******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
STATE v. KONO—CONCURRENCE

ZARELLA, J., concurring in the judgment. I agree that

the use of a dog sniff to detect contraband inside the

condominium unit occupied by the defendant, Dennis

Kono, violated his rights, but for reasons different from

those given by the majority. The majority relies on our

state constitution, but, in my view, looking to the state

constitution is unnecessary when, as in the present

case, existing federal constitutional doctrine favors the

defendant. Instead, when a party raises a claim under

both the federal and state constitutions, the proper

mode of analysis should be to address the federal claim

first, turning to the state constitutional claim only after

determining that the federal constitution does not provide a basis for relief or if the applicable federal rule

is truly unsettled. I therefore respectfully concur only

in the judgment.

I

Turning to the federal constitutional question, I

would first conclude that federal case law from the

United States Court of Appeals for the Second Circuit

resolves the federal constitutional claim before us.

Three decades ago, 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),

the Second Circuit concluded that a warrantless dog

sniff of the contents of a home violates the resident’s

reasonable expectation of privacy, even if the resident

lives in an apartment and the dog is outside of his

apartment door in a shared hallway. The holding in

Thomas remains good law; see, e.g., United States v.

Hayes, 551 F.3d 138, 144 (2d Cir. 2008); and the facts

of Thomas match the facts of the present case in every

relevant respect.

As the majority explains, even though decisions of

the Second Circuit do not bind this court, we accord

them great weight on questions of federal law, including

federal constitutional law, when the United States

Supreme Court has not expressly resolved the issue

before us. See, e.g., Dayner v. Archdiocese of Hartford,

301 Conn. 759, 783, 23 A.3d 1192 (2011) (‘‘it is well

settled that decisions of the Second Circuit, while not

binding [on] this court, nevertheless carry particularly

persuasive weight in the resolution of issues of federal

law when the United States Supreme Court has not

spoken on the point’’ [internal quotation marks omitted]). Deferring to the Second Circuit’s decisions on

matters of federal law promotes principles of comity

and consistency in the application of federal law in this
state. See id., 784 (noting that it would be ‘‘ ‘bizarre’ ’’

for application of federal law to depend on whether

case was brought in state or federal court); see also

Szewczyk v. Dept. of Social Services, 275 Conn. 464,

475–76 n.11, 881 A.2d 259 (2005)(citing cases explaining

reasons for our deference to Second Circuit).

I see no compelling reason to depart from the

approach of the Second Circuit in the present case.

Nothing has eroded the basis for its holding in Thomas

since that case was decided. Although Thomas was

decided more than thirty years ago and was originally

met with criticism, the Second Circuit has more recently

cited it with approval; United States v. Hayes, supra,

551 F.3d 143–44; and more recent United States

Supreme Court decisions issued after Thomas have, in

fact, bolstered its reasoning.1 See, e.g., Kyllo v. United

States, 533 U.S. 27, 34–35, 40, 121 S. Ct. 2038, 150 L.

Ed. 2d 94 (2001); see also Florida v. Jardines, U.S.

, 133 S. Ct. 1409, 1417–18, 185 L. Ed. 2d 495 (2013);

Florida v. Jardines, supra, 1418 (Kagan, J., concurring).

And, as the majority explains, the only circuit court to

have addressed the question after Kyllo and Jardines

were decided reached the same conclusion as the Second Circuit in Thomas. See United States v. Whitaker,

820 F.3d 849, 852–54 (7th Cir. 2016). To be sure, Justice

Espinosa has raised significant distinctions between the

issues decided by the United States Supreme Court in

Kyllo and Jardines, and the precise issue raised in the

present case.2 But, in my view, these distinctions do

not justify a departure from Second Circuit precedent,

at least if we are applying federal law.3

I thus would begin with the federal constitutional

analysis, apply the Second Circuit’s decision in Thomas,

and conclude that the dog sniff of the defendant’s condominium unit in the present case was a search under

the fourth amendment. Deciding otherwise would have

the bizarre consequence of granting our citizens less

protection under federal law in state courts than that

provided under federal law in federal courts.

II

Because we may resolve the present case in the defendant’s favor under the federal constitution, I disagree

with the majority’s decision to sidestep the federal constitution and instead resolve this issue by creating new

doctrine under the state constitution. Specifically, I disagree with the majority’s assertion, which is made without citation to authority, that we should analyze a

federal constitutional claim first only if we are ‘‘able to

say with a high degree of confidence that the United

States Supreme Court, if presented with the federal

constitutional claim,’’ would reach the same conclusion.

