State v. Waz

692 A.2d 1217, 240 Conn. 365, 1997 Conn. LEXIS 80

Opinions

Opinion

PALMER, J.

The sole issue presented by this appeal is whether article first, § 7, of the Connecticut constitution¹ prohibits the police from subjecting a mail parcel in the possession of the United States Postal Service to a canine sniff examination by a trained narcotics detection dog based upon a reasonable and articulable suspicion that the mail contains illegal drugs. The defendant, Jamison Martin Waz, entered a conditional plea of nolo contendere, under General Statutes § 54-94a and Practice Book § 4003 (a),² to possession of more than four ounces of marijuana in violation of General Statutes § 2 la-279 (b)³ following the trial court’s denial of his motion to suppress marijuana found in a parcel seized from his automobile. The trial court accepted the plea and rendered judgment thereon.⁴ The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts, as set forth in the trial court’s decision on the defendant’s motion to suppress, are undisputed. “On March 24, 1994, Postal Inspector Thomas Lambert identified an Express Mail⁵ package addressed to Down Deep, Inc., 34-3 Shunpike Road, #104, Cromwell, CT. 06416 as fitting characteristics of the ‘drug package profile.’ This profile consists of the following characteristics: [1] [s]ize and shape of the package; [2] [wjhether the package is taped to close or seal all openings; [3] [h]andwritten or printed labels; [4] [n] ature and destination of the package; [5] [t]he absence or presence of odors; [6] [w]hether the zip code of the sender matches that put on by the postal clerk; [7] [w]hether it contains a fictitious return address; [8] [o]rigin of the package; and [9] [t]he outward appearance of the package.

“At a suppression hearing held on September 22 and October 27,1994, Lambert testified that the Down Deep, Inc. package fit a number of characteristics relative to the drug package profile. Such characteristics included: [1] [t]he fact that the edges were taped to seal all openings; [2] [t]he package contained a fictitious return address; [3] [t]he package contained handwritten labels; [4] [i]t came from a source state, i.e., California; and [5] [t]he size and shape of the package. He further stated that the package was sent via Express Mail which, based on his seven years of training and experience as a Postal Inspector and four years experience in narcotic[s] investigations, is primarily the exclusive carrier used by individuals to transport controlled substances through the United States mail.

“It was a combination of each of these profile characteristics as well as the use of Express Mail which gave rise to Lambert’s suspicions that the parcel contained a controlled substance. He then removed the package from the mail stream and obtained a narcotics trained dog named ‘Zak’⁶ to externally examine the parcel. The parcel was placed among eight other similar sized parcels. Zak, however, twice alerted to the Down Deep, Inc. parcel while it was placed in different positions on the floor.

“Lambert then applied for and obtained a federal search warrant to open the package. When the search warrant was executed, it was discovered that the package contained approximately one-half pound of suspected marijuana. A field test revealed a positive reaction for the presence of marijuana. The package was then resealed for the purpose of conducting a controlled delivery. Later that day on March 24,1994, members of the mid-state narcotics unit and Postal Inspectors Lambert and Terry Loftus began surveillance of the mail drop addressed to Down Deep, Inc. At approximately 2:28 p.m. on March 24,1994, the defendant picked up the Down Deep, Inc. package from the mail drop. Shortly thereafter, he was stopped and taken into custody. The parcel containing marijuana was seized from the right front floorboard of the vehicle the defendant was operating.” The defendant was arrested and charged with possession of marijuana and possession of marijuana with intent to sell.

The defendant moved to suppress the marijuana on the ground that the canine sniff of the parcel was a warrantless search in violation of the fourth amendment to the United States constitution⁷ and article first, § 7, of the Connecticut constitution. The trial court concluded that although the canine sniff was not a search within the meaning of the fourth amendment, the brief seizure of the parcel for the purpose of conducting the canine sniff required a showing of reasonable and articulable suspicion. The trial court further concluded that because the state had established that Lambert had a reasonable and articulable suspicion that the parcel contained illegal drugs, the defendant’s federal constitutional claim was without merit. The trial court declined to address the defendant’s state constitutional claim because he had failed to provide an adequate analysis of that claim. Accordingly, the trial court denied the defendant’s suppression motion. The defendant then entered a conditional plea of nolo contendere to a substitute information charging him with possession of more than four ounces of marijuana,⁸ and this appeal from the trial court’s judgment of conviction followed.

