Dog-sniff searches in apartment hallways require a warrant

In April 2016, the Connecticut Supreme Court was asked whether police should be permitted to use a drug-sniffing dog to roam the hallways of an apartment or condominium complex to search for contraband without getting a warrant from a judge. Last week they emphatically answered no.

With the opinion in State v. Dennis Kono, Connecticut now joins a small but growing group of jurisdictions that have extended the robust protections of privacy in the home to apartments. In so holding, the Court answered two important questions: should the police’s power to search a person’s residence be any different depending on whether the residence is an apartment, condominium or free-standing house; and should the search for contraband outweigh any Fourth Amendment rights we have as citizens?

The Home is First Among Equals

The Fourth Amendment protects “persons, houses, papers, and effects“. The United States Supreme Court has repeatedly asserted that a person’s home is “first among equals”:

At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U. S. 505, 511 (1961).

Thus, the home and the “curtilage” – the area immediately surrounding and associated with the home, are revered in Fourth Amendment law. This is the same whether the analysis is conducted under the Federal Constitution’s Fourth Amendment or Article 1, Section 7 of the Connecticut Constitution.

It is well established that this court, in determining whether the police conducted a search under article first, § 7, “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.” (Citations omitted; internal quotation marks omitted.)

State v. Davis, 283 Conn. 280 (2007). A state constitution can afford greater protections than the Federal Constitution, but not fewer. So in deciding the issues raised by this case, our supreme court relied on our state constitution rather than the Federal constitution.

If the search by the drug-sniffing dog in Dennis Kono’s case had been conducted at the door to his free-standing home, or on the porch of that home, the case would be an easy one: It would be controlled by the United States Supreme Court’s decision in Florida v. Jardines, 6 No. 11-564 (U.S. Mar 26, 2013).

In that case, after receiving an unverified tip that marijuana was being grown at that residence, police walked up to the front porch of a home, with a drug-sniffing dog, and after the dog alerted to the presence of narcotics by sniffing at the door, they obtained a warrant to search the home and ultimately found marijuana.

In Dennis Kono’s case, the facts are identical: there was a tip, police obtained entry into the apartment building legally and the drug-sniffing dog alerted to his apartment after sniffing at the front door.

The only difference in the two cases is that Jardines lived in a stand-alone home and Kono lived in an apartment building. So the question becomes: is that distinction significant and should it be?

Reasonable Expectation of Privacy in Hallway

There are two theories of a search of a home in Fourth Amendment law: a search can be illegal because the police conduct is a “physical trespass” – an unlicensed physical intrusion, or it is a search that violates a reasonable expectation of privacy that we, as a society, have recognized in a place or an object.

Certainly, police have the right to walk up to anyone’s door: whether it be in a condominium, or a free-standing house. They have the right to knock on that door, and if you answer, to ask you questions within limits. But, the United States Supreme Court has held, when on that “curtilage”, the police may not use a drug-sniffing dog to conduct a search absent a warrant. The Court has also said that we have a reasonable expectation of privacy in what we do in the privacy of our homes and police cannot use technology, like thermal imaging, Kyllo v. United States, 533 U.S. 27 (2001), to peer inside without a warrant.

So that required our supreme court to answer: where does the “curtilage” of an apartment begin? Is there such a thing? A common hallway is, by definition, common and lots of people have access to the hallway: other tenants, guests, maintenance workers, sometimes even mailmen and delivery workers. So why should the police not be permitted to stand in that common hallway and do what they please? Do we have an expectation of privacy in the area just outside our doors, even if we reside in multi-unit buildings?

In deciding this question under the State Constitution, our supreme court didn’t decide whether it was a violation of the “trespass” theory or the “reasonable expectation of privacy” theory:

Because we address the state’s claim under the state constitution, we need not decide whether a canine sniff of an apartment door inside a multiunit building violates the fourth amendment. In the absence of significant precedent to the contrary of which we are unaware, however, and despite conflicting court decisions, we agree with the defendant that the better reasoned federal case law concerning the propriety of residential canine sniffs under the fourth amendment supports the defendant’s position in this case. This is true whether the defendant’s claim is reviewed under the Katz line of privacy based decisions or under the principles of curtilage on which the court in Jardines relied and that the Eighth Circuit applied in Hopkins.

