State v. Kono and the Primary Versus Interstitial Approach to Deciding Constitutional Questions

By Kenneth J. Bartschi, Partner

Among the cases the Connecticut Supreme Court worked furiously to complete before Justice Peter Zarella left the court to return to private practice was State v. Kono, 324 Conn. 80 (2016). The court held in a 6-1 decision that a warrantless canine sniff at the door of the defendant’s condominium, which revealed the presence of marijuana within, was an illegal search and seizure. While that result is interesting in its own right, the divergent routes to that conclusion raise the question whether the court should start with the Connecticut constitution or the federal constitution when both are properly in-voked.

Writing for the majority, Justice Richard Palmer held that the canine sniff violated Article First, § 7 of the Connecticut constitution because the defendant had a reasona-ble expectation of privacy in the entrance to his home. Justice Zarella concurred, but concluded that the search violated the Fourth Amendment to the federal constitution, relying on a Second Circuit decision. (Justice Espinosa dissented, arguing, inter alia, that the defendant did not have a reasonable expectation of privacy in the shared hall-way to his condo.)

The divergent paths of the majority and Justice Zarella provide an opportunity to examine the primacy doctrine, in which the court first analyzes the state constitution, and the interstitial approach, where the court begins with the federal constitution and moves to the state constitution only where the federal rule is ambiguous or does not provide the relief sought. Note that the question arises only in cases of first impression where the parties have invoked both constitutions and properly briefed the state consti-tution according to the analysis set forth in State v. Geisler, 222 Conn. 672 (1992).

Although it has not been entirely consistent, the Connecticut Court Supreme generally has followed the interstitial approach. Indeed, both the majority and the con-currence thought that the proper approach was to start with the federal constitution and turn to the state constitution only if federal law was unsettled or failed to provide the re-lief the defendant sought. They disagreed in Kono on the clarity of federal law as it per-tained to the canine sniff in question.

Despite this seeming agreement, however, Justice Zarella used the concurrence to argue that the court should consistently follow the interstitial approach. He is correct that the court has not always been consistent in deciding which constitution to apply first. In arguing for the interstitial approach though, Justice Zarella seems to be ad-dressing advocates of the primacy doctrine off the court as well as the majority in Kono since the disagreement in Kono really concerned the degree of certainty as to the fed-eral rule, not the overall approach.

In broad strokes, Justice Zarella’s arguments in support of the interstitial ap-proach are: federal constitutional law now dominates because the Supreme Court has applied much of the Bill of Rights to the states through the Fourteenth Amendment and the primacy doctrine ignores this reality; a well-developed body of federal constitutional law makes it likely that the answer to any given case will probably be readily available; addressing the federal constitution first allows the court to articulate the differences be-tween the state and federal constitutions when they exist; under Geisler, the court must analyze federal cases anyway; deciding a claim under the federal constitution avoids unnecessary state constitutional analysis; and deciding the federal constitutional ques-tion first avoids “creating unnecessary or unintended differences between federal and state law,” which might be perceived as a results-oriented rejection of the federal rule. 324 Conn. at 149.

These are largely pragmatic considerations. For instance, a Geisler analysis re-quires consideration of federal precedent among its six prongs. Since the court needs to review federal case law anyway when deciding the state constitutional question, and since it would be bound by the minimum standards set by the United States Supreme Court, that inquiry could very well end the analysis and avoid engaging in the lengthy assessment of the constitution text, its history, Connecticut appellate authority, sibling state authority, and socio-economic considerations that Geisler requires.

As attractive as practical considerations might be, it is not clear whether they outweigh the value of having a robust jurisprudence under our state constitution. For example, in Kono, the majority relied on the reasonable expectation of privacy one has in the entrance to one’s home, which in this case was a condominium accessible only through a shared hallway, to conclude that a warrant was necessary before a dog could sniff at the door in search of contraband. Whether the United States Supreme Court would agree in the same circumstances is less than clear.

