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State v. Kono

Superior Court of Connecticut, Judicial District of New Britain, New Britain

November 18, 2014

State of Connecticut
v.
Dennis Kono

MEMORANDUM OF DECISION

Jon M. Alander, Judge of the Superior Court.

Does the use of a canine in the common hallway outside the front door to a condominium unit to sniff for illegal drugs inside the condominium constitute a search for which a warrant is constitutionally required? The defendant asserts that it does and has moved to suppress evidence obtained after the search of his condominium on May 29, 2012 on the grounds that no warrant was obtained prior to the dog sniff at the front door of his condominium. The state asserts that the use of a drug detection dog in a common hallway of a multiunit building is not a search and consequently no warrant is needed. On October 30, 2014, the court held a hearing on the defendant's motion and, based on the evidence submitted at that hearing, finds the following facts.

The defendant owns and resides at the condominium at unit 204, 10 Main Street, Berlin, Connecticut. In late May 2012, the Berlin Police Department received an anonymous tip that an individual named Dennis Kono was growing marijuana at his residence at the condominium complex on Main Street in Berlin. Berlin Detective Shaun Solek searched town records and determined that the defendant lived at unit 204 at 10 Main Street in Berlin. Detective Solek contacted a representative of the owner of the development, the Corporation for Independent Living, concerning access to the common areas of 10 Main Street, and was referred to the property manager, Connecticut Real Estate Management. Alyssa Pillion, the owner of Connecticut Real Estate Management subsequently consented to a search of the common areas of 10 Main Street by a drug detection dog and signed a written consent to have Detective Solek and Officer Eric Chase, the canine officer, search the common areas of the condominium complex.

In the afternoon of May 29, 2012, Detective Solek and Officer Chase met at the condominium complex and were allowed access to the building by Stephen Martino, the property manager. The building consisted of four floors, but at the time of the search, the building was under construction and only two floors contained completed units. The first two floors contained 34 residential units, only a portion of which were completed and occupied. The outside doors to the multiunit building are normally locked and access is gained through a key pad. Chase, who is a trained canine handler, was accompanied by his German Shepherd dog, Zeusz. Zeusz had been trained to detect eight substances including marijuana, hash, crack cocaine, cocaine, ecstacy, and methamphetamine. Prior to the search of the complex, Chase was not informed of which condominium unit was under investigation.

Chase first had Zeusz conduct a presearch of the first floor common hallway. During the presearch, Zeuzs is allowed to walk throughout the hallway without direction from his handler. After the presearch, Chase conducted a directed search in which Zeuzs was commanded to sniff at the bottom of the front door of each condominium on the first floor. The same presearch and directed search procedures were also conducted on the second floor. When Zeusz performed his sniff at the bottom of the door to unit 204, the dog sat down in front of the door which constituted a passive alert that it had detected contraband. Chase directed Zeusz to perform a second directed search on the second floor and Zeusz again gave a passive alert for drugs at unit 204. Chase knocked on the door but received no response. Chase remained at the door to insure that no one entered the premises and Solek left to prepare a search warrant for unit 204. Approximately, four hours later, Solek returned with a signed search warrant. Upon executing the warrant, the police discovered an indoor greenhouse containing marijuana plants as well as seeds, lighting equipment and various firearms.

The defendant asserts that the use of a canine to detect drugs within his condominium constitutes a warrantless search in violation of the fourth amendment to the United States Constitution and article first, § 7 of the Connecticut Constitution. The defendant contends that the sniff by the police dog at his front door infringed upon both the property and privacy interests protected by the fourth amendment. He argues that his front door and the area immediately surrounding it constitute the curtilage of his condominium and the entry of the dog into that area represents an unlawful trespass into his home. The defendant further contends that the dog's sniff at his front door violated his reasonable expectation of privacy because it allowed the police to discern private facts about the interior of his home.

The state asserts that neither the fourth amendment nor article first, § 7 of the Connecticut Constitution required a warrant under the factual circumstances of this case. No trespass occurred as the police and the canine were lawfully admitted entry into the common hallways. The state also contends that the defendant did not possess a reasonable expectation of privacy in the common areas as he lacked the right to exclude others from those areas. Multiple parties, including other unit owners and their invitees, representatives of the management company and construction workers, had access at the time of the search.