Rather, it held that under our state constitution, the use of canine sniffing dogs required a warrant because the questionable act wasn’t the presence of the canines in the hallway, but using the canines to try and search the interiors of residences. Certainly, while people living in multi-unit residences give up a measure of privacy in the area outside their doors, they don’t relinquish all privacy:

the defendant’s “lack of a right to exclude did not mean [that] he had no right to expect certain norms of behavior in his apartment hallway. [To be sure], other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door. Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean [that] he could put a stethoscope to the door to listen to all that is happening inside.

The discrimination problem

In finding that use of drug-sniffing dogs required a warrant, the court acknowledged and adopted the concerns raised by the defense about the appearance of discrimination against lower-income individuals if the state’s position were to be adopted. If individuals were to be stripped of their rights to privacy outside their doors based on the type of residence they occupied, the law would be applied disproportionately against those who were unable to afford single-family residences.

Finally, we perceive no principled reason of public policy, and the state has identified none, 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.

Should anyone have a right to privacy in contraband?

The other argument put forth by the prosecution was that people don’t have the right to an expectation of privacy in contraband. This argument stems from two separate U.S. Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and United States v. Place, 462 U.S. 696 (1983). In both those cases, the Court said that people don’t have a reasonable expectation of privacy in contraband. In Caballes, the search was of a vehicle and in Place, a bag at an airport.

This, too, failed – and rightly so. As I wrote in my original post, the State’s argument incorrectly balanced the two values at play: the lack of a right to privacy in contraband and the strong right to privacy in an individual’s residence. Both Caballes and Place were about contraband searches of private items in public, whereas Jardines was about the search for contraband in a single-family residence. When weighing the right to privacy in a home vs. the search for contraband, the home (correctly) wins.

After distinguishing Caballes and Place in the manner above, our supreme court pointed out the concerns and problems with ruling the other way:

Indeed, even if a canine sniff were to reveal nothing about the interior of the home, we believe that the underlying prohibition against unreasonable intrusions into the sanctity of the home cannot abide the public spectacle of a warrantless canine investigation of the perimeters of any home. It may well be that a canine sniff itself is “discriminating and unoffensive” when compared to other physical intrusions of the premises of a home. United States v. Thomas, supra, 757 F.2d 1367.

Even so, such searches are highly visible and readily identifiable. They also hold a resident up to public scrutiny in his own home. As the Florida Supreme Court observed, “[s]uch a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime.” Jardines v. State, 73 So. 3d 34, 36 (Fla. 2011), aff’d, U.S., 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).

We also share that court’s concern that, if police officers are permitted to conduct warrantless canine searches of people’s homes, “there is nothing to prevent [them] from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen,” and that “[s]uch an open-ended policy invites overbearing and harassing conduct.” Id.

Thus, because people living in apartments don’t give up their right to privacy outside their doors and because their right to privacy outweighs law enforcement’s desire to walk hallways with sensory enhancing instruments to root out potential illegal activity, the use of drug-sniffing dogs must be accompanied by a warrant signed by a judge.

That the Connecticut Supreme Court relied on our state constitution to decide this in favor of the defendant shouldn’t deter others from relying on this case to support their arguments: the justices in the majority recognize that the arc of jurisprudence seems to favor requiring a warrant and other Federal courts have certainly held so. One concurring justice would have affirmed this search under the Federal Constitution.

The rationale for requiring a warrant: that we have a reasonable expectation of privacy in the hallways outside our apartment doors; that society would not countenance the use of drug-sniffing dogs to peer into people’s private residences; and, that the prohibitions against warrantless searches and seizures are concerned with the protections afforded by places and things, rather than purported criminal or innocent activity, apply with equal force regardless of whether the language comes from the Fourth Amendment or the equivalent of a State Constitution.

Recognizing and correcting racial biases in traffic stops

One of the things I touched on in my post about implicit racial biases was that they were distinct from the explicit racial discrimination seen in the criminal justice system. As an example of racial discrimination that has been pushed to the forefront, I mentioned the disparity in traffic stops.

A month or so ago, CT released a report on racial profiling in traffic stops. TrendCT, a CT Mirror site, has done a tremendous job of breaking down the data and providing valuable insight into how Connecticut police stop motorists, why, and what their racial breakup is.

