State v. Correa

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STATE OF CONNECTICUT v. RICARDO CORREA
(SC 20246)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The defendant was convicted, following a conditional plea of nolo conten-
dere, of the crimes of conspiracy to possess a controlled substance with
intent to sell, conspiracy to possess narcotics with intent to sell by a
person who is not drug-dependent, and conspiracy to operate a drug
factory. During surveillance of a motel for illegal activity, a police officer,
observing an individual, T, quickly enter and exit the defendant’s motel
room at around 1 a.m., believed that he had witnessed a drug transaction.
After T exited the motel room, he entered a vehicle driven by another
individual, which departed from the motel. A short distance from the
motel, the police stopped the vehicle. When the police approached the
vehicle, they smelled a strong odor of marijuana emanating from inside
the vehicle. After T was removed from the vehicle, he admitted to
possessing marijuana. A search of T’s person revealed, inter alia, mari-
juana and heroin. The police ultimately detained T, who, at that time,
denied being in or having any connection with the defendant’s motel
room. The police then went to the house of T’s grandmother, where T
was living. After T’s grandmother consented to a search of T’s bedroom,
the officers searched that room and found numerous plastic bags with
the corners cut off, as well as other bags containing an off-white powder
residue. The officers went back to the motel and spoke with the manager,
who advised them that the defendant paid cash to rent a room there
for a week and provided them with a copy of the defendant’s driver’s
license. The manager also indicated that a guest registration card for
that room included the name of an individual with T’s surname, which
the police believed was most likely T. The officers then went to knock
on the defendant’s motel room door. The officers observed a light on,
but no one answered. One of the officers then retrieved a canine officer
and conducted a canine sniff of the motel walkway in the vicinity of
the defendant’s room. The canine alerted that it had detected contraband
at the bottom of the door to the defendant’s room. On the basis of all
that had transpired since observing T enter and exit the defendant’s
room, the police decided to apply for a warrant to search the defendant’s
room. Before the police submitted their application for a warrant, how-
ever, one of the officers noticed the defendant walking away from the
motel. The defendant was ultimately detained, and the officers found
a large wad of cash on his person, as well as a motel room key. The
police informed the defendant that T had admitted to them that he was
storing his supply of marijuana in the defendant’s motel room, and the
defendant responded that nothing in the room was his. The defendant
agreed to open the door to the room for the officers but then changed
his mind and refused to grant them entry. The defendant also indicated
at that time that no one was in the room. To ensure that there was no
one in the room who might destroy evidence before the officers could
obtain a warrant, one of the officers used the defendant’s key to open
the door. After opening the door, and without entering, an officer looked
inside for approximately fifteen to thirty seconds and then closed the
door. While the door was open, the officer observed evidence of drug
activity. The defendant was then informed he could leave. Thereafter,
the police prepared an application for and obtained a search warrant
for the room. The application had been based on the results of the
canine sniff of the door of the motel room, the observations made during
the visual sweep of the room, and T’s admission to the police that he
had kept his supply of marijuana in the room. A search of the room
revealed a large quantity of heroin, among other items related to drug
activity. The defendant filed a motion to suppress the evidence that had
been seized from the motel room, claiming, inter alia, that the search
violated his rights under the Connecticut constitution (art. I, § 7) because
the search warrant application contained information obtained from an
allegedly unlawful, warrantless visual sweep of the motel room. The
trial court denied the motion, concluding that the visual sweep was
necessary to prevent the imminent destruction of evidence and, there-
fore, was justified by the exigent circumstances exception to the warrant
requirement. The court also determined that, even if the visual sweep
was not justified under that exception, the evidence seized during the
execution of the search warrant was admissible under the independent
source doctrine. The defendant appealed to the Appellate Court from
the judgment of conviction, claiming, as he had in the trial court, that
he was entitled to suppression of the evidence found in the motel room
because the search warrant derived from the allegedly unlawful visual
sweep of the room. The defendant also asserted, for the first time, that
he was entitled to suppression of the evidence because the search
warrant application included information obtained from the warrantless
canine sniff conducted by the police outside of the door of his motel
room. The Appellate Court affirmed the trial court’s judgment, conclud-
ing that the visual sweep was constitutionally permissible under the
exigent circumstances exception and that a warrant was unnecessary
with respect to the canine sniff because the sniff was not a search under
the state constitution. On the granting of certification, the defendant
appealed to this court. Held:
1. The canine sniff of the exterior door to the defendant’s motel room was
a search for purposes of article first, § 7, of the Connecticut constitution:
the protection against a canine sniff that is afforded to a resident of a
multiunit condominium complex under the state constitution in accor-
dance with State v. Kono (324 Conn. 80) also extends to the occupant
of a motel room, as motel guests have a reasonable expectation of
privacy in their rooms, the fact that motel guests typically do not keep
all of their personal effects in their rooms did not mean that the personal
effects that guests do keep there should be subject to less protection
under the law, a room occupied by a motel guest is not more vulnerable
to a warrantless canine sniff than an apartment, condominium or house
simply because other guests occupy nearby rooms or because rooms
may be entered by motel staff to perform certain functions, and motel
guests reasonably do not expect that the foot traffic generally associated
with an open-air walkway abutting the motel’s guestrooms includes law
enforcement officers trolling the walkway with a trained canine in search
of contraband.
2. The state could not prevail on its claim that, even if the canine sniff of
the door to the defendant’s motel room was a search, such a search
could be conducted without a warrant, as long as the search was based
on reasonable and articulable suspicion that there were illicit drugs in
the room: although cases from other jurisdictions hold that a canine
sniff of the door to an apartment or a condominium unit in a multiunit
building is lawful if it is based on reasonable and articulable suspicion
rather than on probable cause, this court determined that those cases
were incompatible with its reasoning and holding in Kono; moreover,
under article first, § 7, searches conducted without a warrant based on
probable cause are presumed to be unreasonable, the state’s heavy
burden of overcoming that presumption is met only in certain excep-
tional or compelling circumstances, and the few recognized exemptions
from the warrant requirement under the state constitution invariably
have involved searches conducted under circumstances requiring imme-
diate action by the police, generally, in the interest of police or public
safety, a consideration that was not implicated by a canine sniff per-
formed to ascertain whether a motel room contains unlawful drugs;
accordingly, a canine sniff of the exterior door to a motel room satisfies
state constitutional requirements only if it follows the issuance of a
warrant founded on probable cause.
3. The information available to the police unrelated to the canine sniff was
sufficient to establish probable cause for the search of the defendant’s
motel room, but a remand to the trial court was necessary to afford the
state an opportunity to demonstrate that the evidence seized from that
room was admissible under the independent source doctrine by estab-
lishing that the police would have sought the warrant regardless of the
results of the canine sniff: the facts, untainted by the results of the
canine sniff, were sufficient, standing alone, to support the issuance of
the warrant, as T previously had been staying in the motel room, T was
involved with and likely selling drugs, T was likely engaged in a drug
transaction when he entered and immediately exited the room in the
middle of the night, and there were likely drugs or drug related items
in the room in light of what the police found on the defendant’s person
and the defendant’s denial that anything in the motel room belonged to
him; nevertheless, because the defendant did not raise the issue of the
constitutionality of the canine sniff in the trial court and, thus, the state
had no reason to adduce evidence demonstrating that the police were
prepared to seek a warrant prior to the canine sniff or that they otherwise
would have done so if the canine sniff had not occurred, the record
was not clear with respect to that issue, and it would have been unfair
to the state if this court had resolved the state’s independent source
claim on the basis of an undeveloped record; moreover, the inadequacy
of the record with respect to the state’s independent source claim did
not require this court to reject the defendant’s constitutional challenge
to the canine sniff under the first prong of State v. Golding (213 Conn.
233), which ordinarily would bar appellate review of the defendant’s
unpreserved constitutional challenge on the basis that remands to sup-
plement the record are generally not permitted, as a remand to allow
the state to present additional evidence was appropriate, under the
unusual circumstances of this case, insofar as allowing the Appellate
Court’s decision to stand would be contrary to the unanimous determina-
tion of this court that the canine sniff was unlawful, and vacating the
Appellate Court’s judgment would result in confusion with respect to
the legality of a warrantless canine sniff of a motel room.
4. This court could not resolve, as a matter of law, the state’s claim that
the evidence seized from the motel room was admissible under the
inevitable discovery doctrine on the ground that such evidence would
have been discovered by lawful means in the absence of the canine
search: although it was apparent that the investigating officers were
seeking to develop enough evidence to obtain a warrant for the motel
room even before the canine sniff was conducted and that their investiga-
tion could have resulted in their obtaining a warrant even if the canine
sniff never occurred, the evidence adduced at the defendant’s suppres-
sion hearing did not establish, as a matter of law, that the police would
have sought a warrant irrespective of the canine sniff; moreover, because
this court lacked the authority to find facts, it could not resolve the
factual issue presented by the state’s inevitable discovery claim, as
the undisputed evidence did not lead to only one possible conclusion;
nevertheless, as the state had no reason to adduce evidence in support
of its inevitable discovery claim before the trial court insofar as the
defendant did not challenge the propriety of the canine sniff in that
court, this court concluded that, on remand, the state must be afforded
the opportunity to present additional evidence in support of that claim.
5. The Appellate Court and the trial court incorrectly determined that the
visual sweep of the defendant’s motel room was justified by exigent
circumstances, as the possibility that evidence would be destroyed was
too speculative: the belief held by the police that an immediate visual
sweep of the room was necessary to avert the destruction of evidence
was not objectively reasonable, as the police knew that neither of the
two individuals actually linked to the motel room was in a position to
destroy evidence located inside the room because, at the time of the
visual sweep, T was under arrest and the defendant was with the police,
there was nothing in the record to suggest that the police had reason
to believe that anyone else had a similarly direct connection to the room
or its contents, the generalized possibility that an unknown person might
be lurking inside was not sufficient to justify a visual sweep, and, except
for the unremarkable fact that a light was on inside the room, the record
was devoid of any evidence from which a police officer reasonably
could have concluded that someone was inside the room; moreover,
the determination of whether the state could prevail on its claim that
any impropriety stemming from the visual sweep was obviated by the
independent source doctrine required additional fact-finding, and,
accordingly, this court directed that, on remand, the state must be
afforded the opportunity to present additional evidence related to
whether the police would have sought a warrant irrespective of the
visual sweep, and the trial court’s determination of that issue must be
made in light of the fact that the canine sniff was also unlawful.
Argued February 27, 2020—officially released September 15, 2021**
Procedural History
Information charging the defendant with the crimes
of possession of four or more ounces of marijuana,
conspiracy to possess four or more ounces of mari-
juana, possession of a controlled substance with intent
to sell, conspiracy to possess a controlled substance
with intent to sell, possession of narcotics, conspiracy
to possess narcotics, possession of narcotics with intent
to sell by a person who is not drug-dependent, conspir-
acy to possess narcotics with intent to sell by a person
who is not drug-dependent, operation of a drug factory,
and conspiracy to operate a drug factory, brought to
the Superior Court in the judicial district of Stamford,
geographical area number one, where the court, Blawie,
J., denied the defendant’s motion to suppress certain
evidence; thereafter, the defendant was presented to
the court on a conditional plea of nolo contendere to the
crimes of conspiracy to possess a controlled substance
with intent to sell, conspiracy to possess narcotics with
intent to sell by a person who is not drug-dependent,
and conspiracy to operate a drug factory; judgment of
guilty in accordance with the plea; subsequently, the
state entered a nolle prosequi as to the remaining
charges, and the defendant appealed to the Appellate
Court, Alvord, Prescott and Beach, Js., which affirmed
the trial court’s judgment, and the defendant, on the
granting of certification, appealed to this court.
Reversed; further proceedings.
Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo, Jr.,
chief state’s attorney, and Susan M. Campbell, assistant
state’s attorney, for the appellee (state).
Opinion
PALMER, J. The primary issue presented by this
appeal is whether article first, § 7, of the Connecticut
constitution1 prohibits the police from conducting a
warrantless canine sniff of the exterior door to a motel
room for the purpose of detecting the presence of illegal
drugs inside the room. We conclude that a warrantless
canine sniff of the exterior door to a motel room by
the police violates article first, § 7, because its use for
that purpose constitutes a search subject to the warrant
requirement of that state constitutional provision.
The defendant, Ricardo Correa, was charged with
several drug related offenses and, thereafter, filed a
motion to suppress the evidence, including heroin and
marijuana, that had been seized from his motel room
pursuant to a search warrant. In support of the motion,
he claimed that the search violated his rights under
article first, § 7, of the Connecticut constitution and the
fourth amendment to the United States constitution
because the search warrant affidavit contained informa-
tion obtained from an allegedly unlawful, warrantless
visual sweep of his motel room. The trial court denied
the motion on the ground that the visual sweep was
necessary to prevent the imminent destruction of evi-
dence and, therefore, was justified by the exigent cir-
cumstances exception to the warrant requirement. The
trial court further concluded that, even if the visual
sweep was not justified under that exception, the evi-
dence seized during the execution of the search warrant
was admissible under the independent source doctrine.
The defendant subsequently entered a conditional plea
of nolo contendere; see General Statutes § 54-94a;2 to
the charges of conspiracy to possess a controlled sub-
stance with intent to sell in violation of General Statutes
§§ 21a-277 (b) and 53a-48, conspiracy to possess a con-
trolled substance with intent to sell by a person who
is not drug-dependent in violation of General Statutes
§§ 21a-278 (a) and 53a-48, and conspiracy to operate a
drug factory in violation of General Statutes §§ 21a-277
(c) and 53a-48, reserving his right to appeal from the
denial of his motion to suppress. The trial court imposed
a total effective sentence of nine years’ imprisonment.
The defendant appealed to the Appellate Court,
claiming, contrary to the determination of the trial
court, that he was entitled to suppression of the evi-
dence found in the motel room because the search
warrant pursuant to which that evidence was seized was
derived from the unlawful visual sweep of the room.
See State v. Correa, 185 Conn. App. 308, 311, 197 A.3d
393 (2018). In addition, he claimed for the first time that
the evidence must be suppressed because the search
warrant affidavit also included information obtained
from a canine sniff conducted by the police outside the
door of his motel room, which, the defendant main-
tained, violated his rights under article first, § 7, because
it was performed without a warrant predicated on prob-
able cause. Id., 321. The Appellate Court rejected both
of these claims, concluding, with respect to the visual
sweep, that it was constitutionally permissible under
the exigent circumstances exception to avert the
destruction of evidence; see id., 340; and, with respect
to the canine sniff, that a warrant was unnecessary
because the sniff was not a search for purposes of the
state constitution. See id., 330–31. The Appellate Court
therefore affirmed the judgment of the trial court; id.,
340; and we granted the defendant’s petition for certifi-
cation to appeal, limited to the following issues: (1)
‘‘Did the Appellate Court [correctly] determine that a
police canine sniff that took place outside of the defen-
dant’s motel room was not a search that violated the
defendant’s rights under article first, § 7, of the Connect-
icut constitution?’’ And (2) ‘‘[d]id the Appellate Court
[correctly] conclude that the visual sweep of the defen-
dant’s motel room was justified by exigent circum-
stances?’’ State v. Correa, 330 Conn. 959, 959–60, 199
A.3d 19 (2019). We agree with the defendant that the
Appellate Court incorrectly determined that the canine
sniff was lawful under article first, § 7. We also agree
with the defendant that the visual sweep was not justi-
fied by the exigencies of the situation. For the reasons
set forth more fully hereinafter, however, we further
conclude that the case must be remanded to the trial
court so that the state may have the opportunity to
adduce testimony establishing, first, that the evidence
seized pursuant to the search warrant was admissible,
notwithstanding the impropriety of the canine sniff,
under the independent source or inevitable discovery
doctrine, and, second, that the evidence seized pursuant
to the warrant was admissible, notwithstanding the
impropriety of the visual sweep, under the independent
source doctrine.
I
FACTS AND PROCEDURAL HISTORY
The opinion of the Appellate Court sets forth the
following facts, as found by the trial court on the basis of
the evidence adduced at the hearing on the defendant’s
motion to suppress, and procedural history. ‘‘During
the early morning hours of February 5, 2013, Sergeant
Christopher Broems of the Stamford Police Department
was parked on Home Court, a street immediately behind
the America’s Best Value Inn motel (motel) on East
Main Street in [the city of] Stamford. Sergeant Broems,
a nineteen year veteran of the Stamford Police Depart-
ment who also spent three years in the New York City
Police Department, had made many prior arrests at the
motel for narcotics, prostitution, and other criminal
activity. From the street, Sergeant Broems was surveil-
ling the motel for evidence of possible illegal activity.
He was parked approximately fifty yards away from
the motel and had a clear, well illuminated view of the
motel, which included two floors of numbered motel
room doors that opened onto the back parking lot.
‘‘At approximately 1:20 a.m., Sergeant Broems observed
a silver colored 2004 GMC Yukon pull into the motel
parking lot. Only the passenger in the Yukon, who was
later determined to be Eudy Taveras, exited the Yukon,
while the operator remained in the vehicle with the
headlights on. Taveras approached and entered room
118 of the motel, which was on the first floor, where
he remained for less than one minute. Taveras returned
to the vehicle, which then left the motel. Given the
location, time of night, and duration of the visit, Ser-
geant Broems believed that he may have witnessed a
narcotics transaction out of room 118. Sergeant Broems
radioed to a nearby colleague, Officer Vincent Sheperis,
[indicating] that he intended to stop the Yukon, and
then drove in the direction of the Yukon.
‘‘When the operator of the Yukon, who was later
determined to be Charles Brickman, observed Sergeant
Broems approaching the Yukon in his marked Stamford
Police SUV, he turned off [his] headlights. A short dis-
tance from the motel, Sergeant Broems stopped the
vehicle. Officer Sheperis joined Sergeant Broems, act-
ing as backup. When Sergeant Broems and Officer Shep-
eris approached the vehicle, they both smelled a strong
odor of marijuana emanating from inside the Yukon.
Sergeant Broems and Officer Sheperis removed Taveras
from the vehicle, and Taveras admitted to possessing
‘weed.’ A search of Taveras revealed two glass jars
with yellow tops containing marijuana, along with three
other similar, but empty, yellow topped glass jars, as
well as a knotted corner of a plastic sandwich bag
containing heroin. On the basis of this evidence, Ser-
geant Broems requested a sweep of the Yukon by a
canine officer trained in the detection of narcotics.
‘‘A canine officer, Cooper, and his Stamford Police
Department handler, Sergeant Seth O’Brien, arrived on
the scene shortly after Sergeant Broems’ request. Coo-
per alerted to the center console of the vehicle, but the
officers found no additional drugs. Brickman was found
to have no drugs on his person.’’ State v. Correa, supra,
185 Conn. App. 311–13. In response to questioning by
the police, Brickman stated that Taveras was ‘‘staying
in the hotel’’ but that he ‘‘[did not] know what [Taveras]
was getting’’ when he entered and then quickly exited
the first floor room there. Brickman was issued a ticket
for operating a motor vehicle without headlights but
was allowed to leave in the Yukon. The officers detained
Taveras, who, at that time, denied being in or having
any connection to the motel room. Taveras also denied
having any more marijuana.
‘‘Taveras informed Sergeant O’Brien that he lived
with his grandmother nearby on Charles Street in Stam-
ford. At that point, Sergeant Broems, Officer Sheperis,
and Sergeant O’Brien went to the grandmother’s home
on Charles Street, where they spoke with Taveras’
brother. [According to his brother, Taveras was in the
process of moving out of the house.] Taveras’ grand-
mother signed a consent form allowing the officers
to search Taveras’ bedroom. In Taveras’ bedroom, the
officers found numerous plastic bags with the corners
cut off, consistent with narcotics packaging, along with
other bags containing an [off-white] powder residue.
