Summary
rejecting defendant's claim that recording of phone conversation with consent of only one party violated her reasonable expectation of privacy under state constitution and concluding that statute providing for civil cause of action for failure to obtain consent to record by all parties to conversation, with "multiple, wide-ranging exceptions," "does not reflect a sweeping policy against recording all private telephone conversations ... but rather demonstrates that the legislature has carefully balanced the concern for protecting citizens’ privacy against multiple other countervailing policy interests"
Summary of this case from Fay v. MerrillOpinion
No. 19415.
09-15-2015
STATE of Connecticut v. Joanne A. SKOK.
John L. Cordani, Jr., with whom was Damian K. Gunningsmith, New Haven, for the appellant (defendant). Lawrence J. Tytla, supervisory assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).
John L. Cordani, Jr., with whom was Damian K. Gunningsmith, New Haven, for the appellant (defendant).
Lawrence J. Tytla, supervisory assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).
ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
McDONALD, J.After a jury trial, the defendant, Joanne A. Skok, was convicted of larceny in the first degree in violation of General Statutes § 53a–122, and conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a–48 and 53a–122. The convictions were based in part on evidence that included warrantless recordings of telephone conversations between the defendant and Jacqueline Becker, which were recorded with Becker's, but not the defendant's, consent. The principal issue on appeal is whether the recording of those telephone conversations without a warrant or the defendant's consent violates the prohibition on unreasonable searches and seizures under article first, § 7, of the Connecticut constitution. The defendant also argues that she was denied due process because the trial court failed to conduct an independent inquiry regarding her competence to stand trial pursuant to Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), after she alleged that her physical condition prevented her from sitting for trial for an extended period of time. We conclude that recording a telephone conversation with the consent of one party to that conversation does not violate article first, § 7, of the state constitution, and that the trial court's failure to inquire into the defendant's competency was not improper. We therefore affirm the judgment of the trial court.
We note that § 53a–122 was amended by the legislature in 2009 during the events underlying the present case; see Public Acts 2009, No. 09–138, § 1; that amendment has no bearing on the merits of this appeal. We refer to the current revision of the statute in this opinion.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–2.
It is not clear whether the defendant's due process claim is predicated on the state or federal constitution, but, because she has not provided an independent analysis of this issue under State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), we deem abandoned any state constitutional due process claim. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n. 9, 72 A.3d 367 (2013) (“we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue” [internal quotation marks omitted] ). Accordingly, we analyze the defendant's due process claim under the federal constitution only.
The jury reasonably could have found that the defendant defrauded Becker, an elderly widow, of tens of thousands of dollars when, after befriending Becker, she devised and developed a story designed to make Becker believe that the defendant was helping her resolve a legal dispute and that a supposed mob boss was involved in that dispute. The jury reasonably could have found the following facts in support of its verdict with respect to the crimes of which the defendant was convicted.
The defendant and Becker developed a close friendship after they worked together to organize a town fair. They talked on the telephone daily, visited each other's houses, and occasionally spent a holiday together. The two frequently discussed the happenings of their respective families, the town fair, financial and health problems, and other topics of common discussion among friends. As close friends are wont to do, Becker and the defendant shared confidences between themselves. When the defendant shared with Becker that she was unable to pay some of her medical bills related to various health problems she was suffering, Becker loaned her money to cover those expenses. Becker, too, at one point confided in the defendant and the defendant's husband, John Skok, regarding a legal problem she was facing. It was that revelation by Becker that provided the catalyst for the defendant's elaborate ruse aimed at defrauding Becker out of her retirement savings.
Becker's legal issue first arose after she agreed to cosign a loan for her grandson to purchase a car. Becker submitted the application paperwork, but when she did not hear back from the automobile dealership and her grandson later came to her house with the car, Becker assumed that someone else had cosigned the loan because she never “sign[ed] the deed.” Becker's grandson was later involved in a car accident and a legal action was brought against Becker after the car was repossessed. Though Becker claimed that the car was not hers, she later learned that the loan and the car's registration were in her name alone, and that her signature had been forged.
When Becker relayed these problems to the defendant, the defendant offered to help. She told Becker that John Skok's nephew, Stuart Skok, was employed by the Federal Bureau of Investigation (FBI) and could “quietly check” into what had happened with the car's registration. The defendant told Becker not to discuss Stuart Skok's involvement in the matter with anyone because he could get in trouble with the FBI if they knew he was working on a private case. The defendant later informed Becker that Stuart Skok's investigation had uncovered that a mob boss owned the dealership where the car was purchased. The defendant advised Becker that she needed to hire a private investigator and an attorney, and later informed her that a legal action would be filed on Becker's behalf against the mob boss. Becker never personally met or spoke with anyone named Stuart Skok, the purported private investigator, or the purported attorney. Rather, the defendant claimed that she would serve as the conduit for all of the necessary information between Becker and those individuals.The defendant also claimed to serve as the conduit for the purported payments that Stuart Skok, the private investigator, and the attorney required for their services. The defendant periodically told Becker how much was supposedly owed and requested that a check for that amount be paid from Becker directly to the defendant and John Skok or that Becker deliver to the defendant or John Skok the requested amount in cash. Additionally, instead of repaying Becker for the loans she had made to the defendant to cover the defendant's medical costs, the defendant offered to reduce the amount Becker owed in litigation costs by whatever amount the defendant owed Becker.
In total, Becker gave the defendant more than $40,000. Although all of Becker's payments were deposited into a joint bank account belonging to the defendant and John Skok, there were never any withdrawals from that account that corresponded with the amounts deposited, nor any checks made out to Stuart Skok, or to anyone who appeared to be an attorney or an investigator.
As time went on and Becker's payments amassed, the defendant's story spiraled into an even more implausible tale. The defendant explained that, in settlement of Becker's claims against the supposed mob boss, Becker was to receive proceeds from the sale of the mob boss' property in California to a South American diplomat. Unfortunately, according to the defendant, the settlement proceeds never arrived because the attorney to whom the diplomat's check was given had been hit by a car, and his briefcase, with the check inside, was missing.
