaker’s lack of a reasonable expectation of complete
privacy in the hallway does not also mean that he had
no reasonable expectation of privacy against persons in
the hallway snooping into his apartment using sensitive
devices not available to the general public.’’ (Citation
omitted.) United States v. Whitaker, supra, 820 F.3d 853.
Even more recently, in United States v. Hopkins, 824
F.3d 726, 729, 731–33 (8th Cir. 2016), cert. denied,
U.S. (85 U.S.L.W. 3260, November 28, 2016), the
Eighth Circuit Court of Appeals considered the closely
related question of whether a canine sniff of the front
door of a two-story townhouse violated the fourth
amendment as interpreted in Jardines and Kyllo. In
Hopkins, the townhouse in question shared a common
walkway and front stoop with the unit next door. See
id., 729–30. Unlike the court in Whitaker, which applied
Katz’ reasonable expectation of privacy test, the Eighth
Circuit followed the trespass to property approach uti-
lized in Jardines. See id., 731–33. In doing so, the court
explained that, under Jardines, ‘‘the front porch area
[is] a classic exemplar of curtilage, the area immediately
surrounding and associated with the home. . . .
Although . . . officers [have] an implicit license to
approach the home by the front path, knock promptly,
wait briefly to be received, and then (absent invitation
to linger longer) leave, they [have] no invitation to intro-
duc[e] a trained police dog to explore the area around
the home in hopes of discovering incriminating evi-
dence.’’ (Citation omitted; internal quotation marks
omitted.) Id., 731. The court then explained that a deter-
mination of ‘‘whether a particular area is part of the
curtilage of an individual’s residence requires consider-
ation of [four] factors that bear [on] whether an individ-
ual reasonably may expect that the area in question
should be treated as the home itself.’’ (Internal quota-
tion marks omitted.) Id. Those factors, which are set
forth in United States v. Dunn, 480 U.S. 294, 301, 107
S. Ct. 1134, 94 L. Ed. 2d 326 (1987), include ‘‘the proxim-
ity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure sur-
rounding the home, the nature of the uses to which the
area is put, and the steps taken by the resident to protect
the area from observation by people passing by.’’ (Inter-
nal quotation marks omitted.) United States v. Hopkins,
supra, 731.
Citing the canine handler’s testimony that the dog
had come within ‘‘six to eight inches’’ of the door and
‘‘actually sniffed the creases of the door’’; (internal quo-
tation marks omitted) id., 732; and noting that ‘‘[t]he
area within [one] foot of the only door to the [town-
house] would be used every day by its residents as they
came and went’’; id.; the court concluded that the first
and third Dunn factors were met and, therefore, that
the area in question was curtilage. See id. The court
did determine that the second and fourth Dunn factors
were not met, but it noted that the same was true in
Jardines, and the United States Supreme Court still
determined that the front porch in that case was curti-
lage. See id.
Because we address the state’s claim under the state
constitution, we need not decide whether a canine sniff
of an apartment door inside a multiunit building violates
the fourth amendment. In the absence of significant
precedent to the contrary of which we are unaware,
however, and despite conflicting court decisions, we
agree with the defendant that the better reasoned fed-
eral case law concerning the propriety of residential
canine sniffs under the fourth amendment supports the
defendant’s position in this case. This is true whether
the defendant’s claim is reviewed under the Katz line
of privacy based decisions or under the principles of
curtilage on which the court in Jardines relied and that
the Eighth Circuit applied in Hopkins.
The state cites several federal cases for the proposi-
tion that the canine sniff of the defendant’s front door
was not a search because ‘‘there ‘exists no generalized
expectation of privacy in the common areas of an apart-
ment building,’ which [include] a ‘common hallway.’ ’’12
‘‘This jurisprudence,’’ the state argues, ‘‘is consistent
with United States Supreme Court decisions that have
accorded apartments the status of ‘homes’ for fourth
amendment purposes, but not the ‘adjoining common
hallways.’ United States v. Holland, 755 F.2d 253, 255
(2d Cir.), cert. denied, 471 U.S. 1125 [105 S. Ct. 2657,
86 L. Ed. 2d 274] (1985).’’
We agree with the trial court that the state’s reliance
on these cases, most of which predate both Jardines
and Kyllo, is misplaced because all of them involve
searches of the common areas themselves, or arrests
made in those areas, rather than searches of apartments
using the common areas as a place from which to launch
a search. See, e.g., United States v. Holland, supra, 755
F.2d 255–57 (defendant’s arrest in common vestibule
of apartment building was lawful because defendant
had no reasonable expectation of privacy in that area);
United States v. Kelly, 551 F.2d 760, 763 (8th Cir.) (evi-
dence found under common stairwell of apartment
building was admissible at trial because defendant had
no reasonable expectation of privacy in that area), cert.
denied, 433 U.S. 912, 97 S. Ct. 2981, 53 L. Ed. 2d 1097
(1977), and cert. denied sub nom. Powell v. United
States, 433 U.S. 912, 97 S. Ct. 2981, 53 L. Ed. 2d 1097
(1977).13 The issue the courts were required to deter-
mine in these cases was simply whether the defendant’s
expectation of privacy in the common areas was suffi-
cient to require that the police obtain a warrant prior
to entering or conducting a search of those areas. Hol-
land, a Second Circuit case cited throughout the state’s
brief, illustrates why the state’s reliance on these cases
is unwarranted.
In Holland, a police officer rang the doorbell for the
apartment occupied by the defendant, Mose Holland,
from ‘‘the ground floor entranceway’’ to the building’s
common hallway, and, when Holland arrived in the
vestibule and opened the door, the police officer drew
his gun and arrested him. United States v. Holland,
supra, 755 F.2d 254. The Second Circuit Court of
Appeals declined ‘‘to treat this as a ‘threshold’ case’’;
instead, the court assumed that the arrest ‘‘took place
in the vestibule or hallway . . . .’’ Id., 255. In conclud-
ing that the arrest was lawful, the court relied on the
‘‘[commonsense] distinction between places of abode,
such as apartments, and common hallways,’’ which ‘‘are
not within an individual tenant’s zone of privacy . . . .’’
Id. That the state relies on Holland is curious in light
of the Second Circuit’s nearly simultaneous ruling in
United States v. Thomas, supra, 757 F.2d 1367, that
a canine sniff of a person’s front door in a multiunit
apartment building is indeed a search because of the
heightened expectation of privacy in the home. There-
fore, the Second Circuit’s jurisprudence distinguishes
between the invasion of a common area itself and the
use of a common area to invade an adjacent private
area. As that court aptly recognized, a person may lack
a reasonable expectation of privacy in the common
areas of an apartment building without sacrificing the
privacy interest inherent in his home. See id.
The state also cites three federal district court cases
that conclude that a canine sniff of the hallway adjacent
to an apartment in a multiunit apartment building is
not a search, in part because the resident lacked a
reasonable expectation of privacy in the common areas
of the building. See United States v. Mathews, United
States District Court, Docket No. 13-79 (ADM/AJB) (D.
Minn. October 25, 2013) (‘‘[b]ecause they are shared by
multiple tenants, no reasonable expectation of privacy
arises in such common areas’’), aff’d on other grounds,
784 F.3d 1232 (8th Cir. 2015); United States v. Penaloza-
Romero, United States District Court, Docket No. 13-
36 (RHK/TNL) (D. Minn. September 30, 2013) (‘‘[T]he
dog sniff occurred in a common hallway of an apartment
building. Without an expectation of privacy in the hall-
way, it cannot have the same constitutional protections
as the curtilage around a house.’’); United States v.
Broadway, 580 F. Supp. 2d 1179, 1193 (D. Colo. 2008)
(‘‘[The] [d]efendant argues [that the apartment building
groundskeeper] did not have the authority to allow [the
police detective] into the secure hallway. . . . ‘[A] ten-
ant lacks a reasonable expectation of privacy in the
common areas of an apartment building.’ ’’). For a num-
ber of reasons, these cases are unpersuasive. First, two
of them are from the Eighth Circuit, which has explicitly
reserved judgment on the application of Jardines to
apartments in multiunit buildings. See United States v.