Footnote 23 of the majority opinion. The ability to confidently forecast how the United States Supreme Court

might decide a question has not, in prior decisions, been

treated as a prerequisite to beginning with a federal
constitutional analysis. See generally, e.g., Pham v.

Starkowski, 300 Conn. 412, 428–62, 16 A.3d 635 (2011);

State v. Jenkins, 298 Conn. 209, 231–48, 3 A.3d 806

(2010). Indeed, we routinely decide federal constitutional questions without clear guidance from the United

States Supreme Court when those federal claims are

made without accompanying state constitutional

claims. Consequently, in light of the Second Circuit’s

prior decision in Thomas, I do not view the relevant

federal precedent to be so ambiguous as to require that

we avoid a federal analysis in the first instance.

To be sure, if the federal rule were truly unsettled—

perhaps if neither the United States Supreme Court nor

the Second Circuit had addressed the question, and

other federal courts were generally silent on the matter—I might agree with the majority’s approach. In the

present case, however, the Second Circuit has already

spoken on the question before us, on at least two occasions, so its decision is already binding on federal law

enforcement personnel and the federal district courts

in this state.

In addition, resolving the case under the federal constitution is more consistent with the procedural history

of this case. Throughout the proceedings, the parties

have principally argued the case under the federal constitution. In the trial court, the defendant moved to

suppress the evidence at issue first under the federal

constitution and only added a claim under the state

constitution as an alternative. The trial court decided

the motion to suppress in the defendant’s favor under

the federal constitution and therefore found it unnecessary to address the claim under the state constitution,

leaving us without any lower court ruling on the state

constitution to consider. And, because the trial court

based its decision on the federal constitution alone, the

parties in their appeal to this court again focused their

arguments on the federal constitution, presenting the

state constitutional claim as an alternative ground for

affirmance. Reaching the state constitutional issue in

the present appeal is unnecessary.

Perhaps the majority is concerned that the United

States Supreme Court might disagree with its conclusion, and thus wants to insulate our decision from further review and possible reversal. This reasoning has

its proponents; see, e.g., W. Horton, The Connecticut

State Constitution (2d Ed. 2012) p. 36; but it seems to

me to be an insufficient reason to avoid applying the

federal constitution when it is otherwise dispositive. If

the United States Supreme Court ever does overrule

Thomas, in either this case or another case, we could

revisit the question under our state constitution then,

when there is actually a principled need for doing so,

and with the added benefit of being able to consider

the United States Supreme Court’s rationale as we consider the parameters of our own constitution. Indeed,
if the United States Supreme Court were to disagree

with Thomas, the validity of the majority’s state constitutional analysis will necessarily be called into question

in any event, given that we consider federal law when

interpreting our state constitution and our understanding of federal law would have been incorrect.4 State v.

Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (federal precedent is used as persuasive tool when court

construes state constitution); see also State v. Skok, 318

Conn. 699, 730–31, 122 A.3d 608 (2015) (Zarella, J.,

concurring) (agreeing that federal precedent provides

persuasive authority when court interprets provisions

of state constitution, at least when such provisions are

related to federal constitutional provisions).

III

The majority’s decision to look first to the state constitution—a view grounded, in my view, on a faulty

premise—highlights an inconsistency in our case law

about whether we should first look to the federal or

the state constitution when claims under both are properly raised.5

Our prior cases, including many search and seizure

cases, do not reflect a principled approach to this question. For example, this court has, on a few occasions,

relied solely on the state constitution without any explanation of why it did not conduct any analysis under the

federal constitution. See, e.g., State v. Joyce, 229 Conn.

10, 15, 639 A.2d 1007 (1994) (declining to reach federal

constitutional claim because state constitution provided basis for relief). In one decision, we noted that

we should always examine the state constitution first.

State v. Chapman, 227 Conn. 616, 626 n.8, 632 A.2d 674

(1993), superseded, 229 Conn. 529, 643 A.2d 1213 (1994).

But this court has hardly followed that advice in practice, and has often addressed federal claims first, turning to the state constitution only after concluding that

the federal constitution did not provide a basis forrelief.

See, e.g., State v. Jenkins, supra, 298 Conn. 231–32,

259–61 (addressing claim regarding allegedly illegal

search underfederal constitution before turning to state

constitutional analysis); Contractor’s Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 92, 97–98, 925 A.2d 1071 (2007)

(analyzing federal equal protection claim before turning

to state constitutional claim); State v. Ledbetter, 275

Conn. 534, 559–60, 881 A.2d 290 (2005) (resolving federal constitutional claim concerning eyewitness identification before turning to claim under state constitution), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164

L. Ed. 2d 537 (2006); State v. Linares, 232 Conn. 345,

354, 376, 655 A.2d 737 (1995) (addressing first amendment claim before addressing claims under analogous

state constitutional provisions).