In an effort to conceal her scheme, the defendant insisted that Becker not allow her family to overhear their conversations and admonished Becker to not tell her family about the defendant's involvement in the legal action against the mob boss. One of Becker's granddaughters, who had been living with her at the time, nevertheless became suspicious of the defendant's activities after she overheard Becker talking on the telephone with the defendant about an attorney in Brazil who had been struck by a car and lost a check that was supposed to be given to Becker. Becker's family members then contacted the police, who were unable to find any FBI personnel records associated with anyone named Stuart Skok.
When police officers met with Becker at her home to discuss the defendant's conduct, she agreed to allow them to set up recording equipment on her telephone. The officers instructed Becker on how to use the recording equipment and told her that, if the defendant called and began discussing Becker's legal action, she should try to coax further conversation on that topic from the defendant. Becker then recorded multiple conversations with the defendant wherein the defendant insisted that Becker not allow her family members to overhear their conversations and then made references to “Stu”—referring to Stuart Skok—“lawyers,” and “the mob.” The defendant also expressed her concern that an attorney sent to South America to receive funds from the sale of a mob boss' house had been intentionally hit by a car and demanded that Becker ask her financial advisor to disperse funds from her retirement account immediately so that Becker could pay the defendant for attorney's fees.
A state police officer was later present for and recorded a conversation between Becker and the defendant, after he coached Becker on the types of questions to ask during the call. During that call, in response to Becker's allegations that the defendant had stolen her money, the defendant asserted that she was only trying to help Becker and claimed that the money went “where it was supposed to go.” The defendant again made references to an attorney, the mob, and Stuart Skok, and insisted that “Stu” was a real person. The recordings were admitted as full exhibits at trial and were played for the jury without objection by the defendant.
Following trial, the jury returned a verdict of guilty on both counts alleging larceny in the first degree and conspiracy to commit larceny in the first degree. The trial court thereafter rendered judgment in accordance with the verdict, and this appeal followed. See footnote 2 of this opinion.
I
We begin with the defendant's claim that the recorded telephone conversations between Becker and herself were obtained in violation of article first, § 7, of the Connecticut constitution. The defendant contends that she had a reasonable expectation of privacy in her telephone conversations with Becker, notwithstanding Becker's consent to record them. She therefore argues that recording the conversations without first obtaining a warrant was unconstitutional because no exception to the warrant requirement applies in this case. Because the defendant did not object to the admission of the recordings at trial, however, she seeks review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). See id. (permitting defendant to prevail on unpreserved claim only if: “[1] the record is adequate to review the alleged claim of error; [2] the claim is of constitutional magnitude alleging the violation of a fundamental right; [3] the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and [4] if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt” [footnote omitted] ); see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). The state agrees with the defendant that the first two prongs of Golding are satisfied and concedes that if the admission of the tape recordings was improper, it was not harmless error. The state argues, however, that the defendant's constitutional rights were not violated, and, therefore, her claim fails under the third prong of Golding. We agree.
Article first, § 7, of the Connecticut constitution provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures....” In defining the scope of that right, we focus on the defendant's reasonable expectation of privacy. State v. Davis, 283 Conn. 280, 324, 929 A.2d 278 (2007). If a defendant has no reasonable expectation of privacy in the object of the search, “subsequent police action has no constitutional ramifications.” (Internal quotation marks omitted.) State v. Boyd, 295 Conn. 707, 718, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011). To determine whether a defendant has a reasonable expectation of privacy, we use the two part test that Justice Harlan set forth in his concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). That test asks, first, whether the defendant manifested a subjective expectation of privacy, and, second, whether that expectation is one that society would consider reasonable. Id.; see State v. Boyd, supra, at 718, 992 A.2d 1071 ; see also, e.g., State v. DeFusco, 224 Conn. 627, 636, 620 A.2d 746 (1993) (no reasonable expectation of privacy in garbage placed on curb in front of defendant's house because myriad of intruders could have sorted through it).
This court has not yet considered whether, under article first, § 7, of the state constitution, recording a telephone conversation with the consent of only one party violates the nonconsenting individual's reasonable expectation of privacy, although we have previously upheld such recordings as constitutional under the fourth amendment to the federal constitution. See State v. Grullon, 212 Conn. 195, 207 n. 7 and 207–208, 562 A.2d 481 (1989). A practice permitted under the fourth amendment, however, may still be prohibited under the Connecticut constitution because the federal constitution “establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). “In determining the contours of the protections provided by our state constitution, we employ a multifactor approach that we first adopted in Geisler. The factors that we consider are (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 [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms [otherwise described as public policies].” (Internal quotation marks omitted.) State v. Kelly, 313 Conn. 1, 14, 95 A.3d 1081 (2014) ; see also State v. Lockhart, 298 Conn. 537, 546–47, 4 A.3d 1176 (2010). We have noted, however, that “these factors may be inextricably interwoven, and not every [such] factor is relevant in all cases.” (Internal quotation marks omitted.) State v. Kelly, supra, at 14–15, 95 A.3d 1081.
Although Justice Zarella raises a concern in his concurring opinion regarding this court's application of the Geisler factors, because the parties have not asked us to reconsider how we apply Geisler, we need not address this issue.