Mathews, 784 F.3d 1232, 1235 (8th Cir.) (declining to
reach question of whether Jardines ‘‘cast[s] doubt on
. . . earlier cases [in the Eighth Circuit] sanctioning
the use of a drug dog to sniff around the door of an
apartment in the common hallway of an apartment
building . . . because it was objectively reasonable at
the time for police to rely on binding circuit precedent
permitting such drug dog sniffs,’’ and, under Davis v.
United States, 564 U.S. 229, 232, 131 S. Ct. 2419, 180 L.
Ed. 2d 285 [2011], ‘‘searches conducted in objectively
reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule’’ [internal quotation
marks omitted]), cert. denied sub nom. Matthews v.
United States, U.S. , 136 S. Ct. 376, 193 L. Ed.
2d 303 (2015). Furthermore, insofar as the court in
Broadway addressed the issue, that court determined
simply that a tenant could not reasonably expect police
officers not to be present in the common hallway in
question. See United States v. Broadway, supra, 1194
(‘‘[i]f actual authority is established, the person whose
property is searched is unjustified in claiming an expec-
tation of privacy in the property because that person
cannot reasonably believe that the joint user will not,
under certain circumstances, allow a search in her own
right’’ [internal quotation marks omitted]). In Broad-
way, a detective was admitted into an apartment com-
plex by a groundskeeper who had at least apparent
authority to do so, and the court determined that the
groundskeeper’s consent vitiated any expectation of
privacy on the part of the defendant. See id.; see also
United States v. Brock, 417 F.3d 692, 697 (7th Cir. 2005)
(‘‘[c]ritical to our holding that the dog sniff in this case
was not a [f]ourth [a]mendment search is the fact that
[the] police were lawfully present inside the common
areas of the residence with the consent of [the defen-
dant’s] roommate’’). As we observed previously, how-
ever, the question of lawful physical presence is distinct
from the question of whether a canine sniff of the exte-
rior of a person’s home impermissibly invades reason-
able expectations of privacy in the home.
The state also argues that the canine sniff was not a
search under the state constitution because the defen-
dant had no reasonable expectation of privacy in any
contraband inside his condominium. Relying on the rea-
soning of United States v. Place, supra, 462 U.S. 707,
and United States v. Caballes, supra, 543 U.S. 408–409,
that the canine sniffs at issue in those cases were not
searches for purposes of the fourth amendment because
a canine sniff reveals only contraband in which an indi-
vidual has no legitimate expectation of privacy, the state
maintains that this logic applies equally to the present
case. The state also observes that Place and Caballes
are in no way inconsistent with or undermined by Kyllo,
for, as the court itself explained in Caballes, ‘‘[c]ritical
to [this court’s] decision [in Kyllo] was the fact that
the [thermal imaging] device was capable of detecting
lawful activity’’; id.; and ‘‘[t]he legitimate expectation
that information about perfectly lawful activity will
remain private is categorically distinguishable from [an
individual’s] hopes or expectations concerning the non-
detection of contraband in the trunk of his car.’’ Id.,
410.14 According to the state, because a canine sniff
reveals only contraband, it is not a search, even if it is
directed at the home.
Although we ultimately disagree with the state’s con-
tention that the present case is controlled by Place
and Caballes, we acknowledge that the state’s fourth
amendment analysis does find support in a number of
federal and sister state cases. These cases hold that,
whatever the extent of privacy rights otherwise per-
taining to common hallways in multitenant buildings,
a canine sniff of an apartment building or other resi-
dence is not a search because it discloses only the
existence of contraband.15 See, e.g., United States v.
Scott, 610 F.3d 1009, 1016 (8th Cir. 2010), cert. denied,
562 U.S. 1160, 131 S. Ct. 964, 178 L. Ed. 2d 794 (2011);
United States v. Brock, supra, 417 F.3d 696; United
States v. Anthony, United States District Court, Docket
No. 11-68 (JBS) (D.N.J. March 20, 2012); United States
v. Broadway, supra, 580 F. Supp. 2d 1190; State v. Ngu-
yen, 841 N.W.2d 676, 681 (N.D. 2013), cert. denied,
U.S. , 135 S. Ct. 2888, 192 L. Ed. 2d 924 (2015).
Although the continued vitality of the reasoning of the
Seventh and Eighth Circuit cases has been called into
question by subsequent decisions of those courts; see
United States v. Hopkins, supra, 824 F.3d 731–33
(Eighth Circuit Court of Appeals); United States v. Whi-
taker, supra, 820 F.3d 852–54 (Seventh Circuit Court
of Appeals); several other cases generally support the
state’s argument. For example, as the court in Anthony
explained: ‘‘The legal premise that governmental con-
duct that only reveals the possession of contraband
compromises no legitimate privacy interest . . . is not,
on its face, a [fact specific] judgment with respect to
cars or luggage—or really even a judgment about pri-
vacy expectations; it is a judgment about the legitimacy
of hiding contraband. From this perspective, there is
no reason why governmental conduct that only reveals
the possession of contraband in a house should be
different from governmental conduct that only reveals
the possession of contraband in the trunk of a car,
because the reason for not affording contraband
[f]ourth [a]mendment privacy protection has nothing
to do with expectations of what will remain private,
and everything to do with what society is prepared to
accept as legitimate privacy.’’ (Internal quotation marks
omitted.) United States v. Anthony, supra. Consistent
with this reasoning, the court concluded that a canine
sniff of an apartment from the hallway of a multifamily
residence, at least when ‘‘nothing in the record calls
into question the factual premise that nothing is
revealed other than possession of contraband by a dog
sniff,’’ is not a search under the fourth amendment. Id.;
see also United States v. Broadway, supra, 1191 (‘‘as
long as the canine unit is lawfully present when the
sniff occurs, the canine sniff is not a search within the
meaning of the [f]ourth [a]mendment’’ [internal quota-
tion marks omitted]).
We acknowledge that, in Place and, more recently,
in Caballes, the United States Supreme Court employed
reasoning that supports the conclusion that a canine
sniff is not a search under the fourth amendment
because that investigative technique reveals only the
existence of contraband, and one’s subjective expecta-
tion of privacy in contraband is not objectively reason-
able. See Illinois v. Caballes, supra, 543 U.S. 408–10
(canine sniff of motor vehicle does not implicate fourth
amendment because there can be no expectation of
privacy in contraband that society deems reasonable);
United States v. Place, supra, 462 U.S. 707 (canine sniff
of luggage at public airport is not search within meaning
of fourth amendment, in part because it discloses only
presence or absence of contraband). Nevertheless, we
believe that Place and Caballes are distinguishable from
the present case because a canine sniff of a residence
is entitled to significantly more protection than a canine
sniff of an automobile or a piece of luggage at a public
airport. Both this court and the United States Supreme
Court have drawn a bright line around the home. Indeed,
the United States Supreme Court has held ‘‘over and
over again . . . that people’s expectations of privacy
are much lower in their cars than in their homes’’; Flor-
ida v. Jardines, supra, 133 S. Ct. 1419 n.1 (Kagan, J.,
concurring); and, as the Second Circuit Court of
Appeals observed in Thomas, ‘‘[a] practice that is not
intrusive in a public airport may be intrusive when
employed at a person’s home.’’ United States v.
Thomas, supra, 757 F.2d 1366. This is because ‘‘[t]he
very fact that a person is in his own home raises a
reasonable inference that he intends to have privacy,
and if that inference is borne out by his actions, society
is prepared to respect his privacy.’’ Id., quoting United
States v. Taborda, 635 F.2d 131, 138 (2d Cir. 1980).