On appeal, the defendant does not challenge the trial court’s conclusion that Lambert possessed a reasonable and articulable suspicion concerning the contents of the parcel. Nor does he claim that the investigation of his parcel caused any delay in its delivery or that its brief removal from the mail stream constituted an unreasonable seizure in violation of article first, § 7, of the constitution of Connecticut.⁹ Rather, the defendant’s sole contention is that the canine sniff of the parcel constituted a search for purposes of article first, § 7, and, therefore, that the state was required to obtain a search warrant based upon probable cause before subjecting the mail to the canine sniff.¹⁰ The state claims that the canine sniff was not a search within the meaning of article first, § 7, and, consequently, that the use of that investigative technique does not implicate the state constitutional prohibition against unreasonable searches.¹¹ The state further maintains that even if the canine sniff was a search within the meaning of article first, § 7, it was constitutionally permissible because Lambert had a reasonable and articulable suspicion that the parcel contained contraband.¹² We need not decide whether the canine sniff of the parcel constituted a search under article first, § 7, because we conclude that even if it did, the state constitution requires no more than a showing that the investigating officers had a reasonable and articulable suspicion that the parcel contained contraband.¹³

As we have indicated, the defendant concedes that Lambert had a reasonable and articulable suspicion that the parcel contained illegal drugs, and the state concedes that Lambert did not have probable cause to believe that the parcel contained contraband prior to the canine alert. Because we assume, without deciding, that the canine sniff of the mail constituted a search for purposes of the state constitution, we must determine whether Lambert was required to obtain a search warrant based upon probable cause before subjecting the parcel to the canine sniff, as the defendant claims, or whether Lambert’s reasonable and articulable suspicion that the parcel contained contraband provided a sufficient constitutional basis for the use of that technique, as the state contends.¹⁴

“When evaluating the rights afforded to Connecticut citizens under the state constitution, we consider, to the extent applicable, six factors: (1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms. State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Geisler, [222 Conn. 672, 684-86, 610 A.2d 1225 (1992)].” State v. Trine, 236 Conn. 216, 230 n.12, 673 A.2d 1098 (1996). In this case, our adjudication of the defendant’s state constitutional claim is informed principally by those federal and sister state cases involving the use of a trained narcotics detection dog.¹⁵ Our review of those precedents persuades us that the canine sniff in this case did not violate article first, § 7, of the state constitution.¹⁶

The seminal federal case involving the use of a trained narcotics detection dog is United States v. Place, 462 U.S. 696, 707, 103 S. Ct, 2637, 77 L. Ed. 2d 110 (1983), wherein the United States Supreme Court concluded that a canine sniff of luggage briefly detained upon reasonable suspicion in a public airport “[does] not constitute a ‘search’ within the meaning of the Fourth Amendment.”¹⁷ See also United States v. Jacobsen, 466 U.S. 109, 123-24, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984).¹⁸ In concluding that the use of the canine sniff technique in those circumstances did not constitute a search requiring probable cause, the Place court stated that “[a] ‘canine sniff by a well-trained narcotics detection dog . . . does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. . . . We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” United States v. Place, supra, 707.

For the reasons enumerated in Place, federal courts are unanimous in concluding that the fourth amendment is not violated when police briefly detain a piece of mail suspected of containing illegal drugs for the purpose of subjecting it to an examination by a trained narcotics detection dog. See, e.g., United States v. Banks, 3 F.3d 399, 402 (11th Cir. 1993), cert. denied, 510 U.S. 1129, 114 S. Ct. 1097, 127 L. Ed. 2d 410 (1994) (package sent via Express Mail); United States v. Aldaz, 921 F.2d 227, 229-31 (9th Cir. 1990), cert. denied, 501 U.S. 1207, 111 S. Ct. 2802, 115 L. Ed. 2d 975 (1991) (package sent via United States mail using express delivery); United States v. Lux, 905 F.2d 1379, 1381-82 (10th Cir. 1990) (package sent via Express Mail); United States v. LaFrance, 879 F.2d 18 (1st Cir. 1989) (package sent via Federal Express); United States v. Mayomi, 873 F.2d 1049, 1053-54 (7th Cir. 1989) (mail received at private mail box); Garmon v. Foust, 741 F.2d 1069, 1072-73 (8th Cir. 1984) (mailed package received at dormitory); United States v. Martinez, 869 F. Sup. 202, 205-207 (S.D.N.Y. 1994) (packages sent via Express Mail); United States v. Dillon, 810 F. Sup. 57, 61 (W.D.N.Y. 1992) (parcels shipped via United Parcel Service); United States v. Cantrall, 762 F. Sup. 875, 878-80 (D. Kan. 1991) (package sent via Express Mail); United States v. Sklar, 721 F. Sup. 7, 14 (D. Mass. 1989) (package sent via Express Mail), rev’d in part on other grounds, 920 F.2d 107 (1st Cir. 1990) ; United States v. Holden, Docket No. 88-20105-01, 1989 U.S. Dist. LEXIS 1144, *5 (D. Kan. Jan. 9, 1989) (package sent via Express Mail); United States v. Mena, Docket No. 86-CR-524, slip. op. (N.D. Ill. Oct. 20, 1986) (package shipped via United Parcel Service).¹⁹

