State v. Waz

BERDON, J.,

dissenting. The majority’s decision today, which allows the police to conduct a search of a person’s personal effects for contraband by way of the sniff of a dog, dangerously leads us down a path that undermines the foundation of article first, § 7, of our state constitution prohibiting unreasonable searches and seizures. The court concludes that the police, under our state constitution, are entitled to invade the privacy of a person by conducting a search *385without probable cause when they have merely a reasonable and articulable suspicion that a parcel of mail contains contraband. In reaching that conclusion, the majority fails to provide any significant analysis under our state constitution and stands the holding in Terry1 on its head. The majority’s perfunctory application of our state constitutional guarantee loses sight of the fundamental purpose of the protection — the right of privacy. Like the fourth amendment to our federal constitution, article first, § 7, of the Connecticut constitution marks that right “as one of the unique values of our civilization . . . McDonald v. United States, 335 U.S. 451, 453, 69 S. Ct. 191, 93 L. Ed. 153 (1948).

The facts of this case are not in dispute. The postal inspector testified at the suppression hearing that the parcel in question in this case exhibited a number of characteristics of a drug package profile. The characteristics that the postal inspector considered to support his reasonable and articulable suspicion that it contained narcotics were: (1) the edges of the package were taped to seal all openings; (2) the return address was fictitious; (3) the address labels of the package were handwritten; (4) it came from a source state, i.e., California; (5) the size and shape of the package were consistent with one that contained marijuana; and (6) the package was sent via Express Mail through the United States postal service.2 These characteristics, plus the sniff by Zak, a *386police dog, were the basis upon which the postal inspector determined that he had probable cause to believe that the parcel contained marijuana and upon which he secured a search warrant from a federal magistrate in order to open the parcel.3 The parcel, addressed to the defendant, Jamison Martin Waz, when opened pursuant to the search warrant, contained one half pound of marijuana.

I

This court has previously made clear that our state constitution may provide rights greater than those established by the federal constitution. State v. Morales, 232 Conn. 707, 716-17, 657 A.2d 585 (1995). Nevertheless, in giving independent meaning to the state constitution, we not only rely upon our own precedent and that of our sister states; State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992); but our analysis may also build upon federal precedent “that appropriately illuminate[s] open textured provisions in our own organic document . . . .” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). Whether we apply our own precedent or view the state’s search and seizure clause through the lens of federal precedent, the search by a canine sniff of the parcel addressed to the defendant, and sent by Express Mail, violated the defendant’s state constitutional rights.

In order to avoid determining whether a dog sniff is a search under our state constitution, the majority assumes for purposes of its decision that it is a search. Notwithstanding this assumption in which the majority purports generously to indulge us, a dog sniff of the defendant’s sealed parcel sent via Express Mail is a search to no lesser extent than the “sniff’ by a vapor *387machine designed to detect the chemical composition of odors, which we recently held constituted a search in States. Joyce, 229 Conn. 10, 23-24, 639 A.2d 1007 (1994).

In making this determination, it must first be determined whether the defendant had a reasonable expectation of privacy in his sealed parcel being sent through the mail. Although the majority seems to minimize the importance of the privacy interests involved in this case, the United States Supreme Court has equated those interests to those that a person has in his or her home. “Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.” (Emphasis added.) Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877); see also United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970) (citing Ex parte Jackson and stating that “[i]t has long been held that first-class mail such as letters and sealed packages subject to letter postage — as distinguished from newspapers, magazines, pamphlets, and other printed matter — is free from inspection by postal *388authorities, except in the manner provided by the Fourth Amendment”); United States v. Huie, 593 F.2d 14, 15 (5th Cir. 1979) (implicitly recognizing reasonable expectation of privacy in contents of sealed mailing); United States v. Choate, 576 F.2d 165, 174 (9th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 350, 58 L. Ed. 2d 344 (1978) (citing Ex parte Jackson for proposition that fourth amendment’s “protection against ‘unreasonable searches and seizures’ protects a citizen against the warrantless opening of sealed letters and packages addressed to him in order to examine the contents”).4 Indeed, this court recognized this right of privacy with respect to sealed mail in State v. Mooney, 218 Conn. 85, 103, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). Clearly, the state constitution embodies this right of privacy — ranking private mail high on the list of important privacy rights.

