State v. Correa

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STATE OF CONNECTICUT v. RICARDO CORREA
(AC 39899)
Alvord, Prescott and Beach, Js.
Syllabus
Convicted, following a conditional plea of nolo contendere, of the crimes
of conspiracy to possess a controlled substance with intent to sell,
conspiracy to possess a controlled substance with intent to sell by a
person who is not drug-dependent, and conspiracy to operate a drug
factory, the defendant appealed to this court, claiming that the trial
court improperly denied his motion to suppress certain evidence that
was seized from his motel room after the police conducted a warrantless
canine sniff of the front door of the motel room, which was open to
the public and located in an open, shared walkway. The police were
surveilling the building for illegal activity and observed what appeared
to be a drug transaction out of the defendant’s motel room. Thereafter,
the police conducted a canine examination of the walkway of the motel.
After the canine alerted the handler that it had detected contraband at
the bottom of the door to the defendant’s motel room, the police applied
for a warrant to search the motel room. Prior to obtaining the warrant,
the police detained the defendant and used his room key to open the
door to look inside his room for occupants who might destroy evidence.
A police officer, in conducting the visual sweep of the room without
entering it, observed evidence of drug activity. In his motion to suppress,
the defendant argued that the police officer’s visual sweep of the room
was per se unreasonable as it was performed without a valid search
warrant and that the search did not fall within any recognized exceptions
to the warrant requirement. On appeal, the defendant claimed, for the
first time, that the warrantless dog sniff outside the door to his motel
room violated his rights under article first, § 7, of the state constitu-
tion. Held:
1. The defendant could not prevail on his unpreserved claim that the dog
sniff constituted a violation of his state constitutional rights: the defen-
dant’s claim that the police were required to obtain a warrant before
conducting a dog sniff search of the pathway outside of his motel room
was unavailing, as the defendant, under the facts of this case, did not
show a reasonable expectation of privacy on the outside of the door to
his motel room and cited no authority to support his assertion that a
canine sniff outside the door of a motel room, conducted from an open,
shared walkway, which was located outside of the structure and visible
to and accessible by any member of the public, constituted a search
within the meaning of article first, § 7, of the state constitution; more-
over, the defendant also was unable to prevail under the plain error
doctrine, as he could not demonstrate that an obvious error existed
that affected the fairness and integrity of and public confidence in the
judicial proceedings.
2. The defendant’s claim that the conduct of the police in opening the door
to his motel room and conducting a visual sweep of the room without
a warrant was unlawful under the federal and state constitutions was
unavailing, trial court having properly concluded that the search was
lawful under the exigent circumstances exception to the warrant require-
ment: although the defendant claimed that the testifying officers could
not identify any definite and specific reason for believing that someone
was in the room who might destroy evidence and, thus, that the officers
did not hold a reasonable belief that immediate action was necessary,
probable cause existed to search the motel room, as there was ample
evidence that would persuade a reasonable person to believe that crimi-
nal activity had occurred and to conclude that there was a fair probability
that contraband or evidence of a crime would be found in the motel
room; moreover, under the totality of the circumstances, a reasonable,
well trained police officer reasonably would have believed that immedi-
ate entry into the motel room was necessary to prevent the destruction
of evidence, as the police had reason to suspect, on the basis of firsthand
observations, that criminal activity was occurring in the motel room,
those suspicions were confirmed over a series of events that unfolded
over the course of two hours, which demonstrated that there was a
distinct possibility that someone who might have observed those events,
or the police and canine presence at the motel, might have informed
someone involved with the criminal activity, and, thus, the police had
ample reason, under the facts of this case, to believe that, in the absence
of swift action in opening the door to the room and performing a visual
sweep, there was a significant risk of the destruction of evidence.
Argued April 24—officially released October 9, 2018
Procedural History
Information charging the defendant with the crimes
of possession of more than four ounces of marijuana,
conspiracy to possess more than four 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
conspiracy 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 factory;
judgment of guilty in accordance with the plea; there-
after, the state entered a nolle prosequi as to the
remaining charges, and the defendant appealed to this
court. Affirmed.
Laila M.G. Haswell, senior assistant public defender,
with whom, on the brief, was Lauren Weisfeld, chief
of legal services, for the defendant (appellant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
Jr., state’s attorney, and Susan M. Campbell, deputy
assistant state’s attorney, for the appellee (state).
Opinion
ALVORD, J. Following a conditional plea of nolo con-
tendere, entered pursuant to General Statutes § 54-94a,1
the defendant, Ricardo Correa, appeals from the judg-
ment of conviction of conspiracy to possess a controlled
substance with intent to sell in violation of General
Statutes §§ 53a-48 and 21a-277 (b), conspiracy to pos-
sess a controlled substance with intent to sell by a
person who is not drug-dependent in violation of Gen-
eral Statutes §§ 53a-48 and 21a-278 (a), and conspiracy
to operate a drug factory in violation of General Statutes
§§ 53a-48 and 21a-277 (c). The defendant entered his
conditional plea following the court’s denial of his
motion to suppress evidence seized from a motel room
he was renting. On appeal, the defendant claims that
the trial court erred in denying his motion to suppress
because: (1) a warrantless dog sniff outside the door
of his motel room violated his state constitutional
rights, and (2) a warrantless visual search of his motel
room violated his state and federal constitutional rights.
We affirm the judgment of the trial court.
The trial court set forth the following findings of
fact in its memorandum of decision on the defendant’s
motion to suppress. 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 Stam-
ford. Sergeant Broems, a nineteen year veteran of the
Stamford Police Department who also spent three years
in the New York City Police Department, had made
many prior arrests at the motel for narcotics, prostitu-
tion, and other criminal activity. From the street, Ser-
geant Broems was surveilling the motel for evidence
of possible illegal activity. He was parked approxi-
mately 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,
Sergeant Broems believed that he may have witnessed a
narcotics transaction out of room 118. Sergeant Broems
radioed to a nearby colleague, Officer Vincent Sheperis,
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 deter-
mined to be Charles Brickman, observed Sergeant
Broems approaching the Yukon in his marked Stamford
Police SUV, he turned off the Yukon’s headlights. A
short distance from the motel, Sergeant Broems
stopped the vehicle. Officer Sheperis joined Sergeant
Broems, acting as backup. When Sergeant Broems and
Officer Sheperis 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 admit-
ted 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 sand-
wich bag containing heroin. On the basis of this evi-
dence, Sergeant Broems requested a sweep of the
Yukon by a canine officer trained in the detection of nar-
cotics.
