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*********************************************** 
STATE OF CONNECTICUT v. RICARDO CORREA

(AC 39899)

Alvord, Prescott and Beach, Js.

Syllabus

Convicted, following a conditional plea of nolo contendere, of the crimes

of conspiracy to possess a controlled substance with intent to sell,

conspiracy to possess a controlled substance with intent to sell by a

person who is not drug-dependent, and conspiracy to operate a drug

factory, the defendant appealed to this court, claiming that the trial

court improperly denied his motion to suppress certain evidence that

was seized from his motel room after the police conducted a warrantless

canine sniff of the front door of the motel room, which was open to

the public and located in an open, shared walkway. The police were

surveilling the building for illegal activity and observed what appeared

to be a drug transaction out of the defendant’s motel room. Thereafter,

the police conducted a canine examination of the walkway of the motel.

After the canine alerted the handler that it had detected contraband at

the bottom of the door to the defendant’s motel room, the police applied

for a warrant to search the motel room. Prior to obtaining the warrant,

the police detained the defendant and used his room key to open the

door to look inside his room for occupants who might destroy evidence.

A police officer, in conducting the visual sweep of the room without

entering it, observed evidence of drug activity. In his motion to suppress,

the defendant argued that the police officer’s visual sweep of the room

was per se unreasonable as it was performed without a valid search

warrant and that the search did not fall within any recognized exceptions

to the warrant requirement. On appeal, the defendant claimed, for the

first time, that the warrantless dog sniff outside the door to his motel

room violated his rights under article first, § 7, of the state constitution. Held:

1. The defendant could not prevail on his unpreserved claim that the dog

sniff constituted a violation of his state constitutional rights: the defendant’s claim that the police were required to obtain a warrant before

conducting a dog sniff search of the pathway outside of his motel room

was unavailing, as the defendant, under the facts of this case, did not

show a reasonable expectation of privacy on the outside of the door to

his motel room and cited no authority to support his assertion that a

canine sniff outside the door of a motel room, conducted from an open,

shared walkway, which was located outside of the structure and visible

to and accessible by any member of the public, constituted a search

within the meaning of article first, § 7, of the state constitution; moreover, the defendant also was unable to prevail under the plain error

doctrine, as he could not demonstrate that an obvious error existed

that affected the fairness and integrity of and public confidence in the

judicial proceedings.

2. The defendant’s claim that the conduct of the police in opening the door

to his motel room and conducting a visual sweep of the room without

a warrant was unlawful under the federal and state constitutions was

unavailing, trial court having properly concluded that the search was

lawful under the exigent circumstances exception to the warrant requirement: although the defendant claimed that the testifying officers could

not identify any definite and specific reason for believing that someone

was in the room who might destroy evidence and, thus, that the officers

did not hold a reasonable belief that immediate action was necessary,

probable cause existed to search the motel room, as there was ample

evidence that would persuade a reasonable person to believe that criminal activity had occurred and to conclude that there was a fair probability

that contraband or evidence of a crime would be found in the motel

room; moreover, under the totality of the circumstances, a reasonable,

well trained police officer reasonably would have believed that immediate entry into the motel room was necessary to prevent the destruction

of evidence, as the police had reason to suspect, on the basis of firsthand

observations, that criminal activity was occurring in the motel room,
those suspicions were confirmed over a series of events that unfolded

over the course of two hours, which demonstrated that there was a

distinct possibility that someone who might have observed those events,

or the police and canine presence at the motel, might have informed

someone involved with the criminal activity, and, thus, the police had

ample reason, under the facts of this case, to believe that, in the absence

of swift action in opening the door to the room and performing a visual

sweep, there was a significant risk of the destruction of evidence.

Argued April 24—officially released October 9, 2018

Procedural History

Information charging the defendant with the crimes

of possession of more than four ounces of marijuana,

conspiracy to possess more than four ounces of marijuana, possession of a controlled substance with intent

to sell, conspiracy to possess a controlled substance

with intent to sell, possession of narcotics, conspiracy

to possess narcotics, possession of narcotics with intent

to sell by a person who is not drug-dependent, conspiracy to possess narcotics with intent to sell by a person

who is not drug-dependent, operation of a drug factory,

and conspiracy to operate a drug factory, brought to

the Superior Court in the judicial district of Stamford,

geographical area number one, where the court,Blawie,

J., denied the defendant’s motion to suppress certain

evidence; thereafter, the defendant was presented to

the court on a conditional plea of nolo contendere to

conspiracy to possess a controlled substance with

intent to sell, conspiracy to possess a controlled substance with intent to sell by a person who is not drugdependent, and conspiracy to operate a drug factory;

judgment of guilty in accordance with the plea; thereafter, the state entered a nolle prosequi as to the

remaining charges, and the defendant appealed to this

court. Affirmed.

Laila M.G. Haswell, senior assistant public defender,

with whom, on the brief, was Lauren Weisfeld, chief

of legal services, for the defendant (appellant).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Richard J. Colangelo,

Jr., state’s attorney, and Susan M. Campbell, deputy

assistant state’s attorney, for the appellee (state).
Opinion

ALVORD, J. Following a conditional plea of nolo contendere, entered pursuant to General Statutes § 54-94a,1

the defendant, Ricardo Correa, appeals from the judgment of conviction of conspiracy to possess a controlled

substance with intent to sell in violation of General

Statutes §§ 53a-48 and 21a-277 (b), conspiracy to possess a controlled substance with intent to sell by a

person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (a), and conspiracy

to operate a drug factory in violation of General Statutes

§§ 53a-48 and 21a-277 (c). The defendant entered his

conditional plea following the court’s denial of his

motion to suppress evidence seized from a motel room

he was renting. On appeal, the defendant claims that

the trial court erred in denying his motion to suppress

because: (1) a warrantless dog sniff outside the door

of his motel room violated his state constitutional

rights, and (2) a warrantless visual search of his motel

room violated his state and federal constitutional rights.

We affirm the judgment of the trial court.

The trial court set forth the following findings of

fact in its memorandum of decision on the defendant’s

motion to suppress. During the early morning hours of

February 5, 2013, Sergeant Christopher Broems of the

Stamford Police Department was parked on Home

Court, a street immediately behind the America’s Best

Value Inn motel (motel) on East Main Street in Stamford. Sergeant Broems, a nineteen year veteran of the

Stamford Police Department who also spent three years

in the New York City Police Department, had made

many prior arrests at the motel for narcotics, prostitution, and other criminal activity. From the street, Sergeant Broems was surveilling the motel for evidence

of possible illegal activity. He was parked approximately fifty yards away from the motel and had a clear,

well illuminated view of the motel, which included two

floors of numbered motel room doors that opened onto

the back parking lot.

