Connecticut Rules on 4th Amendment
In April 2016, the Connecticut Supreme Court was asked whether police should be permitted to use a drug-sniffing dog to roam the hallways of an apartment or condominium complex to search for contraband without getting a warrant from a judge. Last week they emphatically answered no.
With the opinion in State v. Dennis Kono, Connecticut now joins a small but growing group of jurisdictions that have extended the robust protections of privacy in the home to apartments. In so holding, the Court answered two important questions: should the police's power to search a person's residence be any different depending on whether the residence is an apartment, condominium or free-standing house; and should the search for contraband outweigh any Fourth Amendment rights we have as citizens?
The Home is First Among Equals
The Fourth Amendment protects "persons, houses, papers, and effects". The United States Supreme Court has repeatedly asserted that a person's 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.' Silverman v. United States, 365 U. S. 505, 511 (1961).
Thus, the home and the "curtilage" – the area immediately surrounding and associated with the home, are revered in Fourth Amendment law. This is the same whether the analysis is conducted under the Federal Constitution's Fourth Amendment or Article 1, Section 7 of the Connecticut Constitution.
It is well established that this court, in determining whether the police conducted a search under article first, § 7, “employ[s] the same analytical framework that would be used under the federal constitution …. Specifically, we ask whether the defendant has established that he had a reasonable expectation of privacy in the area or thing searched.” (Citations omitted; internal quotation marks omitted.)
State v. Davis, 283 Conn. 280 (2007). A state constitution can afford greater protections than the Federal Constitution, but not fewer. So in deciding the issues raised by this case, our supreme court relied on our state constitution rather than the Federal constitution.
If the search by the drug-sniffing dog in Dennis Kono's case had been conducted at the door to his free-standing home, or on the porch of that home, the case would be an easy one: It would be controlled by the United States Supreme Court's decision in Florida v. Jardines, 6 No. 11-564 (U.S. Mar 26, 2013).
In that case, after receiving an unverified tip that marijuana was being grown at that residence, police walked up to the front porch of a home, with a drug-sniffing dog, and after the dog alerted to the presence of narcotics by sniffing at the door, they obtained a warrant to search the home and ultimately found marijuana.
In Dennis Kono's case, the facts are identical: there was a tip, police obtained entry into the apartment building legally and the drug-sniffing dog alerted to his apartment after sniffing at the front door.
The only difference in the two cases is that Jardines lived in a stand-alone home and Kono lived in an apartment building. So the question becomes: is that distinction significant and should it be?
Reasonable Expectation of Privacy in Hallway
There are two theories of a search of a home in Fourth Amendment law: a search can be illegal because the police conduct is a "physical trespass" – an unlicensed physical intrusion, or it is a search that violates a reasonable expectation of privacy that we, as a society, have recognized in a place or an object.
Certainly, police have the right to walk up to anyone's door: whether it be in a condominium, or a free-standing house. They have the right to knock on that door, and if you answer, to ask you questions within limits. But, the United States Supreme Court has held, when on that "curtilage", the police may not use a drug-sniffing dog to conduct a search absent a warrant. The Court has also said that we have a reasonable expectation of privacy in what we do in the privacy of our homes and police cannot use technology, like thermal imaging, Kyllo v. United States, 533 U.S. 27 (2001), to peer inside without a warrant.
So that required our supreme court to answer: where does the "curtilage" of an apartment begin? Is there such a thing? A common hallway is, by definition, common and lots of people have access to the hallway: other tenants, guests, maintenance workers, sometimes even mailmen and delivery workers. So why should the police not be permitted to stand in that common hallway and do what they please? Do we have an expectation of privacy in the area just outside our doors, even if we reside in multi-unit buildings?
In deciding this question under the State Constitution, our supreme court didn't decide whether it was a violation of the "trespass" theory or the "reasonable expectation of privacy" theory:
Because we address the state's claim under the state constitution, we need not decide whether a canine sniff of an apartment door inside a multiunit building violates the fourth amendment. In the absence of significant precedent to the contrary of which we are unaware, however, and despite conflicting court decisions, we agree with the defendant that the better reasoned federal case law concerning the propriety of residential canine sniffs under the fourth amendment supports the defendant's position in this case. This is true whether the defendant's claim is reviewed under the Katz line of privacy based decisions or under the principles of curtilage on which the court in Jardines relied and that the Eighth Circuit applied in Hopkins.