The greatest source of tension in the CJS has long been interactions between police – usually white – and them minority populations they are charged with protecting and serving. In my post on the 50th anniversary of Miranda (and on WNPR’s Where We Live), I mention the history of the deep south in the 1930s, leading up to Miranda in 1966 and how white deputies beat confessions out of black suspects.

This persists today, but in a different form. The distrust exists because minorities perceive police treating them differently. This leads to more frequent arrests, more convictions and harsher treatment by judges and prosecutors.

My admonitions to the defense bar apply to police as well: if we are to increase trust in the police and make the justice system more fair, we need to question why we make disproportionate stops of minorities and how we treat them after they are stopped.

Connecticut’s death penalty remains abolished

Today, the Connecticut Supreme Court affirmed the abolition of the death penalty in this state, in an extremely contentious and hotly anticipated opinion in the matter of State v. Peeler.

In August 2015, the Court issued a divided 4-3 opinion, ruling that the legislature’s prospective abolition of the death penalty in 2012 rendered the death penalty unconstitutional as to all death row inmates and thus Connecticut could no longer have a death penalty.

A few months later, the State petitioned for reargument, which the Supreme Court denied. In another appeal pending at that time, State v. Peeler – also a death penalty case – the court did grant the State’s request for supplemental briefing and argument.

The crux of the State’s complaint – echoed by Santiago dissenters – was that the Supreme Court based its decision on matters that it did not have the opportunity to brief. This position was supported by some commentators and rejected by others.

The big question that everyone was waiting for an answer to was if the Court would quickly and summarily reverse itself on a major issue such as the death penalty and what that meant for stare decisis in Connecticut. If the Court reversed itself, and with the addition of a new member to the Court held the death penalty constitutional, would that violate the Eighth Amendment’s prohibition against arbitrary and capricious punishments?

Today, the Supreme Court answered all those questions. In a per curiam decision, the Court concluded that Santiago governed and that it should not be overruled. The fact that the majority opinion was per curiam should not fool anyone. There are 5 separate written opinions. The major question was the shuffling of votes and who would vote to do what.

Stare Decisis

Most notably, the Chief Justice, who voted to affirm the death penalty in Santiago, voted to affirm abolition today. Her change in vote was not driven by a sudden realization that the death penalty should be held unconstitutional, but rather her realization that a swift reversal of such a groundbreaking decision so quickly, and based solely on the change in the membership of the Court, would so untenably undermine the legitimacy of the rule of law in Connecticut:

When neither the factual underpinnings of the prior  decision nor the law has changed, “the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

Quoting Planned Parenthood of Southeastern Pa. v. Casey.

The Chief Justice correctly noted that the role of the Judicial Branch was to fashion a coherent jurisprudence that litigants and the citizens of the State could rely on. To so swiftly reverse itself on a matter of such critical importance would only serve to undermine its authority and legitimacy as the ultimate arbiter of the law.

Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.

Change in membership of the Court

The Chief, and many others, were concerned with the effect of reversal of Santiago solely because a new member was now on the bench. That new member is Justice Richard Robinson, who took over from Justice Norcott, who voted for – and always has – abolition. To have a vote on so critical an issue of public policy reversed in less than a year simply because one member of the Court is now different, would be the very definition of arbitrary and capricious. Justice Palmer, who authored the abolition decision in Santiago, said as much:

The state now proposes that we reauthorize the  death penalty and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different  result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 but to spare another, solely on the basis of the timing of their appeals.

The Chief Justice also noted that three of the Santiago bench were still on the bench when they heard Peeler (Palmer, McDonald, Eveleigh) and all three joined in an opinion today rejecting the State’s arguments. The fourth – Justice Norcott – was always opposed to the death penalty. Thus, the Chief Justice reasoned, had the State presented its arguments the first time around, the outcome would not have been different:

Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would have been no different. In fact, the only change that has occurred is a change in the makeup of this court, which occurred after oral argument in Santiago but before the decision was released.

To indulge the State and reverse Santiago solely because the makeup of the Court is different by one person is not only arbitrary and capricious, but also renders every opinion ever issued non-binding. All a party has to do is wait for a Justice to retire to re-litigate and rehash issues that were considered “settled.” The legitimacy of the law would never be able to survive such a regular assault.

