State v. Kono

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STATE v. KONO—CONCURRENCE
ZARELLA, J., concurring in the judgment. I agree that
the use of a dog sniff to detect contraband inside the
condominium unit occupied by the defendant, Dennis
Kono, violated his rights, but for reasons different from
those given by the majority. The majority relies on our
state constitution, but, in my view, looking to the state
constitution is unnecessary when, as in the present
case, existing federal constitutional doctrine favors the
defendant. Instead, when a party raises a claim under
both the federal and state constitutions, the proper
mode of analysis should be to address the federal claim
first, turning to the state constitutional claim only after
determining that the federal constitution does not pro-
vide a basis for relief or if the applicable federal rule
is truly unsettled. I therefore respectfully concur only
in the judgment.
I
Turning to the federal constitutional question, I
would first conclude that federal case law from the
United States Court of Appeals for the Second Circuit
resolves the federal constitutional claim before us.
Three decades ago, 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),
the Second Circuit concluded that a warrantless dog
sniff of the contents of a home violates the resident’s
reasonable expectation of privacy, even if the resident
lives in an apartment and the dog is outside of his
apartment door in a shared hallway. The holding in
Thomas remains good law; see, e.g., United States v.
Hayes, 551 F.3d 138, 144 (2d Cir. 2008); and the facts
of Thomas match the facts of the present case in every
relevant respect.
As the majority explains, even though decisions of
the Second Circuit do not bind this court, we accord
them great weight on questions of federal law, including
federal constitutional law, when the United States
Supreme Court has not expressly resolved the issue
before us. See, e.g., Dayner v. Archdiocese of Hartford,
301 Conn. 759, 783, 23 A.3d 1192 (2011) (‘‘it is well
settled that decisions of the Second Circuit, while not
binding [on] this court, nevertheless carry particularly
persuasive weight in the resolution of issues of federal
law when the United States Supreme Court has not
spoken on the point’’ [internal quotation marks omit-
ted]). Deferring to the Second Circuit’s decisions on
matters of federal law promotes principles of comity
and consistency in the application of federal law in this
state. See id., 784 (noting that it would be ‘‘ ‘bizarre’ ’’
for application of federal law to depend on whether
case was brought in state or federal court); see also
Szewczyk v. Dept. of Social Services, 275 Conn. 464,
475–76 n.11, 881 A.2d 259 (2005) (citing cases explaining
reasons for our deference to Second Circuit).
I see no compelling reason to depart from the
approach of the Second Circuit in the present case.
Nothing has eroded the basis for its holding in Thomas
since that case was decided. Although Thomas was
decided more than thirty years ago and was originally
met with criticism, the Second Circuit has more recently
cited it with approval; United States v. Hayes, supra,
551 F.3d 143–44; and more recent United States
Supreme Court decisions issued after Thomas have, in
fact, bolstered its reasoning.1 See, e.g., Kyllo v. United
States, 533 U.S. 27, 34–35, 40, 121 S. Ct. 2038, 150 L.
Ed. 2d 94 (2001); see also Florida v. Jardines, U.S.
, 133 S. Ct. 1409, 1417–18, 185 L. Ed. 2d 495 (2013);
Florida v. Jardines, supra, 1418 (Kagan, J., concurring).
And, as the majority explains, the only circuit court to
have addressed the question after Kyllo and Jardines
were decided reached the same conclusion as the Sec-
ond Circuit in Thomas. See United States v. Whitaker,
820 F.3d 849, 852–54 (7th Cir. 2016). To be sure, Justice
Espinosa has raised significant distinctions between the
issues decided by the United States Supreme Court in
Kyllo and Jardines, and the precise issue raised in the
present case.2 But, in my view, these distinctions do
not justify a departure from Second Circuit precedent,
at least if we are applying federal law.3
I thus would begin with the federal constitutional
analysis, apply the Second Circuit’s decision in Thomas,
and conclude that the dog sniff of the defendant’s con-
dominium unit in the present case was a search under
the fourth amendment. Deciding otherwise would have
the bizarre consequence of granting our citizens less
protection under federal law in state courts than that
provided under federal law in federal courts.
II
Because we may resolve the present case in the defen-
dant’s favor under the federal constitution, I disagree
with the majority’s decision to sidestep the federal con-
stitution and instead resolve this issue by creating new
doctrine under the state constitution. Specifically, I dis-
agree with the majority’s assertion, which is made with-
out citation to authority, that we should analyze a
federal constitutional claim first only if we are ‘‘able to
say with a high degree of confidence that the United
States Supreme Court, if presented with the federal
constitutional claim,’’ would reach the same conclusion.