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. Brickman was issued an
infraction ticket for operating a motor vehicle without
headlights, and allowed to drive off in the Yukon. The
officers detained Taveras.
Taveras informed Sergeant O’Brien that he lived with
his grandmother nearby on Charles Street in Stamford.
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.
Taveras’ grandmother 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 pow-
der 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 had rented room 118
for the week, until February 8, 2013, paying $430 in
cash.2 The manager provided the officers with docu-
mentation concerning room 118, including a photocopy
of the defendant’s driver’s license. The guest registra-
tion card for room 118 also included the name of a
second individual, Victor Taveras. Although the officers
were not certain who Victor Taveras was, Sergeant
O’Brien testified that they believed 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 along the first floor walkway where room 118
is located. On each pass, Cooper consistently alerted
to the presence of narcotics at the door to room 118.
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, Sergeant Broems
decided to apply for a warrant to search room 118.
The officers decided that Sergeant Broems and Officer
Sheperis would return to Stamford Police 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 offi-
cers split up, however, just as Sergeant 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 defen-
dant, immediately radioed for Sergeant 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 informed
the defendant that Taveras was taken into custody, and
that ‘‘the jig is up.’’ The defendant responded, ‘‘nothing
in the room is mine.’’ 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 defen-
dant 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 that 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 ‘‘Police!’’ and looked inside the
room for approximately fifteen to thirty seconds.3 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. 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 U.S. currency, a laptop com-
puter, and paper documents pertaining to a street gang,
the Latin Kings. The police also discovered over four
ounces of marijuana and a quantity of packaging materi-
als, 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 defendant at Taveras’ grandmother’s
house on Charles Street. The defendant was charged
with a variety of felony drug offenses.4 On October 28,
2015, the defendant filed a motion to suppress ‘‘all items
seized by police on February 5, 2013 from America’s
Best Value Inn Room #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 recognized exceptions to the warrant
requirement, as no exigent 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 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 Officer Broems’ visual sweep of room 118 was
undertaken ‘‘solely for the purpose of insuring the lack
of—insuring that no evidence was being destroyed,’’
it was lawful pursuant to the exigent circumstances
exception to the warrant requirement. The state specifi-
cally noted that the visual sweep did not constitute a
‘‘protective sweep.’’5 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 police at the time of the
warrantless entry by Broems are viewed objectively,
the case meets the criteria for a finding of exigent cir-
cumstances.’’ In reaching its decision, the court noted
that other courts have found that evidence destruction
is frequent in drug cases, and it relied on the testimony
of the police officers, including: Sergeant Broems’ testi-
mony that his only motivation to open the door to room
118 was to avoid the destruction of possible evidence;
Sergeant O’Brien’s testimony that, based on his training
and experience, it is common for additional people to
be present in a motel room, especially in the context
of narcotics or prostitution, regardless of the actual
number of registered parties; Sergeant O’Brien’s testi-
mony that he was concerned that, on the basis of his
prior experience as a trained officer with respect to the
destruction or contraband or evidence, a number of
people already knew of the Stamford police’s investiga-
tion into the activity in room 118, and that phone calls
informing potential confederates of that investigation
may have already been made, prompting the destruction
of evidence; and Sergeant Broems’ testimony that he
believed that there was a real possibility for the loss
of potential evidence of illegal activity in room 118
because the police did not continue to surveil room 118
after initially departing the motel to stop the Yukon.
The court further noted that the officers were not aware
of the true extent of Taveras’ involvement with the
room, or the possibility of the presence of other persons
inside the room. The court also concluded that ‘‘even
assuming, arguendo, that the act of Broems in opening
the door without a warrant in order to check the room
for other occupants violated the defendant’s fourth
amendment rights, the court finds that the evidence
later seized pursuant to a search warrant is admissible
under the independent source doctrine.’’
On October 19, 2016, the defendant entered a condi-
tional plea of nolo contendere to conspiracy to possess
a controlled substance with intent to sell in violation
of General Statutes §§ 53a-48 and 21a-277 (b), conspir-
acy to possess a controlled substance with intent to
sell by a person who is not drug-dependent in violation
of General Statutes §§ 53a-48 and 21a-278 (a), and con-
spiracy to operate a drug factory in violation of General
Statutes §§ 53a-48 and 21a-277 (c). The plea was entered
conditionally on his right to take an appeal from the
court’s ruling on the motion to suppress. The court,
Blawie, J., rendered a judgment of conviction. The
court sentenced the defendant to a term of incarcera-
tion 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.6 This appeal
followed.
We begin by noting that ‘‘[a]s a general matter, the
standard of review for a motion to suppress is well-
settled. A finding of fact will not be disturbed unless it
is clearly erroneous in view of the evidence and plead-
ings in the whole record. . . . [W]hen a question of
fact is essential to the outcome of a particular legal
determination that implicates a defendant’s constitu-
tional rights, [however] and the credibility of witnesses
is not the primary issue, our customary deference to the
trial court’s factual findings is tempered by a scrupulous
examination of the record to ascertain that the trial
court’s factual findings are supported by substantial
evidence. . . . [W]here the legal conclusions of the
court are challenged, [our review is plenary, and] we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision . . . .
‘‘Notwithstanding the responsibility to examine the
record scrupulously, it is well established that we may
not substitute our judgment for that of the trial court
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony. . . . Questions of whether to
believe or disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . We
must defer to the trier of fact’s assessment of the credi-
bility of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Kendrick, 314 Conn.
212, 222–24, 100 A.3d 821 (2014).