Indeed, this respect for the sanctity of the home is
at the ‘‘very core’’ of the fourth amendment; (internal
quotation marks omitted) Florida v. Jardines, supra,
1414; and is ‘‘well established . . . in our [state’s] juris-
prudence.’’ State v. Geisler, supra, 222 Conn. 687; see
also State v. Bernier, 246 Conn. 63, 75, 717 A.2d 652
(1998) (‘‘the right to be secure in one’s home is central
to the prohibition of article first, § 7, of the state consti-
tution, against unreasonable intrusions by the state’’);
State v. Brown, supra, 198 Conn. 356–57 (‘‘[p]rivacy
expectations are normally highest and are accorded
the strongest constitutional protection in the case of a
private home and the area immediately surrounding it’’).
Furthermore, this distinction between searches of
the home and searches of locations outside the home
is consistent with the established priorities of article
first, § 7, of the Connecticut constitution. As we noted
in State v. Miller, supra, 227 Conn. 363, Connecticut
has long had a ‘‘strong policy in favor of warrants’’
under article first, § 7, a policy that has been held to
‘‘[provide] broader protection than the fourth amend-
ment’’ in certain contexts. Id., 382. Indeed, ‘‘[u]nder the
state constitution, all warrantless searches, [regardless
of] whether . . . the police have probable cause to
believe that a crime was committed, are per se unrea-
sonable, unless they fall within one of a few specifically
established and well delineated exceptions to the war-
rant requirement.’’ State v. Joyce, 229 Conn. 10, 24–25,
639 A.2d 1007 (1994). In Joyce, we explained that the
few ‘‘recognized exceptions’’ arise out of ‘‘acknowl-
edged interests in protecting the safety of the police
and the public and in preserving evidence.’’ (Internal
quotation marks omitted.) Id., 26. Suffice it to say that
the use of a canine sniff for drugs in response to an
anonymous tip will rarely, if ever, rise to the level of
urgency required by these precedents.
Thus, we agree with the Seventh and Second Circuits
that a resident’s legitimate expectation of privacy in
the home is capacious enough to preclude certain uses
of the common areas immediately adjacent to the home.
As the Seventh Circuit explained, the defendant’s ‘‘lack
of a right to exclude did not mean [that] he had no right
to expect certain norms of behavior in his apartment
hallway. [To be sure], other residents and their guests
(and even their dogs) can pass through the hallway.
They are not entitled, though, to set up chairs and have
a party in the hallway right outside the door. Similarly,
the fact that a police officer might lawfully walk by and
hear loud voices from inside an apartment does not
mean [that] he could put a stethoscope to the door to
listen to all that is happening inside.’’ United States v.
Whitaker, supra, 820 F.3d 853.
In other words, a defendant’s ‘‘lack of a reasonable
expectation of complete privacy in the hallway does
not also mean that he had no reasonable expectation
of privacy against persons in the hallway snooping into
his apartment using sensitive devices not available to
the general public.’’ Id.; see also United States v.
Thomas, supra, 757 F.2d 1367 (finding ‘‘a legitimate
expectation that the contents of [a] closed apartment
would remain private, that they could not be ‘sensed’
from outside [the] door’’). This is consonant with the
United States Supreme Court’s observation that the
right to retreat into one’s home ‘‘would be of little practi-
cal value if the [s]tate’s agents could stand in a home’s
porch or side garden and trawl for evidence with impu-
nity’’ or ‘‘if the police could enter a man’s property to
observe his repose from just outside the front window.’’
Florida v. Jardines, supra, 133 S. Ct. 1414.
Indeed, even if a canine sniff were to reveal nothing
about the interior of the home, we believe that the
underlying prohibition against unreasonable intrusions
into the sanctity of the home cannot abide the public
spectacle of a warrantless canine investigation of the
perimeters of any home. It may well be that a canine
sniff itself is ‘‘discriminating and unoffensive’’ when
compared to other physical intrusions of the premises
of a home. United States v. Thomas, supra, 757 F.2d
1367. Even so, such searches are highly visible and
readily identifiable. They also hold a resident up to
public scrutiny in his own home. As the Florida
Supreme Court observed, ‘‘[s]uch a public spectacle
unfolding in a residential neighborhood will invariably
entail a degree of public opprobrium, humiliation and
embarrassment for the resident, for such dramatic gov-
ernment activity in the eyes of many—neighbors, pass-
ers-by, and the public at large—will be viewed as an
official accusation of crime.’’ Jardines v. State, 73 So.
3d 34, 36 (Fla. 2011), aff’d, U.S. , 133 S. Ct. 1409,
185 L. Ed. 2d 495 (2013).16 We also share that court’s
concern that, if police officers are permitted to conduct
warrantless canine searches of people’s homes, ‘‘there
is nothing to prevent [them] from applying the proce-
dure in an arbitrary or discriminatory manner, or based
on whim and fancy, at the home of any citizen,’’ and
that ‘‘[s]uch an open-ended policy invites overbearing
and harassing conduct.’’ Id.
In view of the foregoing, we agree with those federal
courts that have distinguished canine sniffs of the home
from canine sniffs of movable property. While we have
previously suggested that the ‘‘heightened privacy inter-
ests that pertain to one’s house’’ might demand a more
rigorous assessment of canine sniffs than the privacy
interests in movable property; see State v. Waz, supra,
240 Conn. 381; we believe that Justice Kagan’s concur-
rence in Jardines properly applies this principle to the
‘‘[super sensitive] instrument’’ of a dog’s nose. Florida
v. Jardines, supra, 133 S. Ct. 1418 (Kagan, J., concur-
ring). As Justice Kagan observed, the sanctity of the
home is not measured by the presence or absence of
contraband, or even by the relative ‘‘intimacies’’ of the
facts that may be discovered there. Id. Rather, it is
measured by the ‘‘ ‘firm’ ’’ and ‘‘ ‘bright’ ’’ line at the
entrance to the house. Id., 1419 (Kagan, J., concurring).
Considered in this light, cases such as Caballes are not
simply cases about canine sniffs; they are cases about
canine sniffs directed at motor vehicles. See Illinois v.
Caballes, supra, 543 U.S. 417 (Souter, J., dissenting)
(noting that majority in Caballes did ‘‘not go so far as
to say explicitly that sniff searches by dogs trained
to sense contraband always get a free pass under the
[f]ourth [a]mendment, since it reserve[d] judgment on
the constitutional significance of sniffs assumed to be
more intrusive than a dog’s walk around a stopped
car’’). Significantly, this interpretation of Caballes has
been adopted by the only federal circuit court of appeals
to have considered the issue of canine sniffs in a com-
mon hallway after Jardines. See United States v. Whi-
taker, supra, 820 F.3d 853; see also United States v.
Davis, 760 F.3d 901, 905 (8th Cir. 2014) (questioning
continuing validity of earlier circuit precedent to con-
trary following Jardines), cert. denied, U.S. ,
135 S. Ct. 996, 190 L. Ed. 2d 872 (2015).
Turning to precedent from other state courts, we note
that only seven states appear to have addressed the
issue of whether a canine sniff of an apartment door
in a multiunit building is a search with constitutional
implications. Five have concluded, either under the fed-
eral constitution or their respective state constitutions,
that it is a search and that it requires either a reasonable,
articulable suspicion or a warrant supported by proba-
ble cause. See People v. Burns, 50 N.E.3d 610, 613–14,
622 (Ill. 2016) (under Jardines, canine sniff of apart-
ment door in multiunit apartment building is search
under fourth amendment requiring warrant supported
by probable cause); State v. Davis, 732 N.W.2d 173, 181
(Minn. 2007) (under Minnesota constitution, ‘‘the police
needed a reasonable, articulable suspicion to walk a
[narcotics detection] dog down the common hallway
outside [the defendant’s] apartment’’); State v. Ortiz,
257 Neb. 784, 787, 600 N.W.2d 805 (1999) (under federal
and Nebraska constitutions, ‘‘[a]lthough a canine may
be deployed to test for illegal drugs in some cases,
doing so at the threshold of [any] dwelling on less than
reasonable, articulable suspicion is improper’’); People
v. Dunn, 77 N.Y.2d 19, 25, 564 N.E.2d 1054, 563 N.Y.S.2d
388 (1990) (New York constitution requires reasonable,
articulable suspicion before police may employ canine
sniff of apartment door in multiunit apartment build-
ing), cert. denied, 501 U.S. 1219, 111 S. Ct. 2830, 115 L.