Footnote 23 of the majority opinion. The ability to confi-
dently forecast how the United States Supreme Court
might decide a question has not, in prior decisions, been
treated as a prerequisite to beginning with a federal
constitutional analysis. See generally, e.g., Pham v.
Starkowski, 300 Conn. 412, 428–62, 16 A.3d 635 (2011);
State v. Jenkins, 298 Conn. 209, 231–48, 3 A.3d 806
(2010). Indeed, we routinely decide federal constitu-
tional questions without clear guidance from the United
States Supreme Court when those federal claims are
made without accompanying state constitutional
claims. Consequently, in light of the Second Circuit’s
prior decision in Thomas, I do not view the relevant
federal precedent to be so ambiguous as to require that
we avoid a federal analysis in the first instance.
To be sure, if the federal rule were truly unsettled—
perhaps if neither the United States Supreme Court nor
the Second Circuit had addressed the question, and
other federal courts were generally silent on the mat-
ter—I might agree with the majority’s approach. In the
present case, however, the Second Circuit has already
spoken on the question before us, on at least two occa-
sions, so its decision is already binding on federal law
enforcement personnel and the federal district courts
in this state.
In addition, resolving the case under the federal con-
stitution is more consistent with the procedural history
of this case. Throughout the proceedings, the parties
have principally argued the case under the federal con-
stitution. In the trial court, the defendant moved to
suppress the evidence at issue first under the federal
constitution and only added a claim under the state
constitution as an alternative. The trial court decided
the motion to suppress in the defendant’s favor under
the federal constitution and therefore found it unneces-
sary to address the claim under the state constitution,
leaving us without any lower court ruling on the state
constitution to consider. And, because the trial court
based its decision on the federal constitution alone, the
parties in their appeal to this court again focused their
arguments on the federal constitution, presenting the
state constitutional claim as an alternative ground for
affirmance. Reaching the state constitutional issue in
the present appeal is unnecessary.
Perhaps the majority is concerned that the United
States Supreme Court might disagree with its conclu-
sion, and thus wants to insulate our decision from fur-
ther review and possible reversal. This reasoning has
its proponents; see, e.g., W. Horton, The Connecticut
State Constitution (2d Ed. 2012) p. 36; but it seems to
me to be an insufficient reason to avoid applying the
federal constitution when it is otherwise dispositive. If
the United States Supreme Court ever does overrule
Thomas, in either this case or another case, we could
revisit the question under our state constitution then,
when there is actually a principled need for doing so,
and with the added benefit of being able to consider
the United States Supreme Court’s rationale as we con-
sider the parameters of our own constitution. Indeed,
if the United States Supreme Court were to disagree
with Thomas, the validity of the majority’s state consti-
tutional analysis will necessarily be called into question
in any event, given that we consider federal law when
interpreting our state constitution and our understand-
ing of federal law would have been incorrect.4 State v.
Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (fed-
eral precedent is used as persuasive tool when court
construes state constitution); see also State v. Skok, 318
Conn. 699, 730–31, 122 A.3d 608 (2015) (Zarella, J.,
concurring) (agreeing that federal precedent provides
persuasive authority when court interprets provisions
of state constitution, at least when such provisions are
related to federal constitutional provisions).
III
The majority’s decision to look first to the state con-
stitution—a view grounded, in my view, on a faulty
premise—highlights an inconsistency in our case law
about whether we should first look to the federal or
the state constitution when claims under both are prop-
erly raised.5
Our prior cases, including many search and seizure
cases, do not reflect a principled approach to this ques-
tion. For example, this court has, on a few occasions,
relied solely on the state constitution without any expla-
nation of why it did not conduct any analysis under the
federal constitution. See, e.g., State v. Joyce, 229 Conn.
10, 15, 639 A.2d 1007 (1994) (declining to reach federal
constitutional claim because state constitution pro-
vided basis for relief). In one decision, we noted that
we should always examine the state constitution first.
State v. Chapman, 227 Conn. 616, 626 n.8, 632 A.2d 674
(1993), superseded, 229 Conn. 529, 643 A.2d 1213 (1994).
But this court has hardly followed that advice in prac-
tice, and has often addressed federal claims first, turn-
ing to the state constitution only after concluding that
the federal constitution did not provide a basis for relief.
See, e.g., State v. Jenkins, supra, 298 Conn. 231–32,
259–61 (addressing claim regarding allegedly illegal
search under federal constitution before turning to state
constitutional analysis); Contractor’s Supply of Water-
bury, LLC v. Commissioner of Environmental Protec-
tion, 283 Conn. 86, 92, 97–98, 925 A.2d 1071 (2007)
(analyzing federal equal protection claim before turning
to state constitutional claim); State v. Ledbetter, 275
Conn. 534, 559–60, 881 A.2d 290 (2005) (resolving fed-
eral constitutional claim concerning eyewitness identi-
fication before turning to claim under state consti-
tution), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164
L. Ed. 2d 537 (2006); State v. Linares, 232 Conn. 345,
354, 376, 655 A.2d 737 (1995) (addressing first amend-
ment claim before addressing claims under analogous
state constitutional provisions).