I
For the first time on appeal, the defendant claims
that the dog sniff constituted a violation of his rights
under article first, § 7, of the state constitution. Specifi-
cally, he argues that ‘‘the police conducted an illegal,
warrantless dog sniff search of the outside door of
the defendant’s hotel room during which the canine
signaled that he detected drugs in the room,’’ and as a
result of that illegal search, obtained a search warrant
for his motel room. The defendant concedes that this
issue is unpreserved, but nevertheless seeks review pur-
suant to the bypass doctrine set forth by our Supreme
Court in State v. Golding, 213 Conn. 233, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
120 A.3d 1188 (2015),7 or reversal pursuant to the plain
error doctrine. See Practice Book § 60-5 (‘‘[t]he court
may in the interests of justice notice plain error not
brought to the attention of the trial court’’).8 The record
is adequate to review the defendant’s claim,9 and the
issue of a warrantless search is an issue of constitu-
tional magnitude. See State v. Buie, 129 Conn. App.
777, 787, 21 A.3d 550, aff’d, 312 Conn. 574, 94 A.3d
608 (2014) (concluding that defendant’s claim satisfied
Golding’s second prong where he was alleging violation
of his right to be free from unreasonable searches under
article first, § 7, of the Connecticut constitution). The
defendant cannot, however, establish a constitutional
violation. We therefore conclude that the defendant’s
state constitutional claim is reviewable, but fails under
Golding’s third prong.10
Article first, § 7, of the Connecticut constitution pro-
vides: ‘‘The people shall be secure in their persons,
houses, papers and possessions from unreasonable
searches or seizures; and no warrant to search any
place, or to seize any persons or things, shall issue
without describing them as nearly as may be, nor with-
out probable cause supported by oath or affirmation.’’11
‘‘A search for purposes of the [f]ourth [a]mendment
occurs when a reasonable expectation of privacy is
infringed.’’ State v. Saturno, 322 Conn. 80, 88, 139 A.3d
629 (2016). ‘‘It is well established that, in determining
whether the police conducted a search within the mean-
ing of article first, § 7, a court employ[s] the same analyt-
ical framework that would be used under the federal
constitution. . . . Specifically, we ask whether the
defendant has established that he had a reasonable
expectation of privacy in the area or thing searched.
. . . In the absence of such an expectation, the subse-
quent police action has no constitutional ramifications
. . . . The determination of whether such an expecta-
tion 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 expecta-
tion of privacy, and, second, whether that expectation
is one society recognizes as reasonable. . . . Whether
a defendant’s actual expectation of privacy in a particu-
lar place is one that society is prepared to recognize
as reasonable involves a fact-specific inquiry into all
the relevant circumstances. . . .
‘‘The determination that a particular place is pro-
tected under [article first, § 7] requires that it be one
in which society is prepared, because of its code of
values and its notions of custom and civility, to give
deference to a manifested expectation of privacy. . . .
It must be one that society is prepared to recognize as
reasonable. . . . Legitimate expectations of privacy
derive from concepts of real or personal property law
or [from] understandings that are recognized and per-
mitted by society. One of the main rights attaching to
property is the right to exclude others . . . and one
who owns or lawfully possesses or controls properly
will in all likelihood have a legitimate expectation of
privacy by virtue of his 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 reason-
able.’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) State v. Kono, 324 Conn. 80,
89–91, 152 A.3d 1 (2017).
The defendant’s state constitutional claim rests on
his interpretation of a recent decision by our Supreme
Court, State v. Kono, supra, 324 Conn. 80, in which that
court decided the issue of ‘‘whether article first, § 7,
of the Connecticut constitution prohibits police from
conducting a warrantless canine sniff of the front door
of a condominium in a multiunit condominium com-
plex, and the common hallway adjacent thereto, for the
purpose of detecting marijuana inside the condomin-
ium.’’ (Footnote omitted.) Id., 82. On the basis of the
court’s ruling that the dog sniff did constitute a search
within the meaning of article first, § 7, the defendant
argues: ‘‘The police did not obtain a warrant before
they decided to conduct a dog sniff search of the path-
way right outside of the defendant’s hotel room. . . .
Thus, under the recent case of State v. Kono, [supra,
80], the dog sniff of the hotel room violated the defen-
dant’s right under the state constitution to be free of
illegal search and seizure.’’
In Kono, the police, after receiving an anonymous tip
that the defendant was boasting about growing mari-
juana in his condominium, which was located in a con-
dominium complex in Berlin, obtained consent from
the property manager to enter the building. Id., 83. Spe-
cifically, the property manager signed a consent form
allowing the police officers and a canine officer, Zeusz,
to conduct a sweep of the common areas of the building.
Id. Because the outside doors to the multiunit condo-
minium buildings were normally locked, allowing
access only through a keypad, a property manager
admitted the police and Zeusz into the building. Zeusz,
who was trained to detect various controlled sub-
stances, including marijuana, was accompanied by his
handler, an officer of the Berlin Police Department.
Id., 83–84.
The officer first had Zeusz conduct a ‘‘presearch,’’ of
the first floor common hallway, during which he was
allowed to walk throughout the condominium building
hallway without direction. Id., 84. After the presearch,
the officer conducted a directed search in which Zeusz
was commanded to sniff at the bottom of the front door
of each condominium unit on the first floor. Id. The
same presearch and directed search procedures also
were conducted on the second floor, where the defen-
dant’s condominium unit was located.12 When Zeusz
performed his sniff at the bottom of condominium unit
204, the defendant’s unit, he sat down in front of the
door, which constituted a passive alert for drugs in the
unit. Id.
The police knocked on the door to unit 204, but
received no response. Id. An officer remained at the
door to ensure that no one entered the premises, and
another officer left to prepare a search warrant applica-
tion. Id. Approximately four hours later, the officer
returned with a signed search warrant. Id. Upon execut-
ing the warrant, the police discovered an indoor green-
house containing marijuana plants, as well as seeds,
lighting equipment, and various firearms. Id. The defen-
dant was arrested and charged with several drug and
weapon related offenses. Id.
The defendant moved to suppress the evidence seized
from his condominium on the ground that a canine sniff
of the threshold of his home, conducted for the purpose
of investigating the home’s contents, constituted a
search under both the fourth amendment to the United
States constitution and article first, § 7, of the Connecti-
cut constitution, and therefore, required a warrant
based on probable cause. Id., 84–85. Specifically, the
defendant argued that the front door to his condomin-
ium unit, as well as the hallway adjacent to his front
door, were ‘‘within the constitutionally protected curti-
lage of his condominium unit such that the entry of a
dog into that area for the purpose of conducting a drug
sniff constituted a trespass.’’ Id., 85. The defendant fur-
ther argued that the canine sniff violated his reasonable
expectation of privacy. Id. The trial court agreed with
the defendant that the canine sniff violated his reason-
able expectation of privacy under the fourth amend-
ment,13 and granted the defendant’s motion to
suppress.14 Id., 82. The state appealed. Id.
