Opinion
No. CR06 61742
January 8, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO PRECLUDE DOG SCENT EVIDENCE DEFENDANT'S MOTION TO PRECLUDE CANINE SNIFF
Before the court are both (1) the defendant's motion in limine to preclude dog tracking evidence of a police canine unit that was used by police officers to track the defendant from the crime scene to the location of his arrest, and (2) the defendant's motion in limine to preclude evidence of a canine sniff of the driver seat in the car in which the defendant had recently sat.
The two questions presented by the motion to preclude the dog tracking evidence are: (1) whether the court is required to hold a hearing pursuant to State v. Porter, 241 Conn. 57, 59, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), to establish that dog tracking is scientifically valid, and (2) whether the state has laid a proper foundation to permit dog tracking evidence under State v. Wilson, 180 Conn. 481, 488-90, 429 A.2d 931 (1980). As more fully elucidated below, the court declines the defendant's invitation to hold a Porter hearing, and decides that the dog tracking evidence is admissible because: (1) dog tracking evidence is so well established that a Porter hearing would be tautological; (2) dog tracking evidence is not an innovative scientific technique, and the jury is in a position to consider that evidence without abandoning their common sense; and (3) the state has laid the requisite foundation necessary to permit dog tracking evidence pursuant to State v. Wilson, supra, 180 Conn. 488-90.
In their respective supplemental briefs, both filed on December 10, 2008, the parties appear to believe that the evidentiary hearing held on December 4, 2008, was itself a Porter hearing. This is not the case. Indeed, the court declined to rule on the state's objection to hold a Porter hearing prior to the first witness being called, and allowed testimony to be taken on that date for the purpose of, inter alia, determining the court's obligation to hold a Porter hearing at all.
The issues presented by the motion to preclude evidence related to the canine sniff are (1) whether the defendant had a reasonable expectation of privacy in the car, which was left parked on a public street with its window down at the time a police canine sniffed and alerted on the car, (2) whether a canine sniff of the interior of the car is a search for purposes of the fourth amendment to the United States Constitution, and (3) whether the police had the probable cause necessary to search the interior of the car. For the reasons explicated below, the court holds that (1) the defendant did not have a reasonable expectation of privacy in the car to trigger protection under the fourth amendment, (2) in the alternative, the canine sniff of the exterior of the car was not a search for purposes of the fourth amendment, (3) in the alternative, the police had the requisite reasonable suspicion to justify the canine sniff of the exterior of the car, and (4), in the alternative, at the time that the police allowed the dog to sniff the interior of the car, they had the probable cause necessary to conduct that sniff.
BACKGROUND
The defendant, Seante Kelly, is charged with robbery in the first degree in connection with the armed robbery of Ann's Market, located at 278 Fenwick Street, in West Haven, Connecticut, alleged to have taken place on January 21, 2007. At 6:43 p.m. that day, West Haven police officers were dispatched to Ann's Market to investigate allegations made by its owner, Shanta Rana, that a thin black male wearing a black jacket, black hoodie, and a baseball cap had robbed her at gunpoint of approximately $300, a cordless phone, and a candy bar. In addition to other investigative methods employed during the ensuing investigation of this incident by the police, David Cari, of the East Haven Police Department, together with his patrol dog, Daro, were called to the scene to track the scent of the perpetrator.
On November 21, 2008, the defendant moved in limine to preclude the evidence obtained as a result of Cari and Daro's tracking of the suspect on the ground that the court must first hold a Porter hearing to ascertain the scientific reliability of dog tracking evidence, The state also filed its objection on November 21, 2008, arguing that dog tracking is not scientific evidence that requires a Porter hearing, and that, in the alternative, dog tracking is so well established that a Porter hearing is unnecessary. The court held an evidentiary hearing on December 4, 2008, for the purpose of resolving whether a Porter hearing is necessary, and if not, to determine whether the state had established the appropriate foundation to admit the testimony of Cari into evidence.
Based on the evidence elicited at that hearing, the court finds the following facts. Sergeant Robert Brennan (Brennan) is the training supervisor for the Connecticut State Police Canine Training Unit (Canine Unit). He has more than twenty years of law enforcement experience with canines, has attended and taught law enforcement canine training courses and seminars throughout the United States and in Europe, and has trained "hundreds of students" both dogs and their handlers) to perform various assignments, including patrol, man scent tracking, narcotics and bomb detection, and search and rescue techniques. Although Brennan does not have an advanced degree in science or veterinary medicine, the court finds him to have extensive experience and expertise in the training and field use of canine units in the law enforcement context.
According to Brennan, various breeds of dog have been used by law enforcement agencies throughout the world for more than 100 years to track individuals by their scent. Similar to the widespread use of dogs by hunters to track specific types of game, Brennan testified that he believed it was common knowledge that police canines possess exceptional olfactory senses that are capable of distinguishing between similar, though unique, scents. Indeed, Brennan stated that his training materials calculate dogs to have olfactory senses exceeding that of humans by somewhere between 44 and 100 times. In view of both the longstanding use of dogs to assist law enforcement agencies throughout the world and the commonly accepted prowess of a properly trained canine's olfactory sense, the Canine Unit was established in 1934 and has trained and certified thousands of dogs since its inception.
Brennan further testified that the dogs and handlers educated at the Canine Unit undergo an arduous training program that lasts roughly 600 hours. This includes both didactic sessions in the classroom, as well as extensive field training in which handlers and their dogs engage in real life man tracking simulations in a variety of different terrains. During this time, dogs are trained to begin their tracks from either a personal article of the person being tracked (e.g., a piece of clothing) or to use the casting method, whereby the dog begins its track from the pooled scent that a person creates by staying in a particular location for an extended period of time. Although dogs using the casting method may have to distinguish between the competing scents of different people standing near each other, Brennan stated that dogs have a natural inclination to track the presence of apocrine, which is a scent that humans typically excrete through both their sweat glands and dead skin cells when they are scared and under heavy stress.
In addition to the training that the dogs receive, their handlers also receive extensive training. This instruction includes learning the various laws and protocols governing the use of police canine units, as well as learning how to read their dog. Brennan explained that dogs assume different body postures during their track of a person that is unique to the information the dog is processing. By way of example, a dog with its nose to the ground and assuming a body posture lower to the ground is on a scent, while a dog with its nose in the air is likely indicating that he has lost the trail. Similarly, Brennan stated that a dog tracking an apocrine scent is usually more aggressive, pulling harder to follow the scent trail. Moreover, because each dog will demonstrate some unique characteristics in dealing with the various stages of a track, the handler must learn to read his dog so as to be able to assist the dog without influencing its track. This is accomplished by first telling the handler where the set scent trail is and where any cross-contamination is located so the handler can begin associating specific characteristics of his dog with specific conditions along a track. This method of repetition and association is then tested by concealing all information regarding the characteristics of the scent trail from the handler so that he is forced to rely on his dog alone.
Brennan further testified that successful completion of the course and subsequent certification to use the dog in the field requires the dog and its handler to successfully track a suspect over a two-mile trail that has at least two ninety-degree turns in it and has been cross-contaminated by people other than the suspect. At least once during their training, the dogs must also be able to successfully track a scent trail that is more than twenty-four hours old, as well as to be able to pickup the trail of a person that has crossed a river or stream. Many dogs fail out of the Canine Unit, and those that are certified are "very reliable."
Officer David Cari (Cari) has been associated with the East Haven Police Department Canine Unit since June of 2006, when he obtained his dog, Daro. Daro is a pure-bred German Shepherd that was imported from Slovakia and sold to Cari by Connecticut Canine Services, a group that specializes in the importing and breeding of police dogs. Cari and Daro began their training with the East Haven Police Department's canine officers and graduated from the state police Canine Unit in November of 2006. Cari testified that Daro was at the top of his class at the Canine unit, moving quickly into urban tracking simulations that would be the most akin to those Daro would encounter in East Haven. Cari estimates that Daro completed more than fifty successful tracks while at the Canine Unit, twenty of which were unknown to Cari and which were cross-contaminated by odors from other people, as well as from everyday pollutants like car exhaust. Daro had a 100 percent success rate at the Canine Unit, having never identified the wrong person. This is true even though one of the trails was more than twenty-four hours old and many of the tracks began using the casting method. Both Cari and Daro graduated from the Canine Unit at the end of November 2006, and further completed additional canine certification tests in December 2006.