This waffling between deciding claims variously
under the state or federal constitution, especially in the
area of search and seizure law, is not a practice that
we should perpetuate—at the very least because it gives
our constitutional jurisprudence the appearance of
being unprincipled. I would take this opportunity to
clarify our mode of analysis with respect to the order
of our consideration of federal and state constitutional
issues. In my view, when a party properly raises a claim
under both a federal constitutional provision and a com-
parable state constitutional provision, the better prac-
tice is to first address the question under the federal
constitution, turning to the state constitution only after
concluding that the federal provision does not provide
a basis for relief or if the interpretation of the federal
provision is truly unsettled or ambiguous. Ultimately,
the quality of our constitutional analysis is most critical
in a given case, but there are several prudential reasons
to prefer consideration of the federal constitution first.
A
For one thing, looking to the federal constitution first
is more consistent with the reality of existing legal
doctrine concerning individual rights and with our
understanding of the role of our state constitution,
which recognizes that the federal constitution sets a
national minimum for the protection of individual rights
but leaves states to interpret their constitutions to pro-
vide greater protection.
Some commentators and courts recommend looking
to the state constitution first when confronted with a
claim under both the federal and state constitution—an
approach commonly referred to as the primacy model.
Under this approach, the state court looks first to its
own state constitution, looking to the federal constitu-
tion only if the state constitution fails to provide a basis
for relief. See, e.g., W. Horton, supra, p. 37; J. Landau,
‘‘Some Thoughts About State Constitutional Interpreta-
tion,’’ 115 Penn. St. L. Rev. 837, 845–46 (2011); cf. H.
Linde, ‘‘First Things First: Rediscovering the States’ Bill
of Rights,’’ 9 U. Balt. L. Rev. 379, 387 (1980). Proponents
argue that, in a federal system, the first referent of a
state judge should be the state’s own laws and constitu-
tion, not the laws of another government. See W. Hor-
ton, supra, p. 37.
But this approach is inconsistent with the plain reality
that federal constitutional law now dominates the field
of individual constitutional rights, even in state pro-
ceedings, at least since the United States Supreme Court
had determined that most of the guarantees in the fed-
eral Bill of Rights apply to the states by virtue of the
due process clause of the fourteenth amendment—a
process often referred to as incorporation. See U.S.
Const., amend. XIV, § 1 (prohibiting state governments
from depriving ‘‘any person of life, liberty or property,
without due process of law’’).
Before incorporation, state courts had no need to
look beyond their state constitution or to consider
which constitution to apply in a given case, because the
federal constitution did not apply to state proceedings.
State and federal courts treated the federal constitution
as applying only to the federal government, with limited
exceptions for when the federal constitution explicitly
restricted actions by a state government, such as the
prohibition on passing an ex post facto law. U.S. Const.,
art. I, § 10, cl. 1. Thus, in Barron v. Mayor & City
Council, 32 U.S. (7 Pet.) 243, 250, 8 L. Ed. 672 (1833),
the court rejected a claim that the fifth amendment’s
takings clause applied to state legislation. Writing for
the court, Chief Justice John Marshall explained: ‘‘The
[federal] constitution was ordained and established by
the people of the United States for themselves, for their
own government, and not for the government of the
individual states. Each state established a constitution
for itself, and, in that constitution, provided such limita-
tions and restrictions on the powers of its particular
government as its judgment dictated.’’ Id., 247. Because
the amendments in the Bill of Rights ‘‘contain no expres-
sion indicating an intention to apply them to the state
governments,’’ the court concluded that it could not
‘‘so apply them.’’ Id., 250.
Under this view, courts accepted that rights granted
by states might vary from those granted under the fed-
eral constitution. As the court explained in United
States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875),
‘‘[w]e have in our political system a government of the
United States and a government of each of the several
[s]tates. Each one of these governments is distinct from
the others, and each has citizens of its own who owe
it allegiance, and whose rights, within its jurisdiction,
it must protect. The same person may be at the same
time a citizen of the United States and a citizen of a
[s]tate, but his rights of citizenship under one of these
governments will be different from those he has under
the other.’’ Id., 549.
Because the federal and state constitutions stood
truly independent of one another, state courts looked
to their own constitutions to determine the rights of
individuals, and many states, including Connecticut,
interpreted their state constitutions to provide less pro-
tection than the federal constitution. See, e.g., State v.