On appeal to our Supreme Court, the state reasserted
its trial court argument that the canine sniff of the
defendant’s front door and the hallway adjacent thereto
did not constitute a search under article first, § 7,
because the defendant had no reasonable expectation
of privacy in the common hallway or the contraband
inside his home. Id., 89. The court, employing the
multifactor approach set forth in State v. Geisler, 222
Conn. 672, 685, 610 A.2d 1225 (1992),15 looked first to
federal precedent involving the use of a trained narcot-
ics detection dog. State v. Kono, supra, 324 Conn. 92.
The court concluded that ‘‘federal precedent provides
support for the defendant’s claim of a state constitu-
tional violation.’’16 Id., 93. The court next examined prec-
edent from other state courts, and concluded that ‘‘it
appears that the weight of sister state precedent sup-
ports the view that the canine sniff of the defendant’s
door in the present case was a search under our consti-
tution.’’17 Id., 121. Finally, the court concluded that there
is ‘‘no principled reason of public policy . . . why, in
the context of canine sniffs, the firm and bright line
that we draw at the entrance of the house should apply
to single-family dwellings but not to dwellings in a
multiunit building. Indeed, as the Seventh Circuit
observed in Whitaker, allowing police dogs to sniff the
doors of apartments but not freestanding homes would
be deeply troubling because it would apportion [consti-
tutional] protections on grounds that correlate with
income, race, and ethnicity.’’ (Internal quotation marks
omitted.) Id., 121. The court held that a canine sniff
directed toward a home—whether freestanding or part
of a multitenant structure—is a search for purposes of
article first, § 7, of the Connecticut constitution and,
therefore, requires a warrant issuing upon a court’s
finding of probable cause. Id., 122. The court, therefore,
concluded that the defendant was entitled to suppres-
sion of the evidence seized from his residence as a
fruit of the warrantless canine sniff, and affirmed the
judgment of the trial court. Id., 122.
We disagree with the defendant’s assertion that
‘‘[t]his case is indistinguishable from and is controlled
by Kono.’’ This case concerns the shared open walkway
of a motel.18 In Kono, the hallway was closed off, and
located on the inside of the condominium complex
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. The open, shared walkway here, 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. Further-
more, no permission was required to traverse the walk-
way, evidenced by the ease with which the officers, and
eventually Cooper, did so. We conclude that because
of the nature of the walkway on which room 118 was
located, Kono is distinguishable from the present case.
As the court in Kono noted, the determination of
whether a defendant possesses a reasonable expecta-
tion of privacy in an area or thing to be searched is
made on a case-by-case basis. See id., 90. We conclude
that, under the facts of this case, the defendant has
not shown a reasonable expectation of privacy on the
outside of the door to his motel room. Furthermore,
the defendant cites no authority to support his assertion
that a canine sniff outside the door of a motel room,
conducted from an open walkway, which is visible to
and accessible by any member of the public, constitutes
a search within the meaning of article first, § 7, of our
state constitution.19 In the absence of such authority, we
decline to extend Kono’s reach to the facts of this case.
Because the defendant’s constitutional claim hinges
on his interpretation of Kono,20 in light of our conclusion
that it is inapplicable to the facts of his case, we con-
clude that he has failed to demonstrate a constitutional
violation.21 Accordingly, the defendant’s unpreserved
state constitutional claim fails under Golding’s third
prong. The defendant also is unable to prevail under
the plain error doctrine, as he cannot demonstrate that
an obvious error exists that affects the fairness and
integrity of and public confidence in the judicial pro-
ceedings.
II
The defendant next claims that Sergeant Broems’
conduct in opening the door to room 118 and conduct-
ing a visual sweep of the room was unlawful under the
federal and state constitutions.22 The state does not
dispute that Sergeant Broems’ conduct constituted a
warrantless search within the meaning of the fourth
amendment to the federal constitution and article first,
§ 7, of the state constitution. Rather, the state argues
only that the search was justified by exigent circum-
stances—namely, the potential destruction of evidence.
The defendant argues that ‘‘none of the officers who
testified could identify any definite and specific reason
for believing that someone was in the room who might
destroy the evidence,’’ and, therefore, the officers did
not hold a reasonable belief that immediate action was
necessary. We are not persuaded.
‘‘Ordinarily, police may not conduct a search unless
they first obtain a search warrant from a neutral magis-
trate after establishing probable cause. [A] search con-
ducted without a warrant issued upon probable cause
is per se unreasonable . . . subject only to a few spe-
cifically established and well-delineated exceptions.
. . . These exceptions have been jealously and care-
fully drawn . . . and the burden is on the state to estab-
lish the exception. . . . Our law recognizes that there
will be occasions when, given probable cause to search,
resort to the judicial process will not be required of
law enforcement officers. [For example], where exigent
circumstances exist that make the procurement of a
search warrant unreasonable in light of the dangers
involved . . . a warrant will not be required. . . .
‘‘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, without seeking prior judicial authoriza-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Owen, 126 Conn. App. 358, 364–65, 10
A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008(2011). The test for determining whether exigent cir-
cumstances justify a warrantless search or seizure is
‘‘whether, under the totality of the circumstances, the
police had reasonable grounds to believe that if an
immediate arrest [or entry] were not made, the accused
would be able to destroy evidence, flee or otherwise
avoid capture, or might, during the time necessary to
procure a warrant, endanger the safety or property of
others. . . .
‘‘[N]o single factor, such as a strong or reasonable
belief that the suspect is present on the premises, will
be determinative in evaluating the reasonableness of a
police officer’s belief that a warrantless entry or arrest
was necessary. 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.’’ (Internal quotation marks omitted.)
State v. Kendrick, supra, 314 Conn. 227, 229.