Ed. 2d 1000 (1991); State v. Rendon, 477 S.W.3d 805, 808
(Tex. Crim. App. 2015) (under Jardines, ‘‘the officers’
conduct in bringing a trained [drug detection] dog up
to the threshold or area immediately outside of [the
defendant’s apartment] door for the purpose of con-
ducting a [canine narcotics] sniff was an ‘unlicensed
physical intrusion’ onto the curtilage of his home that
constituted a search in violation of the [f]ourth
[a]mendment’’).
In addition, the Florida Supreme Court and Washing-
ton Court of Appeals both have concluded that a canine
sniff of the front door of a single-family home violates
the resident’s reasonable expectation of privacy in his
home and therefore requires a warrant supported by
probable cause. See Jardines v. State, supra, 73 So. 3d
36, 49, 54; State v. Dearman, 92 Wash. App. 630, 631, 637,
962 P.2d 850 (1998), review denied, 137 Wash. 2d 1032,
980 P.2d 1286 (1999). Because these courts based their
rulings on the reasonable expectation of privacy test
recognized in Katz, their holdings logically would
extend to all residences within their states. The Indiana
Court of Appeals has similarly concluded that a canine
sniff of a residence requires only a reasonable and arti-
culable suspicion. See Hoop v. State, 909 N.E.2d 463,
468–71 (Ind. App. 2009), transfer denied, 929 N.E.2d
782 (Ind. 2010). Although ‘‘Indiana has explicitly
rejected the expectation of privacy as a test of the
reasonableness of a search or seizure’’; (internal quota-
tion marks omitted) id., 468; the court emphasized as
central to its holding ‘‘the need to restrict arbitrary
selection of persons to be searched . . . .’’ Id., 470. If
anything, such concerns are exacerbated by the pres-
ence of many dwellings in close proximity, as in an
apartment complex. As a result, we suspect Indiana
also would apply the reasonable suspicion requirement
to residences within a multiunit building.
Finally, several state appellate courts have deter-
mined that even a canine sniff of a nonresidential prop-
erty may be a search under their respective state
constitutions and may require a reasonable, articulable
suspicion. In Alaska, a canine sniff of a commercial
warehouse requires a reasonable and articulable suspi-
cion; McGahan v. State, 807 P.2d 506, 510–11 (Alaska
App. 1991); as does the canine sniff of an individual
storage locker from a public hallway located in a storage
facility in Pennsylvania. Commonwealth v. Johnston,
515 Pa. 454, 457–58, 465–66, 530 A.2d 74 (1987). A hand-
ful of states also extend this protection to private vehi-
cles under their respective state constitutions. See State
v. Tackitt, 315 Mont. 59, 69–70, 67 P.3d 295 (2003);
State v. Pellicci, 133 N.H. 523, 533, 580 A.2d 710 (1990);
Commonwealth v. Rogers, 578 Pa. 127, 134–37, 849 A.2d
1185 (2004). In light of the heightened privacy interests
surrounding a person’s home, it is safe to assume that,
in these states, a canine sniff of a private residence
would require at least a reasonable and articulable sus-
picion.
In the other column, we are aware of only two state
appellate courts that have concluded that a canine sniff
of an apartment door in a multiunit building is not a
search for fourth amendment purposes.17 See Lindsey
v. State, 226 Md. App. 253, 274, 127 A.3d 627 (2015)
(because common area adjacent to apartment door is
not curtilage and resident has no reasonable expecta-
tion of privacy in that common area, canine sniff con-
ducted from common area is not search under fourth
amendment), cert. dismissed, 447 Md. 299, 135 A.3d 417
(2016); State v. Nguyen, supra, 841 N.W.2d 681 (canine
sniff of common hallway adjacent to apartment door
was not search because there is no reasonable expecta-
tion of privacy in contraband and common hallway is
not curtilage). In Lindsey, the Maryland Court of Spe-
cial Appeals concluded that the common area outside
of an apartment door, which is where the canine search
was conducted, did not constitute curtilage because the
defendant, Shaun D. Lindsey, could not maintain ‘‘some
form of exclusive control’’ over the area.18 (Emphasis
omitted.) Lindsey v. State, supra, 280. Because Lindsey
lacked exclusive control over who entered and used
the common area, the court also concluded that he did
not have a reasonable expectation of privacy in that
area. See id. We are not persuaded by Lindsey, however,
because, even if we agreed with that court’s conclusion
that the common area is not curtilage, we disagree with
the court’s reasonable expectation of privacy analysis
insofar as it is predicated on the officers’ lawful pres-
ence in the common area rather than on the canine
sniff of the apartment that was conducted from that
common area.
In Nguyen, the North Dakota Supreme Court held,
first, that the technical trespass of police officers in the
common hallways of an apartment building ‘‘[was] of
no consequence because [the defendant, Matthew D.]
Nguyen, had no reasonable expectation that the com-
mon hallways of the apartment building would be free
from any intrusion.’’ State v. Nguyen, supra, 841 N.W.2d
681. For essentially the same reason, the court further
determined that the common hallway was not curtilage:
‘‘Having determined that, unlike the area immediately
surrounding a home, a party does not have a legitimate
expectation of privacy in the common hallways and
shared spaces of an apartment building, [the court]
conclude[s] [that] the common hallway is not an area
within the curtilage of Nguyen’s apartment.’’ Id., 682.
Finally, with respect to Nguyen’s expectation of privacy
inside his apartment, the court, in reliance on Place and
its progeny, held that any such expectation did not
reasonably extend to the contraband to which the
trained narcotics detection dog alerted. See id., 681–
82.19 For the foregoing reasons, we believe that, because
an individual’s privacy interests are greatest in his or
her home, the court in Nguyen incorrectly equated a
nonconsensual governmental intrusion into the home
with a similar intrusion into a motor vehicle or a piece
of luggage at a public airport. In any event, it appears
that the weight of sister state precedent supports the
view that the canine sniff of the defendant’s door in
the present case was a search under our constitution.
Finally, we perceive no principled reason of public
policy, and the state has identified none, why, in the
context of canine sniffs, the firm and bright line that
we draw at the entrance of the house should apply to
single-family dwellings but not to dwellings in a
multiunit building. Indeed, as the Seventh Circuit
observed in Whitaker, allowing police dogs to sniff the
doors of apartments but not freestanding homes would
be deeply ‘‘troubling because it would apportion [consti-
tutional] protections on grounds that correlate with
income, race, and ethnicity. For example, according to
the [United States Census Bureau’s] American Housing
Survey for 2013, 67.8 [percent] of households composed
solely of whites live in [one unit] detached houses. For
households solely composed of blacks, that number
dropped to 47.2 [percent]. And for Hispanic households,
that number was 52.1 [percent]. The percentage of
households that live in [single unit], detached houses
consistently rises with income. At the low end, 40.9
[percent] of households that earned less than $10,000
lived in [single unit], detached houses, and, at the high
end, 84 [percent] of households that earned more than
$120,000 did so.’’20 United States v. Whitaker, supra,
820 F.3d 854. For this important reason, we believe that
public policy strongly favors the state constitutional
interpretation advocated by the defendant in the pres-
ent case.
Accordingly, we are unable to agree with the state
that all canine sniffs are constitutionally innocuous.
Rather, for the reasons previously discussed in this
opinion, we conclude that a canine sniff directed toward
a home—whether freestanding or part of a multitenant
structure—is a search under article first, § 7, and, as
such, requires a warrant issued upon a court’s finding
of probable cause.21 We therefore conclude that the
defendant was entitled to the suppression of the evi-
dence seized from his residence as the fruit of the
unlawful canine sniff.
IV
RESPONSE TO THE CONCURRING JUSTICE
In his concurring opinion, Justice Zarella contends
that we should have decided this case under the federal
constitution rather than under the state constitution.