Michael J., 274 Conn. 321, 351, 875 A.2d 510 (2005)
(noting that Connecticut constitution provided less pro-
tection against double jeopardy until United States
Supreme Court applied fifth amendment guarantee
against double jeopardy to states); State v. Magnano,
97 Conn. 543, 546, 117 A. 550 (1922) (declining to apply
federal exclusionary rule in state proceeding because
state constitution did not require exclusion of illegally
obtained evidence, and federal constitution was not
binding).
But this dichotomy between state and federal rights
began to erode as the United States Supreme Court
recognized that certain protections in the federal Bill
of Rights might be considered an integral part of the
due process guaranteed to state citizens by the due
process clause of the fourteenth amendment. The court
did not incorporate the entire Bill of Rights at once but
gradually incorporated many of its provisions on a case-
by-case basis over a period of several decades. The
process began with Chicago, Burlington & Quincy
Railroad Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41
L. Ed. 979 (1897), in which the court concluded that ‘‘a
judgment of a state court, even if it [is] authorized by
statute, [pursuant to which] private property is taken
for the [s]tate or under its direction for public use,
without compensation made or secured to the owner,
is, upon principle and authority, wanting in the due
process of law required by the [f]ourteenth [a]mend-
ment of the [c]onstitution of the United States . . . .’’
Id., 241. And, in Gitlow v. New York, 268 U.S. 652, 45
S. Ct. 625, 69 L. Ed. 1138 (1925), the court concluded
that certain first amendment protections also applied to
state governments, explaining that, ‘‘freedom of speech
and of the press—which are protected by the [f]irst
[a]mendment from abridgment by Congress—are
among the fundamental personal rights and liberties
protected by the due process clause of the [f]ourteenth
[a]mendment from impairment by the [s]tates.’’ (Inter-
nal quotation marks omitted.) Id., 666.
The incorporation of constitutional rights through
the due process clause of the fourteenth amendment
progressed slowly thereafter, until the Warren Court6
in the 1960s increased the pace substantially, particu-
larly for amendments affecting the rights of the accused
in a state criminal proceeding. See, e.g., Benton v. Mary-
land, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d
707 (1969) (applying fifth amendment guarantee against
double jeopardy to states); Duncan v. Louisiana, 391
U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)
(states must apply sixth amendment right to jury trial
to state criminal trials); Washington v. Texas, 388 U.S.
14, 18–19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (sixth
amendment guarantee of compulsory process to obtain
favorable witnesses applies to states); Klopfer v. North
Carolina, 386 U.S. 213, 222–23, 226, 87 S. Ct. 988, 18 L.
Ed. 2d 1 (1967) (sixth amendment right to speedy trial
applies to states); Griffin v. California, 380 U.S. 609,
615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (fifth amend-
ment right against self-incrimination applies to states);
Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13
L. Ed. 2d 923 (1965) (sixth amendment right of accused
to confront witnesses applies to states); Aguilar v.
Texas, 378 U.S. 108, 110, 84 S. Ct. 1509, 12 L. Ed. 2d
723 (1964) (applying certain fourth amendment stan-
dards for obtaining warrant to states), overruled in part
on other grounds by Illinois v. Gates, 462 U.S. 213,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Gideon v.
Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d
799 (1963) (sixth amendment right to appointed counsel
for indigent defendants applies to states); Robinson v.
California, 370 U.S. 660, 666–67, 82 S. Ct. 1417, 8 L.
Ed. 2d 758 (1962) (states bound by eighth amendment
protection from cruel and unusual punishments); Mapp
v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d
1081 (1961) (applying fourth amendment exclusionary
rule to state prosecutions).
The rapid progress of incorporation in the 1960s arose
principally from the court’s concerns over the fairness
of criminal proceedings when states did not guarantee
their citizens the same protections in state proceedings
that their citizens already enjoyed in federal court. For
example, before the decision in Mapp, the federal exclu-
sionary rule did not apply in state prosecutions. See
Mapp v. Ohio, supra, 367 U.S. 657–58. As a result,
although the federal constitution barred federal prose-
cutors from using illegally obtained evidence, state
prosecutors were free to use that same evidence in state
prosecutions. See id., 658. This dichotomy encouraged
federal law enforcement officers to turn evidence
obtained illegally under federal law over to state author-
ities for their use in a state prosecution, a practice
commonly known as the ‘‘ ‘silver platter’ ’’ doctrine. Id.,
653; see id., 658. This practice substantially undermined
the value of the fourth amendment’s guarantee against
unreasonable searches and seizures. See id., 658.