Cari testified that on January 21, 2007, he was dispatched to Ann's Market to assist in the investigation of an armed robbery that had recently taken place at that location. Arriving only minutes after being called, he found the crime scene to have been secured, with only the market owner and a police officer still being located inside the market. Cari cast Daro in the scent pool believed to have been created by the perpetrator's continued presence in front of the cash register during the robbery. Additionally, Daro was scented on the cash register, which the perpetrator had knocked off the counter with his hand. Daro immediately picked up a scent trail, which Cari believed to be an apocrine trail from Daro's level of excitement and the force with which Daro was pulling Cari behind him. Daro led Cari and another officer out of the market, and down a street, at which point the dog picked up a baseball cap with his mouth and thrashed his head round. Cari explained that this is a common indication that the hat contained the scent Daro had been following from the market. After instructing a West Haven officer to secure the hat, Cari followed Daro to 79-81 Rangely Street, where Daro jumped up on a car in which two black males were sitting. Cari described this behavior as a common indication that the scent from the market was in the car. Although Cari prevented Daro from jumping into the car to alert on either of the two men out of liability concern, the West Haven police arrived on the scene immediately to begin their investigation of the two men.
After giving Daro a water break, Cari then brought Daro back to the hat, which had been preserved in a scent controlled bag, to again track the scent trail. Daro again led Cari back to the same car. This time, however, Cari allowed Daro to jump through an open window into the car because the two suspects were not in the car at that time. Once inside the car, Daro began biting the driver's seat, which Cari explained was a common indication that the source of the scent trail Daro had been following from the hat had been in that seat. Daro then led Cari around the house in front of which the car was parked, and jumped up on the back door. Cari explained that this too was an indication that Daro wanted to follow the scent trail from the hat through that door. Again due to liability concerns, Cari did not allow Daro to enter the premise, where he observed two black men speaking with police officers.
Additional facts will be provided as necessary.
DISCUSSION I. Dog Tracking Evidence
Before turning to the merits presented by this motion, the court first sets forth its standard of review. Section 7-2 of the Connecticut Code of Evidence outlines the circumstances under which a witness may provide expert testimony to assist the trier of fact in understanding a disputed fact. "Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." (Internal quotation marks omitted.) State v. Ali, 233 Conn. 403, 431, 660 A.2d 337 (1995).
Section 7-2 of the Connecticut Code of Evidence provides: "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue."
In this case, both Brennan and Cari have received specialized training with police canines through the Canine Unit, the annual certification process, and their extensive field experience. Moreover, Brennan has traveled throughout the country and Europe to participate in and teach seminars concerning the training and deployment in the field of police dogs. Both officers clearly possess special skills and knowledge that are directly applicable to the dog track evidence in this case as it relates to identifying the alleged perpetrater. Additionally, those skills and knowledge far exceed the average person's understanding of working dogs and their capabilities, and they would be useful to the jury in this case to assist them in understanding the reliability of the dog tracking evidence admitted for the purpose of proving the suspect's identity. Consequently, in view of the officers' training and experience, as well as their respective testimony's relevance to suspect identification, the court concludes that Brennan's and Cari's respective testimony in this case qualifies as expert testimony.
Beyond these general requirements regarding the admissibility of expert testimony, however, "[t]here is a further hurdle to the admissibility of expert testimony when that testimony is based on . . . scientific [evidence]. In those situations, the scientific evidence that forms the basis for the expert's opinion must undergo a validity assessment to ensure reliability." (Internal quotation marks omitted.) Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 168, 847 A.2d 978 (2004). In State v. Porter, supra, 241 Conn. 68, our Supreme Court further elucidated this requirement, and provided specific guideposts for determining the admissibility of expert testimony regarding innovative scientific techniques. "In [ Porter], [the court] adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., [ 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]. [The court] noted therein two requirements established under Daubert. First, [it noted] that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation . . . This requirement establishes a standard of evidentiary reliability . . . as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity . . . Second, [it noted that] the scientific evidence must fit the case in which it is presented . . . In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract." (Internal citations omitted; internal quotation marks omitted.) State v. Griffin, 273 Conn. 266, 275-76, 869 A.2d 640 (2005). Consequently, the salient factors informing a court's determination of whether to admit scientific evidence is to ensure that it is both reliable and relevant.
It is important to note that the Porter test is only applicable to innovative scientific evidence. Indeed, while the Porter Court "explicitly adopted the Daubert test to determine the admissibility of scientific evidence . . . [it] did not explicitly overrule Connecticut precedent regarding the evidence to which such a test should apply. Prior to Porter, [our Supreme Court] had recognized that the Frye test for admissibility should not apply to all expert testimony, but only to that which involves innovative scientific techniques . . . In Porter [our Supreme Court] recognized that Daubert's vagueness as to how and when to apply the factors of the test was necessary . . . In order to maintain flexibility in applying the test, [our Supreme Court] did not define what constitutes `scientific evidence.' . . . Consequently, [a court's] initial inquiry is whether the [evidence] at issue . . . is the type of evidence contemplated by Porter." (Internal citations omitted; footnote added; internal quotation marks omitted.) State v. Griffin, supra, 273 Conn. 276.
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (test of general acceptance in the scientific community).
Our case law concerning the applicability of the Porter test teaches that a Porter analysis is not required in all cases. In cases where some evidence enjoys a pedigree steeped in scientific principles, such analysis is not required if it is "the kind of evidence that readily may be understood and evaluated by a fact finder on the basis of common sense or independent powers of observation or comparison." State v. Griffin, supra, 273 Conn. 278, citing State v. Reid, 254 Conn. 540, 546-48, 757 A.2d 482 (2000) (microscopic hair analysis not subject to determination of reliability under Porter because jurors could use own powers of observation and comparison); see also State v. Hansen, 205 Conn. 485, 490, 534 A.2d 877 (1987) (podiatrist's testimony concerning probability that pair of sneaker would fit defendant's feet not subject to Frye test because jury could evaluate testimony without abandoning common sense).
Similarly, our Supreme Court has also explained that even scientific evidence may not require a Porter hearing if its reliability is so well established that any further analysis under Porter would be tautological. See State v. Porter, supra, 241 Conn. 85 n. 30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d 1171(1996) (Porter analysis not necessary for ordinary fingerprint identification evidence to be admissible); see also State v. Kirsch, 263 Conn. 390, 403-09, 820 A.2d 236 (2003) ( Porter hearing not necessary to admit evidence of alcohol blood testing done at hospital because reliability of such evidence is well established). Accordingly, to ascertain the need for a Porter hearing regarding the reliability of dog tracking evidence, the court must first decide whether dog tracking evidence involves an innovative scientific technique and, if it does, whether that technique is already so well established as to obviate the need for a Porter hearing.
A. Innovative Science Inquiry
Turning to the first inquiry, whether dog tracking evidence involves an innovative scientific technique that is reliable, the court concludes both that it is not evidence of a scientific nature and that its reliability is not properly scrutinized under the criteria set forth in Porter. "[T]he court in Porter identified four nonexclusive factors for judges to consider in determining whether a particular theory or technique is [reliably] based on scientific knowledge: (1) whether it can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique's operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community." (Internal quotation marks omitted.) State v. Griffin, supra, 273 Conn. 283.
These guideposts, however, are not intended to be exclusive because the proper choice of which factors to consider, if any at all, "depends greatly on the specific context of each case," State v. Porter, supra, 241 Conn. 86-87. Consequently, "[s]everal other factors may properly play a role in a court's assessment of the validity of a scientific methodology . . . [Those factors include] the prestige and background of the expert witness supporting the evidence . . . [t]he extent to which the scientific technique in question relies on subjective interpretations and judgments by the testifying expert, rather than on objectively verifiable criteria . . . whether a testifying expert can present and explain the data and methodology underlying his or her scientific testimony in such a manner that the fact finder can reasonably and realistically draw its own conclusions therefrom . . . [and] whether the scientific technique underlying the proffered expert testimony was developed and implemented solely to develop evidence for in-court use, or whether the technique has been developed or used for extrajudicial purposes." (Citations omitted.) Id., 85-86.