At approximately 1:20 a.m., Sergeant Broems

observed a silver colored 2004 GMC Yukon pull into

the motel parking lot. Only the passenger in the Yukon,

who was later determined to be Eudy Taveras, exited

the Yukon, while the operator remained in the vehicle

with the headlights on. Taveras approached and entered

room 118 of the motel, which was on the first floor,

where he remained for less than one minute. Taveras

returned to the vehicle, which then left the motel. Given

the location, time of night, and duration of the visit,

Sergeant Broems believed that he may have witnessed a

narcotics transaction out of room 118. Sergeant Broems

radioed to a nearby colleague, Officer Vincent Sheperis,

that he intended to stop the Yukon, and then drove in

the direction of the Yukon.
When the operator of the Yukon, who was later determined to be Charles Brickman, observed Sergeant

Broems approaching the Yukon in his marked Stamford

Police SUV, he turned off the Yukon’s headlights. A

short distance from the motel, Sergeant Broems

stopped the vehicle. Officer Sheperis joined Sergeant

Broems, acting as backup. When Sergeant Broems and

Officer Sheperis approached the vehicle, they both

smelled a strong odor of marijuana emanating from

inside the Yukon. Sergeant Broems and Officer Sheperis

removed Taveras from the vehicle, and Taveras admitted to possessing ‘‘weed.’’ A search of Taveras revealed

two glass jars with yellow tops containing marijuana,

along with three other similar, but empty, yellow topped

glass jars, as well as a knotted corner of a plastic sandwich bag containing heroin. On the basis of this evidence, Sergeant Broems requested a sweep of the

Yukon by a canine officer trained in the detection of narcotics.

A canine officer, Cooper, and his Stamford Police

Department handler, Sergeant Seth O’Brien, arrived on

the scene shortly after Sergeant Broems’ request. Cooper alerted to the center console of the vehicle, but the

officers found no additional drugs. Brickman was found

to have no drugs on his person. Brickman was issued an

infraction ticket for operating a motor vehicle without

headlights, and allowed to drive off in the Yukon. The

officers detained Taveras.

Taveras informed Sergeant O’Brien that he lived with

his grandmother nearby on Charles Street in Stamford.

At that point, Sergeant Broems, Officer Sheperis, and

Sergeant O’Brien went to the grandmother’s home on

Charles Street, where they spoke with Taveras’ brother.

Taveras’ grandmother signed a consent form allowing

the officers to search Taveras’ bedroom. In Taveras’

bedroom, the officers found numerous plastic bags with

the corners cut off, consistent with narcotics packaging,

along with other bags containing an off white powder residue.

The officers then returned to the motel. They spoke

with the manager of the motel, who advised them that

several days earlier, the defendant had rented room 118

for the week, until February 8, 2013, paying $430 in

cash.2 The manager provided the officers with documentation concerning room 118, including a photocopy

of the defendant’s driver’s license. The guest registration card for room 118 also included the name of a

second individual, Victor Taveras. Although the officers

were not certain who Victor Taveras was, Sergeant

O’Brien testified that they believed that he most likely

was Eudy Taveras.

After speaking with the manager, the officers went

together to knock on the door of room 118. The officers

observed a light on in the room, but no one answered
the door. Sergeant O’Brien then retrieved Cooper and

conducted a narcotics sweep, which included several

passes along the first floor walkway where room 118

is located. On each pass, Cooper consistently alerted

to the presence of narcotics at the door to room 118.

It was then approximately 3 a.m. on February 5, 2013,

a little over ninety minutes since Sergeant Broems first

observed Taveras enter and exit room 118. At this point,

on the basis of all that had transpired since observing

Taveras enter and exit room 118, Sergeant Broems

decided to apply for a warrant to search room 118.

The officers decided that Sergeant Broems and Officer

Sheperis would return to Stamford Police headquarters

to prepare the search warrant and to process Taveras

for his drug charges, and Sergeant O’Brien would

remain behind on Home Court, in the same area where

Sergeant Broems was parked earlier, to surveil room

118 for any possible activity. Very shortly after the officers split up, however, just as Sergeant O’Brien was

getting into position to surveil room 118, he observed

the defendant on foot near the motel at the corner of

Home Court and East Main Street, walking away from

the motel. Sergeant O’Brien, who recognized the defendant, immediately radioed for Sergeant Broems and

Officer Sheperis to return to the motel to stop the

defendant.

While walking on Home Court, the defendant made

eye contact with Sergeant O’Brien, who was in a marked

police SUV. After the defendant made eye contact with

Sergeant O’Brien, the defendant changed his direction

and began walking east on East Main Street. About 100

yards from the motel, Sergeant O’Brien approached the

defendant, stepped out of his police vehicle, and,

addressing the defendant as ‘‘Ricky,’’ told the defendant

that he needed to speak with him. Initially, the defendant was cooperative. Sergeant Broems arrived on the

scene, and the defendant was searched. The officers

found that the defendant was carrying a large wad of

cash, amounting to over $3600, in his pocket, along with

a key to a room at the motel. Sergeant O’Brien informed

the defendant that Taveras was taken into custody, and

that ‘‘the jig is up.’’ The defendant responded, ‘‘nothing

in the room is mine.’’ The defendant agreed to open

the door to room 118 for the officers. When the officers

and the defendant reached the threshold of room 118,

however, the defendant changed his mind and refused

to grant them entry. The officers informed the defendant that if he did not consent to a search of the room,

they were going to obtain a search warrant.

The defendant informed Sergeant Broems that there

was no one in the room. To ensure that there was no

one else inside the room that might destroy evidence

before the officers could obtain a search warrant, however, Sergeant Broems used the defendant’s room key

to open the door. After opening the door, Sergeant
Broems announced ‘‘Police!’’ and looked inside the

room for approximately fifteen to thirty seconds.3 Once

he was satisfied that the room contained no occupants,

Sergeant Broems closed the door. While the door was

open, neither Sergeant Broems, nor any other officer

or Cooper, set foot in or otherwise physically entered

room 118. When he did not observe anyone in the room,

Sergeant Broems ‘‘cleared’’ room 118. Although he did

not enter the room, or take any steps to seize any evidence located inside the room, Sergeant Broems did

observe a large black digital scale on a table, as well

as a plastic sandwich bag lying on the floor nearby. The

officers advised the defendant that he was free to leave

the motel, and the defendant left.

Following the defendant’s departure, other officers

of the Stamford Police Department arrived at the motel.

Those officers were assigned to watch room 118 while

the investigating officers prepared an application for

a search warrant, with Sergeant O’Brien and Officer

Sheperis acting as affiants. Several hours later, at 9:20

a.m., the court, Hon. Richard F. Comerford, Jr., judge

trial referee, signed the search warrant for room 118.

When the police executed the search warrant, they

discovered a total of approximately 200 grams of heroin,

with a street value of approximately $85,000. The heroin

was broken down into dozens of smaller baggies or

glassine folds for individual sale. The officers also discovered a large quantity of U.S. currency, a laptop computer, and paper documents pertaining to a street gang,

the Latin Kings. The police also discovered over four

ounces of marijuana and a quantity of packaging materials, along with a vacuum sealing machine, two sifters,

and two digital scales. These items were consistent with

the operation of a drug factory by the defendant in the

motel room. After the search warrant was executed, the

police arrested the defendant at Taveras’ grandmother’s

house on Charles Street. The defendant was charged

with a variety of felony drug offenses.4 On October 28,

2015, the defendant filed a motion to suppress ‘‘all items

seized by police on February 5, 2013 from America’s

Best Value Inn Room #118.’’ In his memorandum of law

in support of the motion to suppress, the defendant

argued that because Sergeant Broems’ visual sweep of

the room was performed without obtaining a valid

search warrant, it was ‘‘per se unreasonable.’’ The

defendant further argued that, because the search did

not fall within any recognized exceptions to the warrant

requirement, as no exigent circumstances existed at the

time and the conduct fell short of a protective sweep,

‘‘any evidence found as a result of the prior police

illegality must be suppressed.’’