‘‘The officers then returned to the motel. They spoke
with the manager of the motel, who advised them that,
several days earlier, the defendant rented room 118 for
the week, until February 8, 2013, paying $430 in cash.3
The manager provided the officers with documentation
concerning room 118, including a photocopy of the
defendant’s driver’s license. The guest registration card
for room 118 also included the name of a second individ-
ual, Victor Taveras. Although the officers were not cer-
tain who Victor Taveras was, Sergeant O’Brien testified
that . . . he most likely was Eudy Taveras.
‘‘After speaking with the manager, the officers went
together to knock on the door of room 118. The officers
observed a light on in the room, but no one answered
the door. Sergeant O’Brien then retrieved Cooper and
conducted a narcotics sweep, which included several
passes [of four rooms located] along the first floor walk-
way [including] room 118 . . . . On each pass, Cooper
consistently alerted to the presence of narcotics at the
door to room 118.4
‘‘It was then approximately 3 a.m. on February 5,
2013, a little over ninety minutes since Sergeant Broems
first observed Taveras enter and exit room 118. At this
point, on the basis of all that had transpired since
observing Taveras enter and exit room 118, [and after
conferring by telephone with the shift commander,
Lieutenant Philip Mazzucco, and another sergeant,
Adrian Novia,5 both of whom were at Stamford police
headquarters], Sergeant Broems decided to apply for a
warrant to search room 118. The officers decided that
Sergeant Broems and Officer Sheperis would return to
. . . headquarters to prepare the search warrant and
to process Taveras for his drug charges, and Sergeant
O’Brien would remain behind on Home Court, in the
same area where Sergeant Broems was parked earlier,
to surveil room 118 for any possible activity. Very
shortly after the officers split up, however, just as Ser-
geant O’Brien was getting into position to surveil room
118, he observed the defendant on foot near the motel
at the corner of Home Court and East Main Street,
walking away from the motel. Sergeant O’Brien, who
recognized the defendant, immediately radioed for Ser-
geant Broems and Officer Sheperis to return to the
motel to stop the defendant.
‘‘While walking on Home Court, the defendant made
eye contact with Sergeant O’Brien, who was in a marked
police SUV. After the defendant made eye contact with
Sergeant O’Brien, the defendant changed his direction
and began walking east on East Main Street. About 100
yards from the motel, Sergeant O’Brien approached the
defendant, stepped out of his police vehicle, and,
addressing the defendant as ‘Ricky,’ told the defendant
that he needed to speak with him. Initially, the defen-
dant was cooperative. Sergeant Broems arrived on the
scene, and the defendant was searched. The officers
found that the defendant was carrying a large wad of
cash, amounting to over $3600, in his pocket, along with
a key to a room at the motel. Sergeant O’Brien [seized
the cash that the defendant had in his possession and
informed him that Taveras, who at police headquarters
later admitted to storing his supply of marijuana in the
room, had been] taken into custody, and that ‘the jig
is up.’ The defendant responded, ‘nothing in the room
is mine.’6 The defendant agreed to open the door to
room 118 for the officers. When the officers and the
defendant reached the threshold of room 118, however,
the defendant changed his mind and refused to grant
them entry. The officers informed the defendant that,
if he did not consent to a search of the room, they were
going to obtain a search warrant.
‘‘The defendant informed Sergeant Broems that there
was no one in the room. To ensure that there was no
one else inside the room [who] might destroy evidence
before the officers could obtain a search warrant, how-
ever, Sergeant Broems used the defendant’s room key
to open the door. After opening the door, Sergeant
Broems announced, ‘[p]olice,’ and looked inside the
room for approximately fifteen to thirty seconds.7 Once
he was satisfied that the room contained no occupants,
Sergeant Broems closed the door. While the door was
open, neither Sergeant Broems, nor any other officer
or Cooper, set foot in or otherwise physically entered
room 118. When he did not observe anyone in the room,
Sergeant Broems ‘cleared’ room 118. Although he did
not enter the room, or take any steps to seize any evi-
dence located inside the room, Sergeant Broems did
observe a large black digital scale on a table, as well
as a plastic sandwich bag lying on the floor nearby. The
officers advised the defendant that he was free to leave
the motel, and the defendant left.
‘‘Following the defendant’s departure, other officers
of the Stamford Police Department arrived at the motel.
Those officers were assigned to watch room 118 while
the investigating officers prepared an application for
a search warrant, with Sergeant O’Brien and Officer
Sheperis acting as affiants. [The facts contained in their
affidavit in support of the warrant application included
the canine sniff indicating that there were illegal drugs
in the room, the visual sweep of the room by the police
and their observation during that sweep of the digital
scale and plastic bag, and the acknowledgment by Tav-
eras, following his arrest and booking at police head-
quarters, that he kept his supply of marijuana in the
room.] Several hours later, at 9:20 a.m., the court, Hon.
Richard F. Comerford, Jr., judge trial referee, signed
the search warrant for room 118.
‘‘When the police executed the search warrant, they
discovered a total of approximately 200 grams of heroin,
with a street value of approximately $85,000. The heroin
was broken down into dozens of smaller baggies or
glassine folds for individual sale. The officers also dis-
covered a large quantity of [United States] currency, a
laptop computer, and paper documents pertaining to a
street gang, the Latin Kings. The police also discovered
[more than] four ounces of marijuana and a quantity
of packaging materials, along with a vacuum sealing
machine, two sifters, and two digital scales. These items
were consistent with the operation of a drug factory
by the defendant in the motel room. After the search
warrant was executed, the police arrested the defen-
dant at Taveras’ grandmother’s house on Charles Street.
The defendant was charged with a variety of felony
drug offenses. On October 28, 2015, the defendant filed
a motion to suppress ‘all items seized by [the] police
on February 5, 2013, from America’s Best Value Inn
[r]oom . . . 118.’ In his memorandum of law in support
of the motion to suppress, the defendant argued that,
because Sergeant Broems’ visual sweep of the room was
performed without obtaining a valid search warrant, it
was ‘per se unreasonable.’ The defendant further argued
that, because the search did not fall within any recog-
nized exceptions to the warrant requirement, as no exi-
gent circumstances existed at the time and the conduct
fell short of a protective sweep, ‘any evidence found as
a result of the prior police illegality must be suppressed.’
‘‘The [trial] court held a hearing on the motion to
suppress on February 29, 2016. The state presented the
testimony of Sergeant Broems, Officer Sheperis, and
Sergeant O’Brien. At the conclusion of the suppression
hearing, the state did not contest that Sergeant Broems’
visual sweep of the room constituted a warrantless
search within the meaning of the fourth amendment to
the United States constitution and article first, § 7, of
the Connecticut constitution. Rather, the state argued
that, because [Sergeant] Broems’ visual sweep of room
118 was undertaken ‘solely for the purpose of [e]nsuring
. . . that no evidence was being destroyed,’ it was law-
ful pursuant to the exigent circumstances exception to
the warrant requirement. The state specifically noted
that the visual sweep did not constitute a ‘protective
sweep.’8 The state alternatively argued that, even if the
visual sweep was unlawful, the evidence seized from the
room was still admissible pursuant to the independent
source doctrine.
‘‘On June 22, 2016, the court denied the defendant’s
motion to suppress in a written memorandum of deci-
sion. The court concluded that Sergeant Broems’ war-
rantless visual sweep was proper, under the exigent
circumstances doctrine, to prevent the destruction of
evidence. The court reasoned that, ‘when all the facts
of this case as known by [the] police at the time of
the warrantless entry by [Sergeant] Broems are viewed
objectively, the case meets the criteria for a finding of
exigent circumstances.’ ’’ (Footnotes altered.) State v.
Correa, supra, 185 Conn. App. 313–18. The court also
agreed with the state that, even if the visual sweep
was not justified by the exigencies of the situation,
the evidence discovered as a result of that sweep was
admissible under the independent source doctrine. Id.,
319.
‘‘On October 19, 2016, the defendant entered a condi-
tional plea of nolo contendere to [the charges of] con-
spiracy to possess a controlled substance with intent
to sell . . . conspiracy to possess a controlled sub-
stance with intent to sell by a person who is not drug-
dependent . . . and conspiracy to operate a drug fac-
tory . . . . The plea was entered conditionally on [the
defendant’s] right to take an appeal from the [trial]
court’s ruling on the motion to suppress. The [trial]
court . . . rendered . . . judgment of conviction . . .
[and] sentenced the defendant to a term of incarceration
of nine years on each of the charges, followed by six
years of special parole, to run concurrently with one
another, for a total effective sentence of nine years to
serve followed by six years of special parole. On March
31, 2017, the court made a finding that the motion to
suppress was dispositive of the case.’’ Id., 319–20.
The defendant then appealed to the Appellate Court,
claiming that the trial court had incorrectly determined
that the visual sweep of the motel room was lawful
under the exigent circumstances doctrine or, alterna-
tively, under the independent source doctrine. See id.,
332. In addition, he claimed for the first time on appeal
that the canine sniff of the door to the motel room
constituted an unlawful search under article first, § 7,
of the state constitution.9 Id., 321. With respect to his
latter contention, the defendant maintained that he was
entitled to prevail on his unpreserved claim under State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015),10 because the record was adequate
for review and the resolution of the defendant’s claim
was governed by this court’s then recent decision in
State v. Kono, 324 Conn. 80, 122, 152 A.3d 1 (2016),11
which held that article first, § 7, 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. See State v.
Correa, supra, 185 Conn. App. 321, 324.
The state opposed the defendant’s first claim on the
ground that the visual sweep of the motel room was
justified by exigent circumstances; id., 332; but that,
even if the sweep was not so justified, the seized evi-
dence was admissible under the independent source
doctrine. Id., 317–18. The state disagreed with the defen-
dant’s claim concerning the canine sniff for several
reasons. First, the state argued that the record was
inadequate for review of the claim under the first prong
of Golding because, in light of the defendant’s failure
to challenge the constitutional propriety of the canine
sniff in the trial court, the state had no occasion to
prove what it maintained was an alternative rationale
for the admissibility of the seized evidence, namely, the
independent source doctrine.12 See id., 322 n.9. The state
also contended that, in the event the Appellate Court
elected to consider the merits of the claim, the defen-
dant could not establish a constitutional violation
because the canine sniff was not a search subject to
the requirements of article first, § 7. See id. In addition,
the state maintained that, even if the canine sniff was
a search, it need only have been supported by a reason-
able and articulable suspicion, a standard that, the state
further asserted, was satisfied in the present case. Id.,
331 n.21. Finally, the state argued that, if the Appellate
Court agreed with the defendant that the canine sniff
constituted a full-blown search requiring a warrant
predicated on probable cause, the seizure of the evi-
dence from the motel room was lawful nonetheless
under the independent source or inevitable discovery
doctrine. See id., 322 n.9, 331 n.20.13
The Appellate Court rejected the defendant’s claim
regarding the visual sweep of the motel room, agreeing
with the trial court that it was permissible due to exigent
circumstances.14 Id., 340. The Appellate Court also con-
sidered and rejected the defendant’s contention con-
cerning the constitutionality of the canine sniff, con-
cluding that the sniff was not a search subject to the
protection of the state constitution. See id., 330. In
light of this determination, it was unnecessary for the
Appellate Court to address the state’s arguments that
the claim was unreviewable and, even if reviewable,
that the evidence seized was admissible under the inde-
pendent source or inevitable discovery doctrine. See
id., 331 n.20.
In rejecting the defendant’s argument under Kono,
the Appellate Court explained that the present case is
distinguishable from Kono because, in that case, the
hallway in which the canine sniff occurred ‘‘was closed
off and located on the inside of the condominium com-
plex structure, which was restricted by a locked door.
It was accessible only by keycard access, and the police
needed to obtain permission before entering the hall-
way.’’ (Emphasis in original.) Id., 329–30. In contrast,
in the present case, ‘‘[t]he open, shared walkway . . .
was located on the outside of the structure. It was open
to the public, as well as completely illuminated and
visible to anyone as far as fifty yards away, even at
nighttime. Furthermore, no permission was required to
traverse the walkway, evidenced by the ease with which
the officers, and eventually Cooper, did so.’’ Id., 330.
This distinction, the Appellate Court concluded, was
fatal to the defendant’s claim of a constitutional viola-
tion, primarily because he was unable to establish ‘‘a
reasonable expectation of privacy [in] the outside of
the door to his motel room.’’ Id.
On appeal to this court, the defendant contends that
the Appellate Court incorrectly determined that the
canine sniff of the door to the motel room was not a
search in violation of article first, § 7. The defendant
further contends that the Appellate Court incorrectly
concluded that the visual sweep of the motel room
was lawful under the exigent circumstances doctrine
to prevent the destruction of evidence. In response, the
state renews the arguments that it made in the Appellate
Court to support its contention that the judgment of
that court should be affirmed.
We conclude, first, that the canine sniff of the motel
room was unlawful under article first, § 7, because it
was a search requiring a warrant supported by probable
cause. We also conclude, however, that the case must
be remanded to the trial court so that the state may
present additional testimony in connection with its
claim that the evidence seized pursuant to the search
warrant was admissible under the independent source
or inevitable discovery doctrine despite the impropriety
of the canine sniff. With respect to the visual search,
we conclude that it was not justified by exigent circum-
stances. We further conclude, however, that the trial
court, after affording the state the opportunity to sup-
plement the record, shall reconsider the state’s claim
that the illegality of the visual search was obviated by
the independent source doctrine.
II
THE CANINE SNIFF: WAS IT A SEARCH?
We begin with the defendant’s unpreserved claim that
the canine sniff of the door to his hotel room was a
search for purposes of article first, § 7, of the Connecti-
cut constitution.15 ‘‘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 consti-
tution. . . . Specifically, we ask whether the defendant
has established that he had a reasonable expectation
of privacy in the area or thing searched.16 . . . 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 expectation 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 cir-
cumstances.’’ (Citation omitted; footnote altered; inter-
nal quotation marks omitted.) State v. Kono, supra, 324
Conn. 89–90. Thus, ‘‘[t]his determination is made on a
case-by-case basis. . . . The burden of proving the
existence of a reasonable expectation of privacy rests
[with] the defendant.’’ (Internal quotation marks omit-
ted.) State v. Jacques, 332 Conn. 271, 279, 210 A.3d
533 (2019).
‘‘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. . . .
‘‘Additional principles guide our analysis of the
[defendant’s] claim, chief among them the bedrock prin-
ciple that [p]rivacy expectations are . . . highest and
are accorded the strongest constitutional protection in
the case of a private home and the area immediately
surrounding it. . . . It is also axiomatic that a search
or seizure conducted without a warrant issued upon
probable cause is presumptively unreasonable.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) State v. Kono, supra, 324 Conn. 90–91.
Because ‘‘[o]ur constitutional preference for warrants
reflects a goal of protecting citizens from unjustified
police intrusions by interposing a neutral [decision
maker] between the police and the object of the pro-
posed search’’; State v. Miller, 227 Conn. 363, 382, 630
A.2d 1315 (1993); that preference ‘‘is overcome only in
specific and limited circumstances.’’ (Internal quotation
marks omitted.) State v. Kono, supra, 91.
‘‘Finally, [i]n determining the contours of the protec-
tions provided by our state constitution, we employ a
multifactor approach . . . . The factors that we con-
sider are (1) the text of the relevant constitutional provi-
sions; (2) related Connecticut precedents; (3) persua-
sive federal precedents; (4) persuasive precedents of
other state courts; (5) historical insights into the intent
of [the] constitutional [framers]; and (6) contemporary
understandings of applicable economic and sociologi-
cal 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.’’17 (Citation omitted; internal
quotation marks omitted.) Id., 92. Because this court,
in State v. Kono, supra, 324 Conn. 80, recently consid-
ered the state constitutional implications of a canine
sniff conducted in the related context of a multiunit
condominium complex, our resolution of the present
claim is informed primarily by our reasoning and analy-
sis in Kono. We also take into account, of course, rele-
vant case law pertaining to the nature of one’s right of
privacy in a motel room, as distinguished from a home
or permanent residence.
In support of his contention of a constitutional viola-
tion, the defendant relies principally on Kono, in which
we were required to decide whether the defendant,
Dennis Kono, was entitled to the suppression of certain
evidence seized from his condominium following a war-
rantless canine sniff conducted by the police just out-
side of the door to the condominium. See id., 82. In
that case, the police decided to conduct the search after
receiving an anonymous tip that Kono was growing
marijuana in his condominium, which was one of thirty-
four such units situated on the first two floors of the
complex in which Kono resided. Id., 83. The outside
doors of the complex were normally locked, with access
to the complex gained through a keypad. Id., 83–84.
The police, however, were allowed entry to the complex
by the property manager, who, at the request of the
police, had signed a consent form permitting them to
conduct a canine examination of the complex’s com-
mon areas. Id., 83. A police canine handler, accompa-
nied by a trained drug detection dog, walked through
the common hallway located on each of the first two
floors of the complex, and the handler directed the dog
to sniff at the bottom of the front door of the units on
both floors. See id., 84. The dog alerted following his
sniff at the door to Kono’s unit and, after knocking on
Kono’s door with no response, the police sought and
obtained a search warrant for the unit on the basis of
the results of the canine sniff. Id. Upon executing the
warrant, the police discovered an indoor greenhouse
containing marijuana plants, lighting equipment and
several firearms, and Kono, thereafter, was charged
with various drugs offenses and illegal possession of
an assault weapon. Id.Kono subsequently filed a motion to suppress the
evidence seized from his unit, claiming that the canine
sniff of the threshold of his home was a search under
both the fourth amendment and article first, § 7, of the
state constitution and, therefore, that a warrant based
on probable cause was required. Id., 84–85. The trial
court agreed with the defendant that the warrantless
canine sniff was a search that violated his reasonable
expectation of privacy protected by the fourth amend-
ment and granted the motion to suppress.18 Id., 85.
Because none of the state’s evidence would have been
admissible against the defendant at trial in light of the
court’s ruling on the defendant’s motion, the court
granted the defendant’s motion to dismiss the charges.
Id., 89.
The state appealed, and we reached the same conclu-
sion as the trial court, albeit under article first, § 7.19
Id., 82, 122. After observing that ‘‘[p]rivacy expectations
are . . . highest and are accorded the strongest consti-
tutional protection in the case of a private home and the
area immediately surrounding it’’; (internal quotation
marks omitted) id., 91; we disagreed with the state that
the canine sniff was constitutionally innocuous merely
because the police had received permission to enter
the complex. See id., 109. In reaching that conclusion,
we explained that the critical consideration was not
where the canine sniff took place but, rather, the fact
that Kono’s condominium was the object of the canine
sniff. See id., 112–14. In this regard, we agreed with the
trial court, which, as we explained, had ‘‘rejected the
state’s contention that a [search] warrant was not
required because [t]he police were lawfully present in
the common hallway outside [Kono’s] front door, an
area where, in the state’s view, [Kono] had no reason-
able expectation of privacy or any property interest
sufficient to protect against the officers’ warrantless
intrusion. . . . [I]t was immaterial that the police were
lawfully present in the hallway, or that [Kono] had a
diminished expectation of privacy in the common areas
of his condominium complex, because the privacy inter-
est at stake did not relate to those areas but, rather, to
the inside of [Kono’s] home.’’ (Internal quotation marks
omitted.) Id., 88. In this regard, we also relied on the
fact that, in Florida v. Jardines, 569 U.S. 1, 133 S. Ct.
1409, 185 L. Ed. 2d 495 (2013), the United States Supreme
Court concluded that a canine sniff conducted by the
police at the front door of a home was a search pro-
tected by the fourth amendment, even though the police,
no less than any other visitor, generally were free to
enter the homeowner’s property and to approach the
front door.20 See id., 8–10; see also State v. Kono, supra,
324 Conn. 112.
We also were unpersuaded by the state’s argument
that the canine sniff was not a search because the sniff
reveals only the existence of contraband, and Kono
had no reasonable expectation of privacy in any such
contraband inside his condominium. State v. Kono,
supra, 324 Conn. 111–12. Although acknowledging that
the United States Supreme Court had considered the
fact that a canine sniff reveals nothing but contraband
in concluding that that investigative technique is not a
search within the meaning of the fourth amendment
when directed at a motor vehicle subject to a lawful
traffic stop; Illinois v. Caballes, 543 U.S. 405, 408–10,
125 S. Ct. 834, 160 L. Ed. 2d 842 (2005); or luggage at
a public airport; United States v. Place, 462 U.S. 696,
707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); we explained
that the privacy interest in one’s home is considerably
greater than the privacy interest in one’s automobile
or luggage at an airport. State v. Kono, supra, 109–13.