In this case, the court concludes that the reliability of dog tracking evidence is not usefully informed by a scientific understanding of canine olfaction, but is instead dependent upon ensuring that the dog and its handler are properly trained and that the perpetrator's scent trail can be reliably tracked. Although the question of whether the scientific underpinnings of dog tracking has yet to be separately analyzed under the Porter rubric by either Connecticut appellate court, the overwhelming majority of states allow for the admission of dog tracking evidence without separately inquiring into its scientific reliability under either Frye or Daubert. See, e.g., Holcombe v. State, 437 So.2d 663 (Ala.Crim.App. 1983); Wilkie v. State, 715 P.2d 1199 (Alaska Ct.App. 1986); State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984), appeal after new trial on other grounds, 184 Ariz. 484, 910 P.2d 635 (1996); Rolen v. State, 191 Ark. 1120, 89 S.W.2d 614 (1936); People v. Gonzales, 218 Cal.App.3d 403, 267 Cal. Rptr. 138 (5th Dist. 1990); Brooks v. People, 975 P.2d 1105, (Colo. 1999), as modified on denial of reh'g, (Apr. 12, 1999); State v. Wilson, 180 Conn. 481, 429 A.2d 931 (1980); Cook v. State, 374 A.2d 264 (Del. 1977); Starkes v. United States, 427 A.2d 437 (D.C.App. 1981); McCray v. State, 915 So.2d 239 (Fla.Dist.Ct.App.3d Dist. 2005); Johnson v. State, 293 Ga.App. 32, 666 S.E.2d 452 (2008); State v. Streeper, 113 Idaho 662, 747 P.2d 71 (1987); State v. Buller, 517 N.W.2d 711 (Iowa 1994); Yell v. Commonwealth, 242 S.W.3d 331 (Ky. 2007), as modified, (Dec. 21, 2007); State v. Green, 210 La. 157, 26 So.2d 487 (1946); State v. Cole, 1997 ME 112, 695 A.2d 1180 (Me. 1997); Roberts v. State, 298 Md. 261, 469 A.2d 442 (1983); Commonwealth v. Hill, 52 Mass.App.Ct. 147, 751 N.E.2d 446 (2001); People v. Stone, 195 Mich.App. 600, 491 N.W.2d 628 (1992); McDuffie v. State, 482 N.W.2d 234 (Minn.Ct.App. 1992); Hudson v. State, 977 So. 2d 344 (Miss.Ct.App. 2007), cert. denied (Miss. Mar. 20, 2008); State v. Thomas, 536 S.W.2d 529 Mo.Ct.App. 1976); State v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978); State v. Parton, 251 N.J.Super. 230, 597 A.2d 1088 (App.Div. 1991), certification denied, 127 N.J. 560, 606 A.2d 371 (1992); People v. Muggelberg, 132 A.D.2d 988, 518 N.Y.S.2d 285 (4th Dep't 1987); State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994); State v. Iverson, 187 N.W.2d 1 (ND. 1971), cert. den., 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273; State v. Neeley, 143 Ohio.App.3d 606, CT Page 1195 758 N.E.2d 745 (1st Dist. Hamilton County 2001), dismissed, appeal not allowed, 93 Ohio St. 3d 1427, 755 N.E.2d 351 (2001); Buck v. State, 77 Okla.Crim. 17, 138 P.2d 115 (1943); State v. Harris, 25 Or.App. 71, 547 P.2d 1394 (1976) (overruled on other grounds by, State v. Plankinton, 62 Or.App. 554, 661 P.2d 1387 (1983)); Commonwealth v. Michaux, 360 Pa.Super. 452, 520 A.2d 1177 (1987); State v. White, 372 S.C. 364, 642 S.E.2d 607 (Ct. App. 2007); State v. Shepherd, 902 S.W.2d 895 (Tenn. 1995); Parker v. State, 46 Tex.Crim. 461, 80 S.W. 1008 (1904); State v. Bourassa, 137 Vt. 62, 399 A.2d 507 (1979); Pelletier v. Com., 42 Va.App. 406, 592 S.E.2d 382 (2004); State v. Welker, 37 Wash.App. 628, 683 P.2d 1110 (Div. 2 1984); State v. McKinney, 88 W.Va. 400, 106 S.E. 894 (1921).
It is noteworthy that, while Porter was decided after Wilson had already articulated the foundational requirements for admitting dog tracking evidence, Wilson did not evaluate dog tracking evidence under the Frye standard, which predated Porter and was explicitly raised by that defendant in his brief to the Supreme Court. See State v. Wilson, Conn. Supreme Court Records Briefs, February Term, 1980, Pt. 4, Defendant's Brief p. 14 ("opinion evidence is not admissible if . . . the pertinent art of scientific knowledge does not permit a reasonable opinion to be asserted even by an expert").
Similarly, the court notes the extensive briefing received in State v. St. John, 282 Conn. 260, 271, 919 A.2d 452 (2007), concerning the question of whether dog tracking evidence is required to comport with the tenets of Porter. See State v. St. John, Conn. Supreme Court Records Briefs, October Term, 2006, Defendant's Brief pp. 5-26; see also id., State's Brief pp. 3-21; id., Defendant's Reply Brief, 1-10. While not dispositive, the fact that the parties spent a cumulative total of fifty pages comprehensively briefing this very issue only to have the defendant concede at oral argument that "he was no longer challenging the scientific validity or reliability of the dog tracking evidence"; State v. St. John, supra, 282 Conn. 271; strongly suggests that our Supreme Court does not believe a Porter hearing to be necessary to admit dog tracking evidence. This conclusion is additionally buttressed by that court's statement that it "disagreed" with the defendant's claim that a Porter inquiry was necessary "to determine the scientific validity of dog tracking evidence . . ." State v. St. John, supra, 282 Conn. 266.
"Indeed, there are only four states that currently prohibit dog tracking evidence in criminal trials. See People v. Lefler, 294 Ill.App.3d 305, 228 Ill. Dec. 788, 689 N.E.2d 1209 (5th Dist. 1998), appeal denied, 178 Ill.2d 588, 232 Ill. Dec. 850, 699 N.E.2d 1035 (1998); Brafford v. State, 516 N.E.2d 45 (Ind. 1987); State v. Storm, 125 Mont. 346, 238 P.2d 1161 (1951); Brott v. State, 70 Neb. 395, 97 N.W. 593 (1903). That so many jurisdictions admit dog tracking evidence on the basis of foundational requirements similar to those articulated in Wilson, and do so without requiring an independent appraisal of the science underlying canine olfaction, further buttresses the widespread belief that dog tracking evidence can be deemed reliable without a Frye or Daubert inquiry.
Moreover, in a case specifically addressing the efficacy of evaluating dog tracking reliability under Frye or Daubert, the Supreme Court of Colorado usefully explained that the "[t]estimony describing the use of a dog to track an individual by scent, and demonstrating the accuracy of the track, does not involve seemingly infallible scientific devices, processes, or theories . . . In our view, the differences between a mechanical apparatus or standardized scientific procedure on the one hand, and a living, breathing, animate creature on the other, are weighty enough to take scent tracking outside the realm of processes ordinarily associated with the Frye standard. Although we acknowledge that [the dog handler] offered his thoughts on how bloodhounds might pick up scent, this was not the substantive thrust of his testimony. Instead, [the dog handler] focused on [the dog's] training, reliability, track record, and performance in the case at hand — all matters based on specialized knowledge he obtained as [that dog's] handler." Brooks v. People, 975 P.2d 1105 (Colo. 1999) (reliability of dog tracking evidence not usefully informed by either Frye or Daubert analysis; admitting dog tracking evidence under reliability test nearly identical to the test adopted in State v. Wilson, supra, 180 Conn. 488-90); see also People v. Roraback, 662 N.Y.S.2d 327, 330-31, 242 A.D.2d 400 (3d Dept. 1997) (Frye analysis unnecessary to admit dog tracking evidence because no scientific principle or procedure at issue).