Concern for the undermining of federal constitutional
protections led in significant part to the court’s decision
in Mapp to apply the fourth amendment exclusionary
rule against the states, a decision that began the rapid
acceleration of incorporation. In justifying its decision
on practical grounds, the court observed that ‘‘a federal
prosecutor [could] make no use of evidence illegally
seized, but a [s]tate’s attorney across the street could’’;
id., 657; such that ‘‘federal officers, being human, were
. . . invited to and did . . . step across the street to
the [s]tate’s attorney with their unconstitutionally
seized evidence.’’ Id., 658. The court was concerned
that, through this practice, ‘‘the [s]tate, by admitting
evidence unlawfully seized, serve[d] to encourage dis-
obedience to the [f]ederal [c]onstitution, which it is
bound to uphold.’’ Id., 657; see also W. Brennan, ‘‘The
Bill of Rights and the States: The Revival of State Consti-
tutions As Guardians of Individual Rights,’’ 61 N.Y.U.
L. Rev. 535, 541 (1986) (‘‘[a] healthy federalism is not
promoted by allowing state officers to seize evidence
illegally or by permitting state courts to utilize such
evidence’’ [emphasis omitted]).
The solution to this problem, the court explained,
was uniformity between the limitations on federal and
state authorities in criminal proceedings. According to
the court, ‘‘[f]ederal-state cooperation in the solution
of crime under constitutional standards will be pro-
moted, if only by recognition of their now mutual obliga-
tion to respect the same fundamental criteria in their
approaches. . . . Denying shortcuts to only one of two
cooperating law enforcement agencies tends naturally
to breed legitimate suspicion of working arrangements
whose results are equally tainted.’’ (Citation omitted;
internal quotation marks omitted.) Mapp v. Ohio, supra,
367 U.S. 658.
The incorporation surge of the 1960s forced state
courts, for the first time, to consider the federal consti-
tution in addition to any coordinate state constitutional
provisions. Because many state constitutions had pro-
vided less protection than the federal constitution, liti-
gants began to favor claims under the federal consti-
tution, and the federal constitution took on a dominant
role in the field of individual rights nationwide, espe-
cially the rights of criminal defendants. See, e.g., R.
Range, note, ‘‘Reverse Silver Platter: Should Evidence
That State Officials Obtained in Violation of a State
Constitution Be Admissible in a Federal Criminal
Trial?,’’ 45 Wash. & Lee L. Rev. 1499, 1512 (1988)
(‘‘[b]ecause federal protection of individual rights
greatly was expanding, state courts had little or no
incentive independently to interpret state constitutions
as providing greater protection than the federal consti-
tution’’). Instead of relying on a patchwork of state
constitutions, state courts across the country were
bound to apply much of the federal Bill of Rights in
their proceedings, giving rise to a new, nationwide body
of law. See W. Brennan, supra, 61 N.Y.U. L. Rev. 540
(‘‘[i]n the years between 1961 and 1969, the [United
States] Supreme Court interpreted the [f]ourteenth
[a]mendment to nationalize civil rights, making the
great guarantees of life, liberty, and property binding
on all governments throughout the nation’’). Prior deci-
sions in Connecticut providing less protection under
our state constitution were overruled. See, e.g., State v.
DelVecchio, 149 Conn. 567, 572–73, 182 A.2d 402 (1962)
(applying federal exclusionary rule after United States
Supreme Court applied fourth amendment protections
to states); see also State v. Michael J., supra, 274 Conn.
351–52 (noting that Connecticut constitution provided
less protection against double jeopardy until United
States Supreme Court applied fifth amendment protec-
tions to states). Litigants and courts have since contin-
ued to overwhelmingly favor claims under the federal
constitution, raising a state constitutional claim, if at
all, as an alternative in case the federal claim fails. See,
e.g., R. Williams, ‘‘State Constitutional Methodology in
Search and Seizure Cases,’’ 77 Miss. L.J. 225, 241 (2007);
see also ‘‘Developments in the Law: The Interpretation
of State Constitutional Rights,’’ 95 Harv. L. Rev. 1324,
1357 (1982). Law schools principally teach federal con-
stitutional rights, and commentators, judges, and law-
yers today are far more familiar with the federal
constitutional protections than those of the state consti-
tutions, which vary from state to state. The preference
for the federal constitution demonstrated by the parties
and the trial court in the present case illustrates the
point.
To be sure, the rise of the federal constitution in state
proceedings has not entirely sidelined state constitu-
tions. During the 1970s, the United States Supreme
Court adopted limitations and exceptions for many of
the rights the court previously had expanded on and
granted to state citizens in the 1960s. This curtailment
led commentators and dissenting United States
Supreme Court justices in the 1970s and 1980s to
encourage state courts to reject that court’s recent cur-
tailments by finding greater protection for individual
rights under state constitutions. See, e.g., R. Range,
supra, 45 Wash. & Lee L. Rev. 1512–13; see also W.
