STATE v. DENNIS KONO, SC 19613
Judicial District of New Britain at G.A. 15
Criminal; Search & Seizure; Whether Warrantless Police Use of Drug Sniffing Dog from Hallway of Apartment Complex Violated Fourth Amendment. After receiving a tip that the defendant was growing marijuana in his apartment, Berlin police officers conducted a search of the apartment complex’s common areas with a narcotics detection dog. The complex’s management company had consented to the search and let the dog and police officers into the complex. On each floor of the complex, the dog was first allowed to walk throughout the hallway without direction and then directed to sniff at the bottom of the door of each apartment. When the dog sniffed the defendant’s door, he signaled that he detected narcotics. The police obtained and executed a search warrant for the apartment, and the defendant was charged with drug and firearm offenses based on evidence seized in the search. He filed a motion to suppress the evidence on the ground that it was the fruit of an illegal search because the warrantless use of the dog violated the fourth amendment of the federal constitution. The defendant argued that the entry of the dog and police officers into the hallway area immediately outside his door was an unlawful trespass because that area constituted the curtilage of his apartment. Curtilage traditionally is defined as the land adjoining a house that also enjoys protection from warrantless searches under the fourth amendment. The defendant also argued that the dog’s “sniff search” violated his reasonable expectation of privacy in his home. The trial court granted the defendant’s motion to suppress and subsequently dismissed the charges. With respect to the curtilage issue, the trial court compared the use of the dog to the warrantless use of a narcotics detection dog on the front porch of a house, which the United States Supreme Court in Florida v. Jardines, 133 S. Ct. 1409 (2013), held to be a trespassory invasion of the house’s curtilage in violation of the fourth amendment. With respect to the reasonable expectation of privacy issue, the trial court compared the use of the dog to the warrantless use of a thermal imaging device from a public street to scan a private residence, which the United States Supreme Court in Kyllo v. United States, 533 U.S. 27, 40 (2001), held to be an unlawful search because it involved the use of “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.” The trial court determined that upholding the legality of the search here would effectively permit a lesser degree of fourth amendment protection for individuals who live in apartment buildings with common hallways. The state appeals, and the Supreme Court will determine whether the trial court properly granted the motion to suppress where the state argues that the use of the dog did not constitute a fourth amendment search requiring a warrant. The state argues that the hallway area outside the defendant’s door did not constitute the curtilage of his apartment because it was a publicly accessible space in which the dog and police officers were lawfully present such that the defendant had no reasonable expectation of privacy there. The state also argues that the trial court wrongly relied on Kyllo in analogizing the dog to a thermal imaging device because, unlike that technology, the dog was trained to detect only narcotics, and the defendant had no expectation of privacy in such contraband.