The same distinctions noted in Brooks are equally true in this case. Both Brennan and Cari testified as to the stringent training requirements necessary to certify police dogs and their handlers in Connecticut, as well as to the exceptionally high accuracy rates that police-certified tracking dogs enjoy in Connecticut. Similarly, Cari testified to the rigid training that he and Daro received and to his dog's perfect track record. Although both Brennan and Cari explained their understanding of how dogs pick up different types of human scent, the gravamen of their testimony was directed to explaining their training, their experience with dogs, and their techniques for interpreting a dog's body language. Neither officer had an advanced degree in science or medicine, nor did either officer purport to advance any comprehensive scientific method for testing canine olfaction. Their testimony is based on their knowledge of dog tracking from their extensive training and field experience.
Although Cari allowed that Daro had lost a scent trail in the past, which might be counted by some as a failed track, he also testified that Daro had never identified the wrong person.
Moreover, a scientific explanation as to the methodology by which dogs process scent information would be of little use to the fact finder. Just as a juror does not require a scientific explanation as to how the human brain interprets the information sent to it from the eyes to competently evaluate eyewitness testimony, neither does a juror need to understand the scientific axioms underlying canine olfaction to properly evaluate dog tracking evidence. Accord Brooks v. People, supra, 975 P.2d 1112 n. 7. What is paramount for the fact finder to know is whether, under the relevant circumstances, the particular eyewitness could see or the particular dog could reliably track human scent. In this respect, dog tracking evidence is "the kind of evidence that readily may be understood and evaluated by a fact finder on the basis of common sense or independent powers of observation or comparison." State v. Griffin, supra, 273 Conn. 278, citing State v. Reid, 254 Conn. 540, 546-48, 757 A.2d 482 (2000) (microscopic hair analysis not subject to determination of reliability under Porter because jurors could use own powers of observation and comparison); see also State v. Hansen, 205 Conn. 485, 490, 534 A.2d 877 (1987) (podiatrist's testimony concerning probability that pair of sneakers would fit defendant's feet not subject to Frye test because jury could evaluate testimony without abandoning common sense). Thus, because the jury in this case will be able to employ their common sense to fully appreciate the various canine strengths and weaknesses impacting Daro's olfactory accuracy during his identification of the defendant, a Porter analysis is unnecessary.
The court finds unavailing the defendant's argument that, absent some type of scientific quantification, a jury is likely to render its verdict under the prejudicial influence of a superstitious awe" regarding a canine's "mysterious power" to track scents undetectable to humans. In the first instance, that argument ignores the principle that "where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert's qualifications, and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence." (Citations omitted; internal quotation marks omitted.) State v. Hasan, supra, 205 Conn. 490-91; accord Hayes v. Decker, 263 Conn. 677, 822 A.2d 228 (2003). Both Brennan and Cari testified to the fallibility of dogs in man tracking, noting, inter alia, that scent trails can become contaminated or otherwise emaciated by weather conditions, not all dogs have the discipline or inclination for police work, a dog's performance while man tracking can be hindered by fatigue, and dogs are not always able to complete scent trails due to any combination of these reasons. See also State v. Wilson, supra, 180 Conn. 488 (police Bloodhound only had 80 percent success rate in tracking humans); State v. St. John, supra, 282 Conn. 272 (police German Shepherd only had 70 percent success rate in tracking humans); A. Tazlitz, "Does the Cold Nose Know?," 42 Hastings L.J. 15, 42-50 (1990) (noting various conditions that impact dog's ability to track cent). The entire point of the Wilson test, however, is to mitigate the possibility that these conditions will lead to an unreliable identification by the dog. Thus, the fallibility of canine olfaction is common knowledge, the Wilson court has taken the necessary steps to mitigate the possibility of identification error, jurors can be made aware of the conditions impacting accuracy during cross, and jurors are free to use their common sense in attributing what weight to accord his type of evidence. The court is persuaded that a juror does not require a scientific explanation of canine olfaction to appreciate that dogs, like all animals, also have flaws and can be influenced by the events taking place around them, both of which can impact their ability to successfully complete the tasks for which they were trained. Accordingly, the court concludes that a Porter hearing would be an inappropriate guide to ensure the reliability of dog tracking evidence both because it is not an innovative scientific technique based on scientific theory, analysis, or experimentation and because a scientific explanation of canine olfaction would not aid the jury in assessing this evidence.
In the alternative, the court concludes that, even if dog tracking evidence were subject to a Porter analysis, the foundational requirements set forth in State v. Wilson, supra, 180 Conn. 488-90, satisfy that requirement. As further explained below, the crux of Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 579, and its progeny is that expert testimony involving scientific or technical evidence must be examined to ensure its reliability and relevance. Yet, ensuring the reliability and relevance of dog tracking evidence was also the guiding principle that informed the development of the foundational requirements articulated in Wilson. For this reason, the defendant's argument that the court is required to verify the reliability of Cari and Daro's track in this case pursuant to a hearing under Kumho Tire Co. v. Carmichael, 526 U.S. 136, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), is of no moment.
In Kumho, the United States Supreme Court extended the trial courts' gatekeeping function announced in Daubert to all expert witnesses delineated in Federal Rules of Evidence, § 702, including the type of "skill-or-experience-based observation" that would seemingly apply to he dog tracking evidence at issue here. Id., 149-51 (engineering testimony not scientific in nature nevertheless required to meet Daubert analysis to ensure reliability and relevance). Writing for a unanimous court, Justice Breyer emphasized the need for courts to ensure that experts in any discipline, scientific or otherwise, offer testimony that "will have a reliable basis in the knowledge and experience of his discipline." (Internal quotation marks omitted.) Id., 148. The Kumho Court further stressed that the test of reliability is a "flexible" one depending on the "nature of the issue, the expert's particular expertise, and the subject of his [or her] testimony" and no one factor will necessarily be determinative of the reliability of an expert's testimony, because the trial court need only "consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Id., 150.
Although Justice Scalia wrote a concurring opinion, in which Justices O'Connor and Thomas joined, his concurrence does not implicate the extension of Daubert to non-scientific expert testimony. See id., 158-59 (Scalia, J., concurring). Similarly, while Justice Stevens wrote an opinion concurring in part and dissenting in part, he did not take issue with Part I and II of the majority opinion, which extended Daubert to non-scientific evidence. See id., 159 (Stevens, J., concurring and dissenting) (question of extending Daubert "is fully and correctly answered in Parts I and II of the Courts opinion, which I join").
Although the Connecticut Supreme Court has not yet adopted Kumho's underlying rationale to extend the Porter hearing requirement to non-scientific expert testimony; see State v. Sorebella, 277 Conn. 155, 216, 891 A.2d 897, cert. denied, 127 S.Ct. 131, 166 L.Ed.2d 36 (2006); this court believes that the foundational requirements set forth in State v. Wilson, supra, 180 Conn. 488-90, satisfy the reliability prong articulated in both Porter and Kumho. While the court does not believe that the reliability of dog tracking evidence would be usefully informed by the specific guideposts enumerated in Porter due to the unique characteristics inherent in this type of evidence, the court does believe that the salient principles of reliability and relevance that underlie Porter are properly heeded when the Wilson foundational requirements for dog tracking evidence are met.
For the sake of clarity, this court does not hold that Kumho is applicable to Connecticut jurisprudence. Instead, the court merely decides that because the Wilson criteria would satisfy the reliability prong of the Porter test, Wilson would likewise satisfy the flexible reliability inquiry articulated in Kumho, should our appellate courts ultimately decide to adopt Kumho in his case.
This approach is consistent with both the text and spirit of Porter. Indeed, the Porter Court explicitly stated that the factors set forth in the context of that case "are not exclusive. Some will not be relevant in particular cases; and some cases will call for considerations not discussed herein." (Emphasis in original.) State v. Porter, supra, 241 Conn. 84. Moreover, that court additionally explained that, "[s]o long as trial judges remain focused on the underlying purpose behind the Daubert analysis — to establish whether [an evidentiary] methodology has sufficient validity to be helpful to the fact finder — we are confident that the previously mentioned uncertainties are not so overwhelming as to render Daubert functionally inoperative." Id., 87. It is, therefore, of little consequence that the Wilson factors were not specifically mentioned in Porter, since those factors properly vindicate in the context of dog tracking evidence "the underlying purpose behind the Daubert analysis." Id.
