CT: Dog sniff at door of condominium violates sanctity of home under state constitution and 4A

A drug dog sniff in the common areas of a condominium violated the state constitution. The Second Circuit held that as to the Fourth Amendment in 1985 in United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), and other courts have, too. A dog sniff at the entrance of one’s home is a “public spectacle” holding the homeowner up “to public opprobrium, humiliation and embarrassment for the resident.” State v. Kono, 2016 Conn. LEXIS 396 (Dec. 22, 2016):

Thus, we agree with the Seventh and Second Circuits that a resident’s legitimate expectation of privacy in the home is capacious enough to preclude certain uses of the common areas immediately adjacent to the home. As the Seventh Circuit explained, 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.” United States v. Whitaker, supra, 820 F.3d 853.

In other words, a defendant’s “lack of a reasonable expectation of complete privacy in the hallway does not also mean that he had no reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.” Id.; see also United States v. Thomas, supra, 757 F.2d 1367 (finding “a legitimate expectation that the contents of [a] closed apartment would remain private, that they could not be ‘sensed’ from outside [the] door”). This is consonant with the United States Supreme Court’s observation that the right to retreat into one’s home “would be of little practical value if the [s]tate’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity” or “if the police could enter a man’s property to observe his repose from just outside the front window.” Florida v. Jardines, supra, 133 S. Ct. 1414.

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.

This entry was posted in Curtilage, Dog sniff. Bookmark the permalink.

Comments are closed.