Explaining that ‘‘this distinction between searches of
the home and searches of locations outside [of] the
home is consistent with the established priorities of
article first, § 7, of the Connecticut constitution’’; id.,
113; and underscoring this state’s long-standing consti-
tutional preference for warrants; id.; we agreed with
Kono that, for purposes of the state constitution, the
canine sniff of his condominium was a search requiring
a warrant founded on probable cause.21 Id., 122.
In addition to Kono, the defendant also relies on this
court’s recognition in State v. Benton, 206 Conn. 90,
536 A.2d 572, cert. denied, 486 U.S. 1056, 108 S. Ct.
2823, 100 L. Ed. 2d 924 (1988), that ‘‘[p]ersons . . .
residing in an apartment, or persons staying in a hotel
or motel have the same fourth amendment rights to
protection from unreasonable searches and seizures
and the same reasonable expectation of privacy as do
the residents of any dwelling.’’ (Emphases in original.)
Id., 95; see also Stoner v. California, 376 U.S. 483, 490,
84 S. Ct. 889, 11 L. Ed. 2d 856 (1964) (‘‘[n]o less than
a tenant of a house, or the occupant of a room in a
boarding house . . . a guest in a hotel room is entitled
to constitutional protection against unreasonable searches
and seizures’’ (citation omitted)); United States v.
Stokes, 733 F.3d 438, 443 (2d Cir. 2013) (‘‘[a] person
staying in a motel room has the same constitutional
protection against unreasonable searches of that room
as someone in his or her own home’’ (internal quotation
marks omitted)); United States v. Stokes, supra, 443
n.7 (‘‘[h]otel guests retain a legitimate expectation of
privacy in the hotel room and in any articles located in
their hotel room for the duration of their rental period’’);
State v. Jackson, 304 Conn. 383, 397, 40 A.3d 290 (2012)
(‘‘[a] person who has rented a hotel room generally has
a reasonable expectation of privacy in that location’’).
In Benton, the police suspected that the defendant,
Leonard R. Benton, was engaged in illegal narcotics
activity, and, as part of their investigation into that
activity, a police detective who was present in the apart-
ment immediately adjacent to Benton’s apartment over-
heard certain incriminating conversations. State v. Ben-
ton, supra, 94. It was undisputed that the detective
had gained entry into that adjacent apartment with the
permission of the tenant and, further, that the detective
heard the conversations without the aid of any sensory
enhancing devices. Id. Citing to the general rule that
‘‘what a government agent perceives with his or her
unaided senses, when lawfully present in a place where
he or she has a right to be, is not an illegal search under
the fourth amendment’’; id.; we rejected Benton’s claim
that the eavesdropping violated his federal constitu-
tional rights. Id., 94–96. As we explained, ‘‘[c]onversa-
tions carried on in any type of residence, or anywhere
for that matter, in a tone audible to the unaided ear of
a person located in a place where that person has a
right to be, and where a person can be expected to be,
are conversations knowingly exposed to the public.
. . . [Such] [c]onversations . . . are not within the
penumbra of fourth amendment protection.’’ (Citations
omitted.) Id., 96. We also expressly acknowledged, how-
ever, that the right of an apartment dweller or motel
guest to be free from unreasonable searches and sei-
zures ‘‘honors the justifiable expectation that if their
conversations are conducted in a manner undetectable
outside their room or residence by the electronically
unaided ear they will not be intercepted.’’ Id., 95–96.
Accordingly, the defendant contends that our holding
in State v. Kono, supra, 324 Conn. 122, that a canine
sniff targeted at a condominium located in a multiunit
condominium complex is a search for which a warrant
is required, also applies to a motel room.
Applying the principles that we found to be determi-
native in Kono, we agree with the defendant that the
protection against a canine sniff afforded under the
state constitution to a resident of a multiunit condomin-
ium complex also extends to the occupant of a motel
room. As we explain more fully in this opinion in
addressing the state’s contrary arguments, we are not
persuaded that the differences between the motel room
at issue in the present case and the condominium unit
at issue in Kono are weighty enough to justify a differ-
ent result.
In support of its contention that a canine sniff con-
ducted immediately outside a motel room door is not
a search, the state cites to a number of cases holding
that the occupant of a motel room has a diminished
expectation of privacy as compared to the resident of
a home. In particular, the state, like the defendant, relies
on State v. Benton, supra, 206 Conn. 90, in which we
observed that ‘‘[t]he shared atmosphere and the near-
ness of one’s neighbors in a hotel or motel or apartment
in a multiple family dwelling . . . diminish the degree
of privacy that one can reasonably expect or that society
is prepared to recognize as reasonable.’’ Id., 96. We
supported this assertion in Benton with citations to
several cases, including United States v. Mankani, 738
F.2d 538 (2d Cir. 1984), in which the United States
Court of Appeals for the Second Circuit observed that,
‘‘[u]nlike an apartment or a room in a boarding house,
hotels and motels are not ordinarily considered places
where one lives and keeps personal effects. In addition,
service personnel in hotels and motels have keys to
enter and make-up the rooms, remove dishes, check
air-conditioning, heating and the like. Former occu-
pants may even have retained a key to a hotel room.
. . . In short, it is the transitory nature of such places,
commonly understood as such, that diminishes a per-
son’s justifiable expectation of privacy in them. Since
a hotel room is exposed to others, it is unlike a house,
[that is], a place where one lives.’’ (Internal quotation
marks omitted.) Id., 544; see also State v. Benton,
supra, 95–96.
Similarly, in United States v. Agapito, 620 F.2d 324(2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66
L. Ed. 2d 40 (1980), the court explained that, ‘‘[d]espite
the fact that an individual’s [f]ourth [a]mendment rights
do not evaporate when he rents a motel room, the extent
of the privacy he is entitled to reasonably expect may
very well diminish. For although a motel room shares
many of the attributes of privacy of a home, it also
possesses many features [that] distinguish it from a
private residence . . . . A private home is quite differ-
ent from a place of business or a motel cabin. A home
owner or tenant has the exclusive enjoyment of his
home, his garage, his barn or other buildings, and also
the area under his home. But a transient occupant of
a motel must share corridors, sidewalks, yards, and
trees with the other occupants. Granted that a tenant
has standing to protect the room he occupies, there is
nevertheless an element of public or shared property
in motel surroundings that is entirely lacking in the
enjoyment of one’s home.’’ (Internal quotation marks
omitted.) Id., 331.
The state also notes that, in light of this reduced
expectation of privacy in a motel room as distinguished
from a private home, a significant number of courts
have held that a canine sniff of a door in a motel hallway
does not constitute a search. See United States v. Legall,
585 Fed. Appx. 4, 5–6 (4th Cir. 2014) (concluding that
canine sniff of hotel room did not violate fourth amend-
ment because police did not enter curtilage of room
and did not infringe on defendant’s reasonable expecta-
tion of privacy insofar as canine sniff disclosed only
presence of illegal narcotics in which defendant had
no legitimate expectation of privacy), cert. denied, 574
U.S. 1183, 135 S. Ct. 1471, 191 L. Ed. 2d 415 (2015);
United States v. Roby, 122 F.3d 1120, 1124–25 (8th Cir.
1997) (because canine sniff ‘‘could reveal nothing about
noncontraband items’’ and odor of marijuana was in
‘‘plain smell’’ of dog, and because defendant had no
reasonable expectation of privacy in hallway outside
his hotel room, canine sniff conducted in hotel hallway
was not search for fourth amendment purposes (inter-
nal quotation marks omitted)); United States v. Lewis,
Docket No. 1:15-CR-10 (TLS), 2017 WL 2928199, *8 (N.D.
Ind. July 10, 2017) (because officers conducting canine
sniff in open-air walkway of motel were entitled to be in
that location and sniff could not reveal any information
other than presence of illegal narcotics, sniff did not
violate defendant’s legitimate privacy expectations,
and, therefore, defendant’s fourth amendment rights
were not implicated); United States v. Marlar, 828 F.
Supp. 415, 419 (N.D. Miss. 1993) (because canine sniff
revealed odors that were outside of motel room and
officer had right to be on public sidewalk adjacent to
defendant’s motel room, canine sniff did not violate
defendant’s reasonable expectation of privacy pro-
tected by fourth amendment), appeal dismissed, 68 F.3d
464 (5th. Cir. 1995); State v. Foncette, 238 Ariz. 42, 45–46,
356 P.3d 328 (2015) (because officers were legally pres-
ent in hotel hallway and canine sniff discloses only
presence of contraband, sniff was not search for fourth
amendment purposes); Nelson v. State, 867 So. 2d 534,
536–37 (Fla. App. 2004) (because officers conducting
canine sniff of hotel hallway were entitled to be in
hallway and ‘‘evidence in the plain smell may be
detected without a warrant,’’ sniff did not violate defen-
dant’s reasonable expectation of privacy under fourth
amendment), review denied, 115 So. 3d 1001 (Fla. 2013);
People v. Lindsey, Docket No. 124289, 2020 WL 1880802,
*1 (Ill. April 16, 2020) (canine sniff in alcove outside of
motel room was not search under fourth amendment
because sniff revealed odors in alcove only, not inside
of motel room), cert. denied, U.S. , 141 S. Ct.
2476, 209 L. Ed. 2d 534 (2021); Wilson v. State, 98 S.W.3d
265, 272–73 (Tex. App. 2002, pet. ref’d) (because exte-
rior door of hotel room was open to public and canine
sniff revealed nothing about room but presence of
cocaine, sniff was not search for fourth amendment
purposes); Sanders v. Commonwealth, 64 Va. App. 734,
755, 772 S.E.2d 15 (2015) (because police officers con-
ducting canine sniff in motel walkway had right to be
in that location and sniff did not reveal any information
other than presence of contraband, there was no viola-
tion of defendant’s reasonable expectation of privacy
under fourth amendment).
As the state acknowledges, however, these cases
have focused primarily on two principles: first, that,
because a canine sniff detects only the presence of
illegal narcotics, it does not infringe on any legitimate
expectation of privacy; see, e.g., 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 (because canine sniff of luggage
in airport ‘‘does not expose noncontraband items that
otherwise would remain hidden from public view,’’ it
is not search); and, second, customarily, the walkway
or hallway of a motel is a location where the police,
no less than the general public, are entitled to be, and
that undisputedly was the case here. But cf. Florida v.
Jardines, supra, 569 U.S. 11 (‘‘[t]hat the officers learned
what they learned only by physically intruding on [the
defendant’s] property to gather evidence is enough to
establish that a search occurred’’). As we previously
explained in Kono, however, at least for purposes of the
state constitution, the United States Supreme Court’s
decisions in Caballes and Place are distinguishable from
cases involving a canine sniff of a door to an apartment
‘‘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.’’
State v. Kono, supra, 324 Conn. 112; see also Florida v.
Jardines, supra, 12–13 (Kagan, J., concurring) (canine
sniff of front door of single-family residence violates
reasonable expectation of privacy). We also empha-
sized that ‘‘the question of lawful physical presence is
distinct from the question of whether a canine sniff of
the exterior of a person’s home impermissibly invades
reasonable expectations of privacy in the home.’’ (Empha-
sis added.) State v. Kono, supra, 109.
The state maintains that these principles, applicable
to apartments and condominiums under Kono, are inap-
plicable to motel rooms for four primary reasons, none
of which we find sufficiently convincing to persuade
us that the canine sniff of the defendant’s motel room
was not a search subject to the protections of article
first, § 7. First, the state asserts that, in contrast to an
apartment, a motel room most often serves merely as
transitory quarters rather than a private, permanent
residence.22 Although we agree generally with this
observation, it is well settled that motel guests, like
home dwellers, have a reasonable expectation of pri-
vacy in their rooms. See, e.g., Stoner v. California,
supra, 376 U.S. 490; State v. Benton, supra, 206 Conn.
95. The fact that a motel is not a home when, as is
ordinarily the case, a stay there is temporary, does not,
ipso facto, establish the scope of the privacy that tran-
sient motel guests reasonably may expect. We believe,
rather, that, in order to establish a reduced expectation
of privacy in a particular motel room, the state must
point to some specific attribute of the room that makes
the type of intrusion at issue reasonable, even though
that same intrusion would be unlawful if directed at a
private home. Indeed, this court previously has recog-
nized that those aspects of a hotel or motel that reduce
a guest’s expectations of privacy but do not increase
the vulnerability of guests to the particular type of
intrusion at issue are irrelevant in assessing the legality
of that intrusion. See State v. Benton, supra, 96 (‘‘[t]he
type of dwelling is inconsequential except insofar as
its physical attributes increase the vulnerability of its
occupants to eavesdropping by the unaided ear’’). If it
were otherwise, the only guidance that courts would
have in determining whether certain conduct by the
police constituted an unlawful search of a motel room
would be the vague and conclusory statement that
motel guests have a diminished expectation of privacy
as compared to residents of private homes. In the pres-
ent case, although the transitory nature of motel stays
may render guests more vulnerable to warrantless intru-
sions in some instances or respects; see, e.g., State
v. Jackson, supra, 304 Conn. 398 (hotel guest has no
reasonable expectation of privacy in her room when
she has left room with no intent to return); we do not
agree with the state that it inevitably does so irrespec-
tive of the circumstances.
This court’s observation in Benton also belies the
state’s second argument that, unlike an apartment,
motel guests generally do not keep their personal
effects in a motel room. Again, such guests ordinarily
do not keep all of their personal effects in their rooms
because a motel room frequently is a temporary accom-
modation or lodging and not the guest’s permanent
residence. That fact, however, does not mandate the
conclusion that the personal effects that guests often
do keep there—no matter how private or personal they
may be—should be subject to appreciably less protec-
tion under the law. On the contrary, we see no reason
why a motel guest reasonably cannot expect a degree
of privacy in his or her room sufficient to preclude
random or arbitrary intrusions by the police.
The state next maintains that, as we observed in State
v. Benton, supra, 206 Conn. 96, ‘‘[t]he shared atmo-
sphere and the nearness of one’s neighbors’’ in a motel
setting reduce the extent to which a motel guest reason-
ably may expect to retain his or her complete privacy.
We acknowledge that this attribute of a motel and its
rooms may diminish a guest’s expectations of privacy
in some respects. For example, we observed in Benton
that mere unaided eavesdropping on audible conversa-
tions from an adjacent motel room is not a search. See
id., 96–97. Similarly, if a guest does not make any effort
to ensure that motel staff do not enter his room for
cleaning or maintenance when he is not there, and the
staff discovers evidence of illegal activity in the course
of performing those tasks, the guest has no legitimate
reason to complain. We do not agree, however, that a
room occupied by a motel guest is more vulnerable to
a warrantless canine sniff than an apartment, condo-
minium or house simply because other guests occupy
nearby rooms or because the rooms may be entered by
motel staff to perform certain functions unless guests
place a ‘‘Do Not Disturb’’ sign on the door.23
We also disagree with the state’s final contention,
namely, that the canine sniff was not a search under
Kono because it occurred in an open-air walkway that
was fully accessible to the public, whereas the sniff
in Kono occurred in an interior corridor of a locked
apartment building. See State v. Kono, supra, 324 Conn.
83–84. It is true that, in certain circumstances, an open-
air walkway may make the activities in or the contents
of a motel room more readily subject to detection, such
as by simple visual surveillance or unaided eaves-
dropping, than those of an apartment that is accessible
only by way of a locked or enclosed corridor. As we
explained, however, this court rejected the state’s claim
in Kono that a warrantless canine sniff of the hallway
adjacent to an apartment is undeserving of constitu-
tional protection because a tenant reasonably can
expect police officers, no less than members of the
public generally, to gain access there, stating that, for
purposes of the state constitution, a tenant’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.’’ (Internal quotation
marks omitted.) State v. Kono, supra, 324 Conn. 114;
see also id., 109 (lawful presence of police located
immediately outside door of home is not determinative
of whether canine sniff conducted at that location vio-
lates homeowner’s reasonable expectation of privacy).
We see no reason why the fact that the police in the
present case were lawfully present in an open-air walk-
way abutting the defendant’s motel room makes any
appreciable difference with respect to this analysis. The
relevant question is not how easy it may be to gain
lawful access to the door of a particular dwelling or
lodging, but what conduct those occupying that space
reasonably may expect from persons who actually have
such access. Thus, as we stated in Kono, an apartment
dweller’s ‘‘lack of a right to exclude [others from access
to common areas does] not mean [that] he [has] no right
to expect certain norms of behavior in his apartment
hallway. [To be sure], other [apartment] 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.’’ (Internal
quotation marks omitted.) Id., 113–14.
Significantly, in Florida v. Jardines, supra, 569 U.S.
1, the United States Supreme Court employed similar
reasoning in concluding that the fourth amendment pro-
hibits the police from conducting a warrantless canine
sniff at the front door of a private home. See id., 8–9,
11–12. Although the court decided the case on the basis
of common-law property principles and therefore had
no need to apply the reasonable expectation of privacy
test; see id., 5–6, 11; its analysis nevertheless bears on
the claim at issue in the present case. After first observ-
ing that ‘‘the knocker on the front door [of a home] is
treated as an invitation or license to attempt an entry,
justifying ingress to the home by solicitors, hawkers
and peddlers of all kinds’’; (internal quotation marks
omitted) id., 8; the court continued: ‘‘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.’’ (Footnote omitted;
internal quotation marks omitted.) Id. As the court fur-
ther explained, however, that license does not extend
to a canine sniff: ‘‘But introducing a trained police dog
to explore the area around the home in hopes of dis-
covering incriminating evidence is something else.
There is no customary invitation to do that. . . . 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 bloodhound into the garden before saying
hello and asking permission, would inspire most of us
to—well, 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. . . . [T]he back-
ground social norms that invite a visitor to the front
door do not invite him there to conduct a search.’’
(Emphasis in original; footnote omitted.) Id., 9. Despite
the differences between a motel room and a home,
similar norms apply to the conduct of visitors lawfully
on motel property: motel guests reasonably do not
expect that the foot traffic generally associated with
an open-air walkway abutting the motel’s guestrooms
includes law enforcement officers trolling the walkway
with a trained police dog in search of contraband in
those rooms.
We note, in addition, that, if the state were correct
that a canine sniff of the exterior door of a motel room
is an event altogether lacking in constitutional signifi-
cance, the police would be entitled to roam through
the corridors of a motel conducting canine sniffs of
some or all of the doors to those rooms despite having
no particularized cause to believe that any of them
contained drugs. In tacit acknowledgment that our citi-
zenry would find this conduct unacceptable, the state
asserts that there is no reason to believe that the police
in Connecticut would engage in such a trawling exer-
cise, even though they could do so lawfully. Even if we
shared the state’s confidence in that regard, however,
the fact that it would be legally permissible for the
police to go from door to door conducting suspicionless
canine sniffs throughout the motel is itself reason to
doubt the soundness of the state’s constitutional argu-
ment. Cf. State v. Kono, supra, 324 Conn. 115 (express-
ing concern, in context of canine sniff conducted at
front door of condominium located in multiunit condo-
minium complex, ‘‘that, if police officers are permitted
to conduct warrantless canine [sniffs] of people’s
homes, there is nothing to prevent [them] from applying
the procedure 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 overbear-
ing and harassing conduct’’ (internal quotation marks
omitted)).
The state’s reliance on United States v. Hayes, 551
F.3d 138 (2d Cir. 2008), to support its claim to the
contrary is misplaced. In Hayes, the police conducted
a canine sniff of the property surrounding the outside
perimeter of the home of the defendant, Derrick Hayes,
and the dog alerted to a bag of illegal drugs located in
scrub brush, about ten to fifteen feet thick, approxi-
mately sixty-five feet from the back door of the house
and on the border of the neighboring property. Id., 141–
42, 145. Hayes sought to suppress the drugs on the
ground that the canine sniff constituted an unlawful
warrantless search. Id., 142. The court concluded that
Hayes ‘‘had no legitimate expectation of privacy in the
front yard of his home insofar as the presence of the
scent of narcotics in the air was capable of being sniffed
by the police canine,’’ primarily because the ‘‘front yard
where the dog sniff occurred was clearly within plain
view of the public road and adjoining properties’’ and
the ‘‘canine’s sense of smell was directed [toward] an
area [sixty-five] feet behind the back door of the home.’’
Id. 145. The court also explained that the decision of
the United Statutes Supreme Court in Kyllo v. United
States, 533 U.S. 27, 40, 121 S. Ct. 2038, 150 L. Ed. 2d 94(2001), holding that the use of a thermal imaging device
to detect temperature variations inside a home was an
unreasonable search in violation of the fourth amend-
ment, and the decision of the United States Court of
Appeals for the Second Circuit in 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), holding that a canine sniff of the door to
an apartment was an unlawful search, were distinguish-
able because, in those cases, the police were trying
to detect information inside of the defendant’s home.
United States v. Hayes, supra, 145. Thus, the court
left open the possibility that initiating a canine sniff to
detect odors emanating from inside of a home would
violate the homeowner’s reasonable expectations of
privacy, even if the sniff occurred at a location that
was in plain view of the public and in which the subject
of the search had no legitimate expectation of privacy.
In any event, it clearly is not the case that every war-
rantless canine sniff of a dwelling that occurs within
plain view of adjacent roads or parking lots is lawful;
see, e.g., Florida v. Jardines, supra, 569 U.S. 4, 11–12
(warrantless canine sniff on front porch of private
dwelling is search for fourth amendment purposes);
and Hayes provides no guidance on the issue of whether
the common walkway area immediately adjacent to a
motel room door is more analogous to the open yard
of a private home, which was the situation in Hayes, or
to the home’s front porch, as was the case in Jardines.24
For all the foregoing reasons, we conclude that the
canine sniff of the exterior door to the defendant’s motel
room was a search for purposes of article first, § 7. The
state nevertheless contends that, insofar as the canine
sniff was a search, it was reasonable and, therefore,
lawful under that state constitutional provision. We
therefore turn to that issue.
III
WARRANT REQUIREMENT
The state claims that, even if the canine sniff of the
door to the defendant’s motel room was a search, it
passes muster under article first, § 7, because it was
supported by a reasonable and articulable suspicion
that there were illicit drugs in the room. In the state’s
view, a warrant predicated on probable cause is not
required for a canine sniff of the exterior door to a motel
room; rather, the state maintains, the requirements of
article first, § 7, are satisfied if such a search is founded
on a reasonable and articulable suspicion. We disagree
with the state that a warrant is not required in such
circumstances.25
As the state observes, and as we recognized in State
v. Kono, supra, 324 Conn. 116–17, a number of courts
have concluded that a canine sniff of the door of an
apartment or condominium in a multiunit building is a
lawful search if it is based on a reasonable and articula-
ble suspicion rather than on probable cause. See Fitz-
gerald v. State, 384 Md. 484, 512, 864 A.2d 1006 (2004)
(declining to decide whether canine sniff of door to
apartment was search under Maryland constitution
because, even if it was, police had reasonable and arti-
culable suspicion to conduct canine sniff, which is all
that is required); State v. Davis, 732 N.W.2d 173, 181–82
(Minn. 2007) (reasonable and articulable suspicion is
needed under Minnesota constitution to conduct canine
sniff immediately outside apartment door); State v.
Ortiz, 257 Neb. 784, 796, 600 N.W.2d 805 (1999) (only
reasonable and articulable suspicion is needed under
Nebraska constitution); People v. Dunn, 77 N.Y.2d 19,
25–26, 564 N.E.2d 1054, 563 N.Y.S.2d 388 (1990) (only
reasonable and articulable suspicion is needed under
New York constitution), cert. denied, 501 U.S. 1219, 111
S. Ct. 2830, 115 L. Ed. 2d 1000 (1991); see also Hoop v.
State, 909 N.E.2d 463, 469–70 (Ind. App. 2009) (reason-
able suspicion is required under Indiana constitution
before conducting canine sniff of private residence in
order to restrict arbitrary police action). Like the courts
that have held that a canine sniff outside the door to
a motel or hotel room is not a search, the courts that
have held that a sniff outside the door to an apartment
is lawful if supported by a reasonable and articulable
suspicion have reasoned that a canine sniff is minimally
intrusive because it detects only illegal drugs, that it
occurs in a place where the police are lawfully entitled
to be, and that it is an investigative technique of signifi-
cant utility to the police. See Fitzgerald v. State, supra,
510 (noting nonintrusive nature of search and its signifi-
cant value to police); State v. Davis, supra, 179–82 (not-
ing that police were in location where they were entitled
to be, that canine sniff is minimally intrusive, and that
sniff has significant utility to police); State v. Ortiz,
supra, 794–96 (canine sniff of threshold to apartment
that is supported by reasonable and articulable suspi-
cion is lawful if police are entitled to be where sniff
occurred because of nonintrusive nature of sniff); Peo-
ple v. Dunn, supra, 26 (noting nonintrusive nature of
canine sniff and its significant value to police).
The state also notes that, in State v. Waz, 240 Conn.
365, 692 A.2d 1217 (1997), this court, assuming that
subjecting a mail parcel in the possession of the United
States Postal Service to a canine sniff was a search,
held that the search was lawful under article first, § 7,
because it was based on a reasonable and articulable
suspicion. Id., 383–84. Similarly, in State v. Torres, 230
Conn. 372, 645 A.2d 529 (1994), this court, without
deciding whether a canine sniff of the exterior of a car
following a traffic stop is a search, held that it was
lawful for the same reason, that is, because it was sup-
ported by a reasonable and articulable suspicion. Id.,381–82.
As we noted previously; see footnote 21 of this opin-
ion; in Kono, the state’s sole claim was that the canine
sniff of the front door of the condominium unit at issue
was not a search and, therefore, the police were free
to conduct the sniff without a warrant and without
any reason to believe that there were drugs inside the
condominium. See State v. Kono, supra, 324 Conn. 89.
The state made no claim in Kono that, in the event we
were to conclude that the canine sniff was a search,
the use of that technique by the police nevertheless
satisfied constitutional requirements because it was
supported by a reasonable and articulable suspicion.
See id., 86 n.4, 122 n.21. Having had no occasion to
address that issue, we also had no reason to deviate
from the general rule that, under article first, § 7, a
search is lawful only if it has been authorized by a
warrant founded on probable cause. E.g., id., 91 (search
conducted without warrant issued upon probable cause
is presumptively unreasonable). We gave no indication
in Kono, however, that we believed that condominiums
and apartments are meaningfully distinguishable from
private homes in regard to the cause necessary to justify
a canine sniff of those dwellings. On the contrary, our
analysis in Kono belies any such suggestion. First, as
we already explained, in Kono, this court rejected the
state’s arguments that a canine sniff of an apartment
is not a search because it reveals only the presence of
illegal drugs; see id., 109–12; and that it is not unlawful
if performed in a place where the police were entitled
to be; see id., 109; because an apartment, like a private
residence, is a home. We also explained that distinguish-
ing between single-family dwellings and dwellings in
a multiunit building in this context ‘‘would be deeply
troubling because it would apportion [constitutional]
protections on grounds that correlate with income,
race, and ethnicity.’’ (Internal quotation marks omit-
ted.) Id., 121. We further stated, with respect to those
state courts that have concluded that a canine sniff of
the front door of a single-family home requires a warrant
supported by probable cause, that, ‘‘[b]ecause these
courts based their rulings on the reasonable expectation
of privacy test recognized in Katz [v. United States,
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)],
their holdings logically would extend to all residences
within their states.’’ (Emphasis added.) State v. Kono,
supra, 117. Moreover, in citing Justice Kagan’s concur-
ring opinion in Jardines with approval, we, like Justice
Kagan, placed our imprimatur on the principle that any
action taken by the police vis-à-vis a home that is suffi-
ciently invasive to constitute a search, including a
canine sniff of the door to the home, implicates the
reasonable expectations of privacy of those residing in
the home and, in the absence of exigent circumstances,
requires a warrant that must be supported by probable
cause.26 Id., 99 (indicating that, as Justice Kagan sug-
gested in her concurrence in Jardines, warrantless
search of home is never constitutional in absence of
exigent circumstances because such search invades
heightened privacy expectations in home), citing Flor-
ida v. Jardines, supra, 569 U.S. 12–14 (Kagan, J., con-
curring); cf. State v. Jacques, supra, 332 Conn. 278 (‘‘The
capacity to claim the protection of the fourth amend-
ment does not depend [on] a property interest, perma-
nency of residence, or payment of rent but [on] whether
the person who claims fourth amendment protection
has a reasonable expectation of privacy in the invaded
area. . . . [A] person is entitled to fourth amendment
protection anywhere he resides where he has a reason-
able expectation of privacy.’’ (Citations omitted; inter-
nal quotation marks omitted)). We also underscored
this state’s strong preference for warrants under article
first, § 7. See, e.g., State v. Kono, supra, 113. Although
there are a few limited, narrowly tailored exceptions
to this preference, which, as a rule, ‘‘arise out of
acknowledged interests in protecting the safety of the
police and the public and in preserving evidence,’’ we
explained 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.’’
(Internal quotation marks omitted.) Id. In light of the
foregoing, it is not surprising that, in Kono, we stated
our holding as follows: ‘‘[W]e 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.’’ Id., 122. For all
these reasons, cases from other jurisdictions holding
that a canine sniff of the door to an apartment is lawful
if supported by a reasonable and articulable suspicion
are incompatible with our reasoning and holding in
Kono. We conclude, therefore, that a canine sniff of the
door to an apartment is a search requiring a warrant
supported by probable cause.
Of course, it does not necessarily follow from this
determination that a canine sniff of the door to a motel
room is also a search for which a warrant based on
probable cause is required. We repeatedly emphasized
in Kono that our decision in that case rested in no small
measure on the fact that an apartment is a home; see
id., 112 (‘‘[b]oth this court and the United States
Supreme Court have drawn a bright line around the
home’’); id. (‘‘respect for the sanctity of the home is
at the very core of the fourth amendment’’ (internal
quotation marks omitted)); and we acknowledge that,
most often, guests staying at a motel do not live there.
Although, as in Kono, we recognize that one’s privacy
interests are greatest in his or her home; id. 120–21;
our determination in the present case that a canine sniff
of the exterior door to a motel room is a search for
purposes of article first, § 7, is predicated on the similar-
ities in the nature of the privacy interests implicated
by a canine sniff of the outside of a motel room and a
canine sniff of the outside of an apartment or condomin-
ium. We believe that these similarities also militate in
favor of the conclusion that, under article first, § 7, a
canine sniff of the exterior door to a motel room is
subject to the same warrant requirement as a canine
sniff of the door to a residence. Furthermore, as we
previously noted, the few recognized exemptions from
the warrant requirement invariably involve searches
conducted under circumstances requiring immediate
action by the police, generally, in the interest of police
or public safety; see, e.g., State v. Miller, supra, 227
Conn. 383; a consideration that is not implicated by a
canine sniff performed to ascertain whether a motel
room contains unlawful drugs.
Finally, our conclusion finds significant support in
the fact that ‘‘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 amendment in certain contexts.’’ (Internal quota-
tion marks omitted.) State v. Kono, supra, 324 Conn.
113. ‘‘Indeed, [u]nder the state constitution, all war-
rantless searches, [regardless of] whether . . . the
police have probable cause to believe that a crime was
committed, are per se unreasonable, unless they fall
within one of a few specifically established and well
delineated exceptions to the warrant requirement.’’
(Emphasis added; internal quotation marks omitted.)
Id. In other words, a search or seizure conducted with-
out a warrant issued upon probable cause is presumed
to be unreasonable; State v. Waz, supra, 240 Conn. 374n.16; and the state’s heavy burden of overcoming that
presumption is met only in certain exceptional or com-
pelling circumstances. See id., 374–75 n.16 (identifying
limited exceptions to warrant requirement). Due to the
substantial privacy interests an individual has in his
or her motel room, because canine sniffs for drugs
generally are not conducted to address urgent concerns
related to police and public safety, and ‘‘[i]n light of
our demonstrated constitutional preference for war-
rants and our concomitant obligation narrowly to cir-
cumscribe exceptions to the state constitutional war-
rant requirement’’; State v. Miller, supra, 227 Conn. 386;
we are not persuaded that an exemption from the war-
rant requirement should be extended to a canine sniff
of the exterior door to a motel room, as the state advo-
cates. We believe, rather, that, in the present context,
the ‘‘balance between law enforcement interests and
[an individual’s] privacy interests . . . tips in favor’’ of
the latter, given that ‘‘our state constitutional prefer-
ence for warrants [occupies the] dominant place in that
balance . . . .’’ Id., 385. Accordingly, we reject the
state’s claim that a canine sniff of the exterior door to
a motel room is lawful if supported by a reasonable
and articulable suspicion and conclude, instead, that
such a search satisfies state constitutional requirements
only if it follows the issuance of a warrant founded on
probable cause.
IV
THE CANINE SNIFF AND THE INDEPENDENT
SOURCE DOCTRINE
We next address the state’s contention that, even if
the canine sniff of the exterior door to the defendant’s
motel room violated the state constitution, the evidence
seized from the room was admissible under the indepen-
dent source doctrine. Before considering the applicabil-
ity of the doctrine to the facts of the present case,
however, we set forth the principles underlying it. ‘‘It
is well recognized that the exclusionary rule has no
application [when] the [g]overnment learned of the evi-
dence from an independent source. . . . Independent
source, in the exclusionary rule context, means that
the tainted evidence was obtained, in fact, by a search
untainted by illegal police activity. . . . The doctrine
is based on the premise that the interest of society in
deterring unlawful police conduct and the public inter-
est in having juries receive all probative evidence of a
crime are properly balanced by putting the police in
the same, not a worse, position that they would have
been in if no police error or misconduct had occurred.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Cobb, 251 Conn. 285, 333,
743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct.
106, 148 L. Ed. 2d 64 (2000).
‘‘To determine whether [a] warrant was independent
of the illegal entry, one must ask whether it would have
been sought even if what actually happened had not
occurred . . . . That is to say, what counts is whether
the actual illegal search had any effect in producing the
warrant . . . .’’ Murray v. United States, 487 U.S. 533,
542 n.3, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988); see
also State v. Cobb, supra, 251 Conn. 335 (explaining
that ‘‘the decision to seek the warrant [for the search
of the defendant’s car] was not prompted by the infor-
mation gleaned from the [prior] illegal conduct’’ because
evidence established ‘‘that the decision to seek the war-
rant would have been the same irrespective of the pre-
warrant discovery of the small amount of tainted infor-
mation’’). In other words, a prior illegal entry by the
police does ‘‘not require suppression of evidence subse-
quently discovered at those premises when executing
a search warrant obtained on the basis of information
wholly unconnected with the [unlawful] entry.’’ Murray
v. United States, supra, 535. Consequently, a source
of information is not ‘‘genuinely independent’’ of the
unlawful intrusion if the information gleaned from that
intrusion is necessary to establish probable cause. Id.,
542. Thus, to prevail under the independent source doc-
trine, the state must establish both that the warrant
was supported by probable cause derived from sources
entirely separate and distinct from the prior illegal entry
and that the police would have applied for the warrant,
even if they had not acquired the tainted information.27
See id., 541–42 and n.3; State v. Vivo, 241 Conn. 665,
672–73, 677–78, 697 A.2d 1130 (1997). When those two
requirements are met, the otherwise suppressible evi-
dence will be admissible because the prior unlawful
entry ‘‘did not contribute in any way to [the] discovery
of the evidence seized under the warrant’’; Segura v.
United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L.
Ed. 2d 599 (1984); thereby ensuring that the discovery
was the product of a source truly independent of any
illegality. See id.With these principles in mind, we turn to the state’s
contention under the independent source exception to
the warrant requirement. As a threshold matter, the
state maintains that, because the defendant did not
contest the propriety of the canine sniff in the trial
court, the state never had the opportunity to demon-
strate that the police would have sought the warrant
irrespective of the canine sniff and that, as a conse-
quence, the record is inadequate for our review of the
defendant’s unpreserved constitutional claim. Accord-
ing to the state, we should decline to consider the defen-
dant’s claim because of the unfairness that would result
due to the state’s inability to present evidence support-
ing its contention that any constitutional impropriety
in its reliance on the canine sniff was obviated by the
independent source doctrine.28 The state further con-
tends that, if we conclude to the contrary that the record
is adequate for review, the lawfully obtained informa-
tion set forth in the search warrant affidavit—that is,
information that the police obtained wholly unrelated
to the canine sniff—constituted probable cause to
search the defendant’s motel room. With respect to the
requirement that the police would have sought a search
warrant irrespective of the canine sniff, the state con-
tends that the record, even if deemed adequate for
review, is nevertheless ambiguous as to that require-
ment, an ambiguity that, the state further asserts,
‘‘favors the state because the defendant will not have
borne his burden of producing evidence establishing
that the seized evidence was tainted by the illegality.’’
In response, the defendant argues that the record is
adequate for review because, although the state conced-
edly had no occasion to adduce facts at the suppression
hearing relating specifically to its independent source
claim relative to the canine sniff, the state did present
testimony to support its independent source claim rela-
tive to the visual sweep, which, according to the defen-
dant, is the same testimony that the state would have
adduced for purposes of demonstrating a source inde-
pendent of the canine sniff. The defendant also con-
tends that, in light of that testimony, the state cannot
meet its burden of establishing an independent source,
first, because the evidence discovered by the police
that was untainted by the canine sniff did not rise to
the level of probable cause to search the room and,
second, because the testimony did not establish that
the police would have sought the warrant even if the
canine sniff had never occurred. We conclude that the
information available to the police unrelated to the
canine sniff was sufficient to establish probable cause
for the search, but we further conclude, for the reasons
that follow, that a remand is necessary to afford the
state the opportunity to demonstrate that the police
would have sought the warrant regardless of the canine
sniff.29
We turn first to the issue of whether, as the defendant
claims, the record is adequate for review of the state’s
independent source claim with respect to the canine
sniff. The state does not appear to dispute, and we
agree, that the record is adequate for review of the first
part of the two part test, that is, whether the warrant
affidavit contained information establishing probable
cause derived from sources entirely unconnected to the
canine sniff. Accordingly, with respect to that compo-
nent of the test, we must determine whether the facts
untainted by the canine sniff were sufficient, standing
alone, to support the issuance of the warrant. We agree
with the state that they were.30
The following facts bear on the issue of whether the
police had probable cause to search the motel room
independent of the canine sniff. Sergeant Broems
observed the Yukon in which Taveras was a passenger
pull up to the motel around 1:20 a.m., at which time
Taveras exited the vehicle, entered room 118 for about
one minute, exited the room, and reentered the Yukon,
which then drove off. The area was known for drug
activity, and, on the basis of his training and experience,
Sergeant Broems believed that Taveras’ conduct likely
involved a drug transaction. After promptly stopping the
vehicle, the police detected a strong smell of marijuana,
and, upon searching Taveras, they discovered five glass
jars, two of which contained marijuana, and a knotted
corner of a plastic sandwich bag containing heroin. The
operator of the vehicle, Brickman, told the police that
Taveras was staying at the motel but that he did ‘‘[not]
know what [Taveras] was getting’’ when he entered and
then quickly exited the motel room. After Taveras told
the police that he was living with his grandmother, the
police went to her home and, with his grandmother’s
consent, searched Taveras’ room, where they found
numerous plastic bags with the corners cut off, consis-
tent with narcotics packaging, along with other bags
containing an off-white powder residue. According to
his brother, Taveras was in the process of moving out
of that house.
When the police returned to the motel, they learned
that it had been rented by an individual named ‘‘Victor
Taveras,’’ who the police believed was probably Eudy
Taveras, and the defendant. Shortly thereafter, Sergeant
O’Brien observed the defendant walking toward him
on Home Court. Upon seeing Sergeant O’Brien, the
defendant immediately changed direction and began
walking east on East Main Street. Sergeant O’Brien
approached the defendant, who was found to have a
large amount of cash and a key to room 118 on his
person. Sergeant O’Brien then informed the defendant
that the police had arrested Taveras and that ‘‘the jig
is up,’’ to which the defendant responded, ‘‘nothing in
the room is mine,’’ implying that there was something
in the room with which the defendant did not want to
be associated.31
These facts established probable cause to search the
room for evidence of narcotics offenses. The informa-
tion developed by the police that was unrelated to the
canine sniff demonstrated that Taveras was staying in
the room, that he was involved with drugs, and that he
likely also was selling drugs. Moreover, the room was
linked to drugs by virtue of Sergeant Broems’ belief,
based on his training and experience, that Taveras was
engaged in a drug transaction when he entered and
immediately exited the room in the middle of the night.
Finally, the probability that there were drugs or drug
related items in the room was enhanced by the defen-
dant’s self-serving statement to the police, who discov-
ered a large quantity of cash and a key to the room
in his possession, denying that anything in the room
belonged to him. On the basis of these facts, we agree
with the Appellate Court that the evidence was suffi-
cient to ‘‘persuade a reasonable person to believe that
criminal activity had occurred [and that it] would also
lead a reasonable person to conclude that there was a
fair probability that contraband or evidence of that
crime would be found in room 118.’’32 State v. Correa,
supra, 185 Conn. App. 336.
With respect to the requirement that the police would
have sought a search warrant based on this information
irrespective of the canine sniff, the following additional
facts and procedural history are relevant. As we dis-
cussed previously, the defendant filed a motion to sup-
press the evidence seized from his motel room on the
ground that Sergeant Broems’ visual sweep of the room,
which occurred after the canine sniff, required a search
warrant supported by probable cause. In response to
the defendant’s motion to suppress, the state argued
that the visual sweep was permitted under the exigent
circumstances exception to the warrant requirement to
prevent the destruction of evidence but that, even if
the sweep could not be justified on that basis, the seized
evidence was admissible under the independent source
doctrine. To establish the applicability of that doc-
trine—which was dependent on proof that the decision
to seek a search warrant was made before the officers
conducted the visual sweep of the defendant’s motel
room, thereby demonstrating that the fruits of the
sweep played no role in the warrant application deci-
sion—the state adduced the suppression hearing testi-
mony of Sergeants Broems and O’Brien regarding the
timing of the decision to seek a warrant.
In that testimony, Sergeants Broems and O’Brien
explained that the decision to apply for a warrant was
made before the visual sweep of the defendant’s motel
room occurred, and the trial court’s memorandum of
decision reflects its finding confirming that sequence
of events. In the course of their testimony, however,
Sergeants Broems and O’Brien also explained that the
decision to seek the search warrant was made after
Cooper, the canine officer, alerted to the presence of
drugs inside the defendant’s motel room. More particu-
larly, following testimony by Sergeant O’Brien concern-
ing his decision to conduct the canine sniff of exterior
door to the room and the manner in which he conducted
it, the prosecutor asked him: ‘‘Now, while you’re run-
ning Cooper up and down the hallway past the [m]otel
rooms . . . what else is . . . going on?’’ Sergeant
O’Brien responded that Sergeant Broems was speaking
by phone to the shift commander, Lieutenant Mazzucco,
and to Sergeant Novia, who were at police headquarters,
and that Officer Sheperis remained in his patrol car
with Taveras, who was being detained. The prosecutor
then inquired of Sergeant O’Brien: ‘‘So now, armed with
all of this information that you currently have, do you,
Sergeant Broems, and Officer Sheperis make a decision
at this point in time?’’ Sergeant O’Brien responded:
‘‘Yeah, at that point, it was determined that . . . we
were going to head back to headquarters and start typ-
ing the search warrant application for that [m]otel
room.’’
Subsequently, on redirect examination, the prosecu-
tor posed the following question to Sergeant O’Brien:
‘‘There was a line of questioning during [cross-examina-
tion], which seemed to suggest that, possibly, you and
your fellow investigating officers only decided to . . .
get a search warrant . . . after [the visual sweep of]
the room. But it’s your testimony that that’s not, in
fact, the case, correct? ‘‘Sergeant O’Brien responded:
‘‘Correct.’’ The prosecutor then asked him: ‘‘And when
did you determine . . . to get a search warrant for
the room, initially?’’ Sergeant O’Brien answered: ‘‘When
Sergeant Broems and Officer Sheperis began to trans-
port Taveras into headquarters initially, and that was
after . . . the canine search.’’33
The prosecutor elicited similar testimony from Ser-
geant Broems. Specifically, she asked Sergeant Broems
whether he could ‘‘enumerate’’ for the court ‘‘what infor-
mation [he] . . . believed [rose] to the level of proba-
ble cause for a search warrant’’ for the defendant’s
motel room at the time he headed to police headquarters
to seek the warrant. Sergeant Broems responded that
the decision to seek a search warrant was based on all
of the evidence that had been obtained that evening,
which included the canine sniff of the room. After sum-
marizing the evidence gathered prior to the canine sniff,
Sergeant Broems completed his answer to the prosecu-
tor’s question as follows: ‘‘[A]t that point, [Sergeant
O’Brien] does a narcotics sniff of the four rooms which
. . . was new to me; I’ve never done something like
that, which . . . was more building upon probable
cause.
‘‘And then we’re speaking with people [namely, the
shift supervisor, Lieutenant Mazzucco, and Sergeant
Novia], making sure we have enough [evidence],
because I’d have to wake up Your Honor or a judge at
that time [to obtain a warrant for the defendant’s room].
So, that’s really what my concerns were, or was [the]
decision making at that time.
‘‘So, I believed I had enough to get a search warrant
after discussing it with the shift lieutenant. And we
were basing all of that probable cause on the fact of
getting a search warrant for that room.’’
For purposes of the suppression hearing, it is appar-
ent that the state was on notice of the significance of
the sequence of the events leading up to the officers’
decision to obtain the warrant. The state, however, was
not on notice of the import of what the officers would
have done if the canine sniff had not occurred. It is
that issue—whether the officers would have sought a
warrant even if Sergeant O’Brien had not conducted
the canine sniff—that is critical to the determination
of whether the independent source doctrine renders
the seized evidence admissible despite the canine sniff.
See, e.g., United States v. Johnson, 994 F.2d 980, 987 (2d
Cir.) (to determine applicability of independent source
doctrine, court ‘‘must consider whether the agents
would have applied for a warrant had they not [engaged
in the unlawful search] beforehand’’), cert. denied, 510
U.S. 959, 114 S. Ct. 418, 126 L. Ed. 2d 364 (1993).
Because, however, the defendant did not raise the issue
of the constitutionality of the canine sniff in the trial
court, the state had no reason to adduce evidence dem-
onstrating that the police were, in fact, prepared to seek
a search warrant prior to the sniff or that they otherwise
would have done so if the sniff had not occurred. Under
such circumstances, in which the defendant’s belated
constitutional challenge to the canine sniff effectively
foreclosed the state from seeking to prove that the
unlawful intrusion did not contribute to the seizure of
the evidence pursuant to the search warrant, it would
be unfair to the state to resolve the defendant’s constitu-
tional claim on the basis of the current, undeveloped
record.
In light of the foregoing, we also agree with the state
that, contrary to the claim of the defendant, the record
is not clear as to whether the police would have sought
a search warrant if the canine sniff had not occurred.
Certain testimony of Sergeants O’Brien and Broems,
however, suggests that the state may be able to establish
that the police would have applied for the warrant irre-
spective of the canine sniff. For example, Sergeant
O’Brien testified in response to the prosecutor’s ques-
tion regarding what evidence he believed constituted
probable cause for a warrant: ‘‘From the very beginning,
just the totality of the whole thing; the fact that Sergeant
Broems had said he saw Taveras go into . . . that
[m]otel room, to that specific [m]otel room. He made
the motor vehicle stop, they located the marijuana on
Taveras, as well as that bag of heroin or suspected
heroin. You know, the fact that we then searched his
room and saw the additional baggie corners. And then
going back and, I mean, just everything—and leading
up to, you know, to seeing the registration card with
. . . Taveras on it. I mean, up until that point, even
. . . prior to seeing [the defendant’s] name, and we
were getting ready to, obviously, go that route as far as
the search warrant is concerned. And then the canine,
obviously, the canine alert helped confirm things . . .
with that specific room.’’ (Emphasis added.)
The testimony of Sergeant Broems similarly provides
some support for the state’s reliance on the independent
source doctrine. For example, when testifying about
the information on which he had relied in deciding to
seek the warrant, he characterized the results of the
canine sniff as ‘‘more building [on] probable cause,’’
suggesting that the canine sniff might not have been
integral to the decision to apply for the warrant.
The testimony of Sergeants O’Brien and Broems indi-
cates that, even before the canine sniff, the police inves-
tigation was focused on room 118 and that the goal of
that investigation was to obtain a search warrant for
that room. Their testimony, however, is not definitive
with respect to whether the police would have sought
a search warrant for the room, even if the canine sniff
had not revealed the likelihood that there were illegal
narcotics inside. Acknowledging as much, the state con-
tends that the inadequacy of the record with respect
to its independent source claim dictates that we reject
the defendant’s constitutional challenge to the canine
sniff under Golding’s first prong because it would be
manifestly unfair to the state to deprive it of the oppor-
tunity to supplement the record with respect to that
claim, an option that, the state further asserts, would be
inappropriate under that prong of Golding. In support
of this contention, the state relies primarily on State v.
Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied,
549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).
In Brunetti, the father of the defendant, Nicholas A.
Brunetti, had signed a consent to search form permit-
ting the police to search his family home, where Bru-
netti, a suspect in a recent murder, resided with his
parents. See id., 48. Following his arrest on that charge,
Brunetti filed a motion to suppress certain evidence
seized by the police as a result of the consent search,
claiming that his father’s consent was not knowing and
voluntary and, therefore, was constitutionally infirm.
Id. Through counsel, Brunetti had informed the court
that, although his mother had declined to sign the con-
sent to search form, he was not claiming that her refusal
to do so rendered the search unlawful. Id. The trial court
denied Brunetti’s motion to suppress on the ground
that his father’s consent was knowing and voluntary.
Id., 50. Following his conviction, Brunetti appealed,
claiming, inter alia, that the consent to search violated
his rights under the federal and state constitutions
because the state had failed to establish that both of
his parents had consented to the search of their home.
Id., 46–47. We concluded that the record was inadequate
for review of Brunetti’s unpreserved claim because the
state was not on notice that it was required to establish
the consent to search of his mother as well as his father,
and, as a result, the record was inconclusive in regard
to the alleged consent of his mother.34 Id., 58–59 and
n.31. We further explained that, in light of the inade-
quacy of the record, we would not remand the case to
the trial court for further proceedings because ‘‘that is
what the first prong of Golding was designed to avoid.’’
Id., 55 n.27; see also id. (explaining that ‘‘[a] contrary
rule [permitting such remands] would promote cease-
less litigation by discouraging parties from raising
claims in a timely manner, thereby seriously undermin-
ing the efficient administration of justice’’); State v.
Golding, supra, 213 Conn. 240 (‘‘The defendant bears
the responsibility for providing a record that is adequate
for review of his claim of constitutional error. If the
facts revealed by the record are insufficient, unclear or
ambiguous as to whether a constitutional violation has
occurred, we will not attempt to supplement or recon-
struct the record, or to make factual determinations,
in order to decide the defendant’s claim.’’).
Thus, Brunetti provides support for the state’s posi-
tion that, because the record is inadequate for resolu-
tion of the state’s independent source claim due to the
fact that the defendant failed to challenge the propriety
of the canine sniff in the trial court, the defendant is
not entitled to review of his constitutional claim on
appeal. Although we agree that the first prong of Gold-
ing ordinarily would bar appellate review of the defen-
dant’s unpreserved constitutional claim because remands
to supplement the record are generally not permitted,
we are persuaded, for the reasons that follow, that such
a remand is appropriate under the unusual circum-
stances of the present case. In the present case—and
in contrast to the manner in which we resolved the
unpreserved constitutional claim in Brunetti—the
Appellate Court opted to consider and decide the merits
of the defendant’s claim concerning the constitutional-
ity of the canine sniff without first addressing the ade-
quacy of the record in regard to the state’s independent
source claim. In doing so, the Appellate Court acted
within its discretion because an ‘‘appellate tribunal is
free . . . to respond to the defendant’s [unpreserved
constitutional] claim by focusing on whichever [of the
four Golding requirements it deems] most relevant in
the particular circumstances.’’ State v. Golding, supra,
213 Conn. 240. For the reasons set forth in parts II
and III of this opinion, however, we disagree with the
Appellate Court’s resolution of the merits of the defen-
dant’s claim that the canine sniff violated article first,
§ 7. Consequently, if we were to reject the defendant’s
claim due to an inadequate record and not reach the
merits of that claim, the decision of the Appellate Court
with respect to that claim ordinarily would stand,
thereby remaining the law of this state. That outcome,
however, would be contrary to the unanimous determi-
nation of this court that the canine sniff was unlawful.
Alternatively, we could vacate the Appellate Court judg-
ment. Vacatur, however, is an extraordinary remedy;
see, e.g., Fay v. Merrill, 338 Conn. 1, 29 n.24, 256 A.3d
622 (2021); most ‘‘commonly utilized . . . to prevent
a judgment, unreviewable because of mootness, from
spawning any legal consequences.’’ (Internal quotation
marks omitted.) Private Healthcare Systems, Inc. v.
Torres, 278 Conn. 291, 303, 898 A.2d 768 (2006). More
important, the exercise of our authority to vacate the
Appellate Court judgment would result in confusion
with respect to the legality of a warrantless canine sniff
of a motel room, an important constitutional issue
squarely presented by this appeal in light of the Appel-
late Court’s decision to address and resolve that issue.
We do not find either of these options satisfactory.
Furthermore, as we have discussed, in Brunetti, we
did not reach the unpreserved constitutional claim con-
cerning the propriety of the consent search of Brunetti’s
home because the record was inadequate for appellate
review of that claim. See State v. Brunetti, supra, 279
Conn. 58–59 and n.31. This was so because ‘‘the facts
relevant to the issue of [Brunetti’s] mother’s consent
never were adduced in the trial court.’’ Id., 64. Due to
the incomplete record concerning that critical issue,
we further explained that ‘‘the facts revealed by the
record [were] inadequate to establish whether the
alleged constitutional violation did, in fact, occur.’’
(Emphasis added.) Id. In the present case, by contrast,
although the current record is not adequate for our
determination of the state’s independent source claim,
the facts revealed by the record are adequate for the
resolution of the issue of the constitutionality of the
canine sniff, which the Appellate Court did undertake.
For this reason, as well, the present case is distinguish-
able from Brunetti.
We conclude, therefore, that it is appropriate to
remand the case to the trial court so that the state
may present additional evidence in connection with its
independent source claim. It bears emphasis, however,
that, in reaching this conclusion, we do not signal a
retreat from the general rule, long adhered to by this
court, that a defendant’s failure to provide an adequate
record is fatal to an unpreserved constitutional claim
raised for the first time on appeal. Rather, we will devi-
ate from that rule only when exceptional circumstances
mandate it, a standard that has been satisfied in the
present case.35
V
THE CANINE SNIFF AND THE INEVITABLE
DISCOVERY DOCTRINE
The state also contends that the evidence seized from
the motel room was admissible under the inevitable
discovery doctrine because, prior to the canine sniff,
the police were actively investigating Taveras, they had
probable cause to obtain a search warrant for the room
and planned to do so, and they would have sought and
obtained a warrant even if Sergeant O’Brien had not
conducted the canine sniff. The state further contends
that Taveras’ statement confirming the presence of
drugs inside the motel room—which he gave to the
police at headquarters prior to their seeking a search
warrant—was untainted by the illegal search and pro-
vides additional evidence to support the claim that the
police inevitably would have secured a warrant irre-
spective of the canine sniff. Although acknowledging
that, ‘‘whether the [inevitable discovery] doctrine
applies ordinarily is, at least in the first instance, a
question of fact for the trial court’’; State v. Cobb, supra,
251 Conn. 339; see also United States v. Durand, 767
Fed. Appx. 83, 88 n.5 (2d Cir. 2019) (applicability of
inevitable discovery doctrine requires fact intensive
inquiry to be conducted by trial court); the state main-
tains that, in the present case, we can decide this fact
specific issue for the first time on appeal—that is, as
a matter of law—because ‘‘the undisputed historical
facts established by the record reveal that [the only]
rational conclusion [that can] be drawn’’ is that the
evidence seized from the motel room inevitably would
have been discovered by lawful means in the absence
of the canine sniff. We disagree with the state that we
may decide the issue as a matter of law, but we also
conclude that the state must be given the opportunity,
on remand, to present additional evidence in support
of its inevitable discovery claim.
‘‘Under the inevitable discovery rule, evidence ille-
gally secured in violation of the defendant’s constitu-
tional rights need not be suppressed if the state demon-
strates by a preponderance of the evidence that the
evidence would have been ultimately discovered by
lawful means. . . . To qualify for admissibility the state
must demonstrate that the lawful means [that] made
discovery inevitable were possessed by the police and
were being actively pursued prior to the occurrence of
the constitutional violation.’’ (Citation omitted; empha-
sis in original.) State v. Badgett, 200 Conn. 412, 433,
512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423,
93 L. Ed. 2d 373 (1986). Accordingly, ‘‘[c]ourts resolve
claims of [inevitable discovery] under a [two step] pro-
cess. First, the court must evaluate the progress of the
investigation at the time of the government misconduct
to determine whether an active and ongoing investiga-
tion was in progress at [that time]. At this step, the
government must establish that the investigation was
not triggered or catalyzed by the information unlawfully
gained by the illegal search but, rather, that the alternate
means of obtaining the challenged evidence was, at
least to some degree, imminent, if yet unrealized at the
time of the unlawful search. Second, the court must,
for each particular piece of evidence, specifically ana-
lyze and explain how, if at all, discovery of that piece
of evidence would have been more likely than not inevi-
table absent the unlawful search.’’36 (Emphasis in origi-
nal; internal quotation marks omitted.) In re 650 Fifth
Avenue & Related Properties, 934 F.3d 147, 165 (2d Cir.
2019); see also United States v. Cabassa, 62 F.3d 470,
473 and n.2 (2d Cir. 1995) (explaining that government’s
burden of establishing that challenged evidence inevita-
bly would have been discovered required detailed show-
ing of each of contingencies involved, including analysis
of strength of government’s showing of probable cause,
‘‘the extent to which the warrant process [had] been
completed at the time those seeking the warrant learn
of the search,’’ whether agents obtained warrant after
illegal search, and whether there was ‘‘evidence that
law enforcement agents ‘jumped the gun’ because they
lacked confidence in their showing of probable cause’’).
In State v. Brown, 331 Conn. 258, 286–87, 202 A.3d
1003 (2019), we adopted the approach utilized by the
Second Circuit Court of Appeals with respect to the
nature of the proof necessary for the state to prevail
on a claim that the otherwise inadmissible fruits of an
illegal search inevitably would have been discovered
notwithstanding that unlawful search, thereby eliminat-
ing the need for suppression of that evidence. As we
explained in Brown, ‘‘proof of inevitable discovery
involves no speculative elements but focuses on demon-
strated historical facts capable of ready verification or
impeachment . . . . The focus on demonstrated his-
torical facts keeps speculation to a minimum, by requir-
ing the [court] to determine, viewing affairs as they
existed at the instant before the unlawful search
occurred, what would have happened had the unlawful
search never occurred. . . . Evidence should not be
admitted, therefore, unless a court can find, with a
high level of confidence, that each of the contingencies
necessary to the legal discovery of the contested evi-
dence would be resolved in the government’s favor.’’37
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Id., 287, quoting United States v.
Stokes, supra, 733 F.3d 444.
It is apparent that the investigating officers on the
scene were seeking to develop enough evidence to
obtain a search warrant for the motel room, even before
the canine sniff was conducted, and, to that end, they
were engaged in ongoing conversations concerning that
evidence with supervisory personnel, stationed at head-
quarters, during the course of the investigation. Conse-
quently, it cannot reasonably be disputed that, both
prior to and after the canine sniff, the police were
involved in investigative activities, pertaining both to
Taveras and to the defendant, for the purpose of
obtaining a search warrant. As the state maintains,
therefore, the evidence reveals that the police were
actively involved in an investigation that, at least poten-
tially, could have resulted in their obtaining a warrant,
even if the canine sniff had never occurred.
The state further posits, however, that the record also
establishes, first, that the police had sufficient probable
cause to obtain a warrant immediately prior to the
canine sniff and, second, that they would have sought
and obtained a warrant irrespective of the canine sniff.
The state contends that, because it has demonstrated
these two contingencies, the evidence seized from the
motel room was admissible against the defendant
because it inevitably would have been discovered in
the absence of the canine sniff. On the basis of the
record before us, we are not persuaded, contrary to the
state’s claim, that the evidence adduced at the suppres-
sion hearing proves as a matter of law that the police
would have sought a search warrant irrespective of the
canine sniff.
With respect to the question of whether the police
had probable cause to search the motel room prior
to the canine sniff,38 we agree with the state that the
information known to the police at that time constituted
probable cause to believe that Taveras, who was staying
in the room, was involved in the drug trade and that
he was using the room to facilitate that trade. Although
sufficient to support the issuance of a search warrant,
this evidence cannot be characterized as constituting a
particularly strong showing of probable cause. Because
‘‘[r]easonable minds may disagree as to whether a par-
ticular [set of facts] establishes probable cause’’; (inter-
nal quotation marks omitted) State v. Sawyer, 335 Conn.
29, 38, 225 A.3d 668 (2020); and because the state ‘‘can-
not prevail under the inevitable discovery doctrine
merely by establishing that it is more probable than not
that the disputed evidence would have been obtained
without the constitutional violation . . . proving that
a judge could validly have issued a warrant supported
by probable cause [is] not necessarily enough to estab-
lish that a judge would have issued the warrant in ques-
tion.’’ (Citations omitted; emphasis in original; footnote
omitted.) United States v. Heath, 455 F.3d 52, 58–59
(2d Cir. 2006). In other words, ‘‘probable cause on its
own is not enough; inevitable discovery requires that
the [trial] court have a high level of confidence that the
warrant would have—not could have—been issued
. . . and the government bears the burden of proof
. . . .’’ (Citations omitted; internal quotation marks
omitted.) United States v. Christy, 739 F.3d 534, 543
n.5 (10th Cir.), cert. denied, 574 U.S. 844, 135 S. Ct.
104, 190 L. Ed. 2d 84 (2014); see also United States v.
Cabassa, supra, 62 F.3d 473–74 (in circumstances in
which ‘‘there is some room for disagreement’’ as to
whether facts known to police prior to illegal search
would have been sufficient for issuance of warrant,
there is ‘‘a residual possibility that a . . . judge would
have required a stronger showing of probable cause,’’
thereby defeating state’s inevitable discovery claim).
For present purposes, however, we need not decide
whether the state has met its burden in this regard in
light of our determination, discussed more fully in this
opinion, that, on remand, the state must be afforded the
opportunity to present additional evidence in support
of its claim under the inevitable discovery doctrine.
Instead, we leave it to the trial court to decide, in the
first instance, whether the state has established that
the facts known to the police prior to the canine sniff
give rise to a sufficiently high likelihood that a judge
would have issued a search warrant on the basis of
those facts.39
With respect to the question of whether the police
would have sought a warrant even if the canine sniff
had not occurred, the testimony indicated that the deci-
sion to apply for a warrant was a collective one—made
by the police who were at the scene in consultation
with and with the approval of the supervisory officials
who remained at headquarters—and that that joint deci-
sion was arrived at after the canine sniff. The state
nonetheless contends that certain excerpts from the
testimony of Sergeants O’Brien and Broems demon-
strate that they believed they had probable cause to
search the room before the canine sniff was conducted
and that they would have sought a warrant based on
that evidence if the canine sniff had not occurred. More
specifically, the state relies on Sergeant O’Brien’s testi-
mony that they were ‘‘getting ready’’ to ‘‘go [the search
warrant] route’’ prior to the canine sniff and that the
‘‘alert helped confirm things . . . with that specific
room,’’ and on Sergeant Broems’ testimony characteriz-
ing the canine sniff as ‘‘more building upon probable
cause.’’ This testimony and other testimony confirm
that, prior to the sniff, Sergeants O’Brien and Broems
believed that they were closing in on their goal of devel-
oping the evidence necessary to obtain a search war-
rant, but it does not clearly or necessarily establish that
the police would have sought a warrant even in the
absence of the canine sniff.40 Because this court lacks
the authority to find facts; see, e.g., Ashmore v. Hartford
Hospital, 331 Conn. 777, 785, 208 A.3d 256 (2019); we
cannot resolve the factual issue presented by the state’s
inevitable discovery claim unless the undisputed evi-
dence leads to only one possible conclusion. See State
v. Cobb, supra, 251 Conn. 339. Although arguably sup-
porting such a finding, the testimony certainly does
not dictate it. Without evidence that would render this
factual issue free from all doubt, we cannot purport to
resolve it.
The state further maintains that the police also would
have sought and obtained a search warrant for the motel
room on the basis of the statement that Taveras gave
to the police, after he had been taken to headquarters,
acknowledging that he kept marijuana in the room. As
we stated in Brown, ‘‘in order to bear its burden [of]
prov[ing] that the inevitable discovery exception to the
exclusionary rule applie[s] [to the statement of a wit-
ness], the state [is] required to prove by a preponder-
ance of the evidence . . . that . . . [the witness]
would have cooperated and provided the same infor-
mation,’’ even if the illegal search had not occurred.
(Emphasis added.) State v. Brown, supra, 331 Conn.
285–86.
This is no easy task, especially when, as in the present
case, the statement at issue was obtained by the police
from a suspect during the course of an active, fast
moving investigation. Indeed, as the Third Circuit Court
of Appeals has observed, cases in which the doctrine
has been applied to admit statements, as distinguished
from physical evidence, are few and far between. See
United States v. Vasquez De Reyes, 149 F.3d 192, 195
(3d Cir. 1998). ‘‘While we know of no articulation of
the inevitable discovery doctrine that restricts its appli-
cation to physical evidence . . . it is patent why cases
have generally, if not always, been so limited. A tangible
object is hard evidence, and absent its removal will
remain where left until discovered. In contrast, a state-
ment not yet made is, by its very nature, evanescent
and ephemeral. Should the conditions under which it
was made change, even but a little, there could be
no assurance the statement would be the same.’’ Id.,195–96; see also, e.g., United States v. Rodriguez,
Docket No. 3:06-cr-57 (JCH), 2006 WL 2860633, *11 (D.
Conn. October 4, 2006) (holding that ‘‘the government
. . . failed to satisfy its burden of proving that [the
defendant inevitably] would have made the same state-
ments,’’ especially because ‘‘the statement at issue [was]
made by a non-law enforcement person, for it is harder
to determine what such an individual might have said
or done during a police investigation’’), rev’d on other
grounds sub nom. United States v. Delossantos, 536
F.3d 155 (2d Cir.), cert. denied sub nom. Rodriguez v.
United States, 555 U.S. 1056, 129 S. Ct. 649, 172 L. Ed.
2d 628 (2008).
On the basis of the current record, we cannot con-
clude with the required high level of confidence that
Taveras would have provided the same incriminating
statement to the police if the canine sniff had not
occurred. As we previously discussed, after the police
stopped the Yukon in which Taveras was a passenger,
they found drugs in Taveras’ possession and arrested
him. He was then placed in Officer Sheperis’ cruiser,
where he remained until he was transported to police
headquarters more than one hour later. Upon his arrest,
Taveras denied that he had been in the motel or had
any connection to it, and he also denied having any
additional marijuana. Because Taveras was detained in
Officer Sheperis’ cruiser, which was parked at the motel
when the canine sniff was performed, there is a likeli-
hood that Taveras witnessed Sergeant O’Brien conduct
the canine sniff—the walkway in front of room 118 was
open, illuminated and readily visible from at least fifty
yards away—and that he therefore was aware that Coo-
per had alerted on the room. Only thereafter, following
his transportation to headquarters, did Taveras
acknowledge that he kept marijuana in the room. In
light of these events, there is also a real possibility that
Taveras, who previously had refused to make any such
admissions to the police, decided to confess to having
marijuana in the motel room in the interest of limiting
his criminal exposure, for, by then, Taveras had every
reason to believe that the police, armed with the results
of the canine sniff, would obtain a search warrant for
the room and, upon executing it, find a large cache
of heroin therein. Moreover, even if Taveras had not
witnessed the canine sniff, it would have been consis-
tent with common police practice for the officers ques-
tioning Taveras to inform him of the canine sniff in
order to induce him to confess to his drug involvement,
and to otherwise cooperate with the police, before they
obtained a search warrant for the room.
Under these circumstances, the state bears the bur-
den of establishing that the canine sniff was not used
by the police, directly or indirectly, to procure Taveras’
statement and, further, that Taveras’ willingness to pro-
vide the particular statement that he did—with its
incriminating reference to the marijuana he kept in the
motel room—was not influenced by any knowledge of
the canine sniff. See, e.g., Murray v. United States,
supra, 487 U.S. 542 n.3 (inevitable discovery is rule
inapplicable if illegal search had ‘‘any effect’’ in produc-
ing warrant); State v. Brown, supra, 331 Conn. 288 (‘‘The
requirement that the state prove that each contingency
would have been resolved in its favor demands that, at
the least, the state [must] prove . . . that it would have
. . . secured the same level of cooperation from [the
witness] in the absence of the illegally obtained [evi-
dence]. . . . [The witness’] cooperation was a contin-
gency [on] which the procurement of a statement
incriminating himself and the defendant depended. The
state [bears] the burden, therefore, to prove that this
contingency would have resolved in its favor.’’); see
also 6 W. LaFave, Search and Seizure (5th Ed. 2012)
§ 11.4 (c), pp. 399–400 (‘‘[when] the defendant was pres-
ent when incriminating evidence was found in an illegal
search or was confronted by the police with incriminat-
ing evidence they had illegally seized earlier, it is appar-
ent that there has been an exploitation of that illegality
when the police subsequently question the defendant
about that evidence or the crime to which it relates’’
(footnotes omitted; internal quotation marks omitted)).
This is particularly true in view of the fact that Taveras
had refused to provide the police with any such informa-
tion prior to the canine sniff. Although the testimony
adduced at the suppression hearing does not foreclose
the possibility that Taveras would have given the same
incriminating statement, even in the absence of the
canine sniff, on the strength of the record before us,
we are unable to conclude without resort to speculation
that he would have done so.
The fact that the current record does not support the
conclusion that the evidence seized pursuant to the
warrant inevitably would have been discovered irre-
spective of the canine sniff, however, does not mean
that the state cannot prove its claim. As with the state’s
contention under the independent source doctrine, the
state had no reason to adduce proof of the elements
of its inevitable discovery claim because the defendant
did not challenge the propriety of the canine sniff in
the trial court. Accordingly, on remand, the state must
be given the opportunity to present additional evidence
in support of that claim, as well.
VI
THE VISUAL SWEEP
The defendant next claims that the Appellate Court
incorrectly concluded that the trial court correctly had
determined that the visual sweep of the defendant’s
motel room was justified by exigent circumstances, in
particular, the need to forestall the destruction of evi-
dence. We agree with the defendant that, under the
circumstances, the possibility that evidence would be
destroyed was too speculative to justify the visual
sweep.41
The following legal principles guide our review of
the defendant’s claim with respect to the exigent cir-
cumstances doctrine, an exception to the warrant
requirement that is triggered when ‘‘the exigencies of
the situation make the needs of law enforcement so
compelling that [a] warrantless search is objectively
reasonable . . . .’’ (Internal quotation marks omitted.)
Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct 1849,
179 L. Ed. 2d 865 (2011). ‘‘The exception enables law
enforcement officers to handle emergenc[ies]—situa-
tions presenting a compelling need for official action
and no time to secure a warrant.’’ (Internal quotation
marks omitted.) Lange v. California, U.S. , 141
S. Ct. 2011, 2017, 210 L. Ed. 2d 486 (2021). ‘‘The term,
exigent circumstances, does not lend itself to a precise
definition but generally refers to those situations in
which law enforcement agents will be unable or unlikely
to effectuate an arrest, search or seizure, for which
probable cause exists, unless they act swiftly and, with-
out seeking prior judicial authorization.’’ (Internal quo-
tation marks omitted.) State v. Gant, 231 Conn. 43,
63–64, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038,
115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). Thus, ‘‘[t]he
core question is whether the facts, as they appeared at
the moment of entry, would lead a reasonable, experi-
enced officer to believe there was an urgent need to
render aid or take action.’’ (Internal quotation marks
omitted.) United States v. Moreno, 701 F.3d 64, 73 (2d
Cir. 2012), cert. denied, 569 U.S. 1032, 133 S. Ct. 2797,
186 L. Ed. 2d 864 (2013). As this court has observed;
see, e.g., State v. Aviles, 277 Conn. 281, 294, 891 A.2d
935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L.
Ed. 2d 69 (2006); courts have recognized three general
categories as justifying the application of the exigent
circumstances doctrine, namely, danger to human life,
the flight of a suspect, and, most relevant here, ‘‘the
imminent destruction of evidence . . . .’’ Brigham
City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164
L. Ed. 2d 650 (2006). In each such category, ‘‘the delay
required to obtain a warrant would bring about some
real immediate and serious consequences—and so the
absence of a warrant is excused.’’ (Internal quotation
marks omitted.) Lange v. California, supra, 141 S.
Ct. 2017.
The test for determining whether a warrantless entry
was justified to prevent the imminent destruction of
evidence is well established and seeks to ascertain
whether, under the totality of the circumstances, the
police had both probable cause to search and reasonable
grounds to believe that evidence would be destroyed
if immediate action were not taken. See, e.g., State v.
Guertin, 190 Conn. 440, 447, 454, 461 A.2d 963 (1983).
‘‘This is an objective test; its preeminent criterion is
what a reasonable, [well trained] police officer would
believe, not what the . . . officer actually did believe.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 453. ‘‘Rather than evaluating the significance
of any single factor in isolation, courts must consider
all of the relevant circumstances in evaluating the rea-
sonableness of the officer’s belief that immediate action
was necessary’’; State v. Kendrick, 314 Conn. 212, 229,
100 A.3d 821 (2014); and ‘‘[t]he reasonableness of a
police officer’s determination that [such] an emergency
exists is evaluated on the basis of facts known at the
time of entry.’’ (Internal quotation marks omitted.) State
v. Aviles, supra, 277 Conn. 293–94. Consequently, the
applicability of the exigent circumstances doctrine
must be determined on a ‘‘case-by-case basis’’; Birch-
field v. North Dakota, U.S. , 136 S. Ct. 2160, 2174,
195 L. Ed. 2d 560 (2016); see also Riley v. California,
573 U.S. 373, 402, 134 S. Ct. 2473, 189 L. Ed. 2d 430(2014) (exigent circumstances exception ‘‘requires a
court to examine whether an emergency justified a war-
rantless search in each particular case’’); an ‘‘approach
[that] reflects the nature of emergencies. Whether a
‘now or never situation’ actually exists—whether an
officer has ‘no time to secure a warrant’—depends [on]
facts on the ground.’’ Lange v. California, supra, 141
S. Ct. 2018. Furthermore, because warrantless searches
are disfavored, ‘‘the police bear a heavy burden when
attempting to demonstrate an urgent need that might
justify [a search without a warrant].’’ Welsh v. Wiscon-
sin, 466 U.S. 740, 749–50, 104 S. Ct. 2091, 80 L. Ed. 2d
732 (1984). Finally, because determining whether the
circumstances of any particular case were sufficiently
exigent to justify a warrantless search is a question of
law, we review de novo the conclusions of the trial
court and the Appellate Court regarding the doctrine’s
applicability to the facts of the present case. State v.
Kendrick, supra, 222.
As we previously discussed, following the canine
sniff, the officers decided that Sergeant Broems and
Officer Sheperis would return to police headquarters
to prepare an application for a search warrant while
Sergeant O’Brien remained at the motel to continue
the surveillance of room 118. Minutes after Sergeant
Broems and Officer Sheperis departed, Sergeant O’Brien
observed the defendant walking nearby and radioed
Sergeant Broems to return to the motel, which he did.
At that time, the defendant was searched, and a large
quantity of cash and a key to room 118 were found in
his pocket. The defendant was initially cooperative and
agreed to let the officers into the room, but, when they
got to the door, he changed his mind and refused to
do so. Sergeant Broems then took the room key from
the defendant, opened the door and looked inside the
room for approximately fifteen to thirty seconds, at
which time he observed a large black digital scale on
a table and a plastic sandwich bag lying near it on
the floor. The visual sweep and the resulting police
observation of the scale and sandwich bag, both of
which constituted evidence of drug trafficking, were
referenced in the affidavit in support of the search war-
rant application.
Following his arrest, the defendant moved to sup-
press the evidence seized from the room on the ground
that Sergeant Broems’ visual sweep was a search requir-
ing a warrant supported by probable cause. The state
did not dispute that the visual sweep was a search for
constitutional purposes but maintained that the sweep
was justified under the exigent circumstances excep-
tion to the warrant requirement to prevent someone
who might be inside the room from destroying evidence.
To establish the applicability of the doctrine, the prose-
cutor questioned Sergeants Broems and O’Brien about
their reasons for believing that the sweep was necessary
to prevent the destruction of evidence pending the
application for and issuance of a search warrant.
Specifically, the prosecutor asked Sergeant O’Brien
if he or Sergeant Broems had inquired of the defendant,
after the defendant refused to open the door to the
motel room, whether anyone was inside the room. Ser-
geant O’Brien responded that he did not recall asking
that question but ‘‘it definitely would have been a con-
cern of ours . . . .’’ When asked to ‘‘elaborate’’ on that
and ‘‘why would that be a concern,’’ Sergeant O’Brien
responded: ‘‘Well, I mean, at this point, I mean, if any-
body was, and we were already thinking we had—
before we had even—just to back track—before I ran
. . . Cooper on the breezeway, on that first floor [hall-
way], we knocked on the door, and we didn’t get a
response. So, it was at that point, after not getting a
response, that . . . I decided to use . . . Cooper to
. . . do the sweep of the doors.
‘‘So, plus, you know, between the male that we had
stopped initially in the SUV and then [Taveras’] brother,
I mean, at any point, any one of these people could
have, you know, called. And, if there was somebody in
there and said, hey, look, you know, the cops are all
over this place, it’s typical. . . . I mean, people drive
by all the time and say they see their friends . . . being
stopped or spoken to . . . . And calls are made . . . .’’
On cross-examination, Sergeant O’Brien was asked
whether there was ‘‘[a]nything specific’’ that caused him
to think that someone might be in the room. Sergeant
O’Brien responded that, although there were ‘‘[n]o
audio indications whatsoever,’’ ‘‘[w]e had no reason not
to believe [it]. Just because somebody doesn’t answer
the door when there’s a narcotics investigation going,
doesn’t mean that there isn’t potentially somebody [in]
there.’’ On redirect examination, the prosecutor asked
Sergeant O’Brien whether it was ‘‘possible that a con-
cern of yours could have been that . . . Taveras’
brother could have tipped off [the defendant] or one
of his associates to destroy evidence inside the room?’’
Sergeant O’Brien responded: ‘‘Yeah, I believe I indicated
that earlier as far as, you know, on the motor vehicle
stop that, you know, often, people drive by and see
their friends, you know, being stopped or detained, and
phone calls are . . . quickly made . . . .’’ Sergeant
O’Brien further testified that ‘‘[t]he light off could have
meant that as well, in my opinion. I mean, there was
nothing to indicate that there was nobody else . . . in
that room . . . . You’re asking me for indicators that
. . . somebody was in there? I had none . . . .’’
Defense counsel engaged Sergeant Broems in a simi-
lar line of questioning. Specifically, he asked him
whether he could offer ‘‘any fact, any articulation, as
to why you believed there was someone in . . . room
118?’’ Sergeant Broems stated: ‘‘I can’t give you fact[s]
because there was nobody in there. But I can tell you,
through my twenty years of experience, why there’s a
possibility. I made a motor vehicle stop, there was two
people in a car, I had Taveras . . . with me; [but] the
driver was able to leave. I then went over to Charles
Street; there was his brother there at that location; we
then left that location.
‘‘We then went to the [m]otel clerk . . . . So I don’t
know who made any calls, I don’t know anything. So,
based on my training and experience, I—that’s what I
based it on, that there was more than one person that
knew about that room and . . . had access to that
room.’’
In its memorandum of decision denying the defen-
dant’s motion to suppress, the trial court rejected the
defendant’s claim that the visual sweep was not justified
by the exigent circumstances exception to the warrant
requirement. The court concluded that the sweep was
permissible because, as both Sergeants O’Brien and
Broems testified, it was possible that someone had
alerted ‘‘potential confederates’’ of the defendant about
the ‘‘Stamford police’s investigation into the activity in
room 118,’’ thus ‘‘prompting’’ these unknown associates
to destroy evidence located in the room. The trial court
also relied on Sergeant O’Brien’s testimony that, ‘‘when
it comes to prostitution or narcotics trafficking out of
hotel rooms . . . it is quite common for additional peo-
ple to be present’’ in the room, ‘‘regardless of the actual
number of registered parties.’’
The Appellate Court agreed with the trial court that
the visual sweep was permissible to prevent the destruc-
tion of evidence. State v. Correa, supra, 185 Conn. App.
340. The Appellate Court reasoned that the police had
interacted ‘‘with at least four people who were not
taken into police custody’’ on the night in question, in
particular, Brickman, Taveras’ brother and grand-
mother, and the motel manager, and that ‘‘phone calls
may have occurred’’ between these people ‘‘and possi-
ble confederates [of the defendant], prompting the
destruction of evidence inside of the room.’’ Id., 337.
The Appellate Court further explained that ‘‘it was rea-
sonable for the police to fear that even unknown pas-
sersby might become aware of the police investigation
into room 118’’ and alert someone who, in turn, could
have destroyed evidence inside the room. Id., 337.
Finally, the Appellate Court stated: ‘‘Sergeant Broems
. . . noted that, from the time Taveras entered the room
[earlier in the evening] until the . . . police returned
to the room with the defendant after 3 a.m., there was
‘nobody with eyes on’ the room, which might have
allowed an unknown person to enter [the room] and
[to] destroy evidence contained therein. Although no
one answered when the police knocked on the door
. . . and there was no evidence confirming the pres-
ence of an additional person in [the room], these facts,
coupled with the observation of a light on in the room,
provided ample reason to believe that, [in the absence
of] swift action in opening the door to room 118 and
performing a visual sweep, there was a significant risk
of the destruction of evidence.’’ Id., 339–40.
On appeal, the defendant challenges the Appellate
Court’s determination that the trial court correctly con-
cluded that exigent circumstances justified the visual
sweep. The defendant argues, first, that the police
lacked probable cause to believe that evidence of an
offense would be found in the room when they con-
ducted the visual sweep and, second, that neither Ser-
geant O’Brien nor Sergeant Broems was able to identify
any fact or combination of facts sufficient to lead a
police officer reasonably to believe that someone was
in the room who had been alerted to the need to destroy
incriminating evidence located inside. In that regard,
the defendant asserts that the fact that the light was
on in the room was the only concrete piece of evidence
that supported the officers’ belief that someone might
be in the room, evidence that, the defendant further
maintains, was patently inadequate to justify a war-
rantless entry on grounds of exigent circumstances.
With respect to the probable cause requirement, we
agree with the state that the police had probable cause
to search the room following their encounter with the
defendant. In part IV of this opinion, we explained why
the facts known to the police at that time constituted
probable cause to search the room, and we need not
repeat that discussion here.42
As for the exigency requirement, we agree with the
defendant that, contrary to the determination of the
trial court and the Appellate Court, the belief held by
the police that an immediate visual sweep of the room
was necessary to avert the destruction of evidence was
not objectively reasonable. Of course, the police knew
that neither one of the two individuals actually linked
to the motel room, Taveras and the defendant, was in
a position to destroy evidence located inside the room
because Taveras was under arrest and the defendant
was with the police when the visual sweep was con-
ducted. Moreover, there is nothing in the record to
suggest that the police had reason to believe that anyone
else had a similarly direct connection to the room or
its contents. Consequently, the only concern that the
police reasonably could have had with respect to the
destruction of evidence located inside the room was
based solely on the possibility—unsupported by any
facts—that there was someone in the room who could
be notified of the police investigation and destroy any
such evidence. The state has not identified a single
case, however, and our independent research has not
revealed one, in which a warrantless entry was found
to be justified on similar facts, that is, facts establishing
merely that someone who had become aware of a police
investigation involving the suspect might possibly alert
that suspect of the investigation and, in turn, the suspect
might possibly enlist some unknown confederate—one
with immediate access to incriminating evidence—to
destroy that evidence.
In fact, in State v. Spencer, 268 Conn. 575, 580, 596–97,
848 A.2d 1183, cert. denied, 543 U.S. 957, 125 S. Ct. 409,
160 L. Ed. 2d 320 (2004), we rejected a nearly identical
claim in the context of a warrantless protective sweep
of the apartment of the defendant, Michael Spencer,
following Spencer’s arrest outside of the apartment,
and our reasons for doing so are fully applicable in
the present case. As we explained in Spencer: ‘‘[T]he
officers’ testimony reveals that [the police] had no infor-
mation that any person who posed a threat to the offi-
cers or to others might have been in the apartment at
[the] time [of the search].’’ Id., 595–96. ‘‘The generalized
possibility that an unknown, armed person may be lurk-
ing [inside] is not . . . an articulable fact sufficient to
justify a protective sweep. Indeed, nearly every arrest
involving a large quantity of drugs, in or just outside
of a home, carries the same possibility. To allow the
police to justify a warrantless search based solely [on]
that possibility would threaten to swallow the general
rule requiring search warrants. Furthermore, allowing
the police to conduct protective sweeps whenever they
do not know whether anyone else is inside a home
creates an incentive for the police to stay ignorant as
to whether anyone else is inside a house in order to
conduct a protective sweep. . . . The officers’ lack of
information cannot be an articulable basis for a sweep
that requires information to justify it in the first place.’’
(Citation omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Id., 596–97; see also,
e.g., United States v. Burleigh, 414 Fed. Appx. 77, 78
(9th Cir. 2011) (‘‘the police [officers’] speculations that
there were individuals inside the warehouse who might
destroy evidence and that these individuals knew or
might be alerted that the warehouse was under surveil-
lance [was] insufficient to meet the government’s bur-
den of proving exigent circumstances’’); United States
v. Menchaca-Castruita, 587 F.3d 283, 295–96 (5th Cir.
2009) (‘‘There will always be some possibility that an
unknown person might be hiding somewhere inside a
residence, waiting for an opportunity to . . . destroy
evidence. A finding of exigent circumstances, however,
must be based on more than a mere possibility; it must
be based on an officer’s reasonable belief that the delay
necessary to obtain a warrant will facilitate the destruc-
tion or removal of evidence . . . . [T]he totality of the
circumstances [fell] well short of any reasonable foun-
dation for such speculation.’’ (Emphasis omitted.));
United States v. Carter, 360 F.3d 1235, 1241 (10th Cir.
2004) (‘‘There was simply no evidence that destruction
of evidence was likely. Indeed, the government
point[ed] to no reason to believe that other people were
in the garage, or even the house.’’); United States v.
Driver, 776 F.2d 807, 810 (9th Cir. 1985) (government’s
‘‘burden is not satisfied by leading a court to speculate
about what may or might have been the circumstances’’
requiring warrantless entry); United States v. Agapito,
supra, 620 F.2d 336 n.18 (‘‘[The court does] not suggest
that law enforcement officers who arrest an individual
outside the premises never may conduct a security
check inside the premises. . . . [I]n such a case, the
arresting officers must have (1) a reasonable belief that
third persons are inside, and (2) a reasonable belief
that the third persons are aware of the arrest outside the
premises so that they might destroy evidence, escape
or jeopardize the safety of the officers or the public.’’
(Citations omitted.)).
Thus, at a minimum, the state was required to point
to specific and articulable facts that, taken together
with rational inferences from those facts, gave rise to
a reasonable belief that someone was, in fact, inside
the defendant’s motel room when the police conducted
the visual sweep. Cf. United States v. Almonte-Báez,
857 F.3d 27, 33 (1st Cir. 2017) (exigency due to imminent
destruction of evidence existed when ‘‘agents knocked
on the front door of the apartment and identified them-
selves,’’ ‘‘heard someone inside the apartment running
away from the door,’’ and ‘‘noticed that the door was
sealed shut’’); United States v. Andino, 768 F.3d 94, 99
(2d Cir. 2014) (officers reasonably believed that destruc-
tion of evidence was likely when woman, upon learning
of their investigation, slammed apartment door shut,
began opening and closing drawers, and turned on fau-
cet); United States v. Ramirez, 676 F.3d 755, 758, 763,
765 (8th Cir. 2012) (government had ‘‘fail[ed] to estab-
lish that it was reasonable for the officers to conclude
that [the] destruction of evidence was imminent,
thereby establishing exigent circumstances warranting
the forced entry’’ into defendant’s hotel room, when
‘‘the only sound [the officer] heard from the room . . .
after he ultimately knocked on the door’’ was ‘‘the sound
of an individual approaching the door,’’ and officers
subsequently heard no sounds of ‘‘dead bolt lock being
engaged, no toilet flushing or a shower or faucet run-
ning, and no shuffling noises or verbal threats emanat-
ing from the room’’); United States v. Etchin, 614 F.3d
726, 733–34 (7th Cir. 2010) (‘‘[A]n emergency justifying
entry and a search arises only if the officer knocking
at the door observes objective evidence that there is
an ongoing crime within that must be stopped before
it is completed. The sound of someone walking around,
for example, or a voice that announces, ‘[t]he cops
are here,’ is not enough by itself. But other sights and
sounds—toilets flushing, a door slammed, people run-
ning, an obvious lie by the person answering the door,
or efforts to remove contraband from the house—may
be evidence that there is an emergency that calls for
an immediate, warrantless intrusion.’’), cert. denied sub
nom. Cole v. United States, 562 U.S. 1156, 131 S. Ct.
953, 178 L. Ed. 2d 786 (2011); United States v. Leverin-
gston, 397 F.3d 1112, 1116 (8th Cir.) (‘‘The occupant of
the suite reacted to [the] police knocking by looking
through curtains, expressing surprise, and then immedi-
ately shutting the curtains. This response was followed
by sounds of pots and pans slamming, dishes breaking,
water flowing, and a garbage disposal running. The
officers reasonably could infer that these sounds indi-
cated the destruction of evidence of drug trafficking in
response to the presence of the police.’’), cert. denied,
546 U.S. 862, 126 S. Ct. 159, 163 L. Ed. 2d 145 (2005);
United States v. Bonner, 874 F.2d 822, 825 (D.C. Cir.
1989) (exigency exists when, inter alia, ‘‘officers heard
sounds consistent with . . . destruction of the object
of the search’’); United States v. Alfonso, 759 F.2d 728,
742–43 (9th Cir. 1985) (when hotel room door was
opened in response to knock on door by police, who
observed suspect and several others in room and heard
‘‘ ‘hurried scuffling noise’ coming from the bathroom,’’
police reasonably believed that ‘‘concealed presences
might pose danger, or that an unidentified person might
be able to destroy evidence’’).
Except for the wholly unremarkable fact that a light
was on inside the motel room, the record is devoid of
any evidence from which a police officer reasonably
could have concluded that someone was inside the
room. Lights are routinely left on in empty homes and
hotel rooms, especially at night. If this were enough
to create the kind of emergency justifying warrantless
entry, the exigent circumstances exception would
immediately cease to be an exception and, instead,
would become the rule. In other words, if the war-
rantless search by the police in the present case is
deemed to be supported by exigent circumstances, then
such a search will be permissible whenever there is
any possibility that the defendant or someone else might
attempt to contact a third party for the purpose of
having that third party destroy evidence. Indeed, that
is the thrust of the state’s argument: the police should
be permitted to conduct a warrantless search in such
circumstances. A warrantless entry, however, cannot
be deemed necessary on emergency grounds on the
basis of such generalized speculation, even if, on occa-
sion, evidence may be destroyed because the police
simply did not have enough information available to
them to form a reasonable belief, based on the particu-
lar facts of the case at hand, that a warrantless search
was justified to prevent the destruction of such evi-
dence.
In reaching a contrary conclusion, the Appellate
Court relied primarily on State v. Reagan, 18 Conn.
App. 32, 556 A.2d 183, cert. denied, 211 Conn. 805, 559
A.2d 1139 (1989), which it cited for the proposition that
the search of the defendant’s motel room was justified,
so long as ‘‘there was a distinct possibility that someone
who observed either the police stop of the Yukon, Tav-
eras’ arrest, or the police and canine presence at the
motel, might inform someone involved with the criminal
activity.’’ State v. Correa, supra, 185 Conn. App. 339.
We disagree that Reagan stands for that proposition.
In that case, the police were conducting a surveil-
lance of the home of the defendant, Edward L. Reagan,
a suspected drug dealer. State v. Reagan, supra, 18
Conn. App. 34. After witnessing what they believed to
be a drug transaction between Reagan and another man,
David Earl Jones, at Reagan’s home, the police detained
Jones a short distance from the home. Id. A number of
people witnessed Jones’ detention, including a woman
whom the police had seen enter and exit Reagan’s home
earlier in the day. Id., 34–35. In concluding that immedi-
ate entry into Reagan’s home was permissible to prevent
the imminent destruction of evidence while the police
sought a search warrant for the home, the Appellate
Court, citing a number of federal cases, observed that
‘‘[i]t has been recognized that the possibility that a sus-
pect knows or may learn that he is under surveillance
or at risk of immediate apprehension may constitute
exigent circumstances, on the theory that the suspect
is more likely to destroy evidence, to attempt to escape
or to engage in armed resistance.’’ Id., 38. The Appellate
Court further stated that ‘‘[f]ederal courts have held
that exigent circumstances may exist [when the] police
reasonably believe that a defendant may be alerted to
the imminence of [his] arrest by the detention or arrest
of a confederate and destroy incriminating evidence.’’
Id. In all of the cited cases, however, as in Reagan itself,
the police knew that the suspect was inside the place
to be searched, in a position and with an obvious motive
to destroy evidence of his or her crime. In the present
case, by contrast, the police had no reason, beyond
rank speculation, to believe that anyone was inside
the defendant’s motel room. Indeed, as we previously
discussed, they knew for certain that the two targets
of the investigation, the defendant and Taveras, were
not in the room. We therefore conclude that the Appel-
late Court and the trial court incorrectly determined
that the visual sweep of the defendant’s motel room
was justified by exigent circumstances.
VII
THE VISUAL SWEEP AND THE INDEPENDENT
SOURCE DOCTRINE
Finally, the state claims that the trial court properly
determined that any impropriety in the visual sweep
was obviated by the independent source doctrine.43 In
support of this contention, the state asserts that, prior
to the visual sweep, the facts known to the police consti-
tuted probable cause to search the room and, in addi-
tion, that the police would have sought a search warrant
even if Sergeant Broems had not conducted the visual
sweep.
In parts IV and VI of this opinion, we explained why
the information available to the police before the canine
sniff, which preceded the visual sweep, constituted
probable cause.44 Consequently, the state has satisfied
the first requirement of the independent source doc-
trine.
The next question, therefore, is whether the police
would have applied for a search warrant irrespective
of the visual sweep. The evidence established, and the
trial court found, that the police decided to seek a
warrant prior to the visual sweep. According to the
testimony, however, the collective decision to apply for
the warrant was made after Sergeant O’Brien conducted
the canine sniff, a fact that the trial court did not con-
sider because the propriety of the canine sniff was not
an issue in the trial court.
We, of course, have concluded that the canine sniff
violated article first, § 7, of the state constitution. Con-
sequently, for purposes of the state’s claim that the
independent source doctrine obviates the illegality of
the visual sweep, the determination as to whether the
police would have sought a warrant irrespective of the
visual sweep must be made in light of the fact that
the canine sniff also was unlawful. That determination
requires the same fact-finding that will be necessary
to resolve the state’s claim of an independent source
relative to the canine sniff. Accordingly, on remand,
the trial court also must consider the state’s claim of
an independent source relative to the visual sweep with
due regard for the impropriety of the canine sniff, as
well. Of course, the state must have the opportunity to
present any additional evidence that may be relevant
to that issue.
VIII
CONCLUSION
We conclude that the canine sniff was a search sub-
ject to the warrant requirement of article first, § 7, of
the state constitution and that the failure of the police
to obtain a warrant before conducting the canine sniff
violated that requirement. We also conclude that the
case must be remanded to the trial court so that the state
may be afforded the opportunity to adduce additional
evidence concerning its claims relative to the canine
sniff under the independent source and inevitable dis-
covery doctrines, claims that, if proven, would obviate
the illegality of the canine sniff and thereby eliminate
the need for suppression of the evidence ultimately
seized pursuant to the search warrant. We finally con-
clude that, although the visual sweep was not justified
by exigent circumstances, the state also must be
afforded the opportunity to present additional evidence
to establish, in light of our determination regarding the
impropriety of the canine sniff, that the constitutional
infirmity of the visual sweep is obviated by the indepen-
dent source doctrine.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for further proceed-
ings in accordance with this opinion.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** September 15, 2021, 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
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
3
‘‘As the result of a prior case, the Stamford police already knew the
defendant by name.’’ State v. Correa, supra, 185 Conn. App. 313 n.2.
4
Cooper alerted only to the defendant’s motel room.
5
According to testimony adduced by the state at the suppression hearing,
Sergeant Novia previously had been assigned to the narcotics division of
the Stamford Police Department.
6
When, however, Sergeant O’Brien asked the defendant about the $3600
in cash that he was carrying, the defendant stated that he had ‘‘papers’’ to
prove that he had ‘‘earned’’ the money. Queried further by Sergeant O’Brien
about those papers, the defendant indicated that they were in the motel
room, the location that, the defendant stated, was ‘‘where [he] live[d].’’
7
‘‘Sergeant O’Brien characterized the sequence of events as follows: ‘[Ser-
geant Broems] cracked the door, stuck his head in, cleared it, you know,
visually, and then he relayed that nobody else was in there, [and] he closed
the door.’’ State v. Correa, supra, 185 Conn. App. 315 n.3.
8
We note that, under the protective sweep exception to the warrant
requirement, which ‘‘is rooted in the investigative and crime control function
of the police’’; State v. Kendrick, 314 Conn. 212, 229, 100 A.3d 821 (2014);
‘‘a law enforcement officer present in a home under lawful process . . .
may conduct a protective sweep when the officer possesses articulable facts
[that], taken together with the rational inferences from those facts, would
warrant a reasonably prudent officer [to believe] that the area to be swept
harbors an individual posing a danger to those on the . . . scene.’’ (Empha-
sis omitted; internal quotation marks omitted.) Id., 230.
9
The defendant did not raise a federal constitutional challenge to the
canine sniff.
10
Under Golding, a defendant who raises a constitutional claim for the
first time on appeal may prevail on that unpreserved claim only if (1) the
record is adequate for review, (2) the claim is of constitutional magnitude,
(3) the alleged constitutional violation deprived the defendant of a fair trial,
and (4) subject to harmless error analysis, the state cannot demonstrate
the harmlessness of the constitutional violation beyond a reasonable doubt.
State v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317
Conn. 781.
11
We note that our decision in Kono was not issued until after the conclu-
sion of the trial court proceedings in the present case.
12
The state has made no claim on appeal, however, that the alleged inade-
quacy of the record stems from the performance of the canine sniff itself.
Rather, the state’s contention concerning the inadequacy of the record is
predicated solely on its inability to present evidence in the trial court to
support its claim of an independent source. See State v. Correa, supra, 185
Conn. App. 322 n.9.
13
We note that the opinion of the Appellate Court contains no reference
to the state’s claim under the inevitable discovery doctrine, the applicability
of which, the state further asserted, was definitively established by the
testimony presented at the suppression hearing.
14
Accordingly, the Appellate Court did not reach the state’s alternative
claim that, as the trial court found, the evidence obtained from the motel
room was admissible under the independent source doctrine, even if the
visual sweep was not justified by exigent circumstances. See State v. Correa,
supra, 185 Conn. App. 340 n.23.
15
Ordinarily, under Golding, we address the adequacy of the record before
considering the merits of the unpreserved constitutional claim. See, e.g.,
State v. Brunetti, 279 Conn. 39, 54, 901 A.2d 1 (2006), cert. denied, 549 U.S.
1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). For purposes of the defendant’s
constitutional challenge to the canine sniff, however, we address the merits
of the claim first and the adequacy of the record hereafter, in parts IV and
V of this opinion.
16
It bears emphasis, however, that ‘‘[o]ur adoption of an analytical frame-
work or methodology used under the federal constitution does not compel
this court to reach the same outcome 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 interpreta-
tion 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. Kono, supra, 324 Conn. 89 n.6;
see also Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357,
406, 119 A.3d 462 (2015) (‘‘It is beyond dispute that we are not bound by
federal precedents in interpreting our own state constitutional provisions.
[F]ederal decisional law is not a lid on the protections guaranteed under
our state constitution.’’ (Internal quotation marks omitted.)).
17
We consider these factors ‘‘mindful that state [c]onstitutional provisions
must be interpreted within the context of the times. . . . We must interpret
the constitution in accordance with the demands of modern society or it
will be in constant danger of becoming atrophied and, in fact, may even
lose its original meaning. . . . [A] constitution is, in [former United States
Supreme Court] Chief Justice John Marshall’s words, intended to endure
for ages to come . . . and, consequently, to be adapted to the various crises
of human affairs. . . . In short, the [state] constitution was not intended
to be a static document incapable of coping with changing times. It was
meant to be, and is, a living document with current effectiveness. . . . The
Connecticut constitution is an instrument of progress, it is intended to stand
for a great length of time and should not be interpreted too narrowly or
too literally so that it fails to have contemporary effectiveness for all of
our citizens.’’ (Internal quotation marks omitted.) Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 406 n.38, 119 A.3d 462 (2015).
18
The trial court did not reach Kono’s state constitutional claim in light
of its determination that the canine sniff violated Kono’s rights under the
fourth amendment. State v. Kono, supra, 324 Conn. 85.
19
We did not address Kono’s fourth amendment claim because we con-
cluded, first, that it was appropriate to begin by considering his claim under
the state constitution; see State v. Kono, supra, 324 Conn. 82–83 n.3; and,
second, that he was entitled to relief under article first, § 7, thereby making
it unnecessary to consider his federal constitutional claim. See id., 104, 122.
20
As we discuss more fully in this opinion, the court’s holding in Jardines
was predicated on the fact that the canine sniff at issue in that case was
performed by the police canine within the curtilage of the home of the
defendant without his explicit or implicit permission. Florida v. Jardines,
supra, 569 U.S. 5–6.
21
As we explain in part III of this opinion, in Kono, the state did not
claim that a lesser standard than probable cause, such as a reasonable and
articulable suspicion, would suffice for state constitutional purposes in the
event we concluded, contrary to the state’s contention, that the canine sniff
at issue in that case was a search protected by article first, § 7. See State
v. Kono, supra, 324 Conn. 86 n.4, 122 n.21.
22
It is important to note, however, that, for some, a motel room is home,
either temporarily or, in some cases, indefinitely or even permanently.
Indeed, there is some evidence in the record to suggest that the defendant
or Taveras or both were living at the motel at the time of the canine sniff.
See part I of this opinion. Asserting that he was, in fact, residing there at
that time, the defendant contends that his ‘‘living situation was therefore
like many others who must live in a motel when they have no [other]
place to stay.’’ ‘‘Distinguishing motel rooms from apartments is problematic
because it affords less protection and privacy rights to people whose motel
room is their only home.’’ ‘‘Individuals, such as the defendant, and families
struggling to keep a roof over their heads, should not be stripped of constitu-
tional protections simply because they must live in a motel.’’ To support
this contention, the defendant cites to Kono, in which we recognized the
manifest injustice of allowing warrantless canine sniffs of the doors of
apartments or other multiunit dwellings but not freestanding homes because
doing so would effectively result in the allocation of constitutional protec-
tions on the basis of income, race, and ethnicity. See State v. Kono, 324 Conn.
121–22. Although we acknowledge the persuasive force of the defendant’s
argument, we need not determine the extent to which it might otherwise
bear on our resolution of the present case in light of our determination, for
the other reasons set forth in this opinion, that a canine sniff of the door
to a motel room is a search within the meaning of article first, § 7, of the
state constitution.
23
No doubt there are other attributes of a motel that may, depending on
the circumstances, serve to diminish the legitimate privacy expectations of
its guests. The state has not identified any, however, and we are aware of
none, that cause us to conclude that a motel guest’s reasonable privacy
interest in his or her room is so relatively inconsequential as to exempt a
canine sniff of the exterior of that room from constitutional scrutiny.
24
In Kono, this court did not address the issue of whether the area immedi-
ately in front of the door to an apartment is analogous to curtilage for
purposes of article first, § 7, of the state constitution, resolving the case
instead on the basis of the defendant’s reasonable expectation of privacy.
See State v. Kono, supra, 324 Conn. 94 n.10. But see id., 104 (federal precedent
supports conclusion that warrantless canine sniff of door to apartment inside
multiunit building is unlawful search ‘‘whether the defendant’s claim is
reviewed under the . . . line of privacy based decisions [originating with
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)]
or under the principles of curtilage on which the court in Jardines relied’’).
We also need not express an opinion as to whether the area immediately
adjacent to an apartment or a motel room is analogous to curtilage. We
conclude only that Hayes is inapposite because it sheds no light on that issue.
25
The defendant contends that, prior to the canine sniff, the police did
not have a reasonable and articulable suspicion that the motel room con-
tained illegal drugs. For present purposes, we may assume, as the state
maintains, that the police did have a reasonable and articulable suspicion
that there were such drugs in the room.
26
‘‘Both the fourth amendment to the United States constitution and article
first, § 7, of the Connecticut constitution prohibit the issuance of a search
warrant in the absence of probable cause.’’ State v. Sawyer, 335 Conn. 29,
37, 225 A.3d 668 (2020).
27
We note that, with respect to the second requirement of the independent
source doctrine, which requires a fact based inquiry; see, e.g., Murray v.
United States, supra, 487 U.S. 543; the United States Supreme Court has
observed: ‘‘To say that a [trial] court must be satisfied that a warrant would
have been sought without the illegal entry is not to give dispositive effect
to [the] police officers’ assurances on the point. [When] the facts render
those assurances implausible, the independent source doctrine will not
apply.’’ Id., 540 n.2.
28
Typically, of course, a defendant who raises a constitutional claim for
the first time on appeal is required to demonstrate the adequacy of the trial
record for purposes of establishing his or her claim under Golding. See
footnote 10 of this opinion. In the present case, however, there is no dispute
that the record is adequate for review of the defendant’s claim concerning
the invalidity of the canine sniff. See footnote 12 of this opinion. The issue,
rather, is whether the record is adequate for review of the state’s claim that
the evidence seized as a result of that canine sniff is admissible under the
independent source doctrine. As we explain more fully hereinafter, if the
record is inadequate for review of the state’s independent source claim, it
would be unfair to address the defendant’s claim on that record because
to do so would effectively foreclose the state from establishing its claim of
an independent source.
29
In light of our determination that the current record is inadequate for
our resolution of the state’s independent source claim, the state cannot
prevail on its alternative contention that the record, if deemed adequate, is
ambiguous as to whether the police would have sought a warrant irrespective
of the canine sniff, an ambiguity that, the state further contends, defeats
the defendant’s contention that the seized evidence was tainted by the
canine sniff.
30
Whether facts are ‘‘enough to support a finding of probable cause is a
question of law . . . subject to plenary review on appeal.’’ (Internal quota-
tion marks omitted.) State v. Holley, 324 Conn. 344, 351, 152 A.3d 532 (2016).
The test for determining probable cause in the context of a search is well
settled. ‘‘Probable cause to search exists if . . . (1) there is probable cause
to believe that the particular items sought to be seized are connected with
criminal activity or will assist in a particular apprehension or conviction
. . . and (2) there is probable cause to believe that the items sought to be
seized will be found in the place to be searched. . . . Although [p]roof of
probable cause requires less than proof by a preponderance of the evidence
. . . [f]indings of probable cause do not lend themselves to any uniform
formula because probable cause is a fluid concept—turning on the assess-
ment of probabilities in particular factual contexts—not readily, or even
usefully, reduced to a neat set of legal rules. . . . Consequently, [i]n
determining the existence of probable cause to search, the issuing magistrate
assesses all of the information set forth in the warrant affidavit and should
make a practical, nontechnical decision whether . . . there is a fair proba-
bility that contraband or evidence of a crime will be found in a particular
place. . . . Probable cause, broadly defined, [comprises] such facts as
would reasonably persuade an impartial and reasonable mind not merely
to suspect or conjecture, but to believe that criminal activity has occurred.’’
(Citations omitted; internal quotation marks omitted.) State v. Shields, 308
Conn. 678, 689–90, 69 A.3d 293 (2013), cert. denied, 571 U.S. 1176, 134 S.
Ct. 1040, 188 L. Ed. 2d 123 (2014). Thus, probable cause is determined by
applying a ‘‘totality of the circumstances’’ test. (Internal quotation marks
omitted.) State v. Holley, supra, 352; see also Florida v. Harris, 568 U.S.
237, 244, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013) (‘‘In evaluating whether
the [s]tate has met [the probable cause] standard, [the court has] consistently
looked to the totality of the circumstances . . . [and has] rejected rigid
rules, bright-line tests, and mechanistic inquiries in favor of a more flexible,
all-things-considered approach.’’ (Citations omitted.)).
31
We note that our summary of the evidence pertaining to the probable
cause issue includes certain facts developed by the police after the canine
sniff was performed, in particular, the information garnered by the police
as a result of their encounter with the defendant. As the state asserts,
however, it is perfectly clear that the encounter and the information that
the police obtained therefrom had nothing to do with the canine sniff; it is
apparent, rather, that Sergeant O’Brien was prompted to stop and question
the defendant because the police knew that the defendant had rented the
motel room that was the focus of their investigation. There is nothing in
the record to suggest either that Sergeant O’Brien would not have confronted
the defendant when he saw him on the street or that his interaction with
the defendant would have been different in any way if the canine sniff had
not occurred.
32
The Appellate Court did not reach the state’s claim concerning the
applicability of the independent source doctrine to the canine sniff or the
visual sweep. State v. Correa, supra, 185 Conn. App. 331 n.20, 340 n. 23. In
concluding that the police had probable cause to search the motel room
prior to the visual sweep, the Appellate Court relied on the same facts that
provide the basis for our determination that probable cause existed for
purposes of the state’s claim of an independent source relative to the canine
sniff. See id., 336.
33
As we previously noted, the police detained Taveras after they discov-
ered marijuana and suspected that he had heroin in his possession following
the traffic stop of the vehicle, operated by Brickman, in which Taveras
was a passenger. The police did not transport Taveras to headquarters for
processing, however, until more than one hour later and after they had
received his grandmother’s consent to search his bedroom, where they
found additional incriminating evidence.
34
As we explained in Brunetti, ‘‘[i]t is beyond dispute that the act of
declining to sign a consent to search form is not tantamount to a refusal
to consent to the search; rather, it is simply one of several relevant factors
that a court considers in determining the validity of a consent to search.’’
(Emphasis in original.) State v. Brunetti, supra, 279 Conn. 56. Thus, the
refusal of Brunetti’s mother to sign the consent form was not dispositive
of the issue of whether she had consented to the search. See id., 56–62.
35
This court previously has ordered a remand for further proceedings in
similar circumstances, albeit in a case decided prior to Golding. In State v.
Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct.
423, 93 L. Ed. 2d 373 (1986), the defendant, Earl Badgett, entered a condi-
tional plea of nolo contendere to the illegal possession of heroin with intent
to sell. Id., 413. Badgett then appealed, claiming, inter alia, that the trial
court had improperly denied his motion to suppress evidence seized in
connection with the warrantless search of the automobile he was driving
at the time of his arrest. Id., 414. We agreed with Badgett that the warrantless
entry into his vehicle by the police violated his rights under the fourth
amendment. Id., 421. Instead of ordering the suppression of the evidence
seized as a result of that search, however, we remanded the case to the
trial court to give the state the opportunity to present evidence in support
of a claim under the inevitable discovery doctrine, a claim that the state
had not made in the trial court or on appeal. See id., 432–34. In doing so,
we explained that, in light of the nature and importance of the issues
involved, our remand for further proceedings was in the public interest and,
under the circumstances, necessary to do justice between the parties. See
id., 432 n.10. We reach the same conclusion in the present case.
36
As we previously have observed, the independent source and inevitable
discovery doctrines are ‘‘closely related’’; (internal quotation marks omitted)
State v. Vivo, supra, 241 Conn. 672; because ‘‘[b]oth . . . rest on assump-
tions that if the law enforcement agencies involved had eschewed the illegal
activity, they nevertheless would have procured the evidence at issue’’;
(internal quotation marks omitted) id., 673 n.5; thus obviating the illegality
and rendering suppression of the evidence unnecessary. See id., 672–73. They
‘‘have distinct applications in relation to the exclusionary rule,’’ however;
id., 672; inasmuch as ‘‘the independent source rule applies only upon proof
that in actual fact the officers did not obtain the challenged evidence as a
result of the primary illegality’’; (emphasis in original; internal quotation
marks omitted) id., 673 n.5; whereas the inevitable discovery exception,
which has been characterized as an ‘‘extrapolation from the independent
source doctrine’’; Murray v. United States, supra, 487 U.S. 539; ‘‘assumes
that the evidence was in fact obtained as a consequence of the primary
illegality but is invoked by proof that—hypothetically—if the officers had
not engaged in the primary illegality, they would nevertheless, although
in a different manner, have obtained the challenged evidence.’’ (Internal
quotation marks omitted.) State v. Vivo, supra, 673 n.5.
When, as in the present case, the police seize evidence pursuant to a
search warrant but the application for that warrant was predicated in part
on a prior, illegal entry, the independent source exception generally is the
doctrine invoked for the purpose of establishing that suppression of the
evidence is not required notwithstanding the unlawfulness of the prewarrant
intrusion. See, e.g., United States v. Johnson, supra, 994 F.2d 987 (observing
that courts apply independent source doctrine in cases in which police
discover evidence ‘‘while engaging in an unlawful search or entry, but where
there was an independent basis apart from the illegal entry to allow a warrant
to issue’’); see also United States v. Mulholland, 628 Fed. Appx. 40, 43 n.3
(2d Cir. 2015) (observing that, in government’s view, independent source
doctrine rather than inevitable discovery doctrine applied because chal-
lenged evidence actually was seized pursuant to search warrant obtained
following unlawful entry). Nevertheless, in the present case, the state relies
on the inevitable discovery doctrine as well as the independent source
doctrine. In light of our determination affording the state the opportunity
to adduce additional evidence in connection with its claims under both
doctrines, and because the distinction between the two doctrines is not
always a ‘‘sharp’’ one; United States v. Baez, 983 F.3d 1029, 1037 (8th Cir.
2020), cert. denied, U.S. , 141 S. Ct. 2744, 210 L. Ed. 2d 896 (2021);
see also United States v. Johnson, 380 F.3d 1013, 1014 (7th Cir. 2004); for
present purposes, we need not express a view as to the applicability of
the inevitable discovery doctrine separate and apart from the independent
source doctrine.
37
With respect to the requirement that the state must prove by a preponder-
ance of the evidence that the tainted evidence inevitably would have been
discovered irrespective of the unlawful search, the Second Circuit has
‘‘acknowledged that using the [preponderance of the evidence] standard to
prove inevitability creates a problem of probabilities, [observing] that even
if each event in a series is individually more likely than not to happen, it
still may be less than probable that the final event will occur.’’ United States
v. Vilar, 729 F.3d 62, 84 (2d Cir. 2013), cert. denied, 572 U.S. 1146, 134 S.
Ct. 2684, 189 L. Ed. 2d 230 (2014). Recognizing the need to avoid any
confusion that might result from this ‘‘semantic puzzle’’; United States v.
Cabassa, supra, 62 F.3d 474; the Second Circuit Court of Appeals has aptly
underscored the significance of the ‘‘difference between proving by a prepon-
derance that something would have happened and proving by a preponder-
ance that something would inevitably have happened’’; (emphasis in origi-
nal; internal quotation marks omitted) United States v. Heath, 455 F.3d 52,
59 n.6 (2d Cir. 2006); and further explained that ‘‘the government must prove
that each event leading to the discovery of the evidence would have occurred
with a sufficiently high degree of confidence for the [trial court] to conclude,
by a preponderance of the evidence, that the evidence would inevitably
have been discovered.’’ United States v. Vilar, supra, 84.
38
The facts relevant to this issue are set forth in detail in parts I and IV
of this opinion.
39
It is true, of course, that the police did eventually seek and obtain a
search warrant for the motel room. It bears noting, however, that the affidavit
submitted to the issuing judge in support of the warrant application con-
tained far more evidence of drugs in the motel room than the police pos-
sessed prior to the canine sniff. Indeed, that affidavit contained truly over-
whelming evidence of probable cause, including the results of the canine
sniff, the observation by the police of drug related paraphernalia during
their visual sweep of the room, and the statement by Taveras after he had
been transported to police headquarters that he kept marijuana in the room.
40
Indeed, certain testimony adduced by the state indicates that the police
would not have sought a warrant unless they were able to make what they
believed was a strong showing of probable cause. In particular, as we noted
previously; see part IV of this opinion; Sergeant Broems explained that,
because the investigation was being conducted in the middle of the night,
he wanted to make sure that the police had ample evidence of probable
cause, sufficient to justify waking a judge to review the warrant application
and affidavit.
41
As we previously noted, the state also argues that, even if the visual
sweep was not supported by exigent circumstances, the trial court correctly
concluded that any such illegality is obviated by the independent source
doctrine. We discuss this contention in part VII of this opinion.
42
It bears emphasis, however, that our probable cause determination does
not include the canine sniff or, for that matter, any information gathered
by the police following the canine sniff that reasonably might have been
obtained as a result of the canine sniff.
43
Having set forth the principles underlying the independent source doc-
trine in part IV of this opinion, we do not repeat them here.
44
We note that, in reaching the same conclusion, the trial court excised
only that information contained in the warrant affidavit that was derived
from the visual sweep. Because the defendant challenged the propriety of
the canine sniff for the first time on appeal, the trial court had no occasion
to consider whether to excise the information obtained as a result of the
canine sniff.