At the outset, we recognize that two Geisler factors—the first and the fifth—do not support the defendant's claim that the conduct at issue in the present case violated her rights under article first, § 7, and indeed, the defendant concedes as much. With respect to those factors, this court recently explained: “[N]either the text nor the history of article first, § 7, [of the state constitution] provides any reason to depart from the United States Supreme Court's interpretation of the federal constitution.... As we have previously held, the text of article first, § 7, is similar to the text of the fourth amendment. ... Moreover, [w]ith respect ... to ... the historical circumstances surrounding the adoption of article first, § 7... we have stated that [t]he declaration of rights adopted in 1818 appears to have its antecedents in the Mississippi constitution of 1817, which in turn derived from the federal bill of rights and the Virginia declaration of rights of 1776.... The language of article first, § 7, which was based upon the fourth amendment, was adopted with little debate.... Thus, the circumstances surrounding the adoption of article first, § 7, lend weight to the view that, in most cases, a practice permitted under the fourth amendment is permissible under article first, § 7.” (Citation omitted; footnote added; internal quotation marks omitted.) State v. Williams, 311 Conn. 626, 634, 88 A.3d 534 (2014).
The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”
Furthermore, because Connecticut courts have not yet considered whether article first, § 7, provides greater protection than the federal constitution with respect to recording telephone conversations with only one party's consent, the second Geisler factor also does not support the defendant's claim. See State v. Davis, supra, 283 Conn. at 310, 929 A.2d 278 (where issue was left unresolved by prior Connecticut cases, second Geisler factor did not support defendant's claim). The cases on which the defendant relies in support of her argument to the contrary are inapposite in the present case. The defendant cites cases that support the proposition that a warrant is generally required when law enforcement officials seek to search a place or object in which a defendant has a reasonable expectation of privacy. See, e.g., id., at 311, 929 A.2d 278. The defendant also argues that the constitutional preference for a warrant is only overcome in specific and limited circumstances. See, e.g., State v. Joyce, 229 Conn. 10, 24–25, 639 A.2d 1007 (1994) ; State v. Miller, 227 Conn. 363, 382–85, 630 A.2d 1315 (1993). These principles, however, do not enlighten our analysis for determining whether a defendant has a reasonable expectation of privacy in the object of the search, such that a warrant would be required in the first instance. See State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986) ( “Because the constitutional prohibition against unreasonable searches and seizures affords protection only against invasions of reasonable expectations of privacy ... our threshold inquiry is whether the defendant in fact possessed a reasonable expectation of privacy.... Absent such an expectation, the subsequent police action has no constitutional ramifications.” [Citations omitted.] ). Accordingly, we are not persuaded by the defendant's argument as to the second Geisler factor.
Our resolution of this claim, then, is guided by our analysis of the third, fourth and sixth prongs of Geisler. Consequently, we next consider whether federal precedent supports the defendant's argument that recording her telephone conversations with Becker's consent violated her constitutional rights. Through a series of cases, the United States Supreme Court has made it apparent that the fourth amendment does not prohibit such recordings. In Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), the court held that it was not unconstitutional under the fourth amendment for a “false friend”; id., at 757, 72 S.Ct. 967 ; i.e., an individual working as an undercover agent for law enforcement, to enter the defendant's place of business and, while wired for sound, engage the defendant in a conversation wherein he made incriminating statements. Id., at 749–51, 72 S.Ct. 967. The court noted in that case that the defendant was simply “talking ... indiscreetly with one he trusted,” and that the fact that he was overheard by the use of a wire had no constitutional ramifications because the recording was “with the connivance of one of the parties” to the conversation. Id., at 753–54, 72 S.Ct. 967. This holding was reaffirmed in subsequent cases. See, e.g., Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (fourth amendment does not protect “a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it”); Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (permissible to record in person conversations because defendant has no “constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment”).
Although Lee, Hoffa, and Lopez all preceded the adoption of the reasonable expectation of privacy test in Katz, in United States v. White, 401 U.S. 745, 749–50, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), a plurality of the court concluded that the principles announced in those cases were “left undisturbed by Katz. ” In White, the court concluded that, although the defendant may have had a subjective expectation of privacy in conversations that were transmitted by a wire concealed on a government informant, such an expectation was not objectively reasonable, and, therefore, the defendant's fourth amendment claim failed on the second prong of the Katz test. Id., at 751–52, 91 S.Ct. 1122. Pointing to its prior precedents, the court explained: “If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the [s]tate's case.” Id., at 752, 91 S.Ct. 1122. The court further explained that “one contemplating illegal activities must realize and risk that his companions may be reporting to the police,” and that, in determining whether to confide in or conspire with another person regarding those illegal activities, it seemed unlikely that a defendant “would distinguish between probable informers on the one hand and probable informers with transmitters on the other.” Id. Although White involved the recording of in person conversations between a defendant and an informant, the reasoning in White has been uniformly applied in subsequent federal cases to conclude that recording telephone conversations with only one party's consent, without a warrant, is also permissible under the fourth amendment. See, e.g., United States v. Santillo, 507 F.2d 629, 635 (3d Cir.), cert. denied sub nom. Buchert v. United States, 421 U.S. 968, 95 S.Ct. 1960, 44 L.Ed.2d 457 (1975) ; United States v. Bonanno, 487 F.2d 654, 658 (2d Cir.1973) ; Holmes v. Burr, 486 F.2d 55, 60 (9th Cir.), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973).
Four justices agreed with this conclusion. United States v. White, supra, 401 U.S. at 746, 91 S.Ct. 1122. Justice Black concurred in the judgment, but adhered to his position that Katz was wrongly decided. Id., at 754, 91 S.Ct. 1122.
Cf. Rathbun v. United States, 355 U.S. 107, 111, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957) (A telephone conversation that is overheard with one party's consent is not “interception” under the federal wiretap act because “[e]ach party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain.”).
Notwithstanding White, the defendant contends that federal precedent supports her argument that recording telephone conversations with the consent of only one party violates her constitutional rights. She argues that White should have little persuasive value in our analysis because it was a plurality opinion which has been the subject of academic criticism. We disagree. We first note that the fact that academics have criticized the rule in White does not mean that its precedential value was altered. Moreover, the defendant's argument ignores that the plurality's decision was the logical extension of the court's prior precedent, and that, although the rule in White only garnered the support of four justices at the time it was decided, the so-called third-party consent rule in White has been cited approvingly by a majority of the court in subsequent cases and has been followed in every federal court of appeals. See, e.g., United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979) (“[n]either the [c]onstitution nor any [a]ct of Congress requires that official approval be secured before conversations are overheard or recorded by [g]overnment agents with the consent of one of the conversants”). Thus, federal cases considering reasonable expectations of privacy under the fourth amendment strongly support the conclusion that it is not unconstitutional to record a telephone conversation with only one party's consent, and, therefore, the third Geisler factor also does not support the defendant's claim.