The court held a hearing on the motion to suppress

on February 29, 2016. The state presented the testimony

of Sergeant Broems, Officer Sheperis, and Sergeant

O’Brien. At the conclusion of the suppression hearing,
the state did not contest that Sergeant Broems’ visual

sweep of the room constituted a warrantless search

within the meaning of the fourth amendment to the

United States constitution and article first, § 7, of the

Connecticut constitution. Rather, the state argued that

because Officer Broems’ visual sweep of room 118 was

undertaken ‘‘solely for the purpose of insuring the lack

of—insuring that no evidence was being destroyed,’’

it was lawful pursuant to the exigent circumstances

exception to the warrant requirement. The state specifically noted that the visual sweep did not constitute a

‘‘protective sweep.’’5 The state alternatively argued that,

even if the visual sweep was unlawful, the evidence

seized from the room was still admissible pursuant to

the independent source doctrine.

On June 22, 2016, the court denied the defendant’s

motion to suppress in a written memorandum of decision. The court concluded that Sergeant Broems’ warrantless visual sweep was proper, under the exigent

circumstances doctrine, to prevent the destruction of

evidence. The court reasoned that, ‘‘when all the facts

of this case as known by police at the time of the

warrantless entry by Broems are viewed objectively,

the case meets the criteria for a finding of exigent circumstances.’’ In reaching its decision, the court noted

that other courts have found that evidence destruction

is frequent in drug cases, and it relied on the testimony

of the police officers, including: Sergeant Broems’ testimony that his only motivation to open the door to room

118 was to avoid the destruction of possible evidence;

Sergeant O’Brien’s testimony that, based on his training

and experience, it is common for additional people to

be present in a motel room, especially in the context

of narcotics or prostitution, regardless of the actual

number of registered parties; Sergeant O’Brien’s testimony that he was concerned that, on the basis of his

prior experience as a trained officer with respect to the

destruction or contraband or evidence, a number of

people already knew of the Stamford police’s investigation into the activity in room 118, and that phone calls

informing potential confederates of that investigation

may have already been made, prompting the destruction

of evidence; and Sergeant Broems’ testimony that he

believed that there was a real possibility for the loss

of potential evidence of illegal activity in room 118

because the police did not continue to surveil room 118

after initially departing the motel to stop the Yukon.

The court further noted that the officers were not aware

of the true extent of Taveras’ involvement with the

room, or the possibility of the presence of other persons

inside the room. The court also concluded that ‘‘even

assuming, arguendo, that the act of Broems in opening

the door without a warrant in order to check the room

for other occupants violated the defendant’s fourth

amendment rights, the court finds that the evidence

later seized pursuant to a search warrant is admissible
under the independent source doctrine.’’

On October 19, 2016, the defendant entered a conditional plea of nolo contendere to conspiracy to possess

a controlled substance with intent to sell in violation

of General Statutes §§ 53a-48 and 21a-277 (b), conspiracy to possess a controlled substance with intent to

sell by a person who is not drug-dependent in violation

of General Statutes §§ 53a-48 and 21a-278 (a), and conspiracy to operate a drug factory in violation of General

Statutes §§ 53a-48 and 21a-277 (c). The plea was entered

conditionally on his right to take an appeal from the

court’s ruling on the motion to suppress. The court,

Blawie, J., rendered a judgment of conviction. The

court sentenced the defendant to a term of incarceration of nine years on each of the charges, followed by

six years of special parole, to run concurrently with

one another, for a total effective sentence of nine years

to serve followed by six years of special parole. On

March 31, 2017, the court made a finding that the motion

to suppress was dispositive of the case.6 This appeal

followed.

We begin by noting that ‘‘[a]s a general matter, the

standard of review for a motion to suppress is wellsettled. A finding of fact will not be disturbed unless it

is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]hen a question of

fact is essential to the outcome of a particular legal

determination that implicates a defendant’s constitutional rights, [however] and the credibility of witnesses

is not the primary issue, our customary deference to the

trial court’s factual findings is tempered by a scrupulous

examination of the record to ascertain that the trial

court’s factual findings are supported by substantial

evidence. . . . [W]here the legal conclusions of the

court are challenged, [our review is plenary, and] we

must determine whether they are legally and logically

correct and whether they find support in the facts set

out in the memorandum of decision . . . .

‘‘Notwithstanding the responsibility to examine the

record scrupulously, it is well established that we may

not substitute our judgment for that of the trial court

when it comes to evaluating the credibility of a witness.

. . . It is the exclusive province of the trier of fact to

weigh conflicting testimony and make determinations

of credibility, crediting some, all or none of any given

witness’ testimony. . . . Questions of whether to

believe or disbelieve a competent witness are beyond

our review. As a reviewing court, we may not retry the

case or pass on the credibility of witnesses. . . . We

must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its

firsthand observation of their conduct, demeanor and

attitude.’’ (Citations omitted; footnote omitted; internal

quotation marks omitted.) State v. Kendrick, 314 Conn.

212, 222–24, 100 A.3d 821 (2014).
I

For the first time on appeal, the defendant claims

that the dog sniff constituted a violation of his rights

under article first, § 7, of the state constitution. Specifically, he argues that ‘‘the police conducted an illegal,

warrantless dog sniff search of the outside door of

the defendant’s hotel room during which the canine

signaled that he detected drugs in the room,’’ and as a

result of that illegal search, obtained a search warrant

for his motel room. The defendant concedes that this

issue is unpreserved, but nevertheless seeks review pursuant to the bypass doctrine set forth by our Supreme

Court in State v. Golding, 213 Conn. 233, 567 A.2d 823

(1989), as modified by In re Yasiel R., 317 Conn. 773,

120 A.3d 1188 (2015),7 or reversal pursuant to the plain

error doctrine. See Practice Book § 60-5 (‘‘[t]he court

may in the interests of justice notice plain error not

brought to the attention of the trial court’’).8 The record

is adequate to review the defendant’s claim,9 and the

issue of a warrantless search is an issue of constitutional magnitude. See State v. Buie, 129 Conn. App.

777, 787, 21 A.3d 550, aff’d, 312 Conn. 574, 94 A.3d

608 (2014) (concluding that defendant’s claim satisfied

Golding’s second prong where he was alleging violation

of his right to be free from unreasonable searches under

article first, § 7, of the Connecticut constitution). The

defendant cannot, however, establish a constitutional

violation. We therefore conclude that the defendant’s

state constitutional claim is reviewable, but fails under

Golding’s third prong.10

Article first, § 7, of the Connecticut constitution provides: ‘‘The people shall be secure in their persons,

houses, papers and possessions from unreasonable

searches or seizures; and no warrant to search any

place, or to seize any persons or things, shall issue

without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.’’11

‘‘A search for purposes of the [f]ourth [a]mendment

occurs when a reasonable expectation of privacy is

infringed.’’ State v. Saturno, 322 Conn. 80, 88, 139 A.3d

629 (2016). ‘‘It is well established that, in determining

whether the police conducted a search within the meaning of article first, § 7, a court 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.