In State v. Wilson, supra, 180 Conn. 488-90, our Supreme Court articulated the requisite criteria that must be satisfied to admit into evidence the expert testimony of a police officer that works with a canine to track and identify suspects. "To establish such a foundation, the party offering the evidence must show that: (1) the handler was qualified to use the dog; (2) the dog `was trained' and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and, (4) the trail had not become so stale or contaminated as to be beyond the dog's competency to follow it." (Internal quotation marks omitted.) State v. St. John, 282 Conn. 260, 271, 919 A.2d 452 (2007), citing State v. Wilson, supra, 180 Conn. 489. In view of the tendency that each of these criteria have to ensure that dog tracking evidence is reliable, it is not surprising the Wilson Court adopted its guideposts from People v. Harper, 43 Mich.App. 500, 508, 204 N.W.2d 263 (1972), which stated as the first objective of its foundational criteria: "safeguard the reliability of the tracking-dog evidence." State v. Wilson, supra, 180 Conn. 489. Thus, both because the Porter Court indicated that different cases may require different analytical guideposts to evaluate the reliability of scientific evidence and because the Wilson criteria were specifically formulated to assess the reliability of dog tracking evidence, the court concludes that, to the extent a Porter analysis is required in this context, it is met by establishing the foundation articulated in Wilson.
With these principles in mind, the court now assesses whether the state has established the requisite foundation to admit the dog tracking evidence in this case. With respect to the question of the handler's qualifications, it is clear that Cari was qualified to use a police canine to track a suspect during the investigation of Ann's Market on January 21, 2007. At that time, Cari had been working with the East Haven police canine unit for six months, had successfully graduated from the state police academy for canine training, and had been certified by the state as a qualified handler. As previously noted, Cari had already completed more than fifty successful tracks with Daro in a variety of different environments, including tracks through urban neighborhoods. Moreover, Cari had trained Daro since he was a puppy and credibly testified that he was able to read his dog while man tracking. Due to his formal training and real-world experience, Cari was qualified to handle Daro to track the suspect in this case.
In regard to the second Wilson criterion, whether the dog was trained and accurate in tracking humans, the proffered facts confirm that he was. Like Cari, Daro had successfully graduated from the state police academy for canine training, and had been certified by the state as a police dog qualified in man tracking. Daro is a pure-bred German Shepherd, a breed that is renowned for its ability to track humans, and he continues to maintain a perfect record for identifying the correct suspect during his training exercises. Moreover, Daro enjoys a superior accuracy rate to either the estimated eighty percent success rate of the bloodhound in Wilson; see State v. Wilson, supra, 180 Conn. 488; or to the estimated seventy percent success rate that was enjoyed by the German Shepherd in State v. St. John. See State v. St. John, supra, 282 Conn. 272. Our Supreme Court has indicated that a dog which has undergone this training regimen and successfully been qualified in man tracking by the state's canine academy is essentially qualified per se under this criterion of Wilson. See id., 272 (completing state training program and having success rate of 70 percent, "standing alone, satisfied the second prong of Wilson"). At the time of this incident, Daro had successfully tracked men in urban environments similar to the crime scene in this case and had begun many of those tracks by using the casting method employed in this case. Taken together, these facts confirm that, at the time of this incident, Daro was properly trained in man tracking and that he had a proven track record for accurately identifying the subject of his track.
The facts also support a conclusion that the third Wilson factor, whether the dog was placed on the trail where circumstances indicate the alleged guilty party to have been, likewise has been satisfied, Cari testified that he cast Daro in the area in front of the counter, which is where the store owner, Shanta Rana, had told police the perpetrator was standing when he held a gun to her head. Daro also was cast on the store's cash register, which Rana stated was pushed off the counter by the perpetrator. Moreover, Cari further testified that Daro led him on a scent trail that left the market in the same direction that the perpetrator was last seen fleeing. Accordingly, the court concludes that the state has satisfied this prong of the Wilson inquiry.
The court likewise finds that the state has established that the trail had not become so contaminated that it was beyond Daro's competency to track, which fulfills the fourth Wilson guidepost. Cari testified that he arrived at Ann's Market within minutes of being dispatched, and within thirty minutes of the time the robbery took place. He further explained that the conditions were "pristine" for man tracking because it was cold and because Daro was fresh, having not performed a track earlier that day. Although the suspect's trail led Daro through an urban neighborhood, Cari testified that Daro had regularly completed similar tracks and that Daro behaved on this track in such a way as to convince him that Daro was on a strong apocrine scent. Similarly, Cari explained that the West Haven police department had secured the crime scene to prevent further contamination of the area in which Daro was cast to pick up the perpetrator's scent, and that once Daro had indicated on the hat found along the scent trail, it had been secured by police in a scent-proof bag to preserve it for future use. Moreover, Cari stated that Daro did not hesitate while on the scent trail, and that after being given a water break, Daro followed the exact same scent trail a second time. These facts confirm that the trail had not become so contaminated as to be beyond Daro's capability.
Against this background, the court concludes that the state has satisfied each of the Wilson criteria necessary to establish the requisite foundation to admit the dog tracking evidence at issue in this case, as well as to satisfy the reliability prong of Porter: Both Cari and Daro were trained to work together to accurately track the scent of a suspect through urban environments; Daro completed the state's extensive canine training academy and has a documented history of accurately tracking humans by scent; Daro began his track in an area where the suspect was confirmed by eyewitnesses to have recently been; and, the trail had not become so contaminated as to be beyond Daro's competency.
B. Well Established Technique Inquiry
Thus, having concluded (1) that dog tracking is not the type of innovative science necessitating a Porter hearing, and (2) that, even if dog tracking did require a hearing under Porter to establish its reliability, the state's compliance with the Wilson guideposts satisfied that obligation, the court next addresses the second basis for not conducting a Porter hearing, which is whether the scientific reliability of dog tracking is so well established that a Porter hearing would be tautological. See State v. Porter, supra, 241 Conn. 85 n. 30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d 1171 (1996) ( Porter analysis not necessary for ordinary fingerprint identification evidence to be admissible); see also State v. Kirsch, 263 Conn. 390, 403-09, 820 A.2d 236 (2003) ( Porter hearing not necessary to admit evidence of alcohol blood testing done at hospital because reliability of such evidence is well established). As explained above, the court does not view dog tracking evidence as the type of innovative scientific evidence described in Porter. Nevertheless, the court concludes in the alternative that, even if dog tracking did involve a scientific discipline, it is so well established that a Porter hearing would be superfluous.
In State v. Kirsch, supra, the court evaluated whether blood alcohol testing had become such a well established procedure so as to obviate the need for a Porter hearing. See State v. Kirsch, supra, 263 Conn. 402-09, In reaching its conclusion that a Porter hearing was not necessary in that circumstance, the court looked to both the commonality of the medical profession's reliance on the type of blood alcohol testing there at issue; id., 404 ("majority of hospitals nationwide [used that type of alcohol testing] for at least fifteen years"); and additionally looked to the number of jurisdictions that found that type of evidence reliable for legal purposes. Id., 405 (noting other "jurisdictions have recognized the validity of this method"). The use of trained canines by law enforcement agencies to track the scent of humans has been in existence for more than one hundred years. See Terrell v. State, 3 Md.App. 340, 344, 239 A.2d 128 (1968) (providing detailed history of dog tracking evidence in United States jurisprudence); see also Hodge v. State, 98 Ala. 10, 13 So. 385 (1893), overruled in part on other grounds, Avery v. State, 124 Ala. 20, 27 So. 505 (1899) (first known case deciding whether dog tracking evidence is admissible). Indeed, Brennan testified that law enforcement agencies throughout the world continue to rely on police dogs to track suspects because of their reliability, and noted that the first use of dogs by law enforcement to track men occurred "in the 1800s." Thus, dog tracking enjoys the same type of widespread acceptance in the law enforcement community that the blood alcohol testing method had enjoyed in the medical community in Kirsch.