See, e.g., G. Ashdown, “The Fourth Amendment and the ‘Legitimate Expectation of Privacy,’ ” 34 Vand. L.Rev. 1289, 1311 (1981) (arguing that reasoning in White is flawed because privacy expectations are altered considerably when conversations are electronically transmitted, and that, even if one may reasonably expect that remarks “will [not] remain absolutely confidential, it is unlikely that he appreciates the risk of their disclosure to the government”); S. Brenner & L. Clarke, “Fourth Amendment Protection for Shared Privacy Rights in Stored Transactional Data,” 14 J.L. & Policy 211, 215 (2006) (arguing that third-party consent doctrine should not allow government to “reap a windfall” in technology age where, perhaps unknowingly, significant amount of private data is disclosed to third parties); A. Loewy, “The Fourth Amendment as a Device for Protecting the Innocent,” 81 Mich. L.Rev. 1229, 1256–63 (1983) (arguing that third-party consent doctrine inappropriately focuses on rights of guilty, rather than innocent, persons).
See also United States v. Jacobsen, 466 U.S. 109, 122–23, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ; United States v. Jones, 533 Fed.Appx. 562, 571 (6th Cir.), cert. denied, ––– U.S. ––––, 134 S.Ct. 834, 187 L.Ed.2d 693 (2013) ; United States v. Novak, 531 F.3d 99, 101 (1st Cir.2008) ; United States v. Brathwaite, 458 F.3d 376, 380 (5th Cir.2006) ; United States v. Corona–Chavez, 328 F.3d 974, 978 (8th Cir.2003) ; United States v. Longoria, 177 F.3d 1179, 1183–84 (10th Cir.1999) ; In re Askin, 47 F.3d 100, 104–105 (4th Cir.), cert. denied, 516 U.S. 944, 116 S.Ct. 382, 133 L.Ed.2d 305 (1995) ; United States v. Smith, 918 F.2d 1551, 1558 (11th Cir.1990) ; United States v. Chiavola, 744 F.2d 1271, 1275 (7th Cir.1984) ; United States v. Scios, 590 F.2d 956, 991 n. 73 (D.C.Cir.1978) ; United States v. Santillo, supra, 507 F.2d at 635 ; United States v. Bonanno, supra, 487 F.2d at 658 ; Holmes v. Burr, supra, 486 F.2d at 60 ; see also People v. Collins, 438 Mich. 8, 24, 475 N.W.2d 684 (1991) (noting that United States Supreme Court's decision in United States v. Caceres, supra, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979), “made crystal clear” that fourth amendment to federal constitution does not require warrant to record telephone conversation with informant's consent).
With respect to the fourth Geisler factor, namely, persuasive sister state precedents, an overwhelming majority of states have concluded, in varying contexts, that it is permissible under their state constitutions for law enforcement officials to overhear or record conversations without a warrant, if they have one party's consent to do so. See, e.g., Commonwealth v.
Multiple courts have reached this conclusion specifically in the context of police recording of telephone conversations. See, e.g., People v. Strozzi, 712 P.2d 1100, 1102–1103 (Colo.App.1985), cert. denied, 476 U.S. 1105, 106 S.Ct. 1950, 90 L.Ed.2d 359 (1986) ; State v. Graham, 70 Haw. 627, 638–40, 780 P.2d 1103 (1989) ; People v. Shinkle, 128 Ill.2d 480, 486, 132 Ill.Dec. 432, 539 N.E.2d 1238 (1989) ; Carrier v. Commonwealth, 607 S.W.2d 115, 117 (Ky.App.1980) ; People v. Collins, 438 Mich. 8, 40, 475 N.W.2d 684 (1991) ; State v. Geraldo, 68 Ohio St.2d 120, 126, 429 N.E.2d 141 (1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2038, 72 L.Ed.2d 486 (1982) ; Commonwealth v. Rekasie, 566 Pa. 85, 98–99, 778 A.2d 624 (2001) ; State v. Ahmadjian, 438 A.2d 1070, 1081–82 (R.I.1981) ; State v. Andrews, 324 S.C. 516, 520, 479 S.E.2d 808 (App.1996) ; State v. Corliss, 123 Wash.2d 656, 663–64, 870 P.2d 317 (1994) ; Blackburn v. State, 170 W.Va. 96, 105, 290 S.E.2d 22 (1982) ; see also Commonwealth v. Eason, 427 Mass. 595, 600, 694 N.E.2d 1264 (1998) (no violation to eavesdrop on telephone conversation with one party's consent); State v. Wetter, 190 Vt. 476, 483, 35 A.3d 962 (2011) (same). Although Eason and Wetter involved situations in which police eavesdropped on, rather than recorded, telephone conversations, we find these cases equally persuasive, and, indeed, at oral argument before this court, counsel for the defendant agreed that a defendant's expectation of privacy is the same regardless of whether the police merely overhear, but do not record, a telephone conversation. Furthermore, because the defendant relies on cases involving the police recording of in person conversations, we also note that multiple other courts, using the reasoning in White, have not found those situations where the police fit an informant with a body wire to overhear the contents of such a conversation to be unconstitutional. See, e.g., Smithey v. State, 269 Ark. 538, 544, 602 S.W.2d 676 (1980) ; Lawhorn v. State, 452 N.E.2d 915, 918–19 (Ind.1983) ; Lee v. State, 489 So.2d 1382, 1386 (Miss.1986) ; State v. Engleman, 634 S.W.2d 466, 477 (Mo.1982) ; State v. Kilgus, 128 N.H. 577, 591, 519 A.2d 231 (1986) ; People v. McGee, 49 N.Y.2d 48, 61, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979) (Meyer, J., concurring), cert. denied sub nom. Waters v. New York, 446 U.S. 942, 100 S.Ct. 2166, 2167, 64 L.Ed.2d 797 (1980) ; State v. Levan, 326 N.C. 155, 172, 388 S.E.2d 429 (1990) ; State v. Loh, 780 N.W.2d 719, 724 (N.D.2010) ; State v. Sanders, 452 S.W.3d 300, 315 (Tenn.2014) ; State v. Boone, 581 P.2d 571, 573 (Utah 1978) ; Almada v. State, 994 P.2d 299, 311 (Wyo.1999).