‘‘It is well established in Connecticut . . . that the
test for the application of the doctrine is objective, not
subjective, and looks to the totality of the circum-
stances. . . . This is an objective test; its preeminent
criterion is what a reasonable, well-trained police offi-
cer would believe, not what the arresting officer actu-
ally did believe. . . . The reasonableness of a police
officer’s determination that an emergency exists is eval-
uated on the basis of facts known at the time of entry.’’
(Citations omitted; internal quotation marks omitted.)
State v. Owen, supra, 126 Conn. App. 365. ‘‘[T]he trial
court’s legal conclusion regarding the applicability of
the exigent circumstances doctrine is subject to plenary
review.’’ State v. Kendrick, supra, 314 Conn. 222.
As a preliminary matter, we must first determine
whether, at the time of Sergeant Broems’ visual sweep,
probable cause existed to search room 118. See State
v. Owen, supra, 126 Conn. App. 366. We conclude that
it did. ‘‘Whether the trial court properly found that the
facts submitted were enough to support a finding of
probable cause is a question of law. . . . The trial
court’s determination on [that] issue, therefore, is sub-
ject to plenary review on appeal. . . . Probable cause
to search exists if: (1) there is probable cause to believe
that the particular items sought to be seized are con-
nected with criminal activity or will assist in a particular
apprehension or conviction . . . and (2) there is proba-
ble cause to believe that the items sought to be seized
will be found in the place to be searched. . . . 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. . . . Reasonable minds
may disagree as to whether a particular affidavit estab-
lishes probable cause.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Pappas, 256 Conn. 854,
864–65, 776 A.2d 1091 (2001).
‘‘We consistently have held that [t]he quantum of
evidence necessary to establish probable cause exceeds
mere suspicion, but is substantially less than that
required for conviction. . . . The existence of probable
cause does not turn on whether the defendant could
have been convicted on the same available evidence.
. . . [P]roof of probable cause requires less than proof
by a preponderance of the evidence. . . . 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. . . . The probable
cause determination is, simply, an analysis of probabili-
ties. . . . The determination is not a technical one, but
is informed by the factual and practical considerations
of everyday life on which reasonable and prudent [per-
sons], not legal technicians, act. . . . Probable cause
is not readily, or even usefully, reduced to a neat set
of legal rules. . . . Reasonable minds may disagree as
to whether a particular [set of facts] establishes proba-
ble cause. . . .
‘‘The determination of whether probable cause exists
under the fourth amendment to the federal constitution
. . . is made pursuant to a totality of circumstances
test. . . . The probable cause test then is an objective
one.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Johnson, 286 Conn. 427, 435–36, 944 A.2d
297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L.
Ed. 2d 144 (2008). ‘‘In a warrantless arrest or search,
as well as one made pursuant to a warrant, the reviewing
court must pay great deference to the magistrate’s
determination of probable cause. . . . This court must
not attempt a de novo review where there has already
been a determination at a suppression hearing that
probable cause exists. . . . When a trial court rules on
a motion to suppress without making detailed findings
of fact to support its ruling, an appellate court may look
to the evidence produced in support of the ruling. . . .
Where, as in this case, however, the trial court performs
its judicial function conscientiously by detailing the
facts which the state has established, we are not free
to add facts which are not found and which are not
undisputed.’’ (Citations omitted; internal quotation
marks omitted.) State v. Velez, 20 Conn. App. 168, 174,
565 A.2d 542 (1989), rev’d on other grounds, 215 Conn.
667, 577 A.2d 1043 (1990).
The defendant contends that ‘‘[e]ven construing the
facts as broadly as possible, there is simply no probable
cause to search the hotel room because the facts fail
to establish a nexus between drug activity and the hotel
room.’’ We disagree and conclude that there was ample
evidence that would persuade a reasonable person to
believe that criminal activity had occurred. The evi-
dence 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.
First, Sergeant Broems observed Taveras’ quick visit to
room 118, which led him to believe, on the basis of the
location of the motel, the time of night, and the duration
of the visit, that he had witnessed a drug transaction
out of room 118. Sergeant Broems and Sergeant O’Brien
then stopped the Yukon in which Taveras was traveling,
and discovered narcotics on Taveras’ person. That inter-
action led the police to the house of Taveras’ grand-
mother, where they discovered items consistent with
narcotics packaging. The police then learned that room
118 was registered to the defendant and another person
by the name of Victor Taveras. When Sergeant O’Brien
observed the defendant, the defendant made eye con-
tact with him, changed direction and began walking
east on East Main Street rather than continuing on
Home Court, where Sergeant O’Brien was parked. After
Sergeant O’Brien approached the defendant, the police
discovered a large amount of cash and a key to room
118 on his person. When the police informed the defen-
dant at that point that they had arrested Taveras and
that ‘‘the jig is up,’’ the defendant responded, ‘‘nothing
in the room is mine,’’ implying that something, with
which the defendant did not want to be associated, was
present in the room. On the basis of these facts known
to the police, a reasonable person would believe that
criminal activity had occurred, and that room 118 con-
tained evidence of such criminal activity.
Having determined that there existed probable cause
to search room 118 at the time of Sergeant Broems’
visual sweep, we now turn to the question of whether,
under the totality of the circumstances, a reasonable,
well trained police officer reasonably would have
believed that immediate entry into room 118 was neces-
sary to prevent the destruction of evidence. We answer
that question in the affirmative. We agree with the trial
court’s conclusion that ‘‘when all the facts of this case
as known by the police at the time of the warrantless
entry by Broems are viewed objectively, the case meets
the criteria for a finding of exigent circumstances.’’
On the basis of firsthand observations, the police had
reason to suspect that drug related criminal activity
was occurring in room 118. These suspicions were con-
firmed by a series of events, unfolding over the course
of approximately two hours in the early hours of the
morning of February 5, 2013. That course of events
included police interactions with at least four people
who were not taken into police custody before Sergeant
Broems opened the door to room 118, including Brick-
man, Taveras’ brother, Taveras’ grandmother, and the
hotel manager. Additionally, it was reasonable for the
police to fear that even unknown passersby might
become aware of the police investigation into room
118. Sergeant O’Brien, an experienced police officer,
testified about his concerns that phone calls may have
occurred between people aware of the investigation
into the activity in room 118 and possible confederates,
prompting the destruction of evidence inside of the
room.