A recent Supreme Court decision, Florida v. Jardines, 133 S. Ct. 1409 (2013), held that a dog sniff at the curtilage of the house violated the Fourth Amendment but relied on common-law property principles, not a reasonable expectation of privacy. Jus-tice Kagan, joined by Justices Ginsberg and Sotomayor, would have resolved the mat-ter on the basis of privacy, but their view failed to command a majority of the Court. Further, two prior decisions, United States v. Price, 462 U.S. 696 (1983), and Illinois v. Caballes, 543 U.S. 405 (2005), held that dog sniffs of luggage at airport or of cars did not violate the Fourth Amendment because there was no reasonable expectation of pri-vacy in contraband. By deciding Kono on state constitutional grounds, the court was able to avoid the uncertainty of federal law.

To be sure, as Justice Zarella points out, if the United States Supreme Court re-versed on the Fourth Amendment question, the case would return to the Connecticut Supreme Court for resolution of the state constitutional claim. But that would drag out the case two or more years and could well mean extending the incarceration of a de-fendant who was improperly convicted. Pragmatic considerations should not overlook the effect on litigants.

Further, although a reversal by the Supreme Court of the Fourth Amendment claim might undermine the state constitutional claim as well, this is not necessarily the case. Persuasive authority from other jurisdictions is not limited to majority opinions but may include concurrences and dissents. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (finding dissenting opinions in sibling state decisions to be more persuasive on the question of marriage equality than the majority opinions). At least where there is no controlling authority from the United States Supreme Court granting the relief sought, addressing the state constitution first may well shorten the decision-making process. Thus, pragmatic considerations run in both directions.

It is true that federal constitutional law dominates and it may be convenient if the state constitution means the same thing as the federal constitution. But Connecticut is a sovereign state and ceding the meaning of our constitution to the United States Su-preme Court unnecessarily erodes the efficacy of our constitution as an independent source of law. To avoid this erosion of our state constitutions independence, it would be preferable to rely solely on the federal constitution where it controls rather than state that the constitutions have the same meaning. This leaves open the possibility that our state constitution has a different meaning if the federal rule changes in the future.

Finally, Justice Zarella worried that distinctions between the state and federal constitutions could encourage forum shopping. Indeed, one reason the United States Supreme Court applied much of the Bill of Rights to the states was that states often provided fewer constitutional protections in the area of search and seizures. Federal authorities would turn over ill-gotten evidence to state prosecutors who would be able to use the evidence in state proceedings. Justice Zarella worries that the reverse could occur if the state constitution offered greater protections that the federal constitution.

To the extent state prosecutors will turn ill-gotten evidence over to federal prose-cutors, that problem, if it is one, would be limited to procedural claims such as the ex-clusion of evidence. A federal court would apply Connecticut law to substantive claims, whether through its own analysis or by certifying questions to the Connecticut Supreme Court. See, e.g., Ramos v. Vernon, 254 Conn. 799 (2000) (answering certified question from the Second Circuit as to Article First, §§ 4, 5, and 14). In any event, that ship has already sailed as the court has held that Article First, § 7 provides greater protection in search and seizure matters than the federal constitution under some circumstances. See, e.g., State v. Marsala, 216 Conn. 150 (1990) (rejecting federal good-faith excep-tion for an illegal search warrant).

Where the United States Supreme Court has issued controlling authority that provides the relief sought, it makes sense to dispose of the case on the basis of the federal constitution and decline to reach the state constitution. In all other cases, both the courts and litigants should turn first to the state constitution. The Connecticut Su-preme Court is the final authority on the Connecticut constitution and should not readily cede that authority. Moreover, Connecticut has for many years now been a leader in providing constitutional protections for its citizens. Having a robust state constitutional jurisprudence sustains and enhances that tradition and ensures that whatever may happen in Washington, the citizens of Connecticut can remain secure in their constitu-tional rights under our state constitution.