In Joyce, we stated, with respect to the “sniff’ of odors by a vapor detection machine (a chemical analysis of clothing through gas chromatography), that a determination of whether the police action constituted a search was largely answered by the defendant’s expectation of privacy in the object. State v. Joyce, supra, 229 Conn. 18-19. Because there is such an expectation of privacy in a person’s parcels sent by mail, an expectation that is heightened and equivalent to that of the home, it is clear, that, like the vapor detection machine in Joyce, a trained dog’s sniff of the odors emitted from a parcel (that cannot be detected by a human being’s *389sense of smell) is a search. Indeed, just as in Joyce, it is clear that a dog’s sniff can detect many other private facts.5 Nevertheless, I need not dwell on this because, at least for the purposes of this case, the majority concedes that the canine sniff was such a search.

*390II

Once it has been determined that the dog sniff constituted a search, under either the state or federal constitution, this case should end because the postal inspector did not have probable cause based upon the characteristics of the package to conduct that search. The probable cause that the postal inspector relied upon in order to secure the federal search warrant was not based on a reasonable and articulable suspicion, but, rather, was based on what the majority concedes is the search in this case — that is, the dog sniff. I know of no Connecticut case under the state constitution, and indeed, the majority is unable to point to any federal cases under the United States constitution, that has allowed a search for contraband without probable cause, but merely based upon a reasonable and articulable suspicion.

It is also clear that, under our state constitution, a warrant to search is required under the circumstances of this case. In State v. Joyce, supra, 229 Conn. 24-25, the majority of an en banc court rejected the argument that if a search is “reasonable,” it passes state constitutional muster. The majority in Joyce held that under “the state constitution, all warrantless searches, whether or not the police have probable cause to believe that a crime was committed, are per se unreasonable, unless they fall within one of a few specifically established and well delineated exceptions to the warrant requirement.” (Emphasis added.) Id. Indeed, in State v. Miller, 227 Conn. 363, 382-83, 630 A.2d 1315 (1993), former Chief Justice Peters, writing for a majority of the court, stated: “Our [state] constitutional preference for warrants *391reflects a goal of protecting citizens from unjustified police intrusions by interposing a neutral decisionmaker between the police and the object of the proposed search. See State v. Diaz, [226 Conn. 514, 546-47, 627 A.2d 567 (1993)]; cf. State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972) (purpose of fourth amendment is to require neutral and detached magistrate to make probable cause determination). Accordingly, a search is invalid if the police, without a justification rooted in a valid exception to the warrant requirement, have relied upon only their own probable cause evaluation, even if later found to be correct, before searching. We thus read the two clauses of article first, § 7, in conjunction — a warrantless search is per se unreasonable, justified only by limited exceptions — rather than in disjunction — a search is valid if it is reasonable, and the presence of a warrant is just one factor in the determination of reasonableness. Cf., e.g., State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986) (construing fourth amendment to bar warrantless searches as per se unreasonable); see generally State v. Larocco, 794 P.2d 460, 467-69 (Utah 1990) (extensive discussion of consequences of reading two clauses of fourth amendment in conjunction and in disfunction); R. Bloom, ‘Warrant Requirement—The Burger Court Approach,’ 53 U. Colo. L. Rev. 691 (1982).”

In Miller, we delineated those limited exceptions under the state constitution. “Our constitutional preference for warrants is overcome only in specific and limited circumstances. See, e.g., State v. Geisler, supra, [222 Conn.] 691 (recognizing emergency exception as matter of state constitutional law); State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989) (recognizing exception for search incident to arrest as matter *392of state constitutional law); State v. Dukes, [209 Conn. 98, 126, 547 A.2d 10 (1988)] (recognizing .automobile exception on highway as matter of state constitutional law). These recognized exceptions derive primarily from acknowledged interests in protecting the safety of the police and the public and in preserving evidence.” State v. Miller, supra, 227 Conn. 383.