This waffling between deciding claims variously

under the state or federal constitution, especially in the
area of search and seizure law, is not a practice that

we should perpetuate—at the very least because it gives

our constitutional jurisprudence the appearance of

being unprincipled. I would take this opportunity to

clarify our mode of analysis with respect to the order

of our consideration of federal and state constitutional

issues. In my view, when a party properly raises a claim

under both a federal constitutional provision and a comparable state constitutional provision, the better practice is to first address the question under the federal

constitution, turning to the state constitution only after

concluding that the federal provision does not provide

a basis for relief or if the interpretation of the federal

provision is truly unsettled or ambiguous. Ultimately,

the quality of our constitutional analysis is most critical

in a given case, but there are several prudential reasons

to prefer consideration of the federal constitution first.

A

For one thing, looking to the federal constitution first

is more consistent with the reality of existing legal

doctrine concerning individual rights and with our

understanding of the role of our state constitution,

which recognizes that the federal constitution sets a

national minimum forthe protection of individualrights

but leaves states to interpret their constitutions to provide greater protection.

Some commentators and courts recommend looking

to the state constitution first when confronted with a

claim under both the federal and state constitution—an

approach commonly referred to as the primacy model.

Under this approach, the state court looks first to its

own state constitution, looking to the federal constitution only if the state constitution fails to provide a basis

for relief. See, e.g., W. Horton, supra, p. 37; J. Landau,

‘‘Some Thoughts About State Constitutional Interpretation,’’ 115 Penn. St. L. Rev. 837, 845–46 (2011); cf. H.

Linde, ‘‘First Things First: Rediscovering the States’ Bill

of Rights,’’ 9 U. Balt. L. Rev. 379, 387 (1980). Proponents

argue that, in a federal system, the first referent of a

state judge should be the state’s own laws and constitution, not the laws of another government. See W. Horton, supra, p. 37.

But this approach is inconsistent with the plain reality

that federal constitutional law now dominates the field

of individual constitutional rights, even in state proceedings, atleast since the United States Supreme Court

had determined that most of the guarantees in the federal Bill of Rights apply to the states by virtue of the

due process clause of the fourteenth amendment—a

process often referred to as incorporation. See U.S.

Const., amend. XIV, § 1 (prohibiting state governments

from depriving ‘‘any person of life, liberty or property,

without due process of law’’).

Before incorporation, state courts had no need to
look beyond their state constitution or to consider

which constitution to apply in a given case, because the

federal constitution did not apply to state proceedings.

State and federal courts treated the federal constitution

as applying only to the federal government, with limited

exceptions for when the federal constitution explicitly

restricted actions by a state government, such as the

prohibition on passing an ex post facto law. U.S. Const.,

art. I, § 10, cl. 1. Thus, in Barron v. Mayor & City

Council, 32 U.S. (7 Pet.) 243, 250, 8 L. Ed. 672 (1833),

the court rejected a claim that the fifth amendment’s

takings clause applied to state legislation. Writing for

the court, Chief Justice John Marshall explained: ‘‘The

[federal] constitution was ordained and established by

the people of the United States for themselves, for their

own government, and not for the government of the

individual states. Each state established a constitution

for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular

government as its judgment dictated.’’ Id., 247. Because

the amendments in the Bill of Rights ‘‘contain no expression indicating an intention to apply them to the state

governments,’’ the court concluded that it could not

‘‘so apply them.’’ Id., 250.

Under this view, courts accepted that rights granted

by states might vary from those granted under the federal constitution. As the court explained in United

States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875),

‘‘[w]e have in our political system a government of the

United States and a government of each of the several

[s]tates. Each one of these governments is distinct from

the others, and each has citizens of its own who owe

it allegiance, and whose rights, within its jurisdiction,

it must protect. The same person may be at the same

time a citizen of the United States and a citizen of a

[s]tate, but his rights of citizenship under one of these

governments will be different from those he has under

the other.’’ Id., 549.

Because the federal and state constitutions stood

truly independent of one another, state courts looked

to their own constitutions to determine the rights of

individuals, and many states, including Connecticut,

interpreted their state constitutions to provide less protection than the federal constitution. See, e.g., State v.