Addressing the State’s complaints

Justice Palmer, who authored the decision abolishing the death penalty in Santiago, wrote a lengthy concurrence rejecting each argument made by the State. Most notably, he dispensed with the State’s underlying argument that the Supreme Court just did not have the authority to do what it did:

The state next argues that the death penalty can never be held unconstitutional because ‘‘it is expressly permitted by the Connecticut constitution.’’ … [T]he state recommends for our consideration a concurring opinion authored by Justice Antonin Scalia, who opines that ‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates.’’ (Emphasis omitted.) Glossip v. Gross, supra, 135 S. Ct. 2747 (Scalia, J., concurring). The dissenting justices in Santiago raised similar objections. See, e.g., State v. Santiago, supra, 318 Conn. 246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella, J., dissenting).

…

The state’s argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people as against the government. See State v. Conlon, 65 Conn. 478, 488–89, 33 A. 519 (1895); see also J. Blocher, supra, pp. 3, 8–9. For the state to suggest that one right (to be free from cruel and unusual punishment) bars the exercise of another right (presumably, to execute capital felons) is to fundamentally misunderstand the nature of the freedoms enshrined in article first. States have powers, and the people have rights vis-a`-vis the exercise of those powers; there is no governmental right to kill.

More damaging to the State, however, is Justice Robinson’s concurrence. Justice Robinson, the only member of the Court who did not opine on the constitutionality of the death penalty in Santiago, sided with abolition here on stare decisis grounds and much to the disappointment of some, on the grounds that Santiago properly reached and decided the issue of the constitutionality of the death penalty:

Specifically,  I have reviewed the opinions and briefs filed in Santiago, and determined that the majority in that case did not unreasonably read the record and the authorities when it concluded that: (1) the issues decided therein were raised by the parties, thus affording the state notice and an opportunity to brief them, had it elected to do so; and (2) the death penalty now is cruel and unusual punishment under our state’s constitution in the wake of the death penalty’s prospective repeal in No. 12-5 of the 2012 Public Acts.

In other words, Justice Robinson did not agree with the State’s position that the Santiago court exceeded its bounds, as suggested by the Santiago dissenters (including the Chief Justice) and some commentators. Also be sure to read footnote 1, which serves as a wonderful note in support of Justice Norcott and a firm rebuttal of some dubious allegations leveled against his continued participation in Santiago by some.

The end of death

Today, the Connecticut Supreme Court issued its opinion, re-affirming that the death penalty has no place in modern day Connecticut. We shall “no longer tinker with the machinery of death” and our standards of decency have evolved to the point where we no longer consider it humane to execute our fellow men.

That the Court had to do so while the State mounted an unprecedented assault on its legitimacy and its ability to perform its Constitutional function of ruling on the laws of our State will serve only to further strengthen the legacy of this institution and the confidence of our citizenry in the idea that our Court rules not with its heart, but with its intellect and serves not personal opinions, but rather the rule of law.

Utah v. Strieff and the importance of the exclusionary rule

The United States Supreme Court is currently pondering a case that may change the way modern America polices its communities. I realize that this is a pretty bold statement to make, especially in light of the ongoing conversation in America over the last year or two over policing standards especially in minority communities, but the impact of the decision in this case could be such that it will only further deepen the divide between police and the communities they serve.

The Exclusionary Rule

The case is Utah v. Strieff, in which the question the Justices are grappling with revolves around the application of the so-called ‘Exclusionary Rule.’ The Fourth Amendment protects us against unreasonable searches and seizures, but there’s no mechanism for enforcing that protection. The exclusionary rule is a

judicial remedy that gives life to that protection.

State v. Strieff, 357 P.3d 532, 538 (Utah 2015). It is the punishment imposed upon the Government for failing to abide by the restrictions of the Fourth Amendment. In simpler terms, evidence that is obtained in violation of the Fourth Amendment is not admissible at trial against an accused – thus the evidence is “excluded.” In deciding whether to exclude evidence illegally collected, courts apply the “fruit of the poisonous tree” doctrine: whether there is a causal link between the illegal police conduct and the evidence in question.

As the CT Supreme Court explained:

Thus, evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint…. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).” (Internal quotation marks omitted.) State v. Luurtsema, 262 Conn. 179, 189, 811 A.2d 223 (2002). In other words, “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

State v. Brunetti.