Brennan, supra, 61 N.Y.U. L. Rev. 548–50.
Although this call for action led to a reemergence of
the state constitution as an independent source of
rights; see R. Range, supra, 45 Wash. & Lee L. Rev.
1511–13; as a practical matter, the opportunity for the
state constitution to have a truly dispositive impact has
substantially narrowed. ‘‘Developments in the Law: The
Interpretation of State Constitutional Rights,’’ supra, 95
Harv. L. Rev. 1356 (‘‘the preeminence and supremacy
of federal constitutional interpretation narrow the field
for state elaboration and shape the context in which
state constitutional law must evolve’’). The state consti-
tution can now make a difference in the outcome of a
case only if it provides greater protection than the fed-
eral constitution.7 Indeed, our own cases recognize this
more limited role of our state constitution. This court
repeatedly has emphasized that the federal constitution
sets ‘‘a minimum national standard for the exercise of
individual rights’’ that states must guarantee but permits
states to provide ‘‘higher levels of protection for such
rights’’ under state law. (Internal quotation marks omit-
ted.) State v. Geisler, supra, 222 Conn. 684; see also
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 155–56, 957 A.2d 407 (2008); State v. Ledbetter,
supra, 275 Conn. 560; State v. Linares, supra, 232 Conn.
378–79; Fair Cadillac-Oldsmobile Isuzu Partnership
v. Bailey, 229 Conn. 312, 316–17, 640 A.2d 101 (1994).
The primacy approach of putting the state constitu-
tion first stands in contrast to the primary position the
federal constitution occupies in the field of individual
rights, even in state proceedings, and thus assigns to
the state constitution a role it no longer holds. See
‘‘Developments in the Law: The Interpretation of State
Constitutional Rights,’’ supra, 95 Harv. L. Rev. 1357
(‘‘The failing of the primacy model is that this assump-
tion no longer resembles reality. Nor does it reflect the
fact that litigants typically present state constitutional
issues only when they expect an unfavorable federal
constitutional result. Federal assumption of the domi-
nant role in the federal system—and particularly in
the protection of individual rights—has rendered the
primacy model obsolete.’’ [Footnote omitted.]). Instead,
‘‘[f]or state constitutional law to assume a realistic role,
state courts must acknowledge the dominance of fed-
eral law and focus directly on the [gap filling] potential
of state constitutions.’’ Id.
B
Given the respective roles of the federal and state
constitutions following incorporation, I believe the bet-
ter approach is one that resolves claims under the fed-
eral constitution first, and that looks to the state
constitution when the federal constitution fails to pro-
vide the protections sought. This method—commonly
called an interstitial approach—recognizes that the fed-
eral constitution sets minimum protections and calls
for application of the state constitution only when nec-
essary to supplement the protections of the federal
constitution if the state might provide greater protec-
tion. See, e.g., M. Kelman, ‘‘Foreword: Rediscovering
the State Constitutional Bill of Rights,’’ 27 Wayne L.
Rev. 413, 429–31 (1981); J. Landau, supra, 115 Penn. St.
L. Rev. 846; ‘‘Developments in the Law: The Interpreta-
tion of State Constitutional Rights,’’ supra, 95 Harv. L.
Rev. 1356–57.
Federal law marks a natural starting point for any
claim made under both the federal and state constitu-
tions. In most cases, the federal rule will be readily
ascertainable. Because litigants have strongly favored
federal claims, courts across the country apply the fed-
eral constitution and do so more often than we apply our
own state constitution. This has created an ‘‘expansive
body of federal law’’ far more developed than state
constitutional law on an overlapping topic. ‘‘Develop-
ments in the Law: The Interpretation of State Constitu-
tional Rights,’’ supra, 95 Harv. L. Rev. 1357 (state
constitutions are better served when performing gap
filling role in light of extensive number of federal deci-
sions already covering much of field).
Starting with the federal constitution better allows
us to articulate differences between the federal and
state constitutions when they exist. When the state con-
stitution provides protection not afforded by the federal
constitution, certainly, we have a duty to enforce the
state constitution. See, e.g., State v. Dukes, 209 Conn.