Michael J., 274 Conn. 321, 351, 875 A.2d 510 (2005)

(noting that Connecticut constitution provided less protection against double jeopardy until United States

Supreme Court applied fifth amendment guarantee

against double jeopardy to states); State v. Magnano,

97 Conn. 543, 546, 117 A. 550 (1922) (declining to apply

federal exclusionary rule in state proceeding because

state constitution did not require exclusion of illegally

obtained evidence, and federal constitution was not

binding).

But this dichotomy between state and federal rights
began to erode as the United States Supreme Court

recognized that certain protections in the federal Bill

of Rights might be considered an integral part of the

due process guaranteed to state citizens by the due

process clause of the fourteenth amendment. The court

did not incorporate the entire Bill of Rights at once but

gradually incorporated many of its provisions on a caseby-case basis over a period of several decades. The

process began with Chicago, Burlington & Quincy

Railroad Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41

L. Ed. 979 (1897), in which the court concluded that ‘‘a

judgment of a state court, even if it [is] authorized by

statute, [pursuant to which] private property is taken

for the [s]tate or under its direction for public use,

without compensation made or secured to the owner,

is, upon principle and authority, wanting in the due

process of law required by the [f]ourteenth [a]mendment of the [c]onstitution of the United States . . . .’’

Id., 241. And, in Gitlow v. New York, 268 U.S. 652, 45

S. Ct. 625, 69 L. Ed. 1138 (1925), the court concluded

that certain first amendment protections also applied to

state governments, explaining that, ‘‘freedom of speech

and of the press—which are protected by the [f]irst

[a]mendment from abridgment by Congress—are

among the fundamental personal rights and liberties

protected by the due process clause of the [f]ourteenth

[a]mendment from impairment by the [s]tates.’’ (Internal quotation marks omitted.) Id., 666.

The incorporation of constitutional rights through

the due process clause of the fourteenth amendment

progressed slowly thereafter, until the Warren Court6

in the 1960s increased the pace substantially, particularly for amendments affecting the rights of the accused

in a state criminal proceeding. See, e.g., Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d

707 (1969) (applying fifth amendment guarantee against

double jeopardy to states); Duncan v. Louisiana, 391

U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)

(states must apply sixth amendment right to jury trial

to state criminal trials); Washington v. Texas, 388 U.S.

14, 18–19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (sixth

amendment guarantee of compulsory process to obtain

favorable witnesses applies to states); Klopfer v. North

Carolina, 386 U.S. 213, 222–23, 226, 87 S. Ct. 988, 18 L.

Ed. 2d 1 (1967) (sixth amendment right to speedy trial

applies to states); Griffin v. California, 380 U.S. 609,

615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (fifth amendment right against self-incrimination applies to states);

Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13

L. Ed. 2d 923 (1965) (sixth amendment right of accused

to confront witnesses applies to states); Aguilar v.

Texas, 378 U.S. 108, 110, 84 S. Ct. 1509, 12 L. Ed. 2d

723 (1964) (applying certain fourth amendment standards for obtaining warrant to states), overruled in part

on other grounds by Illinois v. Gates, 462 U.S. 213,

103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Gideon v.
Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d

799 (1963)(sixth amendmentright to appointed counsel

for indigent defendants applies to states); Robinson v.

California, 370 U.S. 660, 666–67, 82 S. Ct. 1417, 8 L.

Ed. 2d 758 (1962) (states bound by eighth amendment

protection from cruel and unusual punishments); Mapp

v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d

1081 (1961) (applying fourth amendment exclusionary

rule to state prosecutions).

The rapid progress ofincorporation in the 1960s arose

principally from the court’s concerns over the fairness

of criminal proceedings when states did not guarantee

their citizens the same protections in state proceedings

that their citizens already enjoyed in federal court. For

example, before the decision in Mapp, the federal exclusionary rule did not apply in state prosecutions. See

Mapp v. Ohio, supra, 367 U.S. 657–58. As a result,

although the federal constitution barred federal prosecutors from using illegally obtained evidence, state

prosecutors were free to use that same evidence in state

prosecutions. See id., 658. This dichotomy encouraged

federal law enforcement officers to turn evidence

obtained illegally underfederal law overto state authorities for their use in a state prosecution, a practice

commonly known as the ‘‘ ‘silver platter’ ’’ doctrine. Id.,

653; see id., 658. This practice substantially undermined

the value of the fourth amendment’s guarantee against

unreasonable searches and seizures. See id., 658.

