State v. Kono ( 2017 )

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STATE v. KONO—DISSENT
ESPINOSA, J., dissenting. I disagree with the majority
that the police conducted a search of the condominium
unit in which the defendant, Dennis Kono, resided in
violation of article first, § 7, of the Connecticut constitu-
tion by using a police dog to sniff in the shared hallway
of the condominium complex. In order for the majority’s
rationale to be persuasive—under either the federal or
state constitutions—it must establish either one or both
of the following propositions: (1) dogs are the equiva-
lent of sophisticated sense enhancing technology, not
available to the general public; see Kyllo v. United
States, 533 U.S. 27, 40, 121 S. Ct. 2038, 150 L. Ed. 2d
94 (2001); or (2) a shared hallway in a condominium
complex constitutes the curtilage of an individual con-
dominium unit. See Florida v. Jardines, U.S. ,
133 S. Ct. 1409, 1415, 185 L. Ed. 2d 495 (2013). The
majority has not maintained that the officers entered
the defendant’s curtilage to conduct the canine investi-
gation. Instead, it has rested its holding on the premise
that a police dog is similar to sophisticated electronic
surveillance technology, akin to the thermal imaging
device that was at issue in Kyllo. See Kyllo v. United
States, supra, 29–30. I disagree that dogs, regardless of
how well trained they are, should be treated in the same
manner as advanced technology for purposes of article
first, § 7, of the state constitution and, therefore, I
respectfully dissent. Because the defendant’s alterna-
tive theory, that the shared hallway constitutes curtilage
to his condominium unit, would provide an independent
basis on which to conclude that the procedure violated
article first, § 7, of the state constitution, I also consider
that claim and reject it.
In the present case, the police officers acted on infor-
mation that the defendant was growing marijuana in
his condominium unit. On the basis of that information,
and with the permission of the property manager of the
condominium complex where the defendant lived, they
brought a police dog into the common hallway of the
building in order to conduct a canine examination of
that area.1 The police never entered the defendant’s
condominium unit, confining their activities to the com-
mon areas of the condominium complex. Under these
facts, I conclude that the police did not conduct a search
of the defendant’s condominium unit under either the
federal or state constitutions.
The majority correctly observes that in determining
whether the police have conducted a search under arti-
cle first, § 7, of the state constitution, this court applies
the same analytic framework that would be applied
under the federal constitution. See State v. Davis, 283
Conn. 280, 310, 929 A.2d 278 (2007). Accordingly, like
the majority’s analysis, much of my discussion consid-
ers federal precedent.
Police dogs occupy a unique position in search and
seizure jurisprudence. The United States Supreme
Court has held that a dog sniff is ‘‘sui generis.’’ United
States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L.
Ed. 2d 110 (1983). In rejecting claims that dog sniffs
constituted searches, the court has examined whether
the police conduct at issue ‘‘compromise[d] any legiti-
mate interest in privacy . . . .’’ (Internal quotation
marks omitted.) Illinois v. Caballes, 543 U.S. 405, 408,
125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). A person has
a legitimate interest in privacy in an area or item if that
person has ‘‘exhibited an actual (subjective) expecta-
tion of privacy and, second . . . the expectation [is]
one that society is prepared to recognize as reasonable.’’
(Internal quotation marks omitted.) Katz v. United
States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967) (Harlan, J., concurring). Applying this test, the
court has explained that it is ‘‘aware of no other investi-
gative procedure that is so limited both in the manner
in which the information is obtained and in the content
of the information revealed by the procedure.’’ United
States v. Place, supra, 707. A dog sniff does not yield
detailed information and does not ‘‘expose noncontra-
band items that otherwise would remain hidden from
public view,’’ it discloses only the presence or absence
of contraband. Id. Because of the uniquely limited scope
of a canine investigation, the court has held that dog
sniffs of luggage at an airport and of a motor vehicle
during a traffic stop do not constitute searches for pur-
poses of the fourth amendment. See id. (canine sniff
of luggage at airport did not constitute search); Illinois
v. Caballes, supra, 408 (canine sniff of motor vehicle
during traffic stop did not constitute search). The sole
context in which the Supreme Court has held that a
dog sniff constituted a search was when the officers
had physically entered the defendant’s property, within
the curtilage of the home, in order to conduct the exami-
nation. See Florida v. Jardines, supra, 133 S. Ct. 1415,
1417–18. Notably, in Jardines, the court expressly
declined to rely on the reasonable expectation of pri-
vacy test and instead analyzed the defendant’s challenge
to the procedure under a property based theory of the
fourth amendment. Id., 1414, 1417. I will discuss Jar-
dines in greater detail later in this dissent.