98, 112, 547 A.2d 10 (1988). But deciding a claim under
the state constitution without first articulating the result
under the federal constitution can leave ambiguity
about whether and to what extent our constitution actu-
ally differs from the federal constitution. One commen-
tator has explained that, ‘‘[w]hen state judges pass over
a fairly arguable federal issue . . . we do not know
whether the decision upholding the claim of state con-
stitutional rights is a genuinely differentiated act of state
interpretation or a crypto-federal ruling.’’ M. Kelman,
supra, 27 Wayne L. Rev. 430. Instead, the better practice
is to declare the scope of the federal constitution before
embarking on a state constitutional analysis. Doing so
clearly delineates the differences between the two con-
stitutions. Indeed, ‘‘[b]y proceeding from a failed federal
claim to the question [of] whether the state constitution
grants broader rights in the circumstances of the case,
the state court eliminates an ambiguity that otherwise
might shroud its decision. It tells us distinctly, and
obliges the court to think more carefully about, whether
and why the state constitution differs from or retains the
same meaning as the federally interpreted counterpart.’’
Id., 429. It also helps to avoid the appearance that the
state constitutional analysis is merely a result oriented
rejection of the federal rule rather than truly an indepen-
dent and principled interpretation of our state charter.
See id., 430–31 (‘‘[t]he more credible separation of the
state from the federal interpretation is that which takes
place in the first place by a clear cut disposition of
the [federal] issue followed by the state constitutional
pronouncement’’).
Moreover, analyzing a claim first under the federal
constitution coincides with our mode of state constitu-
tional interpretation, which requires us to consider fed-
eral law on the topic in any event. Federal constitutional
jurisprudence, although not binding, provides persua-
sive authority for any interpretation or application of
an analogous provision of our state constitution. See,
e.g., State v. Linares, supra, 232 Conn. 378–79. Indeed,
we use federal precedent as one of six interpretive tools
when construing our constitution, at least when our
state constitution has a federal analog. See, e.g., State
v. Geisler, supra, 222 Conn. 685; see also State v. Skok,
supra, 318 Conn. 729–31 (Zarella, J., concurring). If,
after reviewing federal case law in the context of a state
constitutional analysis, it becomes apparent that the
federal constitution would provide relief, there is no
practical need for continuing with a needless state con-
stitutional disquisition.
Beginning with the federal constitution also helps to
avoid unnecessary constitutional decision making. If
the federal constitution provides relief in a given case,
we have no need to consider the question separately
under the state constitution. As a matter of judicial
restraint, we commonly avoid addressing constitutional
questions that are not necessary to our disposition. See,
e.g., State v. Cofield, 220 Conn. 38, 49–50, 595 A.2d 1349
(1991) (declining to consider whether recent United
States Supreme Court decision also applied under state
constitution when existing federal constitutional law
was dispositive). If the federal constitution affords
relief, we should not conduct an unnecessary state con-
stitutional analysis, especially when, as in the present
case, doing so requires us to needlessly create new
doctrine. See ‘‘Developments in the Law: The Interpreta-
tion of State Constitutional Rights,’’ supra, 95 Harv. L.
Rev. 1357–58 (‘‘This interstitial role recognizes federal
doctrine as a settled floor of rights and asks whether and
how to criticize, amplify, or supplement this doctrine
to yield more extensive constitutional protections. The
state court’s role is not to construct a complete system
of fundamental rights from the ground up.’’ [Emphasis
added; footnote omitted.]); see also M. Kelman, supra,
27 Wayne L. Rev. 429 (‘‘a separation of the state issue
from the federal need not occur until the individual
rights claim has been considered and rejected on its
federal merits’’).
Finally, looking to the federal constitution first will
help to avoid creating unnecessary or unintended differ-
ences between federal law and state law. We should
favor uniformity between the two constitutions when
federal law is adequate to protect the rights of a party
in a given case. As the decision in Mapp v. Ohio, supra,
367 U.S. 643, demonstrates, deviations between federal
and state law can ultimately undermine our constitu-
tional order, especially in the area of search and seizure
jurisprudence. Divergent search and seizure principles
encourage the criminal law equivalent of forum shop-
ping, at least for crimes that might also be prosecuted
under federal law.8 Because our state constitution does
not bind federal authorities or federal courts; see, e.g.,
United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.
1987); we are powerless to prevent state authorities
who have obtained evidence in violation of the state
constitution from providing it to federal authorities for
their use in a federal prosecution, undermining both
the legitimacy and value of protections granted by our
state constitution. See, e.g., R. Range, supra, 45 Wash. &
Lee L. Rev. 1499. Indeed, the Second Circuit has made
clear that federal district courts may admit evidence
even if seized in violation of a state constitution. United
States v. Pforzheimer, supra, 204. It was precisely this
type of practice that led the United States Supreme
Court to hasten its incorporation process in the 1960s
as a means of creating uniformity between federal and
state law. See R. Range, supra, 1500–1501; cf. Mapp v.