Concern forthe undermining of federal constitutional

protections led in significant part to the court’s decision

in Mapp to apply the fourth amendment exclusionary

rule against the states, a decision that began the rapid

acceleration of incorporation. In justifying its decision

on practical grounds, the court observed that ‘‘a federal

prosecutor [could] make no use of evidence illegally

seized, but a [s]tate’s attorney across the street could’’;

id., 657; such that ‘‘federal officers, being human, were

. . . invited to and did . . . step across the street to

the [s]tate’s attorney with their unconstitutionally

seized evidence.’’ Id., 658. The court was concerned

that, through this practice, ‘‘the [s]tate, by admitting

evidence unlawfully seized, serve[d] to encourage disobedience to the [f]ederal [c]onstitution, which it is

bound to uphold.’’ Id., 657; see also W. Brennan, ‘‘The

Bill of Rights and the States: The Revival of State Constitutions As Guardians of Individual Rights,’’ 61 N.Y.U.

L. Rev. 535, 541 (1986) (‘‘[a] healthy federalism is not

promoted by allowing state officers to seize evidence

illegally or by permitting state courts to utilize such

evidence’’ [emphasis omitted]).

The solution to this problem, the court explained,

was uniformity between the limitations on federal and

state authorities in criminal proceedings. According to

the court, ‘‘[f]ederal-state cooperation in the solution

of crime under constitutional standards will be pro-
moted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their

approaches. . . . Denying shortcuts to only one of two

cooperating law enforcement agencies tends naturally

to breed legitimate suspicion of working arrangements

whose results are equally tainted.’’ (Citation omitted;

internal quotation marks omitted.) Mapp v. Ohio, supra,

367 U.S. 658.

The incorporation surge of the 1960s forced state

courts, for the first time, to consider the federal constitution in addition to any coordinate state constitutional

provisions. Because many state constitutions had provided less protection than the federal constitution, litigants began to favor claims under the federal constitution, and the federal constitution took on a dominant

role in the field of individual rights nationwide, especially the rights of criminal defendants. See, e.g., R.

Range, note, ‘‘Reverse Silver Platter: Should Evidence

That State Officials Obtained in Violation of a State

Constitution Be Admissible in a Federal Criminal

Trial?,’’ 45 Wash. & Lee L. Rev. 1499, 1512 (1988)

(‘‘[b]ecause federal protection of individual rights

greatly was expanding, state courts had little or no

incentive independently to interpret state constitutions

as providing greater protection than the federal constitution’’). Instead of relying on a patchwork of state

constitutions, state courts across the country were

bound to apply much of the federal Bill of Rights in

their proceedings, giving rise to a new, nationwide body

of law. See W. Brennan, supra, 61 N.Y.U. L. Rev. 540

(‘‘[i]n the years between 1961 and 1969, the [United

States] Supreme Court interpreted the [f]ourteenth

[a]mendment to nationalize civil rights, making the

great guarantees of life, liberty, and property binding

on all governments throughout the nation’’). Prior decisions in Connecticut providing less protection under

our state constitution were overruled. See, e.g., State v.

DelVecchio, 149 Conn. 567, 572–73, 182 A.2d 402 (1962)

(applying federal exclusionary rule after United States

Supreme Court applied fourth amendment protections

to states); see also State v. Michael J., supra, 274 Conn.

351–52 (noting that Connecticut constitution provided

less protection against double jeopardy until United

States Supreme Court applied fifth amendment protections to states). Litigants and courts have since continued to overwhelmingly favor claims under the federal

constitution, raising a state constitutional claim, if at

all, as an alternative in case the federal claim fails. See,

e.g., R. Williams, ‘‘State Constitutional Methodology in

Search and Seizure Cases,’’ 77 Miss. L.J. 225, 241 (2007);

see also ‘‘Developments in the Law: The Interpretation

of State Constitutional Rights,’’ 95 Harv. L. Rev. 1324,

1357 (1982). Law schools principally teach federal constitutional rights, and commentators, judges, and lawyers today are far more familiar with the federal

constitutional protections than those of the state consti-
tutions, which vary from state to state. The preference

for the federal constitution demonstrated by the parties

and the trial court in the present case illustrates the

point.

To be sure, the rise of the federal constitution in state

proceedings has not entirely sidelined state constitutions. During the 1970s, the United States Supreme

Court adopted limitations and exceptions for many of

the rights the court previously had expanded on and

granted to state citizens in the 1960s. This curtailment

led commentators and dissenting United States

Supreme Court justices in the 1970s and 1980s to

encourage state courts to reject that court’s recent curtailments by finding greater protection for individual

rights under state constitutions. See, e.g., R. Range,

supra, 45 Wash. & Lee L. Rev. 1512–13; see also W.