It is largely because "[i]t is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy"; Hodge v. State, supra, 98 Ala. 10; that thirty-eight of the forty-two states to have considered the admissibility of dog tracking evidence allow its consideration by the fact finder — provided that some species of foundation has been met. See generally Annot., 81 A.L.R.5th 563 (2000). Thus, similar to the large number of other jurisdictions noted in Kirsch to admit blood alcohol testing, it is likewise well established in American jurisprudence that dog tracking evidence can be reliably admitted into evidence if the requisite foundational criteria of the governing jurisdiction are met.
As a further indicium of the well-established reliability of dog tracking evidence in American criminal proceedings, one court has gone so far as to simply take judicial notice of the fact "that dogs of some varieties, such as bloodhounds, foxhounds, and bird dogs, are remarkable for the acuteness of their sense of smell, which enables them to follow a trail upon which they are laid, even though this trail be crossed by others." Copley v. State, 153 Tenn. 189, 193, 281 S.W. 460 (1925). Obviously, judicial notice is only taken of "[f]acts which are of common knowledge, that is, facts so well known that evidence to prove them is unnecessary . . ." (Internal quotation marks omitted.) Commissioner of Transportation v. Bakery Place, 83 Conn.App. 343, 348, 849 A.2d 896 (2004); see also State v. Porter, supra, 241 Conn. 85 n. 30 (some scientific principles "are so firmly established as to have attained the status of scientific law . . . [and] properly are subject to judicial notice").
Furthermore, while no Connecticut court has explicitly stated that dog tracking evidence is well established for purposes of Porter, our state police have relied on dogs as an investigative tool since 1934, and our courts have routinely admitted dog tracking evidence under the Wilson standard since 1980. See, e.g., State v. Wilson, supra, 180 Conn. 481; State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980); State v. Esposito, 235 Conn. 802, 670 A.2d 301 (1996); State v. St. John, supra, 282 Conn. 260; State v. Hardwick, 1 Conn.App. 609, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984). It is noteworthy that dog tracking evidence has been so regularly admitted in Connecticut without requiring a separate analysis under Frye, which was the standard for admissibility of scientific evidence prior to Porter. See footnote 4, supra. In view of both the widespread use of trained dogs as an investigative tool by law enforcement agencies throughout the world, and the nearly universal acceptance of dog tracking evidence throughout the country, the court concludes that dog tracking, like blood alcohol testing or fingerprint analysis, is a well established method that does not necessitate a Porter hearing.
Notwithstanding the court's conclusion that a Porter hearing is not needed in this case, the state is still obligated to meet the foundational requirements set forth in Wilson. See State v. Balbi, 89 Conn.App. 567, 577, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005) (although state need not satisfy Porter every time it offers horizontal gaze nystagmus evidence, it must nevertheless still lay foundation establishing test administered by qualified person and administered properly). In this case, the court has already concluded that the state has met its burden in satisfying the Wilson criteria.
For the reasons set forth above, the court holds the following: (1) Brennan and Cari are both qualified to testify as expert witnesses regarding dog tracking evidence; (2) dog tracking evidence is not the type of innovative scientific technique that necessitates a Porter hearing both because it is not based on scientific theory, analysis, or experimentation and because a scientific explanation of canine olfaction would not aid the jury in assessing this evidence; (3) in the alternative, even if dog tracking evidence does require a hearing under Porter or Kuhmo to establish its reliability, the state has fully complied with the Wilson guideposts, which satisfies those obligations; and (4), in the alternative, even if dog tracking does involve a scientific discipline that must be analyzed in accord with the specific criteria announced in Porter, that discipline is so well established that a Porter hearing is not required because it would be a superfluous confirmation of that which is already known.
C. Relevancy
The court's analysis does not end there, however, as it is next obliged to resolve whether the dog tracking evidence in this case is relevant. The defendant argues that, even if the dog tracking evidence is deemed reliable, that it should nevertheless be excluded because it fails to satisfy the relevancy requirement articulated in Porter. See State v. Porter, supra, 241 Conn. 65 ("scientific testimony must be demonstrably relevant to the facts of the particular case in which is offered"). Specifically, the defendant claims that, because Daro did not jump up on the defendant, as he is trained to do when identifying the source of the scent he has been tracking, a positive identification was not made, and that the dog tracking evidence is, consequently irrelevant to the case because it is inconclusive. As further explained below, this argument fails to withstand meaningful scrutiny because the facts demonstrated will allow the jury to make reasonable inferences that are analogous to the inferences required of the jury in Wilson.
The following additional facts are useful to the resolution of this issue. Cari testified that Daro tracked the perpetrator's scent from Ann's Market to the hat, and then from the hat to a parked car in which two men were sitting. Daro jumped up on the car, though Cari did not allow Daro to jump into the car to identify either of the two men in the car due to liability concerns. Cari also testified, however, that additional police officers were called to the car immediately and that he did not leave the car until those additional officers secured the car and began questioning its occupants. Similarly, Cari explained that Daro did not jump up on the defendant after making a second track from the hat to the driver's seat in the car, and then from the car to the house in front of which it was parked due to liability concerns as well. Thus, to the extent the state demonstrates to the jury that the defendant was, in fact, the man seated in the driver seat of the parked car that Daro jumped up on, and was also one of the men being questioned inside the house where Daro subsequently jumped up on its back door, then a jury can reasonably infer that Daro identified the defendant.
Although Daro's attempt to enter the back door of the house does not fully confirm the defendant's identity because multiple people where in the house at that time, this incident would nevertheless corroborate Daro's identification of the defendant if he was the man sitting in the river seat of car Daro had previously identified and was also inside the house when Daro indicated on its backdoor. In other words, Daro indicating on the backdoor when the man previously in the car's driver seat was inside makes it more likely that Daro was identifying the same person on both occasions.
The inference which the state asks the jury to make in this case is analogous to the inference required of the jury in Wilson. In Wilson, a state police bloodhound tracked a scent trail from a fresh footprint near the scene of a murder to the location where police had taken two suspects into custody several hours earlier. State v. Wilson, supra, 180 Conn. 484. Thus, the police dog in Wilson did not jump up on that defendant either. And, in both cases, the police dog tracked the suspect's scent from the crime scene to the location where the defendant had been taken into custody. To the extent that the defendant was the man taken into custody by police while sitting in the parked car that Daro indicated on and was also in the house when Daro indicated on its back door, the jury in this case will make no greater an inference than the one drawn by Wilson jury, which weighed evidence of a dog track from a footprint near the scene of the crime to an area where the police arrested two suspects in connection with that crime earlier in the day.
Finally, "[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case . . . [It] is not rendered inadmissible because it is not conclusive. All that is required is that evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative . . . Moreover, even evidence susceptible to different interpretations is admissible . . . [s]o long as the evidence may reasonably be construed in such a manner that it would be relevant." (Internal citations omitted; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 87-88. In this case, it is clear that the dog tracking evidence at issue, to be offered through the expert testimony of Brennan and Cari, is probative of the issue of the defendant's identity. That the evidence is not conclusive because Daro did not jump up on the defendant to identify him is of no moment; all that is required is that the dog tracking evidence tend to support a relevant fact even to a slight degree, which it clearly does with respect to the defendant's identity. Accordingly, the court concludes that the dog tracking evidence is relevant, both under the standards articulated in Porter, as well as under the fundamental tenets of the law of evidence regarding admissibility.
II. Canine Sniff Identification
The court next addresses the defendant's motion in limine to preclude evidence of a canine sniff of the driver seat of the defendant's car, which took place after Daro had first indicated on the defendant's car and while the defendant was not present. The defendant advances three arguments in this regard. First, he avers that he enjoys both a subjectively and objectively reasonable privacy interest in his parked car. Next, the defendant argues that a canine sniff of the interior portion of his car is distinguishable from the exterior canine sniff countenanced by the United States Supreme Court in United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and that the sniff, therefore, constituted a search for purposes of the fourth and fourteenth amendments to the United States Constitution and of article first, § 7, of the constitution of Connecticut.[fn14,] Finally, the defendant contends that the police were required to have probable cause to search his car, which was not present in this case, and that, in the alternative, the police also failed to demonstrate a reasonable and articulable suspicion capable of justifying the canine sniff under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The state responds by noting that a canine sniff is justified to further a police investigation if undertaken on the basis of a reasonable and articulable suspicion that a crime had been committed or was about to be committed; See State v. Torres, 230 Conn. 372, 381-82, 645 A.2d 529 (1994); and that, in view of the totality of the circumstances presented in this case, the police met that standard.