Applying the standard exclusionary rule in this case produces a simple result: Strieff was illegally stopped in his car and as a result of that illegal stop, the police discovered he had a warrant and arrested him. As a result of that arrest, they conducted a search of his person and found contraband.

There is the classic “but-for” connection: but for the illegal stop, they wouldn’t have found his warrant and wouldn’t have arrested him and wouldn’t have found the contraband.

Exceptions to the Rule

Now, there are three circumstances in which such evidence is nonetheless admissible: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception. It is this third exception that Utah relies on: the existence of a warrant is an intervening circumstance that renders the illegal stop irrelevant.

Courts across the country are divided on the issue and this is what the Supreme Court is asked to decide. But the issue runs deeper: as at least two commentators have noted, the future of the exclusionary rule may hang in the balance here.

Whether the court merely decides that the exclusionary rule does not apply when there is a legal warrant after an illegal Fourth Amendment event, or whether it goes further and erodes the protection of the exclusionary rule in all cases, the impact will be tremendous.

Impact on Policing

Just last week, Central Connecticut State University released its annual report on racial profiling in Connecticut. The news wasn’t much better than previous years:

But when researchers reviewed stops made during daylight hours, when they said officers could see the race and ethnicity of drivers, Hispanics were nearly 14 percent more likely to be pulled over and blacks were about 7 percent more likely to be stopped than they were at night.

The report also says minorities were more likely to get misdemeanor summons for speeding and other infractions, while whites were more likely to get written warnings.

And as last year’s report revealed:

The six-month data also showed that black and Hispanic motorists were at least twice as likely as a white motorist to be subjected to a consensual search, though the stops of white drivers were more likely to yield contraband.

And now the problems with any opinion in Strieff limiting the exclusionary rule or doing away with it become clear. If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the lack of an exclusionary rule – or the existence of a warrant as an intervening circumstance – would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

Finally, the CT Supreme Court recently approved of a stop and a search in a case where there was no suspicion of criminal activity at the time of the stop, but merely based on past observations. They also ruled:

Officer Lopa was approaching a person he knew to traffic in large quantities of marijuana and cash. Accordingly, it was reasonable to suspect that the defendant might be armed to safeguard the drugs and the cash.

Bolstered by the lack of an exclusionary rule, officers would have unfettered power to detain, search and investigate individuals in the absence of reasonable suspicion or probable cause. This, as the data bears out, would unfairly target minority communities, but would also render the protections of the Fourth Amendment nearly meaningless.

 

Should Administrative Warrants Be Legal?

The Supreme Court heard oral argument today in State v. Saturno, a case which involved the town zoning official obtaining an ex-parte warrant from a judge in order to enter a home suspected of violating zoning laws.

On appeal, the defendant argues that the search of his home was illegal because there is no statutory authority for an administrative search warrant, because there was no probable cause to support the warrant here, and because an administrative search warrant should not issue ex parte.  He claims that the legislature has yet to authorize an administrative warrant by statute, and he points out that the warrant here was obtained using a form that refers only to the criminal warrant statute, General Statutes § 54-33a.

As the Chief Justice aptly pointed out during argument, there are two issues:

1. Is there any authority to issue administrative warrants, and
2. If there is, what should be the procedure for issuing them

The state has indeed been pursuing administrative warrants at the legislature for years and for years (decades even?) they’ve been rebuffed, including this year.

In Saturno the police obtained an administrative warrant because they believed he had an illegal third apartment in his two-family home. When they entered – after breaking down a locked gate – they saw items they believed were part of an illegal pipe bomb making process. Based on that they obtained a criminal warrant and then found further illegal items and he was charged with several crimes.

The defendant argues in his brief that permitting such warrants violates the Fourth Amendment and the proper procedure is the one approved by our supreme court in Town of Bozrah v. Chmurynski. In that case, the court approved of an injunction which gives notice to the homeowner and an opportunity to contest the town’s desire to enter into the home. This would not be possible if administrative warrants were permitted, which would, in essence, allow criminal fact-finding investigations without a showing of probable cause that a crime has been committed.

In essence, the defendant argues that because the administrative process is far removed from a criminal investigation, it should not be treated as such. The policy reasons underlying the criminal warrant process – an ex-parte request, no opportunity by the subject to be heard, no notice – are not applicable when seeking to investigate a zoning violation and thus, the State’s interests aren’t so great that they outweigh an individual’s right to privacy in his home.