In support of this contention, he states that, as a general
matter, ‘‘the proper mode of analysis [in a case involving
claims under both the federal and state constitutions]
should be to address the federal claim first, turning to
the state constitutional claim only after determining
that the federal constitution does not provide a basis for
relief or if the applicable federal rule is truly unsettled.’’
Because Justice Zarella concludes that the defendant
in the present case prevails under settled fourth amend-
ment principles, he asserts that we have no cause to
consider the defendant’s state constitutional claim. We
agree with Justice Zarella that we turn first to the state
constitutional claim when the issue is unsettled under
the federal constitution or, if it is settled under the
federal constitution, when the defendant is not entitled
to relief thereunder. Cf. State v. Santiago, 318 Conn. 1,
13 n.11, 122 A.3d 1 (2015). Ordinarily, if the issue has
been definitively resolved under the federal constitu-
tion, and settled law clearly supports the view advanced
by the defendant, there is little reason to undertake the
kind of searching and painstaking analysis that invari-
ably will be necessary to resolve a state constitutional
issue of first impression raised on appeal.22 On the other
hand, if the federal constitution does not clearly and
definitively resolve the issue in the defendant’s favor,
we turn first to the state constitution to ascertain
whether its provisions entitle the defendant to relief.23
After all, as the ultimate arbiter of the state constitution,
this court’s interpretation of that constitution is final
and conclusive, whereas we ‘‘can give only an informed
guess of the meaning of the [f]ederal [c]onstitution.’’24 D.
Braithwaite, ‘‘An Analysis of the ‘Divergence Factors’: A
Misguided Approach to Search and Seizure Jurispru-
dence Under the New Jersey Constitution,’’ 33 Rutgers
L.J. 1, 35 (2001–2002); see also, e.g., State v. Joyce,
supra, 229 Conn. 15–16 n.6 (when issue is not settled
under federal constitution, we turn to state constitution
rather than speculating as to how issue would be
resolved under provisions of federal constitution).25
We disagree, however, that federal case law defini-
tively resolves the issue presented by this appeal. As
we have indicated, only two federal appeals courts have
determined that the use of a canine sniff at a home is
a search for purposes of the fourth amendment, and the
case on which Justice Zarella primarily relies, United
States v. Thomas, supra, 757 F.2d 1367, has been criti-
cized by a significant number of federal courts.26 See,
e.g., United States v. Reed, 141 F.3d 644, 649–50 (6th
Cir. 1998) (rejecting reasoning of Thomas and
explaining that Thomas has not been followed by other
courts); United States v. Lingenfelter, 997 F.2d 632,
638 (9th Cir. 1993) (declining to follow Thomas and
observing that ‘‘Thomas has been rightfully criticized’’);
United States v. Colyer, 878 F.2d 469, 475 (D.C. Cir.
1989) (questioning reasoning of Thomas as incompati-
ble with United States Supreme Court cases involving
canine sniffs); United States v. Cota-Lopez, 358 F. Supp.
2d 579, 592 (W.D. Tex. 2002) (rejecting Thomas as con-
trary to United States Supreme Court precedent), aff’d,
104 Fed. Appx. 931 (5th Cir. 2004); United States v.
Hogan, 122 F. Supp. 2d 358, 369 (E.D.N.Y. 2000)
(‘‘Thomas . . . has been criticized by several other cir-
cuit courts. Those courts have pointed out that the
rationale underlying the Thomas decision conflicts with
the underpinnings of the [United States] Supreme
Court’s holding that the canine sniff in Place did not
constitute a search. . . . Thomas thus appears to be at
odds with [Supreme Court precedent]. . . . Although
Thomas remains the law in [the Second] [C]ircuit, the
foregoing discussion suggests that it should not be
applied expansively.’’ [Citations omitted.]).27
As this criticism of Thomas reflects, the United States
Supreme Court has never retreated from its reasoning
in Place, namely, that a canine sniff of luggage at a
public airport is not a search for fourth amendment
purposes because that investigative technique reveals
only contraband in which the subject of the investiga-
tion has no legitimate expectation of privacy. See, e.g.,
United States v. Jacobsen, 466 U.S. 109, 124 n.24, 104
S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (‘‘the reason [the
Place canine sniff] did not intrude [on] any legitimate
privacy interest was that the governmental conduct
could reveal nothing about noncontraband items’’
[emphasis omitted]). In fact, as we noted previously,
in Illinois v. Caballes, supra, 543 U.S. 405, the court
relied on the very same reasoning that it had employed
in Place, concluding that a canine sniff of a motor vehi-
cle, like a canine sniff of luggage at a public airport,
‘‘does not rise to the level of a constitutionally cogniza-
ble infringement’’; id., 409; because ‘‘governmental con-
duct that only reveals the possession of contraband
compromises no legitimate privacy interest.’’ (Empha-
sis in original; internal quotation marks omitted.) Id.,
408. Of course, the rationale that canine sniffs reveal
only the existence of contraband is no less applicable
to any canine sniff, including the sniff at issue in the
present case. Until the United States Supreme Court
decides whether the reasoning of Place and Caballes
applies with equal force to a canine sniff of a home, it
is impossible to say with confidence that the federal
constitution bars the warrantless canine sniff that
occurred in the present case. See, e.g., State v. Guillen,
222 Ariz. 81, 85, 213 P.3d 230 (App. 2009) (characterizing
this issue as presenting ‘‘a vexingly close question’’),
vacated on other grounds, 223 Ariz. 314, 223 P.3d 658
(2010); see also State v. Guillen, 223 Ariz. 314, 319, 223
P.3d 658 (2010) (observing that ‘‘the case law on dog
sniffs of the exterior of a residence accessible to the
public is far from clear’’ and that ‘‘cases from other
jurisdictions are split on whether dog sniffs of the exte-
rior of a residence violate the [f]ourth [a]mendment or
their respective state constitutions’’).28 Thus, contrary
to Justice Zarella’s contention, the fact that the Second
Circuit Court of Appeals decided the federal constitu-
tional issue in favor of the defendant some three
decades ago in Thomas—many years before the seminal
cases of Jardines, Caballes and Kyllo were decided—
by no means suggests that the law is truly settled under
the fourth amendment.29
This lack of clarity surrounding the propriety of the
use of a warrantless canine sniff at the door of a resi-
dence under the federal constitution is further demon-
strated by the positions taken by the current members
of the United States Supreme Court on this precise issue
in Jardines. As we discussed previously, the majority in
Jardines, which was comprised of Justices Scalia (the
authoring justice), and Justices Thomas, Ginsburg,
Sotomayor, and Kagan, concluded that the canine sniff
conducted at the base of Jardines’ front door was a
search under the fourth amendment because the sniff
took place in the curtilage of the home. See Florida v.
Jardines, supra, 133 S. Ct. 1417–18. In a concurrence
joined by Justices Ginsburg and Sotomayor, but not
Justices Scalia and Thomas, Justice Kagan expressed
the view that the canine sniff also violated Jardines’
reasonable expectation of privacy, and, for that reason
as well, the sniff constituted a search protected by the
fourth amendment. See id., 1418 (Kagan, J., concurring).
Justice Alito, joined by Chief Justice Roberts and Jus-
tices Kennedy and Breyer, dissented. Id., 1420 (Alito,
J., dissenting). In concluding that the canine sniff at
Jardines’ front door was not a search for fourth amend-
ment purposes, Justice Alito rejected both the majority’s
curtilage rationale and Justice Kagan’s reasonable
expectation of privacy rationale.30 Id., 1424, 1426 (Alito,
J., dissenting).
To summarize, four current members of the court—
Chief Justice Roberts and Justices Kennedy, Breyer and
Alito—have concluded that a canine sniff at the front
door of a home is not a search that implicates the fourth
amendment because, inter alia, the sniff does not violate
the home owner’s reasonable expectation of privacy.