We find this court’s decision in State v. Reagan, 18
Conn. App. 32, 556 A.2d 183, cert. denied, 211 Conn.
805, 559 A.2d 1139 (1989), persuasive on this point. In
Reagan, the state police were surveilling the defen-
dant’s home for possible drug activity. Id., 34. While
surveilling the home, the police observed what
appeared to be a drug transaction occurring between
the defendant and a man, as well as a woman arriving
to the home in a car, entering the house and leaving
after less than one minute. Id. Following the man’s
departure from the home, the police stopped and
searched his vehicle at a nearby gas station. Id. The
police discovered narcotics in the man’s vehicle and
arrested him. Id. During the search and arrest, several
people watched from a distance, including the woman
who the officers earlier observed entering and leaving
the defendant’s home. Id. After arresting the man, the
police applied for a search warrant, but because they
thought it would take at least three hours, they ‘‘decided
that a significant risk existed that the defendant would
learn of [the man’s] arrest and destroy any incriminating
evidence,’’ and entered the defendant’s home before a
warrant was issued. Id., 35.
The defendant moved to suppress all evidence
obtained during the search as fruit of an illegal search
and arrest. Id., 36. The trial court denied the motion to
suppress, finding that the warrantless entry was justi-
fied by exigent circumstances, and this court affirmed.
Id. This court concluded that the trial court properly
found that the warrantless entry into the defendant’s
home and his subsequent arrest were justified by the
existence of exigent circumstances, as ‘‘the possibility
that a suspect 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 court reasoned: ‘‘[I]n the present case, police
detained and arrested an individual seen leaving the
defendant’s home. The arrest site was located on the
corner of the defendant’s street, approximately one
quarter of a mile from the defendant’s home. Several
people observed this arrest, one of whom was seen by
police conversing with [the man]. In addition, there was
testimony indicating that the arrest was observed by a
woman seen by police at the defendant’s home. Given
the small size of the town, the proximity of the arrest
to the defendant’s home and the observation of that
arrest by several people, we conclude that police had
reasonable grounds to believe that if an immediate entry
into the defendant’s home were not made, the defendant
would be alerted to the arrest of [the man] and destroy
any incriminating evidence.’’ Id., 39.
Similar to the facts of Reagan, there was a distinct
possibility that someone who observed either the police
stop of the Yukon, Taveras’ arrest, or the police and
canine presence at the motel, might inform someone
involved with the criminal activity. The stop of the
Yukon and the arrest of Taveras, a person seen leaving
room 118 and seemingly known to the defendant,
occurred a short distance from the motel. Brickman,
Taveras’ grandmother, and Taveras’ brother were aware
that the police arrested Taveras after he left the motel.
The police located and arrested the defendant hours
later at the home of Tavares’ grandmother. Given the
proximity of the arrest of Taveras to the motel and the
knowledge of that arrest and the ensuing investigation
by at least four people, the police had reasonable
grounds to believe that if an immediate entry were
not made into room 118, incriminating evidence may
be destroyed.
Furthermore, Sergeant Broems, on the basis of his
own training and experience, noted that from the time
Taveras entered the room until the 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 room 118 and
destroy evidence contained therein. Although no one
answered when the police knocked on the door earlier
in the night, and there was no evidence confirming the
presence of an additional person in room 118, these
facts, coupled with the observation of a light on in the
room, provided ample reason to believe that, absent
swift action in opening the door to room 118 and per-
forming a visual sweep, there was a significant risk of
the destruction of evidence. It was reasonable for the
police to believe that the delay necessary to obtain a
search warrant may have resulted in the destruction of
incriminatory evidence.
The court properly concluded that the search was
lawful under the exigent circumstances exception to the
warrant requirement.23 Accordingly, the court properly
denied the defendant’s motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.
1
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.’’
2
As the result of a prior case, the Stamford police already knew the
defendant by name.
3
Sergeant O’Brien characterized the sequence of events as follows:
‘‘[Broems] cracked the door, stuck his head in, cleared it, you know, visually
and then he relayed that nobody else was in there, he closed the door.’’
4
The defendant was charged with the crimes of possession of more than
four ounces of marijuana in violation of General Statutes (Rev. to 2013)
§ 21a-279 (b); conspiracy to possess more than four ounces of marijuana
in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2013)
§ 21a-279 (b); possession of a controlled substance with intent to sell in
violation of General Statutes § 21a-277 (b); conspiracy to possess a con-
trolled substance with intent to sell in violation of General Statutes §§ 53a-
48 and 21a-277 (b); possession of narcotics in violation of General Statutes
§ 21a-279 (a); conspiracy to possess narcotics in violation of General Statutes
§§ 53a-48 and 21a-279 (a); possession of narcotics with intent to sell by a
person who is not drug-dependent in violation of General Statutes § 21a-
278 (a); conspiracy to possess narcotics with intent to sell by a person who
is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-
278 (a); operation of a drug factory in violation of 21a-277 (c); and conspiracy
to operate a drug factory in violation of General Statutes §§ 53a-48 and 21a-
277 (c).
5
‘‘The protective sweep doctrine . . . is rooted in the investigative and
crime control function of the police. . . . As its name suggests, the purpose
of the doctrine is to allow police officers to take steps to assure themselves
that the house in which a suspect is being, or has just been, arrested is not
harboring other persons who are dangerous and who could not unexpectedly
launch an attack. . . . Although originally a protective sweep was defined
as one made incident to a lawful arrest . . . the scope has since been
broadened so that the current rule is that a law enforcement officer present
in a home under lawful process . . . may conduct a protective sweep when
the officer possesses articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger
to those on the . . . scene.’’ (Citations omitted; emphasis in original; foot-
note omitted; internal quotation marks omitted.) State v. Kendrick, 314
Conn. 212, 229–30, 100 A.3d 821 (2014).
6
The defendant filed his appeal on December 13, 2016. On his appeal
form, he listed ‘‘denial of the defendant’s motion to suppress evidence’’ as
the appealable judgment or decision. On December 29, 2016, the defendant
filed a motion, without objection from the state, requesting permission to
correct his appeal form to state that he was appealing ‘‘from judgment and
sentencing following a nolo contendere plea following denial of a motion
to suppress.’’ On February 17, 2017, this court granted that motion, and also
sua sponte ordered that ‘‘the matter is remanded to the trial court, Blawie,
J., for a determination regarding whether the ruling on the motion to sup-
press would be dispositive of the case as required by General Statutes § 54-
94a. See State v. McGinnis, 83 Conn. App. 700 [851 A.2d 349] (2004); State
v. Douros, 87 Conn. App. 122 [864 A.2d 57] (2005).’’
7
Pursuant to Golding, a defendant may prevail on a claim of constitutional
error not preserved at trial only if all four of the following conditions are
satisfied: ‘‘(1) the record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging the violation of a funda-
mental right; (3) the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R., supra,
317 Conn. 781 (modifying third prong of Golding by eliminating word
‘‘clearly’’ before words ‘‘exists’’ and ‘‘deprived’’).
8
‘‘[T]he plain error doctrine is not . . . a rule of reviewability. It is a rule
of reversibility. That is, it is a doctrine that this court invokes in order to
rectify a trial court ruling that, although either not properly preserved or
never raised at all in the trial court, nonetheless requires reversal of the
trial court’s judgment, for reasons of policy. . . . In addition, the plain error
doctrine is reserved for truly extraordinary situations where the existence
of the error is so obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings. . . . Plain error is a doctrine
that should be invoked sparingly. . . . A party cannot prevail under plain
error unless it has demonstrated that the failure to grant relief will result
in manifest injustice. . . . Implicit in this very demanding standard is the
notion . . . that invocation of the plain error doctrine is reserved for occa-
sions requiring the reversal of the judgment under review. . . . [Thus, a]
defendant cannot prevail under [the plain error doctrine] . . . unless he
demonstrates that the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest injustice.’’ (Internal
quotation marks omitted.) State v. Terry, 161 Conn. App. 797, 820, 128 A.3d
958 (2015), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016).
9
The state argues that the record is inadequate for review. Specifically,
the state argues that ‘‘[b]ecause the defendant did not challenge the dog
sniff below, both the state and the trial court were temporally focused on
Broems’ opening of the door,’’ and, therefore, ‘‘the state will be unable to
show that despite the alleged illegality of the canine sniff, the evidence was
nevertheless admissible under the independent source doctrine.’’ Because
we do not reach the issue of whether the independent source doctrine
applies in this case; see footnote 20 of this opinion; we need not decide the
adequacy of the record with respect to that issue.
10
The defendant also argues that, because our Supreme Court decided
State v. Kono, 324 Conn. 80, 152 A.3d 1 (2016), in which it held that a dog
sniff of the outside door of a condominium, conducted from a common
hallway in the condominium building, constitutes a search within the mean-
ing of article first, § 7, of the Connecticut constitution, after the trial court
decided the motion to suppress, ‘‘this case falls squarely under the rule
permitting review when ‘a new constitutional right not readily foreseeable
has arisen between the time of trial and appeal.’ [State v. Evans, 165 Conn.
61, 70, 327 A.2d 576 (1973)].’’ This argument necessarily fails on the basis
of our conclusion that Kono does not apply to the facts of this case.
11
The language of the fourth amendment to the federal constitution simi-
larly states: ‘‘The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.’’ U.S. Const., amend. IV.
12
The other officers, who were aware of which condominium unit
belonged to the defendant, did not inform Zeusz’ handler which condomin-
ium unit was under investigation. State v. Kono, supra, 324 Conn. 84.
13
The trial court in Kono primarily relied on Second Circuit precedent
which held that ‘‘a canine sniff of a person’s front door in a multiunit
apartment building, for the purpose of detecting drugs inside the apartment,
constituted a search within the meaning of the fourth amendment,’’ and two
United States Supreme Court decisions, which held that ‘‘a canine sniff
conducted within the curtilage of a single-family residence ([Florida v.
Jardines, 569 U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013)]) and the
thermal imaging of a single-family residence ([Kyllo v. United States, 533
U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001)]), for purposes of detecting
marijuana therein, violated the fourth amendment to the United States consti-
tution.’’ State v. Kono, supra, 324 Conn. 86.
14
On appeal, the defendant also argued, consistent with the trial court’s
conclusion, that the canine sniff violated the fourth amendment’s prohibition
against unreasonable searches and seizures. Our Supreme Court, however,
decided only the state constitutional issue, explaining: ‘‘We recently have
explained that when the issue presented is one of first impression under
both the state and federal constitutions, it is appropriate to consider the
state constitutional claim first, turning to the federal claim only after
determining that the appellant’s state constitutional [challenge] will not
succeed. . . . As we discuss more fully in part IV of this opinion, we see
no reason to deviate from this approach when, as in the present case, the
issue is not truly settled under the federal constitution, such that we cannot
predict to a reasonable degree of certainty how the United States Supreme
court would resolve the issue.’’ (Citations omitted; internal quotation marks
omitted.) State v. Kono, supra, 324 Conn. 82 n.3.
15
‘‘In order to construe the contours of our state constitution and reach
reasoned and principled results, the following tools of analysis should be
considered to the extent applicable: (1) the textual approach . . . (2) hold-
ings and dicta of this court, and the Appellate Court . . . (3) federal prece-
dent . . . (4) sister state decisions or sibling approach . . . (5) the
historical approach, including the historical constitutional setting and the
debates of the framers . . . and (6) economic/sociological considerations.’’
(Citations omitted; emphases in original; internal quotation marks omitted.)
State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992). Our Supreme
Court has noted, however, ‘‘that these factors may be inextricably inter-
woven, and not every [such] factor is relevant in all cases.’’ State v. Kono,
supra, 324 Conn. 92.
16
Specifically, the court cited the Second Circuit’s decision in United
States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985), cert. denied, 474 U.S.
819, 106 S. Ct. 67, 88 L. Ed. 2d 54 (1985), in which the court held that a
canine sniff of the common hallway of a multiunit apartment building, for
the purpose of detecting drugs inside one of the apartments, constitutes a
search within the meaning of the fourth amendment, and United States v.