To be sure, general administrative searches are permitted under the Federal Constitution:

In the administrative context, on the other hand, the Supreme Court held in Camara v. Municipal Court, supra, 387 U.S. at 538-39, 87 S.Ct. 1727, that inspections that are part of a general administrative plan for the enforcement of a statutory scheme are reasonable within the meaning of the fourth amendment if “reasonable legislative or administrative standards for conducting an area inspection” demonstrate “a valid public interest.” (Emphasis added.) Particularized suspicion for choosing an individual residence within the area searched is unnecessary. Id., at 536, 538, 87 S.Ct. 1727.

In other words, probable cause to inspect a particular location may be based on a showing that the premises was chosen pursuant to a general administrative plan for the enforcement of a statute derived from neutral sources. Marshall v. Barlow’s, Inc., supra, 436 U.S. at 320-21, 98 S.Ct. 1816.

Bozrah. However, in Bozrah the court concluded that in order to conduct a particularized search for a specific home or individual, an injunction based on probable cause, issued by a neutral magistrate, after giving notice to the homeowner, is required.

Certainly situations like Saturno highlight the problem of permitting administrative warrants because they could end up being end runs around the probable cause requirement of warrantless searches. Town officials may, suspecting illegal activity, obtain administrative warrants to inspect the home for fire safety checks or other minor zoning violations and use that opportunity to enter the home in order to scope out other illegal activity whose fruits or instruments might be in plain sight.

If the concept that the home is a person’s castle is to be given any teeth – as with the drug-sniffing dog case from last week – police should not be permitted to enter a person’s home without probable cause and a warrant or some emergency situation to fulfill their caretaking function. An administrative warrant would provide another exception to that well-regarded requirement.

Inquiry into jurors’ racial animus

Generally speaking, deliberations of jurors are sacrosanct. Courts will not permit the parties to inquire of jurors their thought-processes and details of their deliberations. Under the Federal Constitution there is no exception for inquiry into whether any misconduct on a part of a juror impacted their verdict, thus rendering the decision unfair. A Coloroda man has asked the United States Supreme Court to change that and hold that the right to a fair trial is an exception to the so-called “no impeachment” rule of juror deliberations. (Here is his brief.) In his case, the allegation centered around racially charged statements made by a juror:

“I think he did it because he’s Mexican and Mexican men take whatever they want,” is one of several racially tinged statements attributed to the juror identified in court records by the initials H.C. In another comment, the juror is said to have cast doubt on an alibi provided by a Hispanic witness for Pena Rodriguez because the witness was “an illegal.” The witness testified that he was in the country legally.

Rodriguez argues that this juror’s racial bias violated his right to a fair trial and the trial court should have permitted inquiry into these comments and the effect the comments had on the verdict. SCOTUS will decide whether to take up this case.

Connecticut, however, already recognizes such an exception. Practice Book Section 42-33 provides:

Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror’s testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.

Further, our supreme court has clearly stated:

[A]n allegation that a juror is racially biased “strikes at the heart of the [defendant’s] right to a trial by an impartial jury and the right to equal protection.” State v. Brown, 232 Conn. 431, 453, 656 A.2d 997 (1995). In addition, public confidence in the fair administration of justice is undermined if such allegations are not thoroughly investigated and quashed. Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.

State v. Santiago, 245 Conn. 301, 335 (1998).

This makes a lot of sense. While we want to protect the jury and its deliberations, shielding it from outside influence and second-guessing based on dissatisfaction with its verdict, those same considerations require the ability to conduct some limited inquiry. The inquiry isn’t to find out why the jury voted a certain way, but rather to discover if its decision was motivated by something other than a consideration of the facts of that case.

If the defendant’s right to a fair trial and an impartial jury is to be taken seriously, then he must be given the tools to determine if the verdict in his case was impartial and fair. In Pena Rodriguez’s case, there seems to be a risk that the verdict was based on racial bias and if that’s the case, can it be said to rest solely on the facts and evidence presented to the jury?

Finality of and respect for the jury’s verdict are important considerations in the criminal justice system, but they should not be so inviolable as to render the defendant’s right to a fair trial impossible.

State v. Brown created the framework for inquiry into juror misconduct. In Brown, our supreme court exercised its supervisory authority over the administration of justice to hold that a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel.