CT: State const. protects against dog sniffs outside motel room doors

There is a privacy interest against a drug dog being employed in a motel hallway looking for drugs in rooms under the Connecticut Constitution. The court had previously found one in apartment buildings. The citizenry wouldn’t accept free wheeling dog sniffs in motels, too. State v. Correa, 2021 Conn. LEXIS 233 (Sept. 15, 2021):

We note, in addition, that, if the state were correct that a canine sniff of the exterior door of a motel room is an event altogether lacking in constitutional significance, the police would be entitled to roam through the corridors of a motel conducting canine sniffs of some or all of the doors to those rooms despite having no particularized cause to believe that any of them contained drugs. In tacit acknowledgment that our citizenry would find this conduct unacceptable, the state asserts that there is no reason to believe that the police in Connecticut would engage in such a trawling exercise, even though they could do so lawfully. Even if we shared the state’s confidence in that regard, however, the fact that it would be legally permissible for the police to go from door to door conducting suspicionless canine sniffs throughout the motel is itself reason to doubt the soundness of the state’s constitutional argument. Cf. State v. Kono, supra, 324 Conn. 115 (expressing concern, in context of canine sniff conducted at front door of condominium located in multiunit condominium complex, “that, if police officers are permitted to conduct warrantless canine [sniffs] 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” (internal quotation marks omitted)).

The state’s reliance on United States v. Hayes, 551 F.3d 138 (2d Cir. 2008), to support its claim to the contrary is misplaced. In Hayes, the police conducted a canine sniff of the property surrounding the outside perimeter of the home of the defendant, Derrick Hayes, and the dog alerted to a bag of illegal drugs located in scrub brush, about ten to fifteen feet thick, approximately sixty-five feet from the back door of the house and on the border of the neighboring property. Id., 141-42, 145. Hayes sought to suppress the drugs on the ground that the canine sniff constituted an unlawful warrantless search. Id., 142. The court concluded that Hayes “had no legitimate expectation of privacy in the front yard of his home insofar as the presence of the scent of narcotics in the air was capable of being sniffed by the police canine,” primarily because the “front yard where the dog sniff occurred was clearly within plain view of the public road and adjoining properties” and the “canine’s sense of smell was directed [toward] an area [sixty-five] feet behind the back door of the home.” Id. 145. The court also explained that the decision of the United Statutes Supreme Court in Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), holding that the use of a thermal imaging device to detect temperature variations inside a home was an unreasonable search in violation of the fourth amendment, and 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.), 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), holding that a canine sniff of the door to an apartment was an unlawful search, were distinguishable because, in those cases, the police were trying to detect information inside of the defendant’s home. United States v. Hayes, supra, 145. Thus, the court left open the possibility that initiating a canine sniff to detect odors emanating from inside of a home would violate the homeowner’s reasonable expectations of privacy, even if the sniff occurred at a location that was in plain view of the public and in which the subject of the search had no legitimate expectation of privacy. In any event, it clearly is not the case that every warrantless canine sniff of a dwelling that occurs within plain view of adjacent roads or parking lots is lawful; see, e.g., Florida v. Jardines, supra, 569 U.S. 4, 11-12 (warrantless canine sniff on front porch of private dwelling is search for fourth amendment purposes); and Hayes provides no guidance on the issue of whether the common walkway area immediately adjacent to a motel room door is more analogous to the open yard of a private home, which was the situation in Hayes, or to the home’s front porch, as was the case in Jardines.

For all the foregoing reasons, we conclude that the canine sniff of the exterior door to the defendant’s motel room was a search for purposes of article first, § 7. The state nevertheless contends that, insofar as the canine sniff was a search, it was reasonable and, therefore, lawful under that state constitutional provision. We therefore turn to that issue.

techdirt: Connecticut Supreme Court Says Cops Need Warrants To Run Drug Dogs Around Motel Room Doors by Tim Cushing