The United States Supreme Court, in United States v. Jacobsen, 466 U.S. 109, 123-24, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), expressly adopted its conclusion in Place as a holding.
The fourth amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The CT Page 1216 fourth amendment has been made applicable to the states via the fourteenth amendment. State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999).
Although the defendant states that the canine sniff of his driver seat violated his rights under both the state and federal constitutions, he neither claims that the state constitution affords any greater protection than the federal constitution nor does he provide a separate analysis of his claim under the constitution of Connecticut. Accordingly, the court does not determine whether the state constitution affords greater protection in this regard and limits its review of his claims to analysis under the federal constitution. See State v. Batts, 281 Conn. 682, 690 n. 6, 916 A.2d 788, cert. denied, 128 S.Ct. 667, 169 L.Ed.2d 524 (2007); accord State v. Gonzalez, 278 Conn. 341, 347 n. 9, 898 A.2d 149 (2006); see also State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (defendant must provide independent analysis under particular provision of state constitution).
The following additional facts are useful to the resolution of this issue: On the night in question, Cari followed Daro from the crime scene to a white baseball cap fitting the description of the hat worn by the perpetrator during the robbery, and then from that hat to the defendant's 1997 Mazda, which was parked on the street in front of 79-81 Rangely Street, in West Haven, Connecticut. Upon reaching the defendant's car, Daro jumped up on it, indicating to Cari that the source of the scent trail he had been tracking was inside. Cari then radioed for backup, and additional officers arrived on the scene immediately to question the two occupants. While those officers began interrogating both the defendant and other occupant in the car, Cari took Daro back for a short break and to give him some water.
Cari then took Daro back to the location of the white baseball cap, which had been preserved in a scent proof bag to prevent contamination. At that point, Cari scented Daro on the hat, and followed him along the same path to the defendant's car that Daro had taken during the initial track. Cari testified that Daro followed this trail as strongly as he did the first, and that neither he nor Daro were influenced by outside factors as to which route to take. Upon arriving at the defendant's car the second time, which remained parked on a public street, Daro jumped through an open window, sniffed the interior of the car, and began biting the driver seat. Cari explained that this indicated that the person in the driver seat was the source of the scent he picked up on the baseball cap. During this time, the defendant was not in his car nor in the immediate vicinity of his car.
After indicating on the driver seat, Daro then jumped back out of the car through the same open window he used to enter, and followed the scent trail from the car to the front door of the house located at 79-81 Rangely Street. After jumping up on the front door of the house, Daro then led Cari around the house to its back door, where he again jumped up on the door. Cari explained that Daro's jumping up on the front and back door of the house indicated that he wanted to follow the scent through the door and into the house. Cari testified that several people were speaking with police officers inside the house and that he did not allow Daro to go into the premises out of liability concern.
As a preliminary matter, the court sets forth the applicable principles of law that govern its analysis. "In order to challenge a search or seizure on fourth amendment grounds, a defendant must show that he has a reasonable expectation of privacy in the place searched . . . Absent such an expectation, the subsequent police action has no constitutional ramifications." (Citation omitted; internal quotation marks omitted.) State v. Vallejo, 102 Conn.App. 628, 635-36, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007), citing State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). To demonstrate that he has a reasonable expectation of privacy, a defendant must satisfy a two-part subjective/objective test: "(1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable . . . This determination is made on a case-by-case basis . . . Whether a defendant's actual expectation of privacy . . . is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances . . . Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing . . ." (Internal quotation marks omitted.) State v. Vallejo, supra, 102 Conn.App. 635-36.
With respect to the first prong of this analysis, it is noted that "a subjective expectation of privacy rests on finding conduct that has demonstrated an intention to keep activities or things private and free from knowing exposure to others' view . . . Accordingly, to meet this burden a defendant must show facts sufficient to create the impression that (1) his relationship with the location was personal in nature, (2) his relationship with the location was more than sporadic, irregular or inconsequential and (3) he maintained the location and the items within it in a private manner at the time of the search." (Citations omitted; internal quotation marks omitted.) State v. Boyd, 57 Conn.App. 176, 185, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000); accord Rakas v. Illinois, 439 U.S. 128, 152-53, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
In the present case, no evidence was introduced as to the ownership of the automobile in which the defendant was sitting when Daro indicated on it. Although consistently referred to as the defendant's car in the briefs, no evidence was introduced to support that conclusion. Passengers in an automobile have no reasonable expectation of privacy and, therefore, lack standing to contest a search of the automobile. United States v. Rakas, supra, 439 U.S. at 148-49; State v. Altrui, 188 Conn. 161, 178-79 (1982); State v. Burns, 23 Conn.App. 602, 611-12 (1990); State v. Kimble, 106 Conn.App. 572, 584, cert. denied, 287 Conn. 912 (2008). Here, the defendant produced no evidence to support an expectation of privacy. Nonetheless, the court will address the defendant's claims,
The car was left parked on a public street with one of its windows rolled down far enough for a full size German Shepherd to jump through it. Thus, the car was not kept in a location that was personal in nature, such as a garage, but left it on a public street. Moreover, one of the car's windows was left open, suggesting no intent to keep the items within it private at the time of the canine sniff. Accordingly, the court concludes that the defendant did not have a subjective expectation of privacy because the car was left open to the public on a public street.
Similarly, the court concludes that the defendant did not have an objectively reasonable expectation of privacy. Indeed, "a reasonable expectation of privacy under [the objectivity] prong stems from a place where society is prepared, because of its code and values and its notions of custom and civility, to give deference to a manifested expectation of privacy . . . The determination of what Connecticut citizens would consider reasonable in the present day . . . is made on a case-by-case basis . . . [and] involves a fact-specific inquiry into all the relevant circumstances." (Citation omitted; internal quotation marks omitted.) State v. Boyd, supra, 57 Conn.App. 187-88; citing State v. Bernier, 246 Conn. 63, 72, 717 A.2d 652 (1998).
Courts evaluating whether an objective expectation of privacy exists are usefully guided by several non-exclusive factors. "Such factors include 1) ownership of or other conventional property interests in the premises or its contents; 2) use of the location as a residence; 3) use of the premises on a regular basis for professional, religious, or business purposes; 4) presence at the time of the search, or at other times; 5) security measures undertaken by the defendant to ensure the privacy of the particular area searched; 6) a defendant's authority over the premises; 7) a defendant's ability or right to exclude others from the area; 8) use of the particular location as a repository for the defendant's personal belongings; 9) a defendant's subjective expectation that the premises would remain free from Government intrusion; and 10) whether any of the defendant's interests or efforts taken to ensure privacy were in existence or were undertaken at the time of the search or seizure." (Internal quotation marks omitted.) State v. Boyd, supra, 57 Conn.App. 188; citing United States v. Gerena, 662 F.Sup. 1218, 1253 (D.Conn. 1987); see also State v. Mooney, 218 Conn. 85, 95-97, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991). Factors such as these "are, of course, relevant as helpful guides, but should not be undertaken mechanistically. They are not ends in themselves; they merely aid in evaluating the ultimate question in all fourth amendment cases — whether the defendant had a legitimate expectation of privacy, in the eyes of our society, in the area searched." Id.