Rekasie, 566 Pa. 85, 96, 778 A.2d 624 (2001) (“A telephone call received by or placed to another is readily subject to numerous means of intrusion at the other end of the call, all without the knowledge of the individual on the call. Extension telephones and speakerphones render it impossible for one to objectively and reasonably expect that [a call] will be free from intrusion.”). Indeed, our research has revealed only one state—Montana—that has found it unconstitutional to record telephone conversations with only one party's consent. State v. Allen, 357 Mont. 495, 516, 241 P.3d 1045 (2010). That decision, however, was based in large part on the court's recognition that the Montana constitution contains a provision that protects the “right of individual privacy”; id., at 511, 241 P.3d 1045 ; and that during the debates of the 1972 state constitutional convention adopting that provision, delegates specifically “decried electronic monitoring and eavesdropping in general” when considering the adoption of that provision. Id., at 514, 241 P.3d 1045.
Although the defendant contends that “[o]ver a dozen state [s]upreme [c]ourts have rejected the [third-party consent] doctrine” under their state constitutions, in support of that proposition, she cites to a law review article that examined the third-party consent doctrine more broadly. See O. Kerr, “The Case for the Third–Party Doctrine,” 107 Mich. L.Rev. 561, 564 (2009) ; id., at 564 n. 11, citing S. Henderson, “Learning from All Fifty States: How To Apply the Fourth Amendment and Its State Analogs To Protect Third Party Information from Unreasonable Search,” 55 Cath. U.L.Rev. 373 (2006). Henderson's article notes that several states have held various police actions unconstitutional, including, inter alia, the installation of a pen register, the search of garbage left for collection, and the search of bank records. S. Henderson, supra, at 396–405. We are not persuaded that decisions of our sister states addressing these different factual circumstances should alter our analysis in the present case.
In support of her argument, the defendant also relies on the decisions of six states that have held unconstitutional the warrantless audio recording of face-to-face conversations between the defendant and a police informant. See State v. Glass, 583 P.2d 872, 879 (Alaska 1978) ; Commonwealth v. Blood, 400 Mass. 61, 70, 507 N.E.2d 1029 (1987) ; State v. Goetz, 345 Mont. 421, 439, 191 P.3d 489 (2008) ; Commonwealth v. Brion, 539 Pa. 256, 257, 652 A.2d 287 (1994) ; State v. Blow, 157 Vt. 513, 519, 602 A.2d 552 (1991) ; State v. Mullens, 221 W.Va. 70, 91, 650 S.E.2d 169 (2007). She contends that these cases support her position that it is unconstitutional to record, without a warrant, a private telephone conversation with only one party's consent because these cases stand for the proposition that “it is perfectly reasonable for individuals to expect that their private conversations are not being electronically monitored....” In all but one of these cases, however, the court reached its conclusion in large part because the conversations that were recorded took place entirely within the confines of the defendant's home, and the court recognized that activities occurring within the home have been given the utmost constitutional protection. See, e.g., Commonwealth v. Brion, supra, at 260, 652 A.2d 287 (“[i]f nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home”). Moreover, three of those courts that concluded that it is unconstitutional to record in person conversations later distinguished that factual scenario from a situation like the one at issue in the present case, where one party to a telephone conversation consents to having that conversation overheard or recorded by the police. See Commonwealth v. Eason, 427 Mass. 595, 600, 694 N.E.2d 1264 (1998) (The court held that it was permissible under its state constitution for the police to overhear conversations between the defendant and an informant because the “defendant knew, when speaking on the telephone, that his words were being transmitted electronically beyond his home.... [H]e had no reason to assume that the conversation would not be heard by a third party. A person cannot control the conditions at the other end of a telephone conversation.”); Commonwealth v. Rekasie, supra, 566 Pa. at 97, 778 A.2d 624 (The expectation of privacy in a face-to-face conversation occurring solely within the home is “[q]ualitatively different” than a telephone call, where “an individual has no ability to create an environment in which he or she can reasonably be assured that the conversation is not being intruded upon by another party. On the telephone, one is blind as to who is on the other end of the line.”); State v. Wetter, 190 Vt. 476, 483, 35 A.3d 962 (2011) (“[w]hile a person may have a reasonable expectation that face-to-face conversations with another person in his or her own home are not being broadcast outside the home,” no reasonable expectation of privacy in telephone conversation because individual has no “knowledge of the circumstances at the other end of the conversation”). Even assuming, without deciding, that we agree with those courts that have found a reasonable expectation of privacy in face-to-face conversations occurring within the home, we believe that there is a logical distinction between those situations and the one at issue in the present case. Thus, the fourth Geisler factor also weighs strongly against expanding the reach of article first, § 7, to protect those situations where an individual who is voluntarily cooperating with law enforcement officers consents to the recording of a telephone conversation.