Three members of the court—Justices Ginsburg, Soto-
mayor and Kagan—take a contrary view. Justice
Thomas, the remaining member of the court who also
participated in Jardines, took no position on whether
the canine sniff violated Jardines’ reasonable expecta-
tion of privacy. Thus, four current members of the court
would decide the present case against the defendant
on federal constitutional grounds, three current mem-
bers of the court would decide the present case in favor
of the defendant on federal constitutional grounds, and
one current member of the court has taken no express
position on the issue. Even if we were to assume that
Justice Thomas’ decision not to join Justice Kagan’s
concurrence reveals nothing about his view on the mat-
ter, more current members of the court are on record
as concluding that a canine sniff at the front door of a
home is not a search and, consequently, does not violate
the fourth amendment. Accordingly, we reject Justice
Zarella’s assertion that the defendant clearly prevails
under the federal constitution because, in fact, we sim-
ply have no idea how a majority of the members of the
United States Supreme Court would decide the issue.
Although we believe that the more persuasive lower
court precedent weighs in favor of our conclusion in this
case, it can hardly be said that the issue is a settled one.
The judgment is affirmed.
In this opinion ROGERS, C. J., and McDONALD, ROB-
INSON and VERTEFEUILLE, Js., concurred.
* December 22, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable 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 affirmation.’’
2
The state appealed to the Appellate Court from the judgment of the trial
court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
The defendant also claims, as the trial court concluded, that the canine
sniff of his residence violated the fourth amendment’s prohibition against
unreasonable searches and seizures. We recently have explained that when
the issue presented is one of first impression under both the state and
federal constitutions, it is appropriate to consider the state constitutional
claim first, ‘‘turning to the federal claim only after determining that the
appellant’s state constitutional [challenge] will not succeed.’’ State v. Santi-
ago, 318 Conn. 1, 16 n.11, 122 A.3d 1 (2015). As we discuss more fully in
part IV of this opinion, we see no reason to deviate from this approach
when, as in the present case, the issue is not truly settled under the federal
constitution, such that we cannot predict to a reasonable degree of certainty
how the United States Supreme Court would resolve the issue. See, e.g.,
State v. Joyce, 229 Conn. 10, 16 n.6, 639 A.2d 1007 (1994) (‘‘we need not
speculate whether the defendant’s expectation of privacy . . . would be
reasonable under the fourth amendment, because the defendant invokes
the state constitution as well as the federal constitution’’).
4
We note that the state makes no claim either that the Berlin police had
a reasonable and articulable suspicion that the defendant’s condominium
unit contained marijuana or that such a level of suspicion would suffice to
render the canine sniff lawful without a warrant predicated on probable
cause.
5
As the court in Caballes explained, ‘‘[o]fficial conduct that does not
compromise any legitimate interest in privacy is not a search subject to the
[f]ourth [a]mendment. . . . [The court has] held that any interest in pos-
sessing contraband cannot be deemed legitimate, and thus . . . governmen-
tal conduct that only reveals the possession of contraband compromises
no legitimate privacy interest. . . . This is because the expectation that
certain facts will not come to the attention of the authorities is not the same
as an interest in privacy that society is prepared to consider reasonable.
. . . In [Place, the court] treated a canine sniff by a [well trained narcotics
detection] dog as sui generis because it discloses only the presence or
absence of narcotics, a contraband item.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Illinois v. Caballes, supra, 543
U.S. 408–409.
6
‘‘[O]ur adoption of an analytical framework or methodology used under
the federal constitution does not compel this court to reach the same out-
come that a federal court might reach when the methodology is applied to
a particular set of factual circumstances. Even when the state and [f]ederal
[c]onstitutions contain the same [or similar] language and employ the same
methodology to govern the interpretation and application of that language
[as they do in the present case], the ultimate constitutional decision often
will turn [on] a factual assessment of how society feels about certain matters
or how society functions under various conditions. . . . In each instance
it could matter greatly which society you are talking about: a privacy claim
lacking the national consensus necessary to trigger federal constitutional
protection might still enjoy local support strong enough to dictate state
constitutional protection . . . .’’ (Internal quotation marks omitted.) State
v. Joyce, 229 Conn. 10, 18 n.12, 639 A.2d 1007 (1994).
7
As the United States Supreme Court has recently underscored, the fourth
amendment protects against government infringement of an individual’s
reasonable expectation of privacy and also against the government’s noncon-
sensual physical intrusion into a person’s private property. See Florida v.
Jardines, supra, 133 S. Ct. 1414 (‘‘By reason of our decision in [Katz],
property rights are not the sole measure of [f]ourth [a]mendment violations
. . . . [Al]though Katz may add to the baseline, it does not subtract anything
from the [fourth] [a]mendment’s protections when the [g]overnment does
engage in [a] physical intrusion of a constitutionally protected area . . . .’’
[Citations omitted; emphasis in original; internal quotation marks omitted.]).
Thus, in Jardines, because the police officers ‘‘were gathering information
in an area belonging to [the respondent, Joelis] Jardines and immediately
surrounding his house,’’ that is, in the curtilage of the house, an area that
‘‘enjoys protection as part of the home itself’’; id.; that intrusion constituted
a search under the fourth amendment. Id., 1417–18. Because we resolve the
issue raised in the present case on the basis of the defendant’s reasonable
expectation of privacy under article first, § 7, of the state constitution, we
need not address the defendant’s alternative state constitutional claim that
the police activity at issue was unlawful because it occurred in the curtilage
of his condominium unit.
We note that, in State v. Brown, 198 Conn. 348, 503 A.2d 566 (1986), this
court stated that, because a home owner has a reasonable expectation of
privacy in the curtilage of the home, curtilage ‘‘does not provide a separate
basis for fourth amendment protection,’’ and ‘‘[t]he focus remains the reason-
able expectation of privacy [that] an individual possesses in the area.’’ Id.,
359 n.9. We disavow this statement because it is inconsistent with the
fourth amendment analysis employed by the United States Supreme Court
in Jardines.
8
Neither the language nor the history of article first, § 7, bears on our
analysis. With respect to the latter consideration, we previously have
observed that ‘‘the history of article first, § 7, sheds no light on the appro-
priate standard to be applied to a canine sniff because that investigative
technique was unknown at the time our constitution was adopted in 1818.’’
State v. Waz, supra, 240 Conn. 374 n.15.
9
In reaching its determination in Thomas, the Second Circuit relied princi-
pally on ‘‘the heightened privacy interest that an individual has in his dwelling
place.’’ United States v. Thomas, supra, 757 F.2d 1366. Acknowledging that
warrantless canine sniffs of baggage at a public airport had recently been
held constitutional; see United States v. Place, supra, 462 U.S. 698; the court
in Thomas explained that ‘‘a practice that is not intrusive in a public airport
may be intrusive when employed at a person’s home. Although using a dog
sniff for narcotics may be discriminating and unoffensive relative to other
detection methods, and will disclose only the presence or absence of narcot-
ics . . . it remains a way of detecting the contents of a private, enclosed
space. With a trained dog police may obtain information about what is inside
a dwelling that they could not derive from the use of their own senses.
Consequently, the officers’ use of a dog is not a mere improvement of their
sense of smell, as ordinary eyeglasses improve vision, but is a significant
enhancement accomplished by a different, and far superior, sensory instru-
ment. . . . [T]he defendant had a legitimate expectation that the contents
of his closed apartment would remain private, that they could not be ‘sensed’
from outside his door. Use of the trained dog impermissibly intruded on
that legitimate expectation.’’ (Citation omitted.) United States v. Thomas,
supra, 1366–67.
10
Although the facts of Jardines are similar to the facts in the present
case in certain respects, as we explain more fully hereinafter, they are also
materially different in at least two important respects. First, the canine sniff
in Jardines was conducted on the front porch of a single-family house; see
Florida v. Jardines, supra, 133 S. Ct. 1413; whereas the canine sniff in the
present case occurred in the common hallway of a condominium complex.
Second, the court in Jardines elected to decide the case on the basis of
the property rights of the respondent, Joelis Jardines, as the owner and
resident of the house. See id., 1417. In contrast, we resolve the present case
on the basis of the defendant’s reasonable expectation of privacy in his
condominium unit.