State courts are similarly in accord, under their respective state constitutions, that the police need no more than a reasonable and articulable suspicion to justify the use of the canine sniff technique on an object that has been briefly detained for that purpose. A number of state courts have concluded that a canine sniff is not a search for state constitutional purposes and, consequently, that a judicial determination of probable cause prior to subjecting the item to an examination by a trained narcotics detection dog is unnecessary. See, e.g., People v. Mayberry, 31 Cal. 3d 335, 337, 644 P.2d 810, 182 Cal. Rptr. 617 (1982) (luggage in airport); Daniels v. Cochrane, 654 So. 2d 609, 612-13 (Fla. App. 1995) (package sent via Federal Express); O’Keefe v. State, 189 Ga. App. 519, 526, 376 S.E.2d 406 (1988) (automobile); State v. Snitkin, 67 Haw. 168, 173, 681 P.2d 980 (1984) (package at Federal Express office); State v. Cancel, 256 N.J. Super. 430, 436-37, 607 A.2d 199 (1992), cert. denied, 134 N.J. 484, 634 A.2d 530 (1993) (routine use of dogs to detect narcotics at public airports); State v. Villanueva, 110 N.M. 359, 362-63, 796 P.2d 252 (N.M. App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990) (luggage at border checkpoint); State v. Waldroup, 100 Ohio App. 3d 508, 514, 654 N.E.2d 390 (1995) (automobile); State v. Palicki, 97 Ohio App. 3d 175, 181-82, 646 N.E.2d 494 (1994) (automobile); State v. Stanphill, 53 Wash. App. 623, 630-31, 769 P.2d 861 (1989) (package sent via Express Mail); State v. Boyce, 44 Wash. App. 724, 730, 723 P.2d 28 (1986) (safety deposit box). Moreover, the vast majority of state courts that have determined that the use of a trained narcotics detection dog constitutes a search for state constitutional purposes have also concluded that, because of the search’s relatively unintrusive, contraband-specific nature, no more than a reasonable and articulable suspicion is required to justify the search. See, e.g., McGahan v. State, 807 P.2d 506, 510-11 (Alaska App. 1991) (exterior of warehouse); Pooley v. State, 705 P.2d 1293, 1311 (Alaska App. 1985) (luggage checked with airline); People v. May, 886 P.2d 280, 281 (Colo. 1994) (package sent via Express Mail); People v. Boylan, 854 P.2d 807, 811 (Colo. 1993) (package sent via Federal Express); People v. Unruh, 713 P.2d 370, 377-78 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986) (safe in police custody); State v. Pellicci, 133 N.H. 523, 534-35, 580 A.2d 710 (1990) (automobile); People v. Dunn, 77 N.Y.2d 19, 25-26, 564 N.E.2d 1054, 563 N.Y.S.2d 388 (1990), cert. denied, 501 U.S. 1219, 111 S. Ct. 2830, 115 L. Ed. 2d 1000 (1991) (common hallway outside defendant’s apartment door); Commonwealth v. Johnston, 515 Pa. 454, 462-64, 530 A.2d 74 (1987) (rented storage locker); cf. People v. Offen, 78 N.Y.2d 1089, 1091, 585 N.E.2d 370, 578 N.Y.S.2d 121 (1991) (even if canine sniff of package shipped by United Parcel Service was search, it was justified by reasonable and articulable suspicion); State v. Kosta, 75 Or. App. 713, 719, 708 P.2d 365 (1985) (even if canine sniff of package sent via Federal Express was search, it was justified by reasonable and articulable suspicion), aff'd on other grounds, 304 Or. 549, 748 P.2d 72 (1987); but see Commonwealth v. Martin, 534 Pa. 136, 143, 626 A.2d 556 (1993) (probable cause required for canine sniff of satchel being carried by suspect). Thus, the overwhelming weight of federal and sister state authority supports the state’s contention that a canine sniff examination of a mail parcel briefly detained upon reasonable and articulable suspicion does not run afoul of constitutionally protected privacy rights.²⁰