See also State v. Glass, supra, 583 P.2d at 881 n. 35 (“[w]e have previously recognized the high degree of protection surrounding the home”); Commonwealth v. Blood, supra, 400 Mass. at 70, 507 N.E.2d 1029 (“it is objectively reasonable to expect that conversational interchange in a private home will not be invaded surreptitiously by warrantless electronic transmission or recording” [emphasis added] ); State v. Blow, supra, 157 Vt. at 518, 602 A.2d 552 (one “deeply-rooted legal and societal principle [is] that the coveted privacy of the home should be especially protected”); State v. Mullens, supra, 221 W.Va. at 90, 650 S.E.2d 169 (“[A]ctivities which take place within the sanctity of the home merit the most exacting [constitutional] protection.... For this reason, the jurisprudence of this [c]ourt ... has drawn a firm line at the entrance to the house.” [Citations omitted; internal quotation marks omitted.] ); but see State v. Goetz, supra, 345 Mont. at 433, 191 P.3d 489 (impermissible under state constitutional provision protecting right to privacy to record conversations occurring in home and vehicle).
We also note that, in Mullens, the Supreme Court of Appeals of West Virginia explicitly limited its holding to those cases in which the police send an informant into a defendant's home to record communications therein. State v. Mullens, supra, 221 W.Va. at 91, 650 S.E.2d 169. That court had earlier concluded that the warrantless electronic recording of a defendant's telephone conversation with the consent of a participant of the conversation did not violate the state constitution. Blackburn v. State, 170 W.Va. 96, 105, 290 S.E.2d 22 (1982).
As for the final Geisler factor—public policy—the defendant argues that our legislature has evinced a policy of intolerance for the surreptitious recording of telephone conversations. We first note that the legislature has not made it a criminal offense to record a private telephone conversation when one party to the conversation consents to the recording. See General Statutes § 53a–187(a)(1) (defining “ ‘[w]iretapping’ ” as “the intentional overhearing or recording of a telephonic ... communication ... by a person other than a sender or receiver thereof, without the consent of either the sender or receiver”); General Statutes § 53a–188(a)(2) (person is guilty of tampering with private communication only where “he does not have the consent of the sender or receiver”). The legislature has, however, created a civil cause of action against a person who records a private telephone conversation without the consent of all parties to the communication. General Statutes § 52–570d(a) prohibits the use of “any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment ... is preceded by consent of all parties to the communication,” or other statutorily defined signals are provided that warn a party to the communication that it is being recorded. Although this statute does exhibit a policy concern for privacy, we note that it also contains multiple, wide-ranging exceptions, including that it does not apply to “[a]ny federal, state or local criminal law enforcement official who in the lawful performance of his duties records telephonic communications”; General Statutes § 52–570d(b)(1) ; or to “[a]ny person who, as the recipient of a telephonic communication which conveys threats of extortion, bodily harm or other unlawful requests or demands, records such telephonic communication....” General Statutes § 52–570d(b)(3). This statute, therefore, does not reflect a sweeping policy against recording all private telephone conversations as the defendant suggests, but rather demonstrates that the legislature has carefully balanced the concern for protecting citizens' privacy against multiple other countervailing policy interests.
We note that the defendant does not argue that § 52–570d(a) was in fact violated when her calls with Becker were recorded. While we need not decide that issue in the present case, it may well be that the recordings in this case fall within the exception for recording a conversation “which conveys threats of extortion ... or other unlawful requests or demands,” as the state claims, or another exception to the statute. To the extent that the conduct at issue in this case would satisfy one of the statutory exceptions, the defendant certainly could not claim that she had a reasonable expectation of privacy in her conversations with Becker on the basis of this statute alone.
The defendant also relies on statutes from multiple other states which prohibit, in certain circumstances, recording telephone conversations. We are not persuaded that those statutes should alter our analysis because, first, they do not represent Connecticut public policy, and, second, those statutes do not all support the defendant's contention that there is such a broad policy against recording private conversations. Notably, many of the statutes on which the defendant relies simply adopt the Katz reasonable expectation of privacy test; see, e.g., Flanagan v. Flanagan, 27 Cal.4th 766, 777, 41 P.3d 575, 117 Cal.Rptr.2d 574 (2002) (statute prohibiting recording of confidential communications absent consent of all parties only applies where one “has an objectively reasonable expectation that the conversation is not being overheard or recorded”); or contain multiple exceptions to the prohibition on recording conversations with only one party's consent. See, e.g., Wn. Rev.Code § 9.73.030(2) (2014) (permissible to record, with one party's consent, telephone conversations “[a] of an emergency nature ... [b] which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands ... [c] which occur anonymously or repeatedly or at an extremely inconvenient hour, or [d] which relate to communications by a hostage holder or barricaded person”).
In sum, the Geisler factors clearly counsel against concluding that the defendant had an objectively reasonable expectation of privacy in her telephone conversations when Becker consented to having them recorded. Although she may have had a subjective expectation that their conversations would remain private, the defendant's repeated insistence that Becker should not allow her family members to overhear their conversations demonstrates that even the defendant assumed that there was a reasonable possibility that they could or would do so. Cf. State v. Wetter, supra, 190 Vt. at 482, 35 A.3d 962 (defendant's assertion that she could not discuss certain topic on telephone “demonstrated [that] she did not want to get caught speaking about the crime, [but] also demonstrated that she did not expect the telephone conversation to be private”). Thus, we conclude that the defendant did not have a reasonable expectation of privacy in the telephone conversations recorded with Becker's consent and, therefore, that the recordings were not obtained in violation of article first, § 7, of the Connecticut constitution.
II
We next consider the defendant's claim that she was denied due process because the trial court failed to conduct an inquiry, pursuant to Pate v. Robinson, supra, at 383 U.S. at 385, 86 S.Ct. 836 regarding her competence to stand trial. The defendant contends that, even though defense counsel repeatedly disavowed the need for a competency hearing and only requested a continuance of the trial to allow the defendant to obtain medical treatment for a chronic medical condition, there was sufficient evidence before the court to require that it, sua sponte, conduct an independent inquiry regarding the defendant's ability to understand the proceedings against her or to assist in her defense. In support of this claim, the defendant relies on various statements made by defense counsel to the court before the trial began regarding the defendant's health. Those statements, broadly characterized, indicated that the defendant suffered from a chronic heart condition, that she experienced drowsiness during jury selection, and that she is prescribed a long list of medications to control her health problems. We find this claim wholly lacking merit.