Whitaker, 820 F.3d 849 (7th Cir. 2016), in which the United States Court of
Appeals for the Seventh Circuit reaffirmed that principle. State v. Kono,
supra, 324 Conn. 93. Although it noted that the United States Supreme Court
had not yet decided the issue decided by Thomas, the court noted two cases
which ‘‘tend to favor the defendant’s position’’: the United States Supreme
Court’s decisions in Kyllo and Jardines. See id.; see also footnote 15 of this
opinion. The court finally cited United States v. Hopkins, 824 F.3d 726, 729,
731–33 (8th Cir. 2016), cert. denied, U.S. , 137 S. Ct. 522, 196 L. Ed. 2d 425(2016), in which the United States Court of Appeals for the Eighth Circuit
held that a canine sniff of the front door of a two-story townhouse, which
shared a common walkway and front stoop with the unit next door, violated
the fourth amendment.
17
The court noted that only seven states appear to have addressed the
issue of whether a canine sniff of an apartment door in a multiunit building
is a search within the meaning of the federal, or their respective state,
constitutions. State v. Kono, supra, 324 Conn. 116. The court further noted
that five states, Illinois, Minnesota, Nebraska, New York, and Texas, had
concluded that it is a search that requires either a reasonable and articulable
suspicion or a warrant supported by probable cause, and two, Florida and
Washington, had concluded that a canine sniff of the front door of a single
family house violates the resident’s reasonable expectation of privacy in
the home and requires a warrant supported by probable cause. Id., 117.
Additionally, the court observed that ‘‘several state appellate courts have
determined that even a canine sniff of a nonresidential property may be a
search under their respective state constitutions and may require a reason-
able, articulable suspicion.’’ Id., 118. Finally, the court noted that only two
state appellate courts, in Maryland and North Dakota, had concluded that
a canine sniff of an apartment door in a multiunit building is not a search
for fourth amendment purposes. Id., 118.
18
The defendant also argues that ‘‘[a] person who inhabits a hotel room
has a reasonable expectation of privacy that is equal to the reasonable
expectation of privacy possessed by occupants of any residence.’’ The defen-
dant cites our Supreme Court’s decision in State v. Benton, 206 Conn. 90,
536 A.2d 572 (1987), cert. denied, 486 U.S. 1056, 108 S. Ct. 2823, 100 L. Ed.
2d 924 (1988), for this proposition.
It is useful to elaborate on the guidance provided by Benton. In Benton,
our Supreme Court concluded 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. The court went on to acknowledge, however,
that ‘‘[t]he shared atmosphere and the nearness of one’s neighbors in a hotel
or motel or apartment in a multiple family dwelling, however, diminish the
degree of privacy that one can reasonably expect or that society is prepared
to recognize as reasonable.’’ Id., 96. We conclude that, as part of our case-
by-case determination of whether a reasonable expectation of privacy exists
in an area to be searched; see State v. Kono, supra, 324 Conn. 89; that this
case is one in which the nature of the location to be searched, the outside
of a door located on an open, shared walkway, diminished the degree of
privacy that the defendant reasonably could expect or that society is pre-
pared to recognize as reasonable.
19
We note that, upon review of each federal case where the court was
presented with a similar issue, the court has held that a dog sniff of a hotel
or motel room door, performed from a shared corridor or walkway, does
not constitute a search within the meaning of the fourth amendment. See
United States v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997) (‘‘[The defendant]
had an expectation of privacy in his Hampton Inn hotel room. But because
the corridor outside that room is traversed by many people, his reasonable
privacy expectation does not extend so far. Neither those who stroll the
corridor nor a sniff dog needs a warrant for such a trip. As a result, we
hold that a trained dog’s detection of odor in a common corridor does not
contravene the Fourth Amendment.’’); United States v. Lewis, United States
District Court, Docket No. 1:15-CR-10 (TLS) (N.D. Ind. July 10, 2017) (con-
cluding that dog sniff of defendant’s hotel room door, which was located
along open air walkway, was not search within meaning of fourth amend-
ment, because of nature of walkway, ‘‘an unenclosed, common area that
was readily accessible to the public at all hours’’); United States v. Marlar,
828 F. Supp. 415, 419 (N.D. Miss. 1993) (concluding that defendant possessed
a reasonable expectation of privacy in his motel room, but that dog sniff
outside defendant’s door, which ‘‘opened to the exterior of the building,’’
did not infringe on that expectation of privacy), dismissed on other grounds,
68 F.3d 464 (1995).
20
Because we determine that the search was lawful, we need not decide
the applicability of the independent source doctrine, a doctrine which applies
in the context of the exclusionary rule. See State v. Brocuglio, 264 Conn.
778, 786–87, 826 A.2d 145 (2003) (‘‘As a general principle, the exclusionary
rule bars the government from introducing at trial evidence obtained in
violation of the fourth amendment to the United States constitution. . . .
The rule applies to evidence that is derived from unlawful government
conduct, which is commonly referred to as the fruit of the poisonous tree.
. . . In State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988), we concluded
that article first, § 7, of the Connecticut constitution similarly requires the
exclusion of unlawfully seized evidence.’’ [Citations omitted; internal quota-
tion marks omitted.]); State v. Vivo, 241 Conn. 665, 672, 697 A.2d 1130 (1997)
(‘‘[t]he independent source doctrine . . . [is a] recognized [exception] to
the exclusionary rule’’).
21
The state additionally argues that if this court determines that a dog
sniff of the outside of a door to a motel room constitutes a search under
our state constitution, we also should hold that such a search is constitution-
ally valid if supported by a reasonable and articulable suspicion, as opposed
to probable cause. In light of our conclusion that the defendant has failed
to show that a search occurred under the facts of this case, we decline to
decide this issue.
22
The defendant does not argue that article first, § 7, of the Connecticut
constitution provides greater protection with respect to this claim.
23
Because we conclude that the search was lawful, we need not address
the trial court’s conclusion regarding the applicability of the independent
source doctrine. See State v. Sulewski, 98 Conn. App. 762, 764 n.2, 912
A.2d 485 (2006) (concluding that this court need not address trial court’s
alternative ruling that evidence was admissible pursuant to independent
source doctrine in light of conclusion that stop was lawful under Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]).