The defendant relies primarily on United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 88 L. Ed. 2d 54 (1985), and Commonwealth v. Martin, supra, 534 Pa. 136, to support his claim that the canine sniff of his parcel required a search warrant based upon probable cause. In Thomas, the Court of Appeals for the Second Circuit concluded that a canine sniff conducted outside the defendant’s apartment constituted an unreasonable search in violation of the fourth amendment and, therefore, that the warrant authorizing the search of the apartment was defective because it was predicated upon the fact that the dog had alerted to the presence of drugs. United States v. Thomas, supra, 1366-67. The court distinguished the case before it from United States v. Place, supra, 462 U.S. 696, concluding that because an individual has a heightened privacy interest in his or her dwelling place, the canine sniff technique is more intrusive of a person’s privacy rights when it is employed at one’s home than when it is used in a public airport.²¹ United States v. Thomas, supra, 1366.

Similarly, in Martin, the Supreme Court of Pennsylvania concluded that probable cause was required under the Pennsylvania constitution before the police could conduct a canine sniff of a satchel being carried by a suspected drug dealer. Commonwealth v. Martin, supra, 534 Pa. 143. Previously, in Commonwealth v. Johnston, supra, 515 Pa. 465-66, the Pennsylvania Supreme Court had concluded that a canine sniff for the presence of drugs in a storage locker was a search for state constitutional purposes requiring reasonable and articulable suspicion. In Martin, the court distinguished Johnston as involving the use of a canine sniff to search a place rather than a person. Commonwealth v. Martin, supra, 142-43. Relying on the fact that the defendant had been carrying the satchel when the police detained him and seized the bag for the purpose of subjecting it to the canine sniff, the court in Martin, noting that “an invasion of one’s person is, in the usual case, [a] more severe intrusion on one’s privacy interest than an invasion of one’s property,” concluded that the search was subject to the higher standard of probable cause. Id. Because both Thomas and Martin are based on the heightened privacy interests that pertain to one’s house or person, neither case advances the defendant’s claim that a prior judicial determination of probable cause is required for a canine sniff of a parcel placed in the mail.²² See, e.g., United States v. Sklar, supra, 721 F. Sup. 14 (“the [cjourtis convinced that the privacy interest asserted by [the defendant in his Express Mail package] is more akin to that suggested by the [United States] Supreme Court in Place [luggage] [rather] than that discussed by the Second Circuit in Thomas [apartment]”); State v. Phaneuf, 597 A.2d 55, 58 (Me. 1991) (“[w]e reject [the defendant’s] contention that the fourth amendment creates a heightened expectation of privacy in the mail akin to that in one’s domicile” [emphasis in original]).

The defendant also maintains that his claim finds support in a number of United States Supreme Court and United States Court of Appeals cases recognizing a right to privacy in letters or parcels sent through the mail.²³ We agree with the defendant that he retained a legitimate expectation of privacy, under both the state and the federal constitutions, in the parcel of mail that Lambert caused to be subjected to the canine sniff. See Washington v. Meachum, 238 Conn. 692, 723, 680 A.2d 262 (1996) (article first, § 7, requires determination of whether party claiming infringement of right to privacy has manifested subjective expectation of privacy and, if so, whether that expectation is one society is prepared to recognize as reasonable); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994) (same). The cases cited by the defendant, however, were all decided before Place and contemplate a warrantless opening of the mail by the police to inspect its contents, rather than an examination of the air outside the parcel by a trained narcotics detection dog.²⁴ Because the defendant’s privacy rights in his parcel derive primarily from the recognized community interest in ensuring that the state does not intrude unreasonably upon the contents of such items, we reject the defendant’s claim that the external, olfactory examination of his parcel by a trained narcotics detection dog entitled him to the same level of constitutional protection to which he would have been entitled had the police sought to open and inspect the parcel. Accordingly, we are satisfied that even if a canine sniff examination of a mail parcel in the possession of the United States Postal Service implicates our state constitutional prohibition against unreasonable searches, the use of the technique was permissible in this case because it was minimally, if at all, intrusive of the defendant’s legitimate privacy rights, and the officer conducting the canine sniff had a reasonable and articu-lable suspicion that the parcel contained illegal drugs.²⁵ We therefore reject the defendant’s claim that the trial court improperly denied his motion to suppress the marijuana seized from his automobile.