. . . In the absence of such an expectation, the subsequent police action has no constitutional ramifications

. . . . The determination of whether such an expectation exists is to be made on a [case-by-case] basis . . .

and requires a [two part] inquiry: first, whether the

individual has exhibited an actual subjective expectation of privacy, and, second, whether that expectation

is one society recognizes as reasonable. . . . Whether
a defendant’s actual expectation of privacy in a particular place is one that society is prepared to recognize

as reasonable involves a fact-specific inquiry into all

the relevant circumstances. . . .

‘‘The determination that a particular place is protected under [article first, § 7] requires that it be one

in which society is prepared, because of its code of

values and its notions of custom and civility, to give

deference to a manifested expectation of privacy. . . .

It must be one that society is prepared to recognize as

reasonable. . . . Legitimate expectations of privacy

derive from concepts of real or personal property law

or [from] understandings that are recognized and permitted by society. One of the main rights attaching to

property is the right to exclude others . . . and one

who owns or lawfully possesses or controls properly

will in all likelihood have a legitimate expectation of

privacy by virtue of his right to exclude. . . . Of course,

one need not have an untrammeled power to admit and

exclude in order to claim the protection of [article first,

§ 7, as] long as the place involved is one affording an

expectation of privacy that society regards as reasonable.’’ (Citations omitted; footnotes omitted; internal

quotation marks omitted.) State v. Kono, 324 Conn. 80,

89–91, 152 A.3d 1 (2017).

The defendant’s state constitutional claim rests on

his interpretation of a recent decision by our Supreme

Court, State v. Kono, supra, 324 Conn. 80, in which that

court decided the issue of ‘‘whether article first, § 7,

of the Connecticut constitution prohibits police from

conducting a warrantless canine sniff of the front door

of a condominium in a multiunit condominium complex, and the common hallway adjacent thereto, for the

purpose of detecting marijuana inside the condominium.’’ (Footnote omitted.) Id., 82. On the basis of the

court’s ruling that the dog sniff did constitute a search

within the meaning of article first, § 7, the defendant

argues: ‘‘The police did not obtain a warrant before

they decided to conduct a dog sniff search of the pathway right outside of the defendant’s hotel room. . . .

Thus, under the recent case of State v. Kono, [supra,

80], the dog sniff of the hotel room violated the defendant’s right under the state constitution to be free of

illegal search and seizure.’’

In Kono, the police, after receiving an anonymous tip

that the defendant was boasting about growing marijuana in his condominium, which was located in a condominium complex in Berlin, obtained consent from

the property manager to enter the building. Id., 83. Specifically, the property manager signed a consent form

allowing the police officers and a canine officer, Zeusz,

to conduct a sweep of the common areas of the building.

Id. Because the outside doors to the multiunit condominium buildings were normally locked, allowing

access only through a keypad, a property manager
admitted the police and Zeusz into the building. Zeusz,

who was trained to detect various controlled substances, including marijuana, was accompanied by his

handler, an officer of the Berlin Police Department.

Id., 83–84.

The officer first had Zeusz conduct a ‘‘presearch,’’ of

the first floor common hallway, during which he was

allowed to walk throughout the condominium building

hallway without direction. Id., 84. After the presearch,

the officer conducted a directed search in which Zeusz

was commanded to sniff at the bottom of the front door

of each condominium unit on the first floor. Id. The

same presearch and directed search procedures also

were conducted on the second floor, where the defendant’s condominium unit was located.12 When Zeusz

performed his sniff at the bottom of condominium unit

204, the defendant’s unit, he sat down in front of the

door, which constituted a passive alert for drugs in the

unit. Id.

The police knocked on the door to unit 204, but

received no response. Id. An officer remained at the

door to ensure that no one entered the premises, and

another officer left to prepare a search warrant application. Id. Approximately four hours later, the officer

returned with a signed search warrant. Id. Upon executing the warrant, the police discovered an indoor greenhouse containing marijuana plants, as well as seeds,

lighting equipment, and various firearms. Id. The defendant was arrested and charged with several drug and

weapon related offenses. Id.

The defendant moved to suppress the evidence seized

from his condominium on the ground that a canine sniff

of the threshold of his home, conducted for the purpose

of investigating the home’s contents, constituted a

search under both the fourth amendment to the United

States constitution and article first, § 7, of the Connecticut constitution, and therefore, required a warrant

based on probable cause. Id., 84–85. Specifically, the

defendant argued that the front door to his condominium unit, as well as the hallway adjacent to his front

door, were ‘‘within the constitutionally protected curtilage of his condominium unit such that the entry of a

dog into that area for the purpose of conducting a drug

sniff constituted a trespass.’’ Id., 85. The defendant further argued that the canine sniff violated his reasonable

expectation of privacy. Id. The trial court agreed with

the defendant that the canine sniff violated his reasonable expectation of privacy under the fourth amendment,13 and granted the defendant’s motion to

suppress.14 Id., 82. The state appealed. Id.

On appeal to our Supreme Court, the state reasserted

its trial court argument that the canine sniff of the

defendant’s front door and the hallway adjacent thereto

did not constitute a search under article first, § 7,

because the defendant had no reasonable expectation
of privacy in the common hallway or the contraband

inside his home. Id., 89. The court, employing the

multifactor approach set forth in State v. Geisler, 222

Conn. 672, 685, 610 A.2d 1225 (1992),15 looked first to

federal precedent involving the use of a trained narcotics detection dog. State v. Kono, supra, 324 Conn. 92.

The court concluded that ‘‘federal precedent provides

support for the defendant’s claim of a state constitutional violation.’’16 Id., 93. The court next examined precedent from other state courts, and concluded that ‘‘it

appears that the weight of sister state precedent supports the view that the canine sniff of the defendant’s

door in the present case was a search under our constitution.’’17 Id., 121. Finally, the court concluded that there

is ‘‘no principled reason of public policy . . . 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.’’ (Internal quotation marks

omitted.) Id., 121. The court held that a canine sniff

directed toward a home—whether freestanding or part

of a multitenant structure—is a search for purposes of

article first, § 7, of the Connecticut constitution and,

therefore, requires a warrant issuing upon a court’s

finding of probable cause. Id., 122. The court, therefore,

concluded that the defendant was entitled to suppression of the evidence seized from his residence as a

fruit of the warrantless canine sniff, and affirmed the

judgment of the trial court. Id., 122.

We disagree with the defendant’s assertion that

‘‘[t]his case is indistinguishable from and is controlled

by Kono.’’ This case concerns the shared open walkway

of a motel.18 In Kono, the hallway was closed off, and

located on the inside of the condominium complex

structure, which was restricted by a locked door. It

was accessible only by keycard access, and the police

needed to obtain permission before entering the hallway. The open, shared walkway here, was located on

the outside of the structure. It was open to the public,

as well as completely illuminated and visible to anyone

as far as fifty yards away, even at nighttime. Furthermore, no permission was required to traverse the walkway, evidenced by the ease with which the officers, and

eventually Cooper, did so. We conclude that because

of the nature of the walkway on which room 118 was

located, Kono is distinguishable from the present case.

As the court in Kono noted, the determination of

whether a defendant possesses a reasonable expectation of privacy in an area or thing to be searched is

made on a case-by-case basis. See id., 90. We conclude

that, under the facts of this case, the defendant has
not shown a reasonable expectation of privacy on the

outside of the door to his motel room. Furthermore,

the defendant cites no authority to support his assertion

that a canine sniff outside the door of a motel room,

conducted from an open walkway, which is visible to

and accessible by any member of the public, constitutes

a search within the meaning of article first, § 7, of our

state constitution.19 In the absence of such authority, we

decline to extend Kono’s reach to the facts of this case.

Because the defendant’s constitutional claim hinges

on his interpretation of Kono,

20 in light of our conclusion

that it is inapplicable to the facts of his case, we conclude that he has failed to demonstrate a constitutional

violation.21 Accordingly, the defendant’s unpreserved

state constitutional claim fails under Golding’s third

prong. The defendant also is unable to prevail under

the plain error doctrine, as he cannot demonstrate that

an obvious error exists that affects the fairness and

integrity of and public confidence in the judicial proceedings.

II

The defendant next claims that Sergeant Broems’

conduct in opening the door to room 118 and conducting a visual sweep of the room was unlawful under the

federal and state constitutions.22 The state does not

dispute that Sergeant Broems’ conduct constituted a

warrantless search within the meaning of the fourth

amendment to the federal constitution and article first,

§ 7, of the state constitution. Rather, the state argues

only that the search was justified by exigent circumstances—namely, the potential destruction of evidence.

The defendant argues that ‘‘none of the officers who

testified could identify any definite and specific reason

for believing that someone was in the room who might

destroy the evidence,’’ and, therefore, the officers did

not hold a reasonable belief that immediate action was

necessary. We are not persuaded.

‘‘Ordinarily, police may not conduct a search unless

they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause

is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.

. . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception. . . . Our law recognizes that there

will be occasions when, given probable cause to search,

resort to the judicial process will not be required of

law enforcement officers. [For example], where exigent

circumstances exist that make the procurement of a

search warrant unreasonable in light of the dangers

involved . . . a warrant will not be required. . . .

‘‘The term, exigent circumstances, does not lend itself

to a precise definition but generally refers to those
situations in which law enforcement agents will be

unable or unlikely to effectuate an arrest, search or

seizure, for which probable cause exists, unless they

act swiftly and, without seeking prior judicial authorization.’’ (Citations omitted; internal quotation marks omitted.) State v. Owen, 126 Conn. App. 358, 364–65, 10

A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008

(2011). The test for determining whether exigent circumstances justify a warrantless search or seizure is

‘‘whether, under the totality of the circumstances, the

police had reasonable grounds to believe that if an

immediate arrest [or entry] were not made, the accused

would be able to destroy evidence, flee or otherwise

avoid capture, or might, during the time necessary to

procure a warrant, endanger the safety or property of

others. . . .

‘‘[N]o single factor, such as a strong or reasonable

belief that the suspect is present on the premises, will

be determinative in evaluating the reasonableness of a

police officer’s belief that a warrantless entry or arrest

was necessary. Rather than evaluating the significance

of any single factor in isolation, courts must consider

all of the relevant circumstances in evaluating the reasonableness of the officer’s belief that immediate action

was necessary.’’ (Internal quotation marks omitted.)

State v. Kendrick, supra, 314 Conn. 227, 229.

‘‘It is well established in Connecticut . . . that the

test for the application of the doctrine is objective, not

subjective, and looks to the totality of the circumstances. . . . This is an objective test; its preeminent

criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe. . . . The reasonableness of a police

officer’s determination that an emergency exists is evaluated on the basis of facts known at the time of entry.’’

(Citations omitted; internal quotation marks omitted.)

State v. Owen, supra, 126 Conn. App. 365. ‘‘[T]he trial

court’s legal conclusion regarding the applicability of

the exigent circumstances doctrine is subject to plenary

review.’’ State v. Kendrick, supra, 314 Conn. 222.

As a preliminary matter, we must first determine

whether, at the time of Sergeant Broems’ visual sweep,

probable cause existed to search room 118. See State

v. Owen, supra, 126 Conn. App. 366. We conclude that

it did. ‘‘Whether the trial court properly found that the

facts submitted were enough to support a finding of

probable cause is a question of law. . . . The trial

court’s determination on [that] issue, therefore, is subject to plenary review on appeal. . . . Probable cause

to search exists if: (1) there is probable cause to believe

that the particular items sought to be seized are connected with criminal activity or will assist in a particular

apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized

will be found in the place to be searched. . . . Probable
cause, broadly defined, [comprises] such facts as would

reasonably persuade an impartial and reasonable mind

not merely to suspect or conjecture, but to believe that

criminal activity has occurred. . . . Reasonable minds

may disagree as to whether a particular affidavit establishes probable cause.’’ (Citations omitted; internal quotation marks omitted.) State v. Pappas, 256 Conn. 854,

864–65, 776 A.2d 1091 (2001).

‘‘We consistently have held that [t]he quantum of

evidence necessary to establish probable cause exceeds

mere suspicion, but is substantially less than that

required for conviction. . . . The existence of probable

cause does not turn on whether the defendant could

have been convicted on the same available evidence.

. . . [P]roof of probable cause requires less than proof

by a preponderance of the evidence. . . . Probable

cause, broadly defined, comprises such facts as would

reasonably persuade an impartial and reasonable mind

not merely to suspect or conjecture, but to believe that

criminal activity has occurred. . . . The probable

cause determination is, simply, an analysis of probabilities. . . . The determination is not a technical one, but

is informed by the factual and practical considerations

of everyday life on which reasonable and prudent [persons], not legal technicians, act. . . . Probable cause

is not readily, or even usefully, reduced to a neat set

of legal rules. . . . Reasonable minds may disagree as

to whether a particular [set of facts] establishes probable cause. . . .

‘‘The determination of whether probable cause exists

under the fourth amendment to the federal constitution

. . . is made pursuant to a totality of circumstances

test. . . . The probable cause test then is an objective

one.’’ (Citations omitted; internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 435–36, 944 A.2d

297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L.

Ed. 2d 144 (2008). ‘‘In a warrantless arrest or search,

as well as one made pursuant to a warrant, the reviewing

court must pay great deference to the magistrate’s

determination of probable cause. . . . This court must

not attempt a de novo review where there has already

been a determination at a suppression hearing that

probable cause exists. . . . When a trial court rules on

a motion to suppress without making detailed findings

of fact to support its ruling, an appellate court may look

to the evidence produced in support of the ruling. . . .

Where, as in this case, however, the trial court performs

its judicial function conscientiously by detailing the

facts which the state has established, we are not free

to add facts which are not found and which are not

undisputed.’’ (Citations omitted; internal quotation

marks omitted.) State v. Velez, 20 Conn. App. 168, 174,

565 A.2d 542 (1989), rev’d on other grounds, 215 Conn.

667, 577 A.2d 1043 (1990).

The defendant contends that ‘‘[e]ven construing the
facts as broadly as possible, there is simply no probable

cause to search the hotel room because the facts fail

to establish a nexus between drug activity and the hotel

room.’’ We disagree and conclude that there was ample

evidence that would persuade a reasonable person to

believe that criminal activity had occurred. The evidence would also lead a reasonable person to conclude

that there was a fair probability that contraband or

evidence of that crime would be found in room 118.