Brennan, supra, 61 N.Y.U. L. Rev. 548–50.

Although this call for action led to a reemergence of

the state constitution as an independent source of

rights; see R. Range, supra, 45 Wash. & Lee L. Rev.

1511–13; as a practical matter, the opportunity for the

state constitution to have a truly dispositive impact has

substantially narrowed. ‘‘Developments in the Law: The

Interpretation of State Constitutional Rights,’’ supra, 95

Harv. L. Rev. 1356 (‘‘the preeminence and supremacy

of federal constitutional interpretation narrow the field

for state elaboration and shape the context in which

state constitutional law must evolve’’). The state constitution can now make a difference in the outcome of a

case only if it provides greater protection than the federal constitution.7

Indeed, our own cases recognize this

more limited role of our state constitution. This court

repeatedly has emphasized that the federal constitution

sets ‘‘a minimum national standard for the exercise of

individualrights’’ that states must guarantee but permits

states to provide ‘‘higher levels of protection for such

rights’’ under state law. (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 684; see also

Kerrigan v. Commissioner of Public Health, 289 Conn.

135, 155–56, 957 A.2d 407 (2008); State v. Ledbetter,

supra, 275 Conn. 560; State v. Linares, supra, 232 Conn.

378–79; Fair Cadillac-Oldsmobile Isuzu Partnership

v. Bailey, 229 Conn. 312, 316–17, 640 A.2d 101 (1994).

The primacy approach of putting the state constitution first stands in contrast to the primary position the

federal constitution occupies in the field of individual

rights, even in state proceedings, and thus assigns to

the state constitution a role it no longer holds. See

‘‘Developments in the Law: The Interpretation of State

Constitutional Rights,’’ supra, 95 Harv. L. Rev. 1357

(‘‘The failing of the primacy model is that this assumption no longer resembles reality. Nor does it reflect the

fact that litigants typically present state constitutional

issues only when they expect an unfavorable federal

constitutional result. Federal assumption of the domi-
nant role in the federal system—and particularly in

the protection of individual rights—has rendered the

primacy model obsolete.’’ [Footnote omitted.]). Instead,

‘‘[f]or state constitutional law to assume a realistic role,

state courts must acknowledge the dominance of federal law and focus directly on the [gap filling] potential

of state constitutions.’’ Id.

B

Given the respective roles of the federal and state

constitutions following incorporation, I believe the better approach is one that resolves claims under the federal constitution first, and that looks to the state

constitution when the federal constitution fails to provide the protections sought. This method—commonly

called an interstitial approach—recognizes that the federal constitution sets minimum protections and calls

for application of the state constitution only when necessary to supplement the protections of the federal

constitution if the state might provide greater protection. See, e.g., M. Kelman, ‘‘Foreword: Rediscovering

the State Constitutional Bill of Rights,’’ 27 Wayne L.

Rev. 413, 429–31 (1981); J. Landau, supra, 115 Penn. St.

L. Rev. 846; ‘‘Developments in the Law: The Interpretation of State Constitutional Rights,’’ supra, 95 Harv. L.

Rev. 1356–57.

Federal law marks a natural starting point for any

claim made under both the federal and state constitutions. In most cases, the federal rule will be readily

ascertainable. Because litigants have strongly favored

federal claims, courts across the country apply the federal constitution and do so more often than we apply our

own state constitution. This has created an ‘‘expansive

body of federal law’’ far more developed than state

constitutional law on an overlapping topic. ‘‘Developments in the Law: The Interpretation of State Constitutional Rights,’’ supra, 95 Harv. L. Rev. 1357 (state

constitutions are better served when performing gap

filling role in light of extensive number of federal decisions already covering much of field).

Starting with the federal constitution better allows

us to articulate differences between the federal and

state constitutions when they exist. When the state constitution provides protection not afforded by the federal

constitution, certainly, we have a duty to enforce the

state constitution. See, e.g., State v. Dukes, 209 Conn.