The judgment is affirmed.

In this opinion BORDEN, NORCOTT and PETERS, Js., concurred.

Footnotes

1

Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

2

General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” Practice Book § 4003 (a) contains a substantially similar provision.

3

General Statutes § 21a-279 (b) provides: “Any person who possesses or has under his control any quantity of a hallucinogenic substance other than marijuana or four ounces or more of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than five years or be fined not more than two thousand dollars or be both fined and imprisoned, and for a subsequent offense may be imprisoned not more than ten years or be fined not more than five thousand dollars or be both fined and imprisoned.”

4

The trial court sentenced the defendant to a term of imprisonment of five years, execution suspended after ninety days, and three years probation.

5

Express Mail is a service offered by the United States Postal Service whereby delivery of a parcel is guaranteed by the next day.

6

Although Lambert supervised the investigation, Zak was under the control and supervision of Trooper Gerald Wagner of the Connecticut state police.

7

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.”

8

The state withdrew the charge of possession of marijuana with intent to sell.

9

Cf. United States v. Place, 462 U.S. 696, 706-707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (without violating fourth amendment, police may briefly detain luggage located in public area of airport for purpose of subjecting it to canine sniff upon reasonable and articulable suspicion that luggage contains illegal drugs); id., 717-18 n.5 (Brennan, J., concurring) (“ ‘[T]he mere detention of mail not in [the defendant’s] custody or control amounts to at most a minimal or technical interference with his person or effects, resulting in no personal deprivation at all.’ [United States v. Place, 660 F.2d 44, 53 (2d Cir. 1981), aff'd, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983).]”).

10

Although the defendant suggested at oral argument that he did not intend to abandon his fourth amendment claim, his brief focuses solely on his state constitutional claim. Accordingly, we will consider only that claim.

11

The state also argues that we should decline to review the defendant’s state constitutional claim because he makes no express reference to the guidelines governing our review of unpreserved constitutional claims set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the defendant did fail to engage in the analysis called for by Golding, the state, at oral argument, acknowledged that the factual record is sufficient for review of the defendant’s claim under Golding. Cf. State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995) (appellate review appropriate despite defendant’s failure to invoke Golding regarding unpreserved claim of constitutional error). We will address the defendant’s state constitutional claim, therefore, despite his failure to invoke our review under the criteria specified in Golding. We admonish defendants who seek consideration of unpreserved constitutional claims, however, that they bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding.

Finally, the state notes that it “does not concede that the defendant has standing to challenge the canine sniff of the parcel addressed to a fictitious entity, despite the trial court’s ruling to the contrary.” Because the state has failed to brief this issue, we decline to address it.

12

The state does not claim either that the drug package profile alone provided the probable cause required for the issuance of the federal search warrant or that the affidavit in support of the warrant otherwise contained sufficient information independent of the canine alert to support its issuance. Accordingly, the state does not challenge the defendant’s claim that the marijuana seized pursuant to the federal search warrant must be suppressed as “fruit of the poisonous tree” if the canine sniff was constitutionally impermissible. See, e.g., State v. Greenfield, 228 Conn. 62, 67, 634 A.2d 879 (1993).

13

In State v. Torres, 230 Conn. 372, 645 A.2d 529 (1994), we recently considered a constitutional challenge to the use of a trained narcotics detection dog. In Torres, the defendant claimed that the canine sniff of his automobile was an unconstitutional search under both the federal and the state constitutions because it was not supported by a reasonable and articulable suspicion. Id., 380. We concluded that the police, who had relied upon a highly accurate anonymous tip in stopping and conducting a canine sniff of the defendant’s vehicle, possessed a reasonable and articulable suspicion that the vehicle contained contraband. Id., 384. We declined, however, to reach the issue of whether the canine sniff at issue constituted a search under either the federal or the state constitution “because: (1) we have found no case that has held such a sniff of an automobile, properly stopped by the police, to a standard more demanding than reasonable and articulable suspicion ... (2) the defendant in oral argument in this court conceded that standard to be applicable to the facts of this case; and (3) the canine sniff of the defendant’s automobile at issue here was based on reasonable and articulable suspicion.” Id., 381-82; see also State v. Smith, 38 Conn. App. 29, 40-41, 658 A.2d 156 (1995) (even if canine sniff of luggage left unclaimed at airport baggage counter for over five hours constituted search for purposes of fourth amendment, federal constitutional requirements were met since police had reasonable and articulable suspicion regarding contents of luggage).