11
In light of its determination that the police officers had exceeded the
scope of their invitation to enter Jardines’ property, the court concluded
that it did not need to ‘‘decide whether the officers’ investigation of Jardines’
home [also] violated his expectation of privacy under Katz.’’ Florida v.
Jardines, supra, 133 S. Ct. 1417. ‘‘One virtue of the [f]ourth [a]mendment’s
[property rights] baseline,’’ the court explained, ‘‘is that it keeps easy cases
easy. That the officers learned what they learned only by physically intruding
on Jardines’ property to gather evidence is enough to establish that a search
occurred.’’ Id.
12
See, e.g., United States v. Elliot, 50 F.3d 180, 186–87 (2d Cir. 1995) (no
expectation of privacy that would preclude search of areas believed to be
unleased when officers acted in reasonable reliance on property manager’s
consent), cert. denied, 516 U.S. 1050, 116 S. Ct. 715, 133 L. Ed. 2d 669 (1996);
United States v. Nohara, 3 F.3d 1239, 1242–43 (9th Cir. 1993) (no reasonable
expectation of privacy that would prevent officers from peeking around
corner of hallway to spy on defendant); United States v. Acosta, 965 F.2d
1248, 1251–53 (3d Cir. 1992) (no reasonable expectation of privacy that
would preclude officer’s entry into apartment building); United States v.
Holland, 755 F.2d 253, 255–57 (2d Cir.) (no reasonable expectation of privacy
that would prevent arrest in vestibule of two-story, two apartment house),
cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985); United
States v. Arboleda, 633 F.2d 985, 991–92 (2d Cir. 1980) (no legitimate expecta-
tion of privacy in bag of cocaine found on ledge near fire escape), cert.
denied, 450 U.S. 917, 101 S. Ct. 1362, 67 L. Ed. 2d 343 (1981); United States
v. Kelly, 551 F.2d 760, 763, 765 (8th Cir.) (no reasonable expectation of
privacy in evidence found under common stairwell in apartment building),
cert. denied, 433 U.S. 912, 97 S. Ct. 2981, 53 L. Ed. 2d 1097 (1977), and cert.
denied sub nom. Powell v. United States, 433 U.S. 912, 97 S. Ct. 2981, 53 L.
Ed. 2d 1097 (1977); United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977)
(no reasonable expectation of privacy that would prevent officer’s watching
and listening to defendant from common hallway); United States v. Cruz
Pagan, 537 F.2d 554, 557–58 (1st Cir. 1976) (no reasonable expectation of
privacy that would preclude officer’s entry into underground shared garage);
United States v. Bain, 155 F. Supp. 3d 107, 117 (D. Mass. 2015) (no reasonable
expectation of privacy that would preclude officers from entering common
hallways, which ‘‘served as passageways routinely used for egress and
ingress to the apartment units,’’ and defendant ‘‘could not exclude others
from or control access to these areas’’ or ‘‘reasonably expect that the goings-
on in [these areas] would remain secret’’ [internal quotation marks omitted]);
United States v. Broadway, 580 F. Supp. 2d 1179, 1188, 1193–94 (D. Colo.
2008) (no expectation of privacy that would prevent officer from entering
common hallway after authorization by groundskeeper with apparent
authority); United States v. Romano, 388 F. Supp. 101, 104–105 (E.D. Pa.
1975) (no reasonable expectation of privacy in drainpipe at rear of town-
house).
13
Several Connecticut cases support essentially the same proposition.
See, e.g., State v. Pierre, 139 Conn. App. 116, 118–19, 128–29, 54 A.3d 1060
(2012) (seizure of gun in open attic space attached to common hallway of
rooming house was lawful because defendant had no reasonable expectation
of privacy in common hallway or attic), aff’d, 311 Conn. 507, 88 A.3d 489
(2014); State v. Alexander, 115 Conn. App. 1, 4, 8–9, 972 A.2d 252 (no
expectation of privacy in common hallway of two-family house when police
officer entered unlocked door and knocked on defendant’s apartment door),
cert. denied, 293 Conn. 920, 979 A.2d 491 (2009); State v. Torres, 36 Conn.
App. 488, 498–500, 651 A.2d 1327 (no reasonable expectation of privacy in
common areas of multitenant building when police legally entered common
areas and conducted visual surveillance of defendant), cert. denied, 232
Conn. 912, 654 A.2d 357 (1995); but cf. State v. Reddick, 207 Conn. 323,
332–34, 541 A.2d 1209 (1988) (defendant did have reasonable expectation
of privacy in common basement in two-family home when basement was
not readily accessible to outsiders).
14
The state further asserts that the rationale of the court in Caballes—
which was decided after Kyllo—did not implicate the location of the canine
sniff and alert; if it did, the state maintains, the court in Caballes ‘‘would
have simply disregarded or distinguished Kyllo on the basis that the Kyllo
search was of a home.’’ (Internal quotation marks omitted.)
15
For purposes of this appeal, we assume that drug sniffing dogs are
adequately precise such that they do not yield anything more than de min-
imus rates of error. But see Illinois v. Caballes, supra, 543 U.S. 411 (Souter,
J., dissenting) (‘‘[t]he infallible dog . . . is a creature of legal fiction’’).
16
Hereinafter, all references in this opinion to Jardines are to the United
States Supreme Court’s decision in Florida v. Jardines, supra, 133 S. Ct. 1409.
17
The state also refers us to People v. Jones, 279 Mich. App. 86, 93, 755
N.W.2d 224 (2008), appeal denied, 485 Mich. 1040, 776 N.W.2d 902 (2010),
in which the Michigan Appellate Court concluded that a canine sniff of the
porch of a house—apparently a freestanding, single-family residence—was
not a search under the federal constitution. Id., 94–95. Following Jardines,
however, Jones is no longer good law.
18
The United States District Court for the District of Massachusetts, con-
sidering itself bound by squarely applicable First Circuit precedent, similarly
concluded that the area in front of an apartment door in a multiunit building
‘‘was not a separate area . . . subject to [the tenant’s] exclusive control
and thus [did] not constitute curtilage.’’ (Internal quotation marks omitted.)
United States v. Bain, 155 F. Supp. 3d 107, 120 (D. Mass. 2015). The court
in Bain noted, however, that ‘‘[a] number of persuasive considerations
weigh in favor of applying the concept of curtilage in the apartment context
generally and in this case in particular.’’ Id., 118–19. Specifically, after analyz-
ing the relevant factors identified by the United States Supreme Court in
United States v. Dunn, supra, 480 U.S. 301, the District Court determined
that the ‘‘area surrounding the door’’ of the apartment in question was in
‘‘immediate proximity to the home,’’ it was part of the ‘‘larger enclosure’’
of the locked building, it ‘‘might have [been] used . . . as an extension of
the home similar to a front porch,’’ and ‘‘residents took steps to protect the
area from the general public, by keeping the outer door . . . locked.’’ United
States v. Bain, supra, 119–20.
19
We note that, in State v. Williams, 862 N.W.2d 831, 832, 838 (N.D. 2015),
the North Dakota Supreme Court recently reaffirmed its reasoning and
holding in Nguyen, concluding that the defendant, Andrew Robert Williams,
the owner of a condominium in a four unit condominium building, could
not prevail on his claim that the state violated his fourth amendment rights
by conducting a warrantless canine sniff from the common hallway of the
building and immediately outside the door to Williams’ unit. As in Nguyen,
the court in Williams determined that the common hallway was not curtilage
and that Williams had no reasonable expectation of privacy in the area from
which the search was conducted. Id., 837–38; see also State v. Foncette, 238
Ariz. 42, 45–46, 356 P.3d 328 (App. 2015) (although defendant, hotel guest,
was entitled to constitutional protection against unreasonable searches and
seizures that infringed on his expectation of privacy within his room, he
had no reasonable expectation of privacy in hallway outside his room from
where dog sniff, which could reveal only contraband, was conducted, and
defendant also lacked reasonable expectation of privacy in drugs found in
his room following dog’s alert in front of his hotel door, because any interest
that he had in possessing contraband was not deemed legitimate by society).