We note that the state does not argue that the defendant waived this claim. Indeed, the United States Supreme Court has explained that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Pate v. Robinson, supra, 383 U.S. at 384, 86 S.Ct. 836. The court has also noted, however, that “judges must depend to some extent on counsel to bring issues into focus,” and that an inartfully drawn motion for continuance may not provide the appropriate assistance to the trial court in determining whether an inquiry into the defendant's competence is necessary.Drope v. Missouri, 420 U.S. 162, 176–77, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Thus, although defense counsel's disclaimer of any competency issues would not preclude review of a claim that the trial court abused its discretion by failing to conduct an independent inquiry on that matter, such assertions would be relevant to deciding the merits of that issue.
The defendant also relies on defense counsel's allegations that the defendant was confined to a wheelchair, had to wear a neck brace, that her hand was twitching at times after she discontinued certain medications in an effort to avoid drowsiness, and that she “look[ed] unhealthy.” Because these allegations in no way relate to the defendant's competence, they merit no response.
It is well settled that “the due process clause of the fourteenth amendment to the United States constitution prohibits the criminal prosecution of a defendant who is not competent to stand trial.” (Internal quotation marks omitted.) State v. Dort, 315 Conn. 151, 162, 106 A.3d 277 (2014) ; see also Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). A defendant is deemed incompetent if she lacks the “present ability to consult with [her] lawyer with a reasonable degree of rational understanding” or if she lacks “a rational as well as factual understanding of the proceedings against [her].” (Internal quotation marks omitted.) Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ; see also General Statutes § 54–56d(a) (codifying constitutional mandate). Although all defendants are presumed to be competent, in Pate, the United States Supreme Court held that due process requires that a trial court conduct an “adequate hearing” regarding a defendant's competency, once her competency “has been sufficiently called into question....” State v. Dort, supra, at 162, 106 A.3d 277 citing Pate v. Robinson, supra, 383 U.S. at 386, 86 S.Ct. 836. A trial court has an independent obligation to inquire, sua sponte, into a defendant's competency when there is sufficient evidence before the court to raise a reasonable doubt as to whether the defendant can understand the proceedings or assist in her defense. See State v. Connor, 292 Conn. 483, 523, 973 A.2d 627 (2009) ; State v. DeAngelis, 200 Conn. 224, 242, 511 A.2d 310 (1986).
The defendant, somewhat contradictorily, asserts that defense counsel requested a competency evaluation pursuant to § 54–56d but “did not specifically demand that the trial court conduct a Pate inquiry.” Because § 54–56d codifies the due process standard required by Pate v. Robinson, supra, 383 U.S. at 378, 86 S.Ct. 836 the request for one is a request for the other. See State v. Ross, 269 Conn. 213, 270–71, 849 A.2d 648 (2004). In any event, the defendant's assertion that defense counsel requested a § 54–56d evaluation is a gross misrepresentation of the record. Although the record reflects that defense counsel for John Skok requested a competency evaluation, the record is absent of any indication that one was requested for the defendant. Rather, counsel for the defendant repeatedly eschewed the notion that the defendant needed such an evaluation.
We begin by noting that it is only in rare cases that a defendant's physical disability would render her incompetent to withstand trial. See, e.g., United States v. Doran, 328 F.Supp. 1261, 1263–64 (S.D.N.Y.1971) (defendant unfit to stand trial when he appeared gravely ill, there was substantial chance that trial may kill him, and court noted that it was more than ten years since alleged wrongs occurred); cf. United States v. Schaffer, 433 F.2d 928, 930 (5th Cir.1970) (where fall left defendant with some continuing back pain, trial judge properly permitted trial to proceed on basis that defendant was competent to assist in his own defense). In the present case, there is no evidence indicating how the defendant's physical ailments, such as her heart condition or the fact that she takes multiple prescription medications for that condition or other undisclosed conditions, would have rendered her incapable of understanding the proceedings against her or assisting in her defense. The defendant contends, however, that a note from her primary care physician, which she provided to the court before trial in support of her unsuccessful request for a continuance, indicated that, because her heart condition was recently complicated by an “acute illness,” she was unable to withstand a trial for the following three to four weeks. That note, however, was never made part of the record by the defendant. Thus, to the extent the defendant relies on it as evidence of her incompetency, the record is inadequate for our review. See, e.g., Finan v. Finan, 287 Conn. 491, 495, 949 A.2d 468 (2008) (“[t]he purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review” [internal quotation marks omitted] ). Moreover, even assuming that the defendant accurately represents the contents of that note, the defendant's inability to sit for trial for several weeks would have no bearing on whether she was able to understand the proceedings against her or assist in her defense, but rather would be relevant only to whether a continuance should have been ordered, a claim that the defendant does not make on appeal.
With respect to the defendant's alleged drowsiness during jury selection, our research leads us to conclude that such a condition does not render a defendant incompetent to withstand trial. See Woods v. McBride, 430 F.3d 813, 819 (7th Cir.2005) (“there is a big difference between the sort of temporary incompetence stemming from [the defendant's medically] induced drowsiness during voir dire and the sort that would render [the defendant] incapable of standing trial altogether”), cert. denied, 549 U.S. 958, 127 S.Ct. 391, 166 L.Ed.2d 279 (2006) ; Watts v. Singletary, 87 F.3d 1282, 1287 (11th Cir.1996) (“there is no constitutional prohibition against the trial and conviction of a defendant who fails to pay attention in court—whether out of indifference, fear, confusion, boredom, or sleepiness—unless that defendant also cannot understand the nature of the proceedings against him or adequately assist counsel in conducting a defense”). The defendant points to no authority to the contrary. Moreover, although the trial court denied defense counsel's requests for a continuance, it did agree to provide her with accommodations throughout the trial should a health issue arise. Indeed, the record reflects that such accommodations were provided when, for example, defense counsel requested that the court end jury selection early because the defendant felt faint.