The present case differs from Torres in three material respects. First, the defendant in this case contends that probable cause, rather than reasonable and articulable suspicion, is the standard to be applied to the canine sniff. Second, this case does not involve the search of an automobile, which is an established exception to the warrant requirement under both the fourth amendment; see Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); and article first, § 7. See State v. Delossantos, 211 Conn. 258, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); cf. State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993). Finally, the defendant in the present case does not dispute that the postal inspector had a reasonable and articulable suspicion that the parcel contained contraband. As in Torres, however, we need not, and therefore do not, decide whether, or in what circumstances, a canine sniff constitutes a search for purposes of the state constitution. State v. Torres, supra, 230 Conn. 382 (we generally will not consider constitutional question unless its resolution is absolutely necessary to case). We note, however, that “[f]ederal courts that have addressed the issue of whether a canine sniff is a search have come to different results depending on the circumstances of the search and to what extent the search infringes on reasonable expectations of privacy. . . . State courts also have reached varied conclusions under their state constitutions.” (Citations omitted.) Id., 381-82 n.5.

14

Before embarking upon an analysis of these competing claims, we first note the similarities and distinctions between the two tests. Both are objective standards to be applied from the perspective of a reasonable police officer in light of the totality of the known circumstances. See, e.g., State v. Trine, 236 Conn. 216, 224-25, 673 A.2d 1098 (1996); State v. Diaz, 226 Conn. 514, 541, 628 A.2d 567 (1993). The two standards differ, however, with respect to the nature and amount of information available to the police. “Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.” (Internal quotation marks omitted.) State v. Diaz, supra, 541. In contrast, reasonable and articulable suspicion requires that the investigating officer “be able to point to specific and [identifiable] facts which, taken together with rational inferences from those facts,” provide “a particularized and objective basis” for suspecting that criminal activity is afoot. (Internal quotation marks omitted.) See State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991). Consequently, although reasonable and articulable suspicion is more than mere speculation or conjecture; id.; it “is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable to show probable cause. . . .” (Citations omitted; internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 468, 656 A.2d 646 (1995).

15

To the extent the other factors bear even marginal relevance to the issue before us, they do not provide support for the defendant’s claim. First, the text of article first, § 7, is similar to the language of the fourth amendment; see, e.g., State v. Miller, 227 Conn. 363, 381, 630 A.2d 1315 (1993); State v. Marsala, 216 Conn. 150, 159, 579 A.2d 58 (1990); and, as we discuss more fully hereinafter, the overwhelming weight of authority interpreting the fourth amendment is contrary to the state constitutional argument espoused by the defendant. Second, the history of article first, § 7, sheds no light on the appropriate standard to be applied to a canine sniff because that investigative technique was unknown at the time our constitution was adopted in 1818. See State v. Miller, supra, 381-82; cf. State v. Marsala, supra, 167 n.12 (article first, § 7, enacted to prohibit general warrants and writs of assistance). Third, the holdings and dicta of this court and the Appellate Court lend no support to the claim advanced by the defendant. See footnote 13. Finally, the defendant suggests no contemporary economic or sociological considerations that militate in favor of his state constitutional argument.

16

Of course, our analysis is guided by the well established principle that a search or seizure conducted without a warrant issued upon probable cause is presumptively unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). “Our constitutional preference for warrants is overcome only in specific and limited circumstances. See, e.g., State v. Geisler, supra, [222 Conn.] 691 (recognizing emergency exception as matter of state constitutional law); State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989) (recognizing exception for search incident to arrest as matter of state constitutional law); State v. Dukes, [209 Conn. 98, 126, 547 A.2d 10 (1988)] (recognizing automobile exception on the highway as a matter of state constitutional law).” State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993). Among the other recognized exceptions to the warrant requirement under the state constitution is the brief detention of an individual for investigative puiposes if the investigating officer has a reasonable and articulable suspicion that the individual has commit! ed or is about to commit a crime. See, e.g., State v. Trine, supra, 236 Conn. 223. This exception to the warrant requirement, first recognized under the federal constitution in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), also permits the officer to conduct a limited weapons search of the detained individual if the officer reasonably believes that the individual might be armed and dangerous. State v. Trine, supra, 223-24.