The defendant relies principally on United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985) for his stance that the use of a drug detection dog to sniff for drugs in a common hallway outside an apartment door is a search which requires a warrant based on probable cause. In Thomas, law enforcement agents conducted a canine sniff for narcotics outside the apartment door of one of the defendants who was suspected of being associated with a large narcotics operation. Based on the results of the sniff, the agents obtained a warrant to search the defendant's apartment. The defendant moved to suppress the evidence subsequently seized in his apartment. The court granted the motion to suppress concluding that, because of the defendant's heightened expectation of privacy inside his dwelling, the canine sniff at his door constituted a search. Id., 1367. Citing United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the court noted that the fourth amendment protects people from unreasonable government intrusions into their legitimate expectations of privacy. Id., 1366. The court determined that the use of a drug detection dog violated the defendant's reasonable expectation of privacy in the personal effects in his apartment. " Here, the defendant had a legitimate expectation that the contents of his closed apartment would remain private, that they could not be 'sensed' from outside his door. Use of the trained dog impermissibly intruded on that legitimate expectation." Id.

The court in Thomas distinguished the decision in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) that the practice of using trained dogs to sniff for narcotics was not a search since such a sniff could only determine the presence of contraband. The court limited Place to its facts, which involved the sniff of baggage at an airport. United States v. Thomas, supra, 757 F.2d 1366.

The decision in Thomas has often been criticized, both by various federal courts of appeal, see, e.g., United States v. Brock, 417 F.3d 692, 697 (7th Cir. 2005); United States v. Reed, 141 F.3d 644, 649-50 (6th Cir. 1998); and United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir. 1993); and by state appellate courts, see, e.g. Fitzgerald v. Maryland, 384 Md. 484, 502, 864 A.2d 1006 (2004) and People v. Dunn, 77 N.Y.2d 19, 23, 564 N.E.2d 1054, 563 N.Y.S.2d 388 (1990). The criticism essentially rests on the view that Thomas ignored the Supreme Court's determination in U.S. v. Place that a dog sniff was not a search because a person has no legitimate privacy interest in the possession of contraband. The fact that the illegal drugs were inside an apartment does not change the result as the location of the contraband is irrelevant. See United States v. Reed, supra, 141 F.3d 650 and People v. Dunn, supra, 77 N.Y.2d 23. Adopting this view, a number of courts have ruled that a sniff by a drug detection canine in a common hallway outside an apartment does not constitute a search under the fourth amendment. See U.S. v. Scott, 610 F.3d 1009 (8th Cir. 2010); Fitzgerald v. Maryland, 384 Md. 484, 864 A.2d 1006 (2004); State v. Nguyen, 2013 N.D. 252, 841 N.W.2d 676 (2013); and People v. Dunn, 77 N.Y.2d 19, 564 N.E.2d 1054, 563 N.Y.S.2d 388 (1990).

Subsequent decisions by the U.S. Supreme court, specifically Kyllo v. U.S., 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) and Florida v. Jardines, 569 U.S. 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), have proved the Thomas court prescient as those decisions support the view that a canine sniff outside an apartment door for purposes of drug detection constitutes a search for purposes of the fourth amendment.

In Kyllo v. U.S., supra, the Supreme Court held that the use by law enforcement agents of a thermal imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a search within the meaning of the fourth amendment. " [A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Id., 33. The court held that the defendant possessed a reasonable expectation of privacy in the details of his home and the " obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search--at least where (as here) the technology in question is not in general public use." (Citations and internal quotation marks omitted.) Id., 34.

Recently, in Florida v. Jardines, supra, the Supreme Court ruled that the use by the police of a drug-sniffing dog on the front porch of a home to investigate the contents of the home was a search within the meaning of the fourth amendment. The court emphasized that " when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (Citations and internal quotation marks omitted.) Id., 1414. The court found that the front porch of the house was part of the curtilage of the house and as such it enjoys the same protection as the home itself. Id., 1415. Accordingly, the entry onto the front porch with a drug-sniffing dog to detect drugs within the house constituted a physical intrusion into a constitutionally protected area and therefore a search under the fourth amendment.

Each of these cases is instructive regarding the issue here of whether the use of a drug-sniffing dog in a common hallway to detect drugs inside a condominium unit is a search within the meaning of the fourth amendment.[1] The state has argued, based on the authority of United States v. Place, supra, and Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), that the use of a drug detection canine is not a search under the fourth amendment under the circumstances here because a dog sniff can only determine whether a home contains contraband and no one has a reasonable expectation of privacy in contraband. While it is true that a dog sniff is not a search when used to detect drugs in luggage at an airport, United States v. Place, supra, or in a motor vehicle, Illinois v. Caballes, supra, Jardines teaches us that the use of a drug detection dog is a search when it is used to investigate the contents of someone's home. We also know from Kyllo that the contraband distinction stops at the front door of a home because " in the home . . . all ...


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