Specifically, within the context of the fourth amendment, this court made it absolutely clear that a search warrant is required for a search of sealed mail: “ ‘Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable. Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.’ ” (Emphasis added.) State v. Mooney, supra, 218 Conn. 103, quoting United States v. Jacobsen, 466 U.S. 109, 114, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984).

In my view, Joyce is also dispositive of this case. In Joyce, the police took legal possession of the defendant’s clothing left at the scene of the fire, which was removed from the defendant because he was severely burned. State v. Joyce, supra, 229 Conn. 12-13. The state sent the clothing to its laboratory to determine whether they contained odors of an accelerant. Id., 14. This was accomplished merely by a noninvasive method of heating the clothing to vaporize any organic matters. Id., 14-15. The vapors were then run through a machine in order to identify their substance. Id., 15. In suppressing the results of the machine sniffing test under our state constitution, we concluded: First, such a “chemical test [of the vapors by the machine], capable of determining a multitude of private facts about an individual, constituted a search under article first, § 7, *393of the state constitution.” Id., 24. Second, we stated that “the state is unable to identify any exception to the warrant requirement that could encompass the war-rantless search of the defendant’s clothes.” Id., 27. The only difference between a dog sniff and a vapor sniff in the chemical laboratory is that in all probability the chemical detection machine is substantially more accurate than the canine nose.

There is nothing in the record in this case that even comes close to a recognized exception to the warrant requirement. Furthermore, there is nothing in the record that would support probable cause even if that was sufficient.

Ill

Notwithstanding Miller, Mooney and Joyce, the majority relies on other jurisdictions that have concluded under their own state constitutions that even if the canine sniff is a search, it passes state constitutional muster “because [1] it was minimally, if at all, intrusive of the defendant’s legitimate privacy rights, and [2] the officer conducting the canine sniff had a reasonable and articulable suspicion that the parcel contained illegal drugs.” In essence, the majority opinion and those jurisdictions that are cited in the opinion rely on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Under our state constitution, we have adopted Terry6 — that; is, “a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. ... If, during the course of a lawful investigatory detention, the officer reasonably believes that the detained individual might be armed and dangerous, the officer may *394undertake a patdown search of the individual to discover weapons.” (Citations omitted.) State v. Trine, 236 Conn. 216, 223-24, 673 A.2d 1098 (1996), citing Terry v. Ohio, supra, 392 U.S. 21, 24. Terry, however, does not give authority to search for contraband.7 It merely authorizes a patdown search in order for the police officer to protect himself and others. Indeed, in Terry, the court carefully stated that “[w]e merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear from his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Terry v. Ohio, supra, 30.

In the present case, no police officer or any other person was at risk. But even if that were not the case, the search conducted by the police through the dog sniff was not performed to protect the safety of anyone. Rather, the search was to detect marijuana. The search simply cannot pass muster under our state constitution. *395If it is assumed that the sniff is a search for federal constitutional analysis, it would then also be invalid under the federal constitution. See United States v. Place, 462 U.S. 696, 706, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“[o]bviously, if [the] investigative procedure is itself a search requiring probable cause, the initial seizure of [the] luggage for the purpose of subjecting it to the sniff test — no matter how brief — could not be justified on less than probable cause”).

The majority, by applying the principles of a Terry search to a search for contraband, reaches an absurd result that undermines the state’s constitutional search and seizure jurisprudence that this court has developed over the last ten years.

Accordingly, I would reverse the trial court’s judgment and remand the case with direction to suppress the evidence illegally obtained from the parcel.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Although the defendant does not challenge the finding that there was a reasonable and articulable suspicion to subject the package to the sniff, I have serious reservations about that finding in this case. Surely, the size, shape and outward appearance of the package — that it was heavily taped, that the labels were handwritten, that it originated from California, and that it was sent via Express Mail — are all innocuous factors whether singularly or collectively considered. Millions of packages meet these criteria. In this case, the only feature noticed by the postal inspector that could give rise to a question would be the fictitious return address, and that alone should not constitute a reasonable and articulable suspicion.