17

In determining that the initial seizure of the luggage for the purpose of subjecting it to a canine sniff was justified upon a showing of reasonable and articulable suspicion, the court balanced “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion”; United States v. Place, supra, 462 U.S. 703; and concluded that the principles underlying the exception to the probable cause requirement for limited seizures of the person recognized in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny were equally applicable to the detention of the luggage in that. case. United States v. Place, supra, 705-706. The court went on to conclude, however, that the length of the detention of the defendant’s luggage “exceeded the permissible limits of a Terry-type investigative stop.” Id., 709. As previously noted, the defendant in this case challenges only the examination of the parcel by the trained narcotics detection dog, and not the seizure of the parcel or the length of its detention by the investigating officers.

18

In United States v. Jacobsen, supra, 466 U.S. 123-24, the United States Supreme Court expressly adopt ed it s conclusion in Place as a holding.

19

State courts considering the question have also concluded that a canine sniff examination of a piece of mail is not a search requiring probable cause for purposes of the fourth amendment. See, e.g., State v. 1969 Volkswagen Bus, 120 Axiz. 365, 367, 586 P.2d 210 (1978) (parcel shipped via United Parcel Service); People v. Salih, 173 Cal. App. 3d 1009, 1015, 219 Cal. Rptr. 603 (1985) (mail parcel); Daniels v. Cochran, 654 So. 2d 609, 612-13 (Fla. App. 1995) (package sent via Federal Express); State v. Snitkin, 67 Haw. 168, 173, 681 P.2d 980 (1984) (package at Federal Express office); State v. Daly, 14 Kan. App. 2d 310, 318-19, 789 P.2d 1203 (1990), review denied, 246 Kan. 769 (1990) (package sent via Federal Express); State v. Phaneuf, 597 A.2d 55, 58 (Me. 1991) (package sent via first class mail); State v. Morrison, 243 Neb. 469, 475-76, 500 N.W.2d 547 (1993) (package sent via Express Mail); State v. Kesler, 396 N.W.2d 729, 734-35 (N.D. 1986) (package sent via fourth class mail); State v. Stanphill, 53 Wash. App. 623, 630-31, 769 P.2d 861 (1989) (package sent via Express Mail); see also State v. Walker, 530 So. 2d 1200, 1203 (La. App.), cert. denied, 532 So. 2d 763 (La. 1988) (indicating canine sniff of package shipped by commercial carrier not search under fourth amendment); State v. Cooper, 163 Vt. 44, 48, 652 A.2d 995 (1994) (indicating canine sniff of package sent via Express Mail not search under fourth amendment).

20

Indeed, neither the dissent nor the defendant has cited a single case — either federal or state — in which a standard higher than reasonable and articulable suspicion has been deemed applicable to a canine sniff of a parcel sent through the mail.

Moreover, the dissent’s reliance on Doe v. Renfrow, 475 F. Sup. 1012 (N.D. Ind. 1979), aff'd in part, 631 F.2d 91 (7th Cir. 1980), is profoundly misplaced. In that, case, local school officials, acting only on a generalized suspicion of drug use in the school, subjected every student at the school to an examination by a trained narcotics detection dog. The dog erroneously alerted to several students, including Doe, who was then compelled to remove her clolhing and subjected to a warrantless body search.

The facts of this case bear no resemblance whatsoever to the facts in Doe. In the present case, the canine sniff was conducted not on a person — much less a grade school student — but on a mail parcel in the possession of the United States Postal Service. In addition, the canine sniff conducted in this case, in contrast to the use of the narcotics detection dog in Doe, was predicated upon a reasonable and particularized suspicion that the defendant’s parcel contained illegal drugs. Furthermore, the postal inspector in the present case, unlike the school officials in Doe, obtained a search warrant issued upon probable cause prior to conducting a full-blown, invasive search of the mail parcel’s contents. Finally, the defendant has never challenged the accuracy of the canine sniff technique, either in the trial court or in this court. In light of the vast and obvious differences between this case and Doe, we firmly reject the dissent’s suggestion that Doe has any relevance to this case.