First, Sergeant Broems observed Taveras’ quick visit to

room 118, which led him to believe, on the basis of the

location of the motel, the time of night, and the duration

of the visit, that he had witnessed a drug transaction

out of room 118. Sergeant Broems and Sergeant O’Brien

then stopped the Yukon in which Taveras was traveling,

and discovered narcotics on Taveras’ person. That interaction led the police to the house of Taveras’ grandmother, where they discovered items consistent with

narcotics packaging. The police then learned that room

118 was registered to the defendant and another person

by the name of Victor Taveras. When Sergeant O’Brien

observed the defendant, the defendant made eye contact with him, changed direction and began walking

east on East Main Street rather than continuing on

Home Court, where Sergeant O’Brien was parked. After

Sergeant O’Brien approached the defendant, the police

discovered a large amount of cash and a key to room

118 on his person. When the police informed the defendant at that point that they had arrested Taveras and

that ‘‘the jig is up,’’ the defendant responded, ‘‘nothing

in the room is mine,’’ implying that something, with

which the defendant did not want to be associated, was

present in the room. On the basis of these facts known

to the police, a reasonable person would believe that

criminal activity had occurred, and that room 118 contained evidence of such criminal activity.

Having determined that there existed probable cause

to search room 118 at the time of Sergeant Broems’

visual sweep, we now turn to the question of whether,

under the totality of the circumstances, a reasonable,

well trained police officer reasonably would have

believed that immediate entry into room 118 was necessary to prevent the destruction of evidence. We answer

that question in the affirmative. We agree with the trial

court’s conclusion that ‘‘when all the facts of this case

as known by the police at the time of the warrantless

entry by Broems are viewed objectively, the case meets

the criteria for a finding of exigent circumstances.’’

On the basis of firsthand observations, the police had

reason to suspect that drug related criminal activity

was occurring in room 118. These suspicions were confirmed by a series of events, unfolding over the course

of approximately two hours in the early hours of the

morning of February 5, 2013. That course of events

included police interactions with at least four people

who were not taken into police custody before Sergeant
Broems opened the door to room 118, including Brickman, Taveras’ brother, Taveras’ grandmother, and the

hotel manager. Additionally, it was reasonable for the

police to fear that even unknown passersby might

become aware of the police investigation into room

118. Sergeant O’Brien, an experienced police officer,

testified about his concerns that phone calls may have

occurred between people aware of the investigation

into the activity in room 118 and possible confederates,

prompting the destruction of evidence inside of the

room.

We find this court’s decision in State v. Reagan, 18

Conn. App. 32, 556 A.2d 183, cert. denied, 211 Conn.

805, 559 A.2d 1139 (1989), persuasive on this point. In

Reagan, the state police were surveilling the defendant’s home for possible drug activity. Id., 34. While

surveilling the home, the police observed what

appeared to be a drug transaction occurring between

the defendant and a man, as well as a woman arriving

to the home in a car, entering the house and leaving

after less than one minute. Id. Following the man’s

departure from the home, the police stopped and

searched his vehicle at a nearby gas station. Id. The

police discovered narcotics in the man’s vehicle and

arrested him. Id. During the search and arrest, several

people watched from a distance, including the woman

who the officers earlier observed entering and leaving

the defendant’s home. Id. After arresting the man, the

police applied for a search warrant, but because they

thought it would take at least three hours, they ‘‘decided

that a significant risk existed that the defendant would

learn of [the man’s] arrest and destroy any incriminating

evidence,’’ and entered the defendant’s home before a

warrant was issued. Id., 35.

The defendant moved to suppress all evidence

obtained during the search as fruit of an illegal search

and arrest. Id., 36. The trial court denied the motion to

suppress, finding that the warrantless entry was justified by exigent circumstances, and this court affirmed.

Id. This court concluded that the trial court properly

found that the warrantless entry into the defendant’s

home and his subsequent arrest were justified by the

existence of exigent circumstances, as ‘‘the possibility

that a suspect knows or may learn that he is under

surveillance or at risk of immediate apprehension may

constitute exigent circumstances, on the theory that the

suspect is more likely to destroy evidence, to attempt

to escape or to engage in armed resistance.’’ Id., 38.

The court reasoned: ‘‘[I]n the present case, police

detained and arrested an individual seen leaving the

defendant’s home. The arrest site was located on the

corner of the defendant’s street, approximately one

quarter of a mile from the defendant’s home. Several

people observed this arrest, one of whom was seen by

police conversing with [the man]. In addition, there was

testimony indicating that the arrest was observed by a
woman seen by police at the defendant’s home. Given

the small size of the town, the proximity of the arrest

to the defendant’s home and the observation of that

arrest by several people, we conclude that police had

reasonable grounds to believe that if an immediate entry

into the defendant’s home were not made, the defendant

would be alerted to the arrest of [the man] and destroy

any incriminating evidence.’’ Id., 39.

Similar to the facts of Reagan, there was a distinct

possibility that someone who observed either the police

stop of the Yukon, Taveras’ arrest, or the police and

canine presence at the motel, might inform someone

involved with the criminal activity. The stop of the

Yukon and the arrest of Taveras, a person seen leaving

room 118 and seemingly known to the defendant,

occurred a short distance from the motel. Brickman,

Taveras’ grandmother, and Taveras’ brother were aware

that the police arrested Taveras after he left the motel.

The police located and arrested the defendant hours

later at the home of Tavares’ grandmother. Given the

proximity of the arrest of Taveras to the motel and the

knowledge of that arrest and the ensuing investigation

by at least four people, the police had reasonable

grounds to believe that if an immediate entry were

not made into room 118, incriminating evidence may

be destroyed.

Furthermore, Sergeant Broems, on the basis of his

own training and experience, noted that from the time

Taveras entered the room until the the police returned

to the room with the defendant after 3 a.m., there was

‘‘nobody with eyes on’’ the room, which might have

allowed an unknown person to enter room 118 and

destroy evidence contained therein. Although no one

answered when the police knocked on the door earlier

in the night, and there was no evidence confirming the

presence of an additional person in room 118, these

facts, coupled with the observation of a light on in the

room, provided ample reason to believe that, absent

swift action in opening the door to room 118 and performing a visual sweep, there was a significant risk of

the destruction of evidence. It was reasonable for the

police to believe that the delay necessary to obtain a

search warrant may have resulted in the destruction of

incriminatory evidence.

The court properly concluded that the search was

lawful under the exigent circumstances exception to the

warrant requirement.23 Accordingly, the court properly

denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 54-94a provides: ‘‘When a defendant, prior to the

commencement of trial, enters a plea of nolo contendere conditional on the

right to take an appeal from the court’s denial of the defendant’s motion

to suppress or motion to dismiss, the defendant after the imposition of

sentence may file an appeal within the time prescribed by law provided a

trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in

such an appeal shall be limited to whether it was proper for the court to

have denied the motion to suppress or the motion to dismiss. A plea of nolo

contendere by a defendant under this section shall not constitute a waiver

by the defendant of nonjurisdictional defects in the criminal prosecution.’’

2 As the result of a prior case, the Stamford police already knew the

defendant by name.

3 Sergeant O’Brien characterized the sequence of events as follows:

‘‘[Broems] cracked the door, stuck his head in, cleared it, you know, visually

and then he relayed that nobody else was in there, he closed the door.’’