Connecticut citizens would not expect to give deference to a manifested expectation of privacy to a car on a public street that had one of its windows open. In the first instance, the "public is fully aware that it is accorded less privacy in its automobiles because of [the] compelling governmental need for [motor vehicle] regulation." (Internal quotation marks omitted.) California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); accord State v. Campbell, Superior Court, judicial district of New Britain, Docket No. CR 03 0207843 (June 25, 2004, Alexander, J.) (37 Conn. L. Rptr. 245); see also State v. Hynes, Superior Court, judicial district of New Haven, Docket No. CR6476582 (October 6, 1999, Licari, J.) ("[t]here is a diminished expectation of privacy in automobiles"). Moreover, it is not reasonable for a person to harbor an expectation of privacy in a car which is left open to the public by failing to lock its doors or to close its windows. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 10 L.Ed.2d 576 (1967) ("[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection"). The Court, therefore, concludes that the defendant had neither a subjectively nor objectively reasonable expectation of privacy in the interior of the car at the time Daro jumped through its open window to track the alleged scent of the perpetrator. In view of this decision, "the subsequent police action ha[d] no constitutional ramifications"; (citation omitted; internal quotation marks omitted). State v. Vallejo, supra, 102 Conn.App. 635-36; and the defendant's motion to suppress the canine sniff is denied.
Even if the defendant did have a reasonable expectation of privacy, the court holds in the alternative that the canine sniff of the exterior of the car was not a search, and that even if it was, was supported by reasonable and articulable suspicion. With respect to the first line of reasoning, whether the exterior canine sniff of the car was a search for purposes of the fourth amendment to the United States Constitution, the court concludes that it is not. While the fourth amendment protects people from unreasonable government intrusions into their legitimate expectations of privacy, "the canine sniff is sui generis," and, consequently, the "exposure of [a defendant's personal property] which [is] located in a public place, to a trained canine [does] not constitute a `search' within the meaning of the Fourth Amendment." United States v. Place, supra, 462 U.S. 707; accord Illinois v. Caballes, 543 U.S. 405, 409-10, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (police officer not required to possess independent reasonable and articulable suspicion of narcotics possession to expose exterior of defendant's car to a canine sniff during an unrelated and routine traffic stop because canine sniff is not a search); see also State v. Blanco, 0600129932 (August 5, 2007, Calmar, J.) (44 Conn. L. Rptr. 163) ("The use of a drug detecting dog in and of itself does not constitute a search . . . Therefore, the use of the dog, with or without reasonable suspicion or probable cause, does not implicate the fourth amendment.").
The rationale underlying this holding is that "a well-trained narcotics-detection dog [is] sui generis because it discloses only the presence or absence of narcotics, a contraband item. United States v. Place, supra, 462 U.S. 707. Moreover, the court has held this position to be fully coterminous with its ruling in Kyllo v. United States, 533 U.S. 27, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (use of thermal-imaging device to detect growth of marijuana in home constituted unlawful search). "Critical to that decision was the fact that the device was capable of detecting lawful activity — in that case, intimate details in a home, such as at what hour each night the lady of the house takes her daily sauna and bath . . . The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the non-detection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Illinois v. Caballes, supra, 543 U.S. 400-10.
In this case, the defendant was sitting in the car, which was parked on a public street, when police officers pursuing the scent of an armed robber were led to the car by a well-trained canine unit. Although the dog was not sniffing for narcotics, Daro was sniffing for the unique scent of the person who had just robbed Ann's Market at gunpoint less than an hour before. Thus, because Daro's track of the perpetrator in this case disclosed only the presence of the unique scent of the armed robber, and did not reveal other personal and potentially embarrassing information about the defendant, Daro's sniff of the car was similarly limited in its scope to that of the narcotics dog sniffing the exterior of the defendant's luggage in Place or the dog sniffing the exterior of the defendant's car in Caballes. Also similar to the respective canine sniffs in both Place and Caballes, Daro's initial indication on the car resulted from his sniff of the exterior of the defendant's personal property, which was abandoned and located in a public venue where the police were entitled to be present. Accordingly, the court concludes that Daro's initial sniff of the exterior of the car was not a search that implicated the safeguards enshrined in the fourth amendment to the United States Constitution.
The defendant next argues that the police did not have sufficient probable cause to allow Daro to sniff the interior of the car. To the extent that (1) the defendant enjoyed a reasonable expectation of privacy in the car, (2) the canine sniff of the interior of the car constituted a search, and (3) a canine sniff of the interior of the car required a showing of probable cause, the court holds in the alternative that the police met that burden in this case.
It is axiomatic that "[t]he fourth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions." (Internal quotation marks omitted.) State v. Hedge, 59 Conn.App. 272, 276-77, 756 A.2d 319 (2000). There are, however, four recognized situations where a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States Constitution. These are: "(1) it was made incident to a lawful arrest; (2) it was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime; (3) it was based upon consent; or (4) it was conducted pursuant to an inventory of the car's contents incident to impounding the car." (Internal quotation marks omitted.) State v. Garcia, 108 Conn.App. 533, 544-45, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008); accord State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). To the extent that these exceptions are found unavailing to justify a warrantless search of a vehicle, "[u]nder the exclusionary rule, [the] evidence must be suppressed [as] it is . . . the fruit of prior police illegality." (Internal quotation marks omitted.) Id., 543.
In connection with the automobile exception, it has been justified for two separate and discrete reasons: "(1) the inherent mobility of an automobile creates `exigent circumstances'; and (2) the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." Badgett, supra, 200 Conn. 428. Significantly, the United States Supreme Court has placed an increasing emphasis on the reduced expectation of privacy justification for this exception. See 3 W. LaFave, supra, § 7.2(b), pp. 476-77. In California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the court stated that "[e]ven in cases where an automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justifie[s] application of the vehicular exception." Thus, under the fourth amendment, a warrantless vehicle search does not require a showing of exigent circumstances. See Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 447 (1999), accord State v. Smith, 257 Conn. 216, 229, 777 A.2d 182 (2001).
As previously noted, the automobile exception "demands that the officers have probable cause to believe that the vehicle contains contraband . . . The absence of probable cause . . . will ender any warrantless search unreasonable." (Citations omitted.) State v. Badgett, supra, 200 Conn. 429. Moreover, "the probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made . . . The absence of probable cause, despite the exigency created by the ready mobility of automobiles and the lesser expectation of privacy in them, will render any warrantless search unreasonable . . . Probable cause to search exists if (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items ought to be seized will be found in the place to be searched." CT Page 1212 State v. Wilson, 111 Conn.App. 14, 623-24 (2008). Finally, because there was no search warrant for the automobile, the state has the burden of proof to show the justification for the search on the basis of one or more of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
In this case, the police were investigating an armed robbery that had occurred within an hour of the time that Daro first indicated the source of his scent trail to be in the defendant's car. At that time, the police had the reasonable suspicion necessary to temporarily seize the defendant and his passenger for purposes of investigating that crime.17 Moreover, once the police had ordered the defendant out of the car, they confirmed that he matched the description of the perpetrator given to police by eyewitnesses. Additionally, Cari then took Daro back to the hat to undertake a second track to verify that Daro did not deviate from his first track of the suspect. This second track produced the exact same result. Inasmuch as Daro's identification of the suspect as between the two passengers in the car was itself sought as evidence of a crime; see State v. Maina, Superior Court, judicial district of Hartford, Docket No. H12M MV05 0394794 (May 31, 2005, Swords, J.) (39 Conn. L. Rptr. 436) (motion to suppress evidence of defendant's identity denied); Cari could reasonably believe that evidence of the crime would be located in the car. Thus, at the time Daro jumped into the car to sniff its interior for purposes of identifying the perpetrator, the police had detained the defendant as a suspect in an armed robbery that took place less than an hour prior and that occurred only a few blocks away from the location where a well trained canine unit had lead them to the defendant — a man fitting the description of the perpetrator given to police by eyewitnesses. In view of these factors, the court concludes that the police had probable cause to search the defendant's car.
Consequently, the court holds that (1) the defendant did not have a reasonable expectation of privacy in the car to trigger protection under the fourth amendment, (2) the canine sniff of the exterior of the car was not a search for purposes of the fourth amendment, (3) the police had the requisite reasonable suspicion to justify the canine sniff of the exterior of the car, (4) and, at the time that the police allowed Daro to sniff the interior of the car, they had the probable cause necessary to conduct that sniff.
CONCLUSION
The court, therefore, denies both (1) the defendant's motion in limine to preclude dog tracking evidence of a police canine unit that was used by police officers to track the defendant from the crime scene to the location of his arrest, and (2) the defendant's motion in limine to preclude evidence of a canine sniff of the driver seat in the defendant's car.