Rather, it held that under our state constitution, the use of canine sniffing dogs required a warrant because the questionable act wasn't the presence of the canines in the hallway, but using the canines to try and search the interiors of residences. Certainly, while people living in multi-unit residences give up a measure of privacy in the area outside their doors, they don't relinquish all privacy:
the defendant's “lack of a right to exclude did not mean [that] he had no right to expect certain norms of behavior in his apartment hallway. [To be sure], other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door. Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean [that] he could put a stethoscope to the door to listen to all that is happening inside.
The Discrimination Problem
In finding that use of drug-sniffing dogs required a warrant, the court acknowledged and adopted the concerns raised by the defense about the appearance of discrimination against lower-income individuals if the state's position were to be adopted. If individuals were to be stripped of their rights to privacy outside their doors based on the type of residence they occupied, the law would be applied disproportionately against those who were unable to afford single-family residences.
Finally, we perceive no principled reason of public policy, and the state has identified none, 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 [constitutional] protections on grounds that correlate with income, race, and ethnicity.
Should anyone have a right to privacy in contraband?
The other argument put forth by the prosecution was that people don't have the right to an expectation of privacy in contraband. This argument stems from two separate U.S. Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and United States v. Place, 462 U.S. 696 (1983). In both those cases, the Court said that people don't have a reasonable expectation of privacy in contraband. In Caballes, the search was of a vehicle and in Place, a bag at an airport.
This, too, failed – and rightly so. As I wrote in my original post, the State's argument incorrectly balanced the two values at play: the lack of a right to privacy in contraband and the strong right to privacy in an individual's residence. Both Caballes and Place were about contraband searches of private items in public, whereas Jardines was about the search for contraband in a single-family residence. When weighing the right to privacy in a home vs. the search for contraband, the home (correctly) wins.
After distinguishing Caballes and Place in the manner above, our supreme court pointed out the concerns and problems with ruling the other way:
Indeed, even if a canine sniff were to reveal nothing about the interior of the home, we believe that the underlying prohibition against unreasonable intrusions into the sanctity of the home cannot abide the public spectacle of a warrantless canine investigation of the perimeters of any home. It may well be that a canine sniff itself is “discriminating and unoffensive” when compared to other physical intrusions of the premises of a home. United States v. Thomas, supra, 757 F.2d 1367.
Even so, such searches are highly visible and readily identifiable. They also hold a resident up to public scrutiny in his own home. As the Florida Supreme Court observed, “[s]uch a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime.” Jardines v. State, 73 So. 3d 34, 36 (Fla. 2011), aff'd, U.S., 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).
We also share that court's concern that, if police officers are permitted to conduct warrantless canine searches of people's homes, “there is nothing to prevent [them] from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen,” and that “[s]uch an open-ended policy invites overbearing and harassing conduct.” Id.
Thus, because people living in apartments don't give up their right to privacy outside their doors and because their right to privacy outweighs law enforcement's desire to walk hallways with sensory enhancing instruments to root out potential illegal activity, the use of drug-sniffing dogs must be accompanied by a warrant signed by a judge.
That the Connecticut Supreme Court relied on our state constitution to decide this in favor of the defendant shouldn't deter others from relying on this case to support their arguments: the justices in the majority recognize that the arc of jurisprudence seems to favor requiring a warrant and other Federal courts have certainly held so. One concurring justice would have affirmed this search under the Federal Constitution.
The rationale for requiring a warrant: that we have a reasonable expectation of privacy in the hallways outside our apartment doors; that society would not countenance the use of drug-sniffing dogs to peer into people's private residences; and, that the prohibitions against warrantless searches and seizures are concerned with the protections afforded by places and things, rather than purported criminal or innocent activity, apply with equal force regardless of whether the language comes from the Fourth Amendment or the equivalent of a State Constitution.