The majority relies on Kyllo v. United States, supra,
533 U.S. 27, to conclude that the dog sniff in the present
case compromised the defendant’s legitimate expecta-
tion of privacy. In Kyllo, the United States Supreme
Court applied the reasonable expectation of privacy
test to conclude that the use of a thermal imaging device
to determine the amount of heat emanating from the
defendant’s home constituted a search for purposes of
the fourth amendment to the federal constitution. Id.,
34–35. Because its focus was on the advance of technol-
ogy, Kyllo did not affect the validity of prior cases that
recognized the ‘‘sui generis’’ nature of the dog sniff.
See, e.g., Illinois v. Caballes, supra, 543 U.S. 408; United
States v. Place, supra, 462 U.S. 707. In fact, in sharp
contrast to the manner in which it has regarded the use
of dogs in police work, the United States Supreme Court
has eyed advancing law enforcement surveillance tech-
nology with wariness for decades, leery of the threats
that such advances pose to the protections afforded by
the fourth amendment. Kyllo falls in a long line of cases
in which the court has considered the fourth amend-
ment implications of such advances. It is significant
that in Jardines, the court could have extended Kyllo
to apply to dog sniffs, bringing police canines within
the same line of cases that has considered, inter alia,
global positioning system (GPS) tracking devices, ther-
mal imaging devices, helicopters, aerial mapping cam-
eras, airplanes, electronic tracking devices, and
wiretaps. See Grady v. North Carolina, U.S. , 135
S. Ct. 1368, 191 L. Ed. 2d 459 (2015) (GPS tracking
device); United States v. Jones, U.S. , 132 S. Ct.
945, 181 L. Ed. 2d 911 (2012) (GPS tracking device);
Kyllo v. United States, supra, 533 U.S. 27 (thermal
imaging device); Florida v. Riley, 488 U.S. 445, 109 S.
Ct. 693, 102 L. Ed. 2d 835 (1989) (helicopters); Dow
Chemical Co. v. United States, 476 U.S. 227, 106 S. Ct.
1819, 90 L. Ed. 2d 226 (1986) (aerial mapping cameras);
California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90
L. Ed. 2d 210 (1986) (airplanes); United States v. Karo,
468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984)
(electronic tracking devices); Katz v. United States,
supra, 389 U.S. 347 (wiretaps). Presented with this
opportunity to include police dogs within this category,
the court declined to do so. That is because dogs are
different from advanced technology.
Advancements in technology trouble the court pre-
cisely because they are continually evolving, potentially
eroding society’s reasonable expectations of privacy.
The court has had a dual response to technological
developments. On the one hand, the court has
attempted to craft rules that are flexible enough to
anticipate more sophisticated means of surveillance
and investigation that may become available to law
enforcement. See, e.g., Kyllo v. United States, supra,
533 U.S. 36 (‘‘[w]hile the technology used in the present
case was relatively crude, the rule we adopt must take
account of more sophisticated systems that are already
in use or in development’’). At the same time, however,
the court has recognized that advancements in technol-
ogy have had an unavoidable and undeniable effect on
search and seizure law because they have changed what
we may reasonably expect to remain private. For
instance, the court observed in Kyllo that ‘‘[i]t would
be foolish to contend that the degree of privacy secured
to citizens by the [f]ourth [a]mendment has been
entirely unaffected by the advance of technology.’’ Id.,
33–34. Similarly, in her concurring opinion in United
States v. Jones, supra, 132 S. Ct. 955, in which the court
concluded that the attachment of a GPS tracking device
to a vehicle constituted a search, Justice Sotomayor
observed that ‘‘the same technological advances that
have made possible nontrespassory surveillance tech-
niques will also affect the Katz test by shaping the
evolution of societal privacy expectations.’’
An example of an area in which reasonable expecta-
tions of privacy have been reshaped by advances in
technology is aerial surveillance. For example, in Flor-
ida v. Riley, supra, 488 U.S. 448, 450, the court con-
cluded that flying a police helicopter at a height of 400
feet over the defendant’s backyard, to look through
openings in the roof of the defendant’s backyard green-
house, did not constitute a search. The court acknowl-
edged that the area was within the curtilage of the
defendant’s home, but key to its analysis was the fact
that ‘‘private and commercial flight . . . is routine
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 450. Accordingly, the court concluded, it
was unreasonable for the defendant to expect that the
contents of the greenhouse would not be visible from
the air. Id.; see also California v. Ciraolo, supra, 476
U.S. 209, 215 (because private and commercial flight is
routine, no search where police chartered plane to fly
1000 feet over defendant’s backyard to observe area
completely enclosed within high fences).
There is nothing novel about drug sniffing dogs.
Domesticated dogs have been a part of our society for
centuries, and the power of the canine sense of smell
is certainly no secret. Although this court, until now,
had never weighed in on the question of when or
whether a dog sniff constitutes a search, the court heard
claims regarding dog sniffs more than twenty years ago.
See State v. Torres, 230 Conn. 372, 380, 645 A.2d 529
(1994) (declining to reach question of whether dog sniff
during traffic stop constituted search because proce-
dure was justified by articulable suspicion). The United
States Supreme Court has heard claims challenging dog
sniffs as far back as thirty-three years ago. See United
States v. Place, supra, 462 U.S. 696. In other words, the
police use of dogs as an investigative tool has been
considered within our jurisprudence for many years.
Dogs, unlike technology, are not going to change. As
previously noted, the United States Supreme Court has
held that a dog sniff is ‘‘sui generis.’’ Id., 707. The nature
of a dog’s sense of smell has not changed over the years
and there is no reason to believe that it will evolve in
the way that technology does. Therefore, the scope of
information yielded by a dog sniff, unlike the informa-
tion yielded by technological devices, will remain sui
generis—that information will always remain limited
to indicating merely the presence or absence of contra-
band. Thus, there is no danger that a dog sniff will
evolve to the point of alerting officers to a detail such
as ‘‘at what hour each night the lady of the house takes
her daily sauna and bath . . . .’’ Kyllo v. United States,
supra, 533 U.S. 38. Notwithstanding the court’s charac-
terization of the thermal imaging device in Kyllo as
‘‘crude’’ technology; id., 36; that device yielded much
more detailed information than is conveyed by a canine
investigation. The court explained that the Agema Ther-
movision 210 thermal imager used by the police in that
case converted ‘‘radiation into images based on relative
warmth—black is cool, white is hot, shades of gray
connote relative differences; in that respect, it operates
somewhat like a video camera showing heat images.’’
Id., 29–30. In other words, the police were able to
observe images of not only objects, but also of persons,
moving about inside the home. There is simply no com-
parison between that type of device and a police dog.
Moreover, although drug sniffing dogs are highly
trained, there is no claim in the present case, nor has
the majority contended, that only the police are able to
train dogs to respond to particular odors with particular
behaviors. Thus, even if a dog is a ‘‘device’’ akin to a
thermal imaging device, there has been no showing that
it is a device that is somehow unavailable to the general
public. I would conclude, therefore, that Kyllo is inappli-
cable to the present case.
The federal decisions on which the majority relies to
arrive at the opposite conclusion—that dogs should
be treated like advanced technology for purposes of
determining whether a procedure constituted a search
that compromised a legitimate expectation of privacy—
ignore the unique character of a dog sniff, and either
predate Jardines or gloss over the fact that in Jardines,
the majority declined to extend Kyllo to dog sniffs. Most
significantly, the majority relies heavily on the decision
of the United States Court of Appeals for the Second
Circuit in United States v. Thomas, 757 F.2d 1359, 1367
(2d Cir. 1985), 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), which con-
cluded that a dog sniff of the defendant’s apartment
from a shared hallway compromised the defendant’s
reasonable expectation of privacy, primarily on the
basis of the court’s reasoning that a dog is like a techno-
logical device. Thomas, however, predated Jardines.
As I have explained, the United States Supreme Court
has never treated dogs in the same manner that it has
treated technology for purposes of the reasonable
expectation of privacy test, and it declined to do so in
Jardines. Similarly, in another decision relied on by
the majority, United States v. Whitaker, 820 F.3d 849,
852–53 (7th Cir. 2016), the United States Court of
Appeals for the Seventh Circuit relies solely on the
concurring opinion of Justice Kagan in Jardines to con-
clude that Kyllo should be extended to dog sniffs, ignor-
ing the majority decision in Jardines. I observe that
most of the state court decisions relied on by the major-
ity either predate Jardines or apply a curtilage analysis
rather than the Katz reasonable expectation of privacy
test. See, e.g., People v. Burns, 50 N.E.3d 610, 617–22 (Ill.
2016) (applying Jardines curtilage inquiry to determine
that dog sniff at entrance to defendant’s apartment vio-
lated fourth amendment).
I further observe that no dog sniff may be analyzed
in a vacuum. This dog sniff occurred in the shared
hallway of a multiunit building, not a single-family
home. That fact is relevant to the defendant’s reason-
able expectation of privacy, which is analyzed under a
very fact centered and common sense inquiry. When
one lives in a unit that shares walls, floors and ceilings
with other units, and shares the same hallway as others
in the building, it would be unreasonable to expect the
same amount of privacy as that enjoyed in an indepen-
dent dwelling place. This court has expressly recog-
nized this principle: ‘‘Reasonable expectations of
privacy are necessarily diminished in [multifamily]
homes and [multiunit] buildings, by virtue of the pres-
ence in common areas of other tenants and their visitors
. . . .’’ (Citations omitted.) State v. Brown, 198 Conn.
348, 357, 503 A.2d 566 (1986). The majority’s statement,
therefore, that the defendant’s reasonable expectation
of privacy must be treated as though he lived in a single-
family dwelling, is not supported by this court’s prece-
dent and cannot be reconciled with the facts of the
case. The majority’s claim is that its fiction is required
because otherwise residents of multifamily buildings
would enjoy lesser protection under article first, § 7,
of the state constitution. That is simply not correct.
Each person is protected against searches that compro-
mise a reasonable expectation of privacy. The determi-
nation of what is reasonable is necessarily a fact
intensive inquiry. Applying all of the relevant facts,
including the facts that the procedure involved a dog
rather than any advanced technology, and that it
occurred in the common area of the condominium com-
plex, I would hold that the defendant had no reasonable
expectation of privacy in the odors that emanated into
a shared hallway from his condominium unit.
I next consider whether the area of the shared hall-
way immediately adjacent to the door to the defendant’s
condominium unit constituted the curtilage of the unit,
rendering the dog sniff a search pursuant to Jardines.
The question is whether the area in front of the defen-
dant’s unit is akin to the front porch in Jardines. In
Jardines, the officers walked onto the defendant’s front
porch with a drug sniffing dog, which sat at the base
of the defendant’s front door, indicating that it had
detected one of the odors to which it had been trained
to respond. Florida v. Jardines, supra, 133 S. Ct. 1413.
Under those facts, the court was quite clear that its
conclusion was grounded in the fourth amendment’s
roots in property rights, specifically the law of trespass,
and therefore turned on the fact that the officers had
physically intruded on the defendant’s property in order
to conduct the canine investigation. Id., 1414. Justice
Scalia, writing for the majority, explained that ‘‘[w]hen
the [g]overnment obtains information by physically
intruding on persons, houses, papers, or effects, a
search within the original meaning of the [f]ourth
[a]mendment has undoubtedly occurred.’’ (Internal
quotation marks omitted.) Id.
Understood properly, therefore, Jardines was not a
case about a dog—it was a case about a front porch.
The police officers exceeded the limited license enjoyed
by the public to enter onto a front porch—the fact that
the intrusion involved a dog was not significant. The
majority explained that ‘‘[i]t is not the dog that is the
problem, but the behavior that here involved use of the
dog. We think a typical person would find it a cause
for great alarm . . . to find a stranger snooping about
his front porch with or without a dog.’’ (Citation omit-
ted; emphasis in original.) Id., 1416 n.3. The same con-
clusion would have been required, the majority added,
if instead of using a drug sniffing dog, the police had
peered into the windows of the home with binoculars.
Id. Jardines stands only for the narrow proposition
that when a police dog sniff occurs on a defendant’s
property, within the curtilage of the home, the sniff
constitutes a search.
‘‘The curtilage area immediately surrounding a pri-
vate house has long been given protection as a place
where the occupants have a reasonable and legitimate
expectation of privacy that society is prepared to
accept.’’ Dow Chemical Co. v. United States, supra,
476 U.S. 235. ‘‘[T]he [f]ourth [a]mendment protects the
curtilage of a house and . . . the extent of the curtilage
is determined by factors that bear upon whether an
individual reasonably may expect that the area in ques-
tion should be treated as the home itself. . . . [T]he
central component of this inquiry [is] whether the area
harbors the intimate activity associated with the sanc-
tity of a man’s home and the privacies of life.’’ (Citation
omitted; internal quotation marks omitted.) United
States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 94
L. Ed. 2d 326 (1987).
The United States Supreme Court has explained that
‘‘curtilage questions should be resolved with particular
reference to four factors: the proximity of the area
claimed to be curtilage to the home, whether the area
is included within an enclosure surrounding the home,
the nature of the uses to which the area is put, and the
steps taken by the resident to protect the area from
observation by people passing by. . . . We do not sug-
gest that combining these factors produces a finely
tuned formula that, when mechanically applied, yields
a ‘correct’ answer to all extent-of-curtilage questions.
Rather, these factors are useful analytical tools only to
the degree that, in any given case, they bear upon the
centrally relevant consideration—whether the area in
question is so intimately tied to the home itself that it
should be placed under the home’s ‘umbrella’ of [f]ourth
[a]mendment protection.’’ (Citations omitted; footnote
omitted.) Id., 301. The court also has noted, however,
that ‘‘for most homes, the boundaries of the curtilage
will be clearly marked; and the conception defining the
curtilage—as the area around the home to which the
activity of home life extends—is a familiar one easily
understood from our daily experience.’’ Oliver v.
United States, 466 U.S. 170, 182 n.12, 104 S. Ct. 1735,
80 L. Ed. 2d 214 (1984). This court has further observed
that application of the four Dunn factors involves ‘‘two
principal questions, objective and subjective . . . (1)
whether society would recognize the particular area
claimed as within the curtilage of the home; and (2)
whether the defendant has manifested a subjective
expectation of privacy in that area.’’ (Internal quotation
marks omitted.) State v. Ryder, 301 Conn. 810, 823, 23
A.3d 694 (2011).
Applying these principles to the present case, I con-
clude that the area immediately outside the defendant’s
condominium unit did not constitute the curtilage of
his unit. Nothing about the common hallway, even in
the area outside his door, can be said to ‘‘[harbor] the
intimate activity associated with the sanctity of a man’s
home and the privacies of life.’’ (Internal quotation
marks omitted.) United States v. Dunn, supra, 480 U.S.
300. Privacy simply cannot be enjoyed in an area that
is a shared space. The sole factor favoring the defendant
is the proximity of the area to his home. Proximity
alone, however, is not sufficient. If it were, then every
public sidewalk that abuts the front of a home would
constitute the curtilage of the home. Nothing in the
record reveals that there was any enclosure separating
this area from the remainder of the shared hallway. Nor
is there any suggestion that the area was used for any
other purpose than passing through, either by the defen-
dant on the way into and out of his unit, or by other
residents and their visitors accessing their respective
units. Nor did the defendant ever claim that he took
any steps whatsoever to protect the area from observa-
tion by people passing by, and indeed it is questionable
that he would be able to, given that he did not enjoy
exclusive control of that area. Compare United States v.
Hopkins, 824 F.3d 726, 732 (8th Cir. 2016) (area outside
front door of defendant’s townhome constituted curti-
lage where door not accessed via common walkway
and even his nearest neighbor would not pass near
entrance to his unit), with State v. Luhm, 880 N.W.2d
606, 616–17 (Minn. App. 2016) (area immediately out-
side defendant’s condominium unit did not constitute
curtilage where access was by way of shared hallway,
visible to all who walked by, and use of area governed
by condominium association rules).
Under these facts, I conclude that the area in the
shared hallway immediately outside the defendant’s
condominium unit did not constitute curtilage. Accord-
ingly, Jardines is inapplicable to the present case, and
the dog sniff did not constitute a search, either under
the fourth amendment of the federal constitution or
under article first, § 7, of the state constitution.
I respectfully dissent.
1
The majority observes that the state has not argued that the police had
a reasonable and articulable suspicion that the defendant was growing
marijuana plants in his condominium unit, or claimed that if it had, that
suspicion would have justified the dog sniff. The explanation is clear. It is
the state’s position that there was no search of the defendant’s condominium
unit, either under the fourth amendment of the federal constitution or article
first, § 7, of the state constitution. Accordingly, the question of whether the
police had a reasonable and articulable suspicion and whether such a level
of belief would have been constitutionally sufficient was irrelevant to the
state’s argument.