21

The validity of the Thomas decision has been challenged in light of Place and its progeny. See, e.g., United States v. Lingenfelter, 997 F.2d 632, 638-39 (9th Cir. 1993) (court expressly rejected reasoning of Thomas in concluding that canine sniff of commercial warehouse is not search requiring any level of suspicion); United States v. Colyer, 878 F.2d 469, 475-76, 477-79 (D.C. Cir. 1989) (questioning reasoning of Thomas in concluding that canine sniff of hallway outside sleeper car of train is not search requiring any level of suspicion); see also United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990) (reasonable suspicion not needed to conduct canine sniff of private garage from public alley); United States v. Whitehead, 849 F.2d 849, 855-58 (4th Cir.), cert. denied, 488 U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d 566 (1988) (canine sniff of sleeping compartment on train is not search requiring any level of suspicion).

22

The dissent suggests that the reason why the federal authorities referred the defendant’s case to the state for prosecution is because the examination of a mail parcel by a narcotics detection dog would be unlikely to pass muster under United States v. Thomas, supra, 757 F.2d 1359. This hypothesis is entirely unsupported by either the record or the holding in Thomas. Indeed, a far more plausible explanation for the referral is that the quantity of marijuana found in the defendant’s parcel did not meet federal prosecutorial guidelines.

23

See United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970) (“[i]t has been long held that first-class mail such as letters and sealed packages subject to letter postage — as distinguished from newspapers, magazines, pamphlets, and other printed matter — is free from inspection by postal authorities, except in the manner provided by the [f]ourth [ajmendment”); Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) (“[t]he constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household”); United States v. Huie, 593 F.2d 14, 15 (5th Cir. 1979) (recognizing reasonable expectation of privacy held by sender and recipient of mail in contents of sealed mailing); United States v. Choate, 576 F.2d 165, 174 (9th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 350, 58 L. Ed. 2d 344 (1978) (“it is settled that the [fjourth [ajmendment’s protection against ‘unreasonable searches and seizures’ protects a citizen against the warrantless opening of sealed letters and packages addressed to him in order to examine the contents”).

24

Two decisions of this court cited by the defendant, State v. Joyce, supra, 229 Conn. 10 (warrantless chemical analysis of defendant’s clothing constituted unreasonable search in violation of state eonstil ution), and State v. Mooney, 218 Conn. 85, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991) (warrantless search of homeless defendant’s duffel bag and cardboard box that defendant both regarded and utilized as home violated fourth amendment), are also inapposite to this case because neither involved the use of a trained narcotics detection dog to examine the outside of a package lawfully seized for that limited purpose.

Moreover, we disagree with the dissent’s equation of the canine sniff in this ease with the use of the “vapor machine designed to detect the chemical composition of odors” in State v. Joyce, supra, 229 Conn. 10. Indeed, in Joyce, we expressly distinguished the chemical analysis conducted in that ease from the canine sniff employed in United States v. Place, supra, 462 U.S. 696, stating that Place “turn[s] on the fact that the [canine sniff] employed detects] only the presence of contraband narcotics, [while] . . . the gas chromatograph test is not designed to detect the presence of contraband, and in fact detects the presence and identity of many organic substances.” (Citations omitted.) State v. Joyce, supra, 24 n.17. Although we agree that the use of the canine sniff technique, like most other investigative methods, is not infallible, we disagree with the dissent’s unsupported assertion that “a dog’s sniff can detect many other private facts.”

25

The dissent incorrectly states that our decision “stands the holding in Terry [v. Ohio, supra, 392 U.S. 1,] on its head.” A canine sniff of the air surrounding a piece of mail reasonably suspected of containing contraband is less an invasion of the defendant’s privacy interest in his parcel than is the brief investigatory detention and weapons patdown of an individual who the police reasonably suspect of engaging in criminal activity, a police practice that is permitted under both the federal and the state constitutions. See footnote 16. Although the canine sniff of a mail parcel in the possession of the United States Postal Service does not involve the exigencies inherent in a Terry stop, the unintrusive nature of the canine sniff, coupled with the state’s legitimate law enforcement objectives, leads us inexorably to the conclusion that any reasonable expectation of privacy that the defendant may have in the area to be examined, namely, the air surrounding his parcel, is satisfied by a showing of reasonable and articulable suspicion.

Finally, the dissent also characterizes our decision as “reach[ing] an absurd result.” Though such an assertion hardly merits a response, we simply reiterate that the conclusion reached by the dissent has been rejected by each and every federal and state court that has considered the use of the canine sniff technique on a parcel of mail.