4 The defendant was charged with the crimes of possession of more than

four ounces of marijuana in violation of General Statutes (Rev. to 2013)

§ 21a-279 (b); conspiracy to possess more than four ounces of marijuana

in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2013)

§ 21a-279 (b); possession of a controlled substance with intent to sell in

violation of General Statutes § 21a-277 (b); conspiracy to possess a controlled substance with intent to sell in violation of General Statutes §§ 53a48 and 21a-277 (b); possession of narcotics in violation of General Statutes

§ 21a-279 (a); conspiracy to possess narcotics in violation of General Statutes

§§ 53a-48 and 21a-279 (a); possession of narcotics with intent to sell by a

person who is not drug-dependent in violation of General Statutes § 21a278 (a); conspiracy to possess narcotics with intent to sell by a person who

is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a278 (a); operation of a drug factory in violation of 21a-277 (c); and conspiracy

to operate a drug factory in violation of General Statutes §§ 53a-48 and 21a277 (c).

5

‘‘The protective sweep doctrine . . . is rooted in the investigative and

crime control function of the police. . . . As its name suggests, the purpose

of the doctrine is to allow police officers to take steps to assure themselves

that the house in which a suspect is being, or has just been, arrested is not

harboring other persons who are dangerous and who could not unexpectedly

launch an attack. . . . Although originally a protective sweep was defined

as one made incident to a lawful arrest . . . the scope has since been

broadened so that the current rule is that a law enforcement officer present

in a home under lawful process . . . may conduct a protective sweep when

the officer possesses articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably prudent officer in

believing that the area to be swept harbors an individual posing a danger

to those on the . . . scene.’’ (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Kendrick, 314

Conn. 212, 229–30, 100 A.3d 821 (2014).

6 The defendant filed his appeal on December 13, 2016. On his appeal

form, he listed ‘‘denial of the defendant’s motion to suppress evidence’’ as

the appealable judgment or decision. On December 29, 2016, the defendant

filed a motion, without objection from the state, requesting permission to

correct his appeal form to state that he was appealing ‘‘from judgment and

sentencing following a nolo contendere plea following denial of a motion

to suppress.’’ On February 17, 2017, this court granted that motion, and also

sua sponte ordered that ‘‘the matter is remanded to the trial court, Blawie,

J., for a determination regarding whether the ruling on the motion to suppress would be dispositive of the case as required by General Statutes § 54-

94a. See State v. McGinnis, 83 Conn. App. 700 [851 A.2d 349] (2004); State

v. Douros, 87 Conn. App. 122 [864 A.2d 57] (2005).’’

7 Pursuant to Golding, a defendant may prevail on a claim of constitutional

error not preserved at trial only if all four of the following conditions are

satisfied: ‘‘(1) the record is adequate to review the alleged claim of error;

(2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . .

deprived the defendant of a fair trial; and (4) if subject to harmless error

analysis, the state has failed to demonstrate harmlessness of the alleged

constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)

State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R., supra,

317 Conn. 781 (modifying third prong of Golding by eliminating word

‘‘clearly’’ before words ‘‘exists’’ and ‘‘deprived’’).

8

‘‘[T]he plain error doctrine is not . . . a rule of reviewability. It is a rule

of reversibility. That is, it is a doctrine that this court invokes in order to

rectify a trial court ruling that, although either not properly preserved or

never raised at all in the trial court, nonetheless requires reversal of the

trial court’s judgment, for reasons of policy. . . . In addition, the plain error

doctrine is reserved for truly extraordinary situations where the existence
of the error is so obvious that it affects the fairness and integrity of and

public confidence in the judicial proceedings. . . . Plain error is a doctrine

that should be invoked sparingly. . . . A party cannot prevail under plain

error unless it has demonstrated that the failure to grant relief will result

in manifest injustice. . . . Implicit in this very demanding standard is the

notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, a]

defendant cannot prevail under [the plain error doctrine] . . . unless he

demonstrates that the claimed error is both so clear and so harmful that a

failure to reverse the judgment would result in manifest injustice.’’ (Internal

quotation marks omitted.) State v. Terry, 161 Conn. App. 797, 820, 128 A.3d

958 (2015), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016).

9 The state argues that the record is inadequate for review. Specifically,

the state argues that ‘‘[b]ecause the defendant did not challenge the dog

sniff below, both the state and the trial court were temporally focused on

Broems’ opening of the door,’’ and, therefore, ‘‘the state will be unable to

show that despite the alleged illegality of the canine sniff, the evidence was

nevertheless admissible under the independent source doctrine.’’ Because

we do not reach the issue of whether the independent source doctrine

applies in this case; see footnote 20 of this opinion; we need not decide the

adequacy of the record with respect to that issue.

10 The defendant also argues that, because our Supreme Court decided

State v. Kono, 324 Conn. 80, 152 A.3d 1 (2016), in which it held that a dog

sniff of the outside door of a condominium, conducted from a common

hallway in the condominium building, constitutes a search within the meaning of article first, § 7, of the Connecticut constitution, after the trial court

decided the motion to suppress, ‘‘this case falls squarely under the rule

permitting review when ‘a new constitutional right not readily foreseeable

has arisen between the time of trial and appeal.’ [State v. Evans, 165 Conn.

61, 70, 327 A.2d 576 (1973)].’’ This argument necessarily fails on the basis

of our conclusion that Kono does not apply to the facts of this case.

11 The language of the fourth amendment to the federal constitution similarly states: ‘‘The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon probable cause, supported

by oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.’’ U.S. Const., amend. IV.

12 The other officers, who were aware of which condominium unit

belonged to the defendant, did not inform Zeusz’ handler which condominium unit was under investigation. State v. Kono, supra, 324 Conn. 84.

13 The trial court in Kono primarily relied on Second Circuit precedent

which held that ‘‘a canine sniff of a person’s front door in a multiunit

apartment building, for the purpose of detecting drugs inside the apartment,

constituted a search within the meaning of the fourth amendment,’’ and two

United States Supreme Court decisions, which held that ‘‘a canine sniff

conducted within the curtilage of a single-family residence ([Florida v.

Jardines, 569 U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013)]) and the

thermal imaging of a single-family residence ([Kyllo v. United States, 533

U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001)]), for purposes of detecting

marijuana therein, violated the fourth amendment to the United States constitution.’’ State v. Kono, supra, 324 Conn. 86.

14 On appeal, the defendant also argued, consistent with the trial court’s

conclusion, that the canine sniff violated the fourth amendment’s prohibition

against unreasonable searches and seizures. Our Supreme Court, however,

decided only the state constitutional issue, explaining: ‘‘We recently have

explained that when the issue presented is one of first impression under

both the state and federal constitutions, it is appropriate to consider the

state constitutional claim first, turning to the federal claim only after

determining that the appellant’s state constitutional [challenge] will not

succeed. . . . As we discuss more fully in part IV of this opinion, we see

no reason to deviate from this approach when, as in the present case, the

issue is not truly settled under the federal constitution, such that we cannot

predict to a reasonable degree of certainty how the United States Supreme

court would resolve the issue.’’ (Citations omitted; internal quotation marks

omitted.) State v. Kono, supra, 324 Conn. 82 n.3.