20
We also agree with the Seventh Circuit that, as a matter of policy,
‘‘[d]istinguishing Jardines based on the differences between the front porch
of a stand-alone house and the closed hallways of an apartment building
draws arbitrary lines.’’ United States v. Whitaker, supra, 820 F.3d 854. ‘‘First,
there is the middle ground between traditional apartment buildings and
[single-family] houses. How would courts treat a split-level duplex? Perhaps
even one that had been converted from a house into apartments? Does the
number of units in the building matter, or do all [multiunit] buildings lack
the protection Jardines gives to single-family buildings? And what about
garden apartments whose doors, like houses, open directly to the out-
doors?’’ Id.
21
As we have indicated; see footnote 4 of this opinion; the state does not
contend that a lesser standard than probable cause applies to the canine
sniff that we have identified as a search for purposes of article first, § 7.
22
See, e.g., State v. Zidel, 156 N.H. 684, 686, 940 A.2d 255 (2008) (addressing
federal constitutional claim before state constitutional claim because issue
was definitively settled under federal constitution).
23
Of course, whether the federal constitution definitively resolves the
claim in the defendant’s favor must be determined on a case-by-case basis.
To conclude that it does in any given case, we must be able to say with a
high degree of confidence that the United States Supreme Court, if presented
with the federal constitutional claim, would decide it in favor of the
defendant.
24
Although Justice Zarella agrees with this approach—that is, deciding
constitutional claims under the state constitution when the issue has not
been truly settled under the federal constitution—he nevertheless proceeds
to explain why we should adopt the so-called ‘‘interstitial approach’’ to state
constitutional adjudication and reject the so-called ‘‘primacy’’ approach. As
Justice Zarella explains, under the interstitial approach, a court turns first
to the federal constitutional claim, and only if the defendant cannot prevail on
that claim does the court then consider the claim under the state constitution.
Under the primacy approach, a court looks first to the state constitution and
resorts to the federal constitution only if the defendant’s state constitutional
claim is unavailing. It is unclear to us why Justice Zarella advocates an
interstitial approach even as he accepts the premise that a state constitu-
tional claim is properly decided first when the federal constitutional issue
remains unsettled. In any event, in our view, it is most sensible and practical
simply to decide the constitutional claim under the federal constitution if
the law thereunder is truly settled and the defendant prevails; if the law is
not settled under the federal constitution, or if it is settled but in favor of
the state, we then look first to the state constitution.
25
Of course, there are other sound reasons to decide state constitutional
issues first unless the issue is truly settled under the federal constitution;
see, e.g., 1 J. Friesen, State Constitutional Law: Litigating Individual Rights,
Claims, and Defenses (4th Ed. 2006) §§ 1.01 [2] through 1.04, pp. 1-4 through
1-28; W. Horton, The Connecticut State Constitution (2d Ed. 2012) pp. 36–37;
D. Braithwaite, supra, 33 Rutgers L.J. 32–47; J. Landau, ‘‘Some Thoughts
About State Constitutional Interpretation,’’ 115 Penn. St. L. Rev. 837, 845–46
(2011); perhaps most significantly, the importance of ensuring that our state
constitution is appropriately recognized as a source of rights that are both
separate from and independent of, and sometimes greater than, the rights
afforded under the federal constitution.
26
Indeed, in her dissenting opinion, Justice Espinosa not only disagrees
that the federal constitutional issue presented by this appeal is settled in
favor of the defendant, but she suggests that Thomas was wrongly decided
and concludes that the defendant cannot prevail under the federal consti-
tution.
27
Numerous state courts have also rejected Thomas and noted that it has
been the subject of recurring criticism. See, e.g., Nelson v. State, 867 So.
2d 534, 536–37 (Fla. App. 2004), review denied, 115 So. 3d 1001 (Fla. 2013);
Hoop v. State, supra, 909 N.E.2d 467; Fitzgerald v. State, 153 Md. App. 601,
675–76, 837 A.2d 989 (2003), aff’d, 384 Md. 484, 864 A.2d 1006 (2004); People
v. Jones, 279 Mich. App. 86, 93 n.3, 755 N.W.2d 224 (2008), appeal denied,
485 Mich. 1040, 776 N.W.2d 902 (2010); State v. Washburn, 201 N.C. App.
93, 99, 685 S.E.2d 555 (2009), review denied, 363 N.C. 811, 692 S.E.2d 876
(2010); State v. Smith, 327 Or. 366, 375, 963 P.2d 462 (1998).
28
In fact, Justice Zarella acknowledges that Justice Espinosa, in her dis-
sent, ‘‘has raised significant distinctions’’ between the issue presented in
this case and the related issues decided by the United States Supreme
Court in other cases. It is in large measure because of these ‘‘significant
distinctions’’ that we cannot fairly say that the issue is truly settled under
the federal constitution.
29
We acknowledge that, generally, Second Circuit precedent presump-
tively carries particular weight with this court when we are deciding an
issue of federal law. E.g., Szewczyk v. Dept. of Social Services, 275 Conn.
464, 475, 881 A.2d 259 (2005) (decisions of Second Circuit Court of Appeals
‘‘ ‘carry particularly persuasive weight’ ’’ in our interpretation of federal law).
Contrary to Justice Zarella’s assertion, however, this general principle has
no applicability with respect to the threshold, and entirely separate, determi-
nation of whether to decide a claim first under the federal constitution or
first under the state constitution. While there are sound reasons to give
particular weight to the Second Circuit’s interpretation of federal law when
we are resolving a claim under federal law—most significantly, to avoid the
situation in which a litigant would prevail on the identical federal claim in
one jurisdiction but not in the other—no such consideration has any bearing
on which constitutional claim should be decided first. This point—that a
holding of the Second Circuit should not dictate the order in which we
address claims raised under both the federal and state constitutions—may
be illustrated as follows. If we address the state constitutional claim first
and decide it in favor of the defendant, there is no reason to address the
federal constitutional claim; for purposes of that case, the defendant is
entitled to prevail under the state constitution, and it simply does not matter
which way the claim would have been decided under the federal constitution.
If we decide the state constitutional claim first, but the state prevails, we
then must turn to the federal constitution to determine whether it affords
greater protection to the defendant than the state constitution. In neither
case is there any possibility that the very same claim would be decided
differently under the same law because the defendant’s two separate and
distinct claims implicate two different constitutions.
We also disagree with Justice Zarella that an issue of federal constitutional
interpretation is settled solely because the Second Circuit has decided it in
a certain way. Because the United States Supreme Court is the final arbiter
of the meaning and scope of the federal constitution, we cannot reasonably
characterize a federal constitutional issue as settled unless we can confi-
dently predict how the United States Supreme Court would resolve it. If we
are unable to do so—and, as we explain more fully hereinafter, we certainly
cannot make such a prediction in the present case—there simply is no
persuasive reason to address the issue first under the federal constitution.
Consequently, there is no justification for this court to entertain the fiction,
advocated by Justice Zarella, that a federal constitutional question is settled
merely because it is settled in the Second Circuit. Ironically, because Justice
Zarella acknowledges that we do not blindly follow Second Circuit prece-
dent, if we were to adopt his approach and first address any issue of federal
constitutional interpretation that has been resolved by the Second Circuit,
we would be creating the very problem that Justice Zarella seeks to avoid,
namely, the possibility that this court would disagree with the Second Cir-
cuit’s interpretation of a federal constitutional provision.
30
With respect to his repudiation of Justice Kagan’s reliance on the privacy
based rationale to support her determination that the conduct of the police
in Jardines violated the fourth amendment, Justice Alito explained that he
saw ‘‘no basis for concluding that the occupants of a dwelling have a reason-
able expectation of privacy in odors that emanate from the dwelling and
reach spots where members of the public may lawfully stand.’’ Florida v.
Jardines, supra, 133 S. Ct. 1424 (Alito, J., dissenting).