98, 112, 547 A.2d 10 (1988). But deciding a claim under

the state constitution withoutfirst articulating the result

under the federal constitution can leave ambiguity

about whether and to what extent our constitution actually differs from the federal constitution. One commentator has explained that, ‘‘[w]hen state judges pass over

a fairly arguable federal issue . . . we do not know

whether the decision upholding the claim of state constitutionalrights is a genuinely differentiated act of state

interpretation or a crypto-federal ruling.’’ M. Kelman,
supra, 27 Wayne L. Rev. 430. Instead, the better practice

is to declare the scope of the federal constitution before

embarking on a state constitutional analysis. Doing so

clearly delineates the differences between the two constitutions. Indeed, ‘‘[b]y proceeding from a failed federal

claim to the question [of] whether the state constitution

grants broader rights in the circumstances of the case,

the state court eliminates an ambiguity that otherwise

might shroud its decision. It tells us distinctly, and

obliges the court to think more carefully about, whether

and why the state constitution differs from orretains the

same meaning as the federally interpreted counterpart.’’

Id., 429. It also helps to avoid the appearance that the

state constitutional analysis is merely a result oriented

rejection of the federalrule ratherthan truly an independent and principled interpretation of our state charter.

See id., 430–31 (‘‘[t]he more credible separation of the

state from the federal interpretation is that which takes

place in the first place by a clear cut disposition of

the [federal] issue followed by the state constitutional

pronouncement’’).

Moreover, analyzing a claim first under the federal

constitution coincides with our mode of state constitutional interpretation, which requires us to consider federal law on the topic in any event. Federal constitutional

jurisprudence, although not binding, provides persuasive authority for any interpretation or application of

an analogous provision of our state constitution. See,

e.g., State v. Linares, supra, 232 Conn. 378–79. Indeed,

we use federal precedent as one of six interpretive tools

when construing our constitution, at least when our

state constitution has a federal analog. See, e.g., State

v. Geisler, supra, 222 Conn. 685; see also State v. Skok,

supra, 318 Conn. 729–31 (Zarella, J., concurring). If,

after reviewing federal case law in the context of a state

constitutional analysis, it becomes apparent that the

federal constitution would provide relief, there is no

practical need for continuing with a needless state constitutional disquisition.

Beginning with the federal constitution also helps to

avoid unnecessary constitutional decision making. If

the federal constitution provides relief in a given case,

we have no need to consider the question separately

under the state constitution. As a matter of judicial

restraint, we commonly avoid addressing constitutional

questions that are not necessary to our disposition. See,

e.g., State v. Cofield, 220 Conn. 38, 49–50, 595 A.2d 1349

(1991) (declining to consider whether recent United

States Supreme Court decision also applied under state

constitution when existing federal constitutional law

was dispositive). If the federal constitution affords

relief, we should not conduct an unnecessary state constitutional analysis, especially when, as in the present

case, doing so requires us to needlessly create new

doctrine. See ‘‘Developments in the Law: The Interpretation of State Constitutional Rights,’’ supra, 95 Harv. L.
Rev. 1357–58 (‘‘This interstitial role recognizes federal

doctrine as a settled floor ofrights and asks whether and

how to criticize, amplify, or supplement this doctrine

to yield more extensive constitutional protections. The

state court’s role is not to construct a complete system

of fundamental rights from the ground up.’’ [Emphasis

added; footnote omitted.]); see also M. Kelman, supra,

27 Wayne L. Rev. 429 (‘‘a separation of the state issue

from the federal need not occur until the individual

rights claim has been considered and rejected on its

federal merits’’).

Finally, looking to the federal constitution first will

help to avoid creating unnecessary or unintended differences between federal law and state law. We should

favor uniformity between the two constitutions when

federal law is adequate to protect the rights of a party

in a given case. As the decision in Mapp v. Ohio, supra,

367 U.S. 643, demonstrates, deviations between federal

and state law can ultimately undermine our constitutional order, especially in the area of search and seizure

jurisprudence. Divergent search and seizure principles

encourage the criminal law equivalent of forum shopping, at least for crimes that might also be prosecuted

under federal law.8 Because our state constitution does

not bind federal authorities or federal courts; see, e.g.,

United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.

1987); we are powerless to prevent state authorities

who have obtained evidence in violation of the state

constitution from providing it to federal authorities for

their use in a federal prosecution, undermining both

the legitimacy and value of protections granted by our

state constitution. See, e.g., R. Range, supra, 45 Wash. &

Lee L. Rev. 1499. Indeed, the Second Circuit has made

clear that federal district courts may admit evidence

even if seized in violation of a state constitution. United

States v. Pforzheimer, supra, 204. It was precisely this

type of practice that led the United States Supreme

Court to hasten its incorporation process in the 1960s

as a means of creating uniformity between federal and

state law. See R. Range, supra, 1500–1501; cf. Mapp v.

Ohio, supra, 657–58. Resorting to the state constitution

only when necessary to fill a gap left by the federal

constitution will help reduce the opportunity for similar

problems to arise from our state constitutional interpretation.

For the foregoing reasons, I would simplify our decision and decide it underthe federal constitution, consistent with the Second Circuit’s decision in Thomas.

Because the majority has unnecessarily opted to resolve

the case under our state constitution without first

resolving the federal constitutional claim, I concur in

the judgment only.

1 The majority implies that Thomas does less to settle the fourth amendment question before us because Thomas was decided ‘‘many years before

the seminal cases of [Florida v. Jardines, U.S. , 133 S. Ct. 1409, 185

L. Ed. 2d 495 (2013), Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160

L. Ed. 2d 842 (2005), and Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038,
150 L. Ed. 2d 94 (2001)] were decided . . . .’’ This implication, however, is

contradicted by the majority’s own recognition that ‘‘Kyllo and Jardines

tend to favor the defendant’s position’’ and that the decision in Caballes

has been distinguished because it involved the search of a motor vehicle,

which traditionally receives less protection under the fourth amendment

than a person’s home.

2 Whether I would agree with Justice Espinosa’s position under the state

constitution is another matter, and one that I need not address in view of

my reliance on the federal constitution.

3 The majority cites a number of decisions that originally criticized the

decision in Thomas, but the criticism in those cases does not convince me to

depart from that decision. Most significantly, each of these cases criticizing

Thomas was decided before Jardines, and many were decided even before

Kyllo. It is questionable whether, in light of Jardines, these courts would

maintain their original criticism. For example, the Eighth Circuit concluded,

before Jardines, that dog sniffs at apartment doors are not searches. United

States v. Scott, 610 F.3d 1009, 1015 (8th Cir. 2010), cert. denied, 562 U.S.

1160, 131 S. Ct. 964, 178 L. Ed. 2d 794 (2011). But at least one District Court

in that circuit has concluded that the Eighth Circuit’s decision in Scott is

no longer good law after Jardines. See, e.g., United States v. Hopkins,

United States District Court, Docket No. CR14-0120 (N.D. Iowa July 6, 2015)

(concluding that, although, ‘‘prior to Jardines, officers could rely on Eighth

Circuit precedent in conducting dog sniffs outside the doorways of residences in an apartment complex,’’ these dog sniffs were now searches under

fourth amendment).

4 Thus, beginning with a federal constitutional analysis makes sense as a

practical matter because any interpretation of our state constitution requires

that we analyze the meaning of federal law in any event. See State v. Geisler,

222 Conn. 672, 685, 610 A.2d 1225 (1992). If, in analyzing federal law for

the purpose of interpreting the state constitution, this court determines that

federal law supports the relief being sought, there is little reason to continue

with a state constitutional analysis.

5 Of course, this question does not arise when a party has made a claim

under only the state constitution, which typically happens when the federal

constitution clearly does not provide a basis for relief or when a party is

seeking greater protection under the state constitution. See, e.g., State v.

Skok, supra, 318 Conn. 701 and n.3; Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 402–403, 119 A.3d 462 (2015); State v. Kelly, 313

Conn. 1, 12, 95 A.3d 1081 (2014); State v. Williams, 311 Conn. 626, 628–29,

88 A.3d 534 (2014); State v. DeFusco, 224 Conn. 627, 631–32, 620 A.2d 746

(1993); State v. Marsala, 216 Conn. 150, 159–61, 579 A.2d 58 (1990); State

v. Dukes, 209 Conn. 98, 100 and n.4, 547 A.2d 10 (1988).

6 The ‘‘Warren Court’’ signifies the group of judges that comprised the

United States Supreme Court when Earl Warren served as Chief Justice.

7 Of course, state constitutions continue to apply exclusively in matters

not addressed by the federal constitution and for those federal guarantees

that the United States Supreme Court has applied to the states through the

incorporation doctrine.

8 We should interpret our constitution differently from the federal constitution only when necessary to protect the rights of our citizens; otherwise,

we risk unnecessarily encouraging a ‘‘reverse silver platter’’ problem—essentially the mirror image of the problem identified in Mapp. See R. Range,

supra, 45 Wash. & Lee L. Rev. 1499 (discussing ‘‘reverse silver platter’’

practice that arises when federal officials may use evidence inadmissible

in state court). Whenever we interpret our state constitution to forbid the

use of evidence that would be allowed in federal court under the federal

constitution, we risk encouraging state law enforcement officials to turn

evidence not permitted in a state proceeding over to federal authorities for

use in a federal proceeding.