15 ‘‘In order to construe the contours of our state constitution and reach

reasoned and principled results, the following tools of analysis should be

considered to the extent applicable: (1) the textual approach . . . (2) holdings and dicta of this court, and the Appellate Court . . . (3) federal precedent . . . (4) sister state decisions or sibling approach . . . (5) the
historical approach, including the historical constitutional setting and the

debates of the framers . . . and (6) economic/sociological considerations.’’

(Citations omitted; emphases in original; internal quotation marks omitted.)

State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992). Our Supreme

Court has noted, however, ‘‘that these factors may be inextricably interwoven, and not every [such] factor is relevant in all cases.’’ State v. Kono,

supra, 324 Conn. 92.

16 Specifically, the court cited the Second Circuit’s decision in United

States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985), cert. denied, 474 U.S.

819, 106 S. Ct. 67, 88 L. Ed. 2d 54 (1985), in which the court held that a

canine sniff of the common hallway of a multiunit apartment building, for

the purpose of detecting drugs inside one of the apartments, constitutes a

search within the meaning of the fourth amendment, and United States v.

Whitaker, 820 F.3d 849 (7th Cir. 2016), in which the United States Court of

Appeals for the Seventh Circuit reaffirmed that principle. State v. Kono,

supra, 324 Conn. 93. Although it noted that the United States Supreme Court

had not yet decided the issue decided by Thomas, the court noted two cases

which ‘‘tend to favor the defendant’s position’’: the United States Supreme

Court’s decisions in Kyllo and Jardines. See id.; see also footnote 15 of this

opinion. The court finally cited United States v. Hopkins, 824 F.3d 726, 729,

731–33 (8th Cir. 2016), cert. denied, U.S. , 137 S. Ct. 522, 196 L. Ed. 2d 425

(2016), in which the United States Court of Appeals for the Eighth Circuit

held that a canine sniff of the front door of a two-story townhouse, which

shared a common walkway and front stoop with the unit next door, violated

the fourth amendment.

17 The court noted that only seven states appear to have addressed the

issue of whether a canine sniff of an apartment door in a multiunit building

is a search within the meaning of the federal, or their respective state,

constitutions. State v. Kono, supra, 324 Conn. 116. The court further noted

that five states, Illinois, Minnesota, Nebraska, New York, and Texas, had

concluded that it is a search that requires either a reasonable and articulable

suspicion or a warrant supported by probable cause, and two, Florida and

Washington, had concluded that a canine sniff of the front door of a single

family house violates the resident’s reasonable expectation of privacy in

the home and requires a warrant supported by probable cause. Id., 117.

Additionally, the court observed that ‘‘several state appellate courts have

determined that even a canine sniff of a nonresidential property may be a

search under their respective state constitutions and may require a reasonable, articulable suspicion.’’ Id., 118. Finally, the court noted that only two

state appellate courts, in Maryland and North Dakota, had concluded that

a canine sniff of an apartment door in a multiunit building is not a search

for fourth amendment purposes. Id., 118.

18 The defendant also argues that ‘‘[a] person who inhabits a hotel room

has a reasonable expectation of privacy that is equal to the reasonable

expectation of privacy possessed by occupants of any residence.’’ The defendant cites our Supreme Court’s decision in State v. Benton, 206 Conn. 90,

536 A.2d 572 (1987), cert. denied, 486 U.S. 1056, 108 S. Ct. 2823, 100 L. Ed.

2d 924 (1988), for this proposition.

It is useful to elaborate on the guidance provided by Benton. In Benton,

our Supreme Court concluded that ‘‘[p]ersons . . . residing in an apartment,

or persons staying in a hotel or motel have the same fourth amendment

rights to protection from unreasonable searches and seizures and the same

reasonable expectation of privacy as do the residents of any dwelling.’’

(Emphases in original.) Id., 95. The court went on to acknowledge, however,

that ‘‘[t]he shared atmosphere and the nearness of one’s neighbors in a hotel

or motel or apartment in a multiple family dwelling, however, diminish the

degree of privacy that one can reasonably expect or that society is prepared

to recognize as reasonable.’’ Id., 96. We conclude that, as part of our caseby-case determination of whether a reasonable expectation of privacy exists

in an area to be searched; see State v. Kono, supra, 324 Conn. 89; that this

case is one in which the nature of the location to be searched, the outside

of a door located on an open, shared walkway, diminished the degree of

privacy that the defendant reasonably could expect or that society is prepared to recognize as reasonable.

19 We note that, upon review of each federal case where the court was

presented with a similar issue, the court has held that a dog sniff of a hotel

or motel room door, performed from a shared corridor or walkway, does

not constitute a search within the meaning of the fourth amendment. See

United States v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997) (‘‘[The defendant]

had an expectation of privacy in his Hampton Inn hotel room. But because
the corridor outside that room is traversed by many people, his reasonable

privacy expectation does not extend so far. Neither those who stroll the

corridor nor a sniff dog needs a warrant for such a trip. As a result, we

hold that a trained dog’s detection of odor in a common corridor does not

contravene the Fourth Amendment.’’); United States v. Lewis, United States

District Court, Docket No. 1:15-CR-10 (TLS) (N.D. Ind. July 10, 2017) (concluding that dog sniff of defendant’s hotel room door, which was located

along open air walkway, was not search within meaning of fourth amendment, because of nature of walkway, ‘‘an unenclosed, common area that

was readily accessible to the public at all hours’’); United States v. Marlar,

828 F. Supp. 415, 419 (N.D. Miss. 1993) (concluding that defendant possessed

a reasonable expectation of privacy in his motel room, but that dog sniff

outside defendant’s door, which ‘‘opened to the exterior of the building,’’

did not infringe on that expectation of privacy), dismissed on other grounds,

68 F.3d 464 (1995).

20 Because we determine that the search was lawful, we need not decide

the applicability of the independent source doctrine, a doctrine which applies

in the context of the exclusionary rule. See State v. Brocuglio, 264 Conn.

778, 786–87, 826 A.2d 145 (2003) (‘‘As a general principle, the exclusionary

rule bars the government from introducing at trial evidence obtained in

violation of the fourth amendment to the United States constitution. . . .

The rule applies to evidence that is derived from unlawful government

conduct, which is commonly referred to as the fruit of the poisonous tree.

. . . In State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988), we concluded

that article first, § 7, of the Connecticut constitution similarly requires the

exclusion of unlawfully seized evidence.’’ [Citations omitted; internal quotation marks omitted.]); State v. Vivo, 241 Conn. 665, 672, 697 A.2d 1130 (1997)

(‘‘[t]he independent source doctrine . . . [is a] recognized [exception] to

the exclusionary rule’’).

21 The state additionally argues that if this court determines that a dog

sniff of the outside of a door to a motel room constitutes a search under

our state constitution, we also should hold that such a search is constitutionally valid if supported by a reasonable and articulable suspicion, as opposed

to probable cause. In light of our conclusion that the defendant has failed

to show that a search occurred under the facts of this case, we decline to

decide this issue.

22 The defendant does not argue that article first, § 7, of the Connecticut

constitution provides greater protection with respect to this claim.

23 Because we conclude that the search was lawful, we need not address

the trial court’s conclusion regarding the applicability of the independent

source doctrine. See State v. Sulewski, 98 Conn. App. 762, 764 n.2, 912

A.2d 485 (2006) (concluding that this court need not address trial court’s

alternative ruling that evidence was admissible pursuant to independent

source doctrine in light of conclusion that stop was lawful under Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]).