For the purposes of the analysis of this case, the warrant obtained by the postal inspector is irrelevant because the majority, for the purposes of this case, concedes that the dog sniff was the search.

I can understand why the federal government turned this case over for state prosecution, notwithstanding that the investigation was conducted by federal postal inspectors and a federal warrant was secured to search the package that was in the mail. Under United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir.), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 88 L. Ed. 2d 54 (1985), where the Second Circuit Court of Appeals found that the canine sniff of the exterior of a home constituted an unconstitutional search, it is questionable whether the canine sniff of mail for contraband would pass Second Circuit muster.

It is obvious to me that the majority’s confusion emanates from its reliance on dicta in United States v. Place, 462 U.S. 696, 706-707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). The dicta in Place indicated that the dog sniff of the luggage located in a public place was permissible because, under the circumstances of that case, it was not a search under the federal constitution. Id. The majority, in its reliance on Place, overlooks its concession in this case that the dog sniff of the parcel was a search.

In Place, the court, relied primarily upon the unique nature of the dog sniff, which only discloses narcotics. Id., 707. These dog sniffs, however, do not always disclose the presence or absence of narcotics. One commentator has stated that “[t]his is because these dogs are not fool-proof and thus their use sometimes leads to serious intrusions upon the privacy of innocent people. The classic example is Doe v. Renfrow, [475 F. Sup. 1012 (N.D. Ind. 1979), aff'd in part, 631 F.2d 91 (7th Cir. 1980)] where such a dog ‘alerted’ to a 13-year-old girl during a school-wide ‘sniff of all students. This dog continued to ‘alert’ even after she emptied her pockets, so she was then subjected to a nude search by two women; no drugs were found, but it was later discovered that she had been playing that morning with her dog, who was in heat. This was not an isolated instance of error. The dogs used in this undertaking alerted to some fifty students, only 17 of whom were found to be in possession of drugs.” (Emphasis added.) 1 W. LaFave, Search and Seizure (3d Ed. 1996) § 2.2 (f), p. 455.

The outrageous indignity that the thirteen year old girl was put through was not only as a result of the complete body search, but also the initial sniff search of her person. Although not raised in this case, it clearly demonstrates the unreliability of the dog sniff. I take it from footnote 20 of the majority opinion in this case that the majority would at least conclude that a dog sniff search of the person, under our state constitution, would be unreasonable.

In addition, although the majority in Joyce did not decide whether a dog sniff was a search under the state constitution, the court pointed out what it thought was a distinction between the dog sniff and the vapor analysis of the clothing. State v. Joyce, supra, 229 Conn. 24 n.17. The court stated that the dog sniff detected "only the presence of contraband narcotics, and the possession of narcotics is not a ‘private fact’ under the fourth amendment.” Id. In Joyce, we were obviously wrong with respect to the dog sniff. See Doe v. Renfrow, supra, 475 F. Sup. 1012; see also United States v. $639,558.00 in United States Currency, 955 F.2d 712, 714 n.2 (D.C. Cir. 1992) (indicating that dog alerted to traces of cocaine adhering to currency in traveler’s luggage, but no cocaine was found, and noting estimates that 75 to 97 percent of all currency contains sufficient traces of *390cocaine to alert trained dogs); 1 W. LaFave, supra, § 2.2 (f), p. 450 n.239 (“it sometimes happens in practice that a drug dog alert will lead to nothing but currency”). “[A] court considering whether a dog sniff provides probable cause . . . may have to take into account the possibility that the dog signalled only the presence of money, not drugs.” United States v. $639,558.00 in United States Currency, supra, 714 n.2.

See State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).

The majority in this case seems to justify the search on the basis that it is not as intrusive as the Terry search. See footnote 25 of the majority opinion. The majority fails to understand that we have tolerated the Terry search not as an aid for the investigative purposes of law enforcement, but solely to protect the police officer and others while the police are performing those duties. A Terry search would never pass federal or state constitutional muster if the police use it as a pretext to get in through the back door what it could not get through the front door under the constitutional protections. If this were so, the Terry search could easily be expanded to become the weapon of a police state.