A Connecticut marijuana bust has turned into a potential precedent-setting case on whether apartment and condo dwellers have the same rights as house owners when it comes to police using drug-sniffing dogs outside their homes.
The state Supreme Court on Wednesday is scheduled to hear arguments in the case of Dennis Kono, who was arrested in 2012 after a police dog deployed without a warrant in a condo building hallway in Berlin smelled marijuana near his door. Berlin police then obtained a search warrant for Kono's condo and found several small marijuana plants, seeds, growing equipment and firearms.
But a trial court judge dismissed the drug charges against Kono, saying the police dog's sniffing outside Kono's door violated his expectation of privacy inside his home and the search warrant of his condo should not have been approved.
State prosecutors are appealing that ruling to the Supreme Court, saying there should be no expectation of privacy in a common hallway used by other condo residents.
People who live in free-standing houses already are protected under a 2013 U.S. Supreme Court ruling, which said police cannot have dogs sniff for drugs in areas right outside houses, including porches, without a warrant. The majority called those warrantless searches trespassing and a violation of the Fourth Amendment of the constitution.
Kono's attorney, Daniel Erwin, wrote in court documents that having different rules for homeowners and people who live in apartments and condominiums would be unfair and discriminatory, because many poor people including minorities live in apartments and condos.
"This implicates issues of class and equality," Erwin wrote. "Instituting, effectively, one rule for the suburbs and one rule for the inner city would do harm to the class neutral aspirations of our criminal procedure."
Erwin and state prosecutors declined to comment on the appeal.
Erwin also wrote that a 1985 ruling by the 2nd U.S. Circuit Court of Appeals in Manhattan prohibited police dog sniffs of apartments.
Prosecutor Mitchell Brody, however, argues in the appeal that there should be no privacy interest when it comes to common hallways. He noted the owners of Kono's condo building gave police permission to search the hallways, after police received an anonymous tip that Kono was growing pot in his condo and bragging about it.
Brody also wrote that several courts have determined that searching common hallways with drug-sniffing police dogs without warrants does not violate people's Fourth Amendment right to be free from unreasonable searches.
Dan Barrett, legal director of the American Civil Liberties Union of Connecticut, said he was surprised the state is seeking to expand warrantless search rights.
"To bring a dog in to sniff around an apartment's entrance should require a search warrant," Barrett said.
The state Supreme Court is not expected to rule Wednesday.