Ohio, supra, 657–58. Resorting to the state constitution
only when necessary to fill a gap left by the federal
constitution will help reduce the opportunity for similar
problems to arise from our state constitutional interpre-
tation.
For the foregoing reasons, I would simplify our deci-
sion and decide it under the federal constitution, consis-
tent with the Second Circuit’s decision in Thomas.
Because the majority has unnecessarily opted to resolve
the case under our state constitution without first
resolving the federal constitutional claim, I concur in
the judgment only.
1
The majority implies that Thomas does less to settle the fourth amend-
ment question before us because Thomas was decided ‘‘many years before
the seminal cases of [Florida v. Jardines, U.S. , 133 S. Ct. 1409, 185
L. Ed. 2d 495 (2013), Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160
L. Ed. 2d 842 (2005), and Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038,
150 L. Ed. 2d 94 (2001)] were decided . . . .’’ This implication, however, is
contradicted by the majority’s own recognition that ‘‘Kyllo and Jardines
tend to favor the defendant’s position’’ and that the decision in Caballes
has been distinguished because it involved the search of a motor vehicle,
which traditionally receives less protection under the fourth amendment
than a person’s home.
2
Whether I would agree with Justice Espinosa’s position under the state
constitution is another matter, and one that I need not address in view of
my reliance on the federal constitution.
3
The majority cites a number of decisions that originally criticized the
decision in Thomas, but the criticism in those cases does not convince me to
depart from that decision. Most significantly, each of these cases criticizing
Thomas was decided before Jardines, and many were decided even before
Kyllo. It is questionable whether, in light of Jardines, these courts would
maintain their original criticism. For example, the Eighth Circuit concluded,
before Jardines, that dog sniffs at apartment doors are not searches. United
States v. Scott, 610 F.3d 1009, 1015 (8th Cir. 2010), cert. denied, 562 U.S.
1160, 131 S. Ct. 964, 178 L. Ed. 2d 794 (2011). But at least one District Court
in that circuit has concluded that the Eighth Circuit’s decision in Scott is
no longer good law after Jardines. See, e.g., United States v. Hopkins,
United States District Court, Docket No. CR14-0120 (N.D. Iowa July 6, 2015)
(concluding that, although, ‘‘prior to Jardines, officers could rely on Eighth
Circuit precedent in conducting dog sniffs outside the doorways of resi-
dences in an apartment complex,’’ these dog sniffs were now searches under
fourth amendment).
4
Thus, beginning with a federal constitutional analysis makes sense as a
practical matter because any interpretation of our state constitution requires
that we analyze the meaning of federal law in any event. See State v. Geisler,
222 Conn. 672, 685, 610 A.2d 1225 (1992). If, in analyzing federal law for
the purpose of interpreting the state constitution, this court determines that
federal law supports the relief being sought, there is little reason to continue
with a state constitutional analysis.
5
Of course, this question does not arise when a party has made a claim
under only the state constitution, which typically happens when the federal
constitution clearly does not provide a basis for relief or when a party is
seeking greater protection under the state constitution. See, e.g., State v.
Skok, supra, 318 Conn. 701 and n.3; Doe v. Hartford Roman Catholic Dioce-
san Corp., 317 Conn. 357, 402–403, 119 A.3d 462 (2015); State v. Kelly, 313
Conn. 1, 12, 95 A.3d 1081 (2014); State v. Williams, 311 Conn. 626, 628–29,
88 A.3d 534 (2014); State v. DeFusco, 224 Conn. 627, 631–32, 620 A.2d 746
(1993); State v. Marsala, 216 Conn. 150, 159–61, 579 A.2d 58 (1990); State
v. Dukes, 209 Conn. 98, 100 and n.4, 547 A.2d 10 (1988).
6
The ‘‘Warren Court’’ signifies the group of judges that comprised the
United States Supreme Court when Earl Warren served as Chief Justice.
7
Of course, state constitutions continue to apply exclusively in matters
not addressed by the federal constitution and for those federal guarantees
that the United States Supreme Court has applied to the states through the
incorporation doctrine.
8
We should interpret our constitution differently from the federal constitu-
tion only when necessary to protect the rights of our citizens; otherwise,
we risk unnecessarily encouraging a ‘‘reverse silver platter’’ problem—essen-
tially the mirror image of the problem identified in Mapp. See R. Range,
supra, 45 Wash. & Lee L. Rev. 1499 (discussing ‘‘reverse silver platter’’
practice that arises when federal officials may use evidence inadmissible
in state court). Whenever we interpret our state constitution to forbid the
use of evidence that would be allowed in federal court under the federal
constitution, we risk encouraging state law enforcement officials to turn
evidence not permitted in a state proceeding over to federal authorities for
use in a federal proceeding.