Thus, because there was no evidence before the trial court indicating that the defendant could not understand the proceedings against her or assist in her defense, the court did not violate the defendant's right to due process by failing to conduct, sua sponte, an independent inquiry regarding her competence.
The judgment is affirmed.
In this opinion ROGERS, C.J., and PALMER, ESPINOSA and ROBINSON, Js., concurred.
ZARELLA, J., concurring.
I agree with the majority that, because neither of the claims raised by the defendant, Joanne A. Skok, have merit, the judgment of the trial court should be affirmed. I write separately, however, to reiterate my belief that the method we adopted in State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992), for analyzing state constitutional claims requires modification. See, e.g., Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 442, 119 A.3d 462 (2015) (Zarella, J., concurring). In my view, only three of the six factors articulated in Geisler —the text of our constitution, state constitutional history, and Connecticut precedent—are consistently relevant. The other three factors vary in their relevance. Although there may be occasions when federal case law illuminates the meaning of provisions in our state constitution, I believe the precedent of our sister states and economic and sociological considerations rarely, if ever, are useful for this purpose. In the present case, the majority correctly concludes that neither the text of the state constitution, its history, nor our precedent supports the defendant's claim under article first, § 7, of the Connecticut constitution. The majority nevertheless proceeds to consider the case law of other jurisdictions as well as economic and sociological concerns, which I believe should play no role in our resolution of the defendant's claim. Accordingly, I respectfully concur.
In the following discussion, I first provide a brief history of Geisler and the formulaic manner in which we have applied it. I then explain what I believe to be the appropriate method of interpreting the state constitution and why we generally should not consider the three Geisler factors that are not specific to Connecticut. Finally, I explain why the present case perfectly demonstrates the problems with how Geisler has previously been applied.
The stated purpose of Geisler was to construct a coherent method for analyzing the rights and privileges provided in the Connecticut constitution separate from, and in addition to, rights found in the federal constitution. The court in Geisler thus set forth six “tools of analysis” to apply in resolving state constitutional claims, namely, “(1) the textual approach ... (2) holdings and dicta of this court, and the Appellate Court ... (3) federal precedent ... (4) sister state decisions ... (5) the historical approach, including the historical constitutional setting and the debates of the framers ... and (6) economic/sociological considerations.” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. The court stated that each analytical tool “should be considered to the extent applicable....” Id.
After Geisler was decided, however, this court immediately began referring to these tools of analysis as “factors”; State v. Miller, 227 Conn. 363, 380, 630 A.2d 1315 (1993) ; and analyzing all six factors without explaining how each factor was applicable in any given case. See, e.g., State v. Kelly, 313 Conn. 1, 14–30, 95 A.3d 1081 (2014) ; Washington v. Meachum, 238 Conn. 692, 716–25, 680 A.2d 262 (1996) ; cf. Moore v. Ganim, 233 Conn. 557, 628, 660 A.2d 742 (1995) (Peters, C.J., concurring) (“[t]he test that we apply to interpret our state constitution requires us to consult, inter alia, history” [emphasis added] ). The court's mechanistic application of Geisler was further evidenced by the fact that we sometimes declined to review state constitutional claims when claimants failed to brief every Geisler factor. See, e.g., Aselton v. East Hartford, 277 Conn. 120, 152–55, 890 A.2d 1250 (2006) (declining to review state constitutional claim because claimant briefed only Connecticut and federal case law without addressing other Geisler factors); cf. State v. Colon, 272 Conn. 106, 154 n. 26, 864 A.2d 666 (2004) (declining to review defendant's state constitutional claims because, inter alia, he had failed to analyze Geisler factors “separately and distinctly”), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). More troubling, this court never has clarified the relative weight that should be accorded to each factor. Consequently, our decisions often have read like scorecards in which we unthinkingly have tallied how many factors supported the position of the claimant versus that of the opposing party. See, e.g., State v. Ledbetter,
There are a few cases in which we have not considered every factor. See, e.g., Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 246 n. 73, 957 A.2d 407 (2008) (considering each Geisler factor except constitutional history); cf. State v. Canales, 281 Conn. 572, 597 n. 16, 916 A.2d 767 (2007) (addressing state constitutional claim, even though defendant did not invoke Geisler factors, because defendant's presentation of her constitutional claim was “sufficiently clear and thorough as to constitute a functionally adequate Geisler analysis”). In the large majority of cases, however, including the present case, we have analyzed all six factors in applying Geisler.
275 Conn. 534, 569, 881 A.2d 290 (2005) ( “[i]n light of the factors that weigh in favor of the state, [economic and sociological considerations] are insufficient to tilt the balance of the Geisler analysis in favor of the defendant”), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006).
Apart from the mechanistic quality of this approach, applying Geisler in this manner incorrectly has given the impression that all six Geisler factors are of equal importance. I believe, however, that they are of vastly different importance. Although our reasoning in Geisler may have been correct insofar as it suggested that a variety of sources may be useful in interpreting the state constitution, I believe the relative importance of each factor must be clarified. Accordingly, I propose retaining Geisler with the following modifications for the purpose of analyzing state constitutional claims and interpreting the contours of our state constitution.
First, when initially presented with a state constitutional claim, we always should examine the text of the constitutional provision in question, our prior interpretations of the provision, and any relevant constitutional history relating to its adoption. See G. Tarr, Understanding State Constitutions (1998) p. 209 (encouraging “state courts to examine more closely the text and history of their constitutional provisions ... to determine ... the meaning of the state's provision”); cf. Zivotofsky ex rel. Zivotofsky v. Kerry, ––– U.S. ––––, 135 S.Ct. 2076, 2084, 192 L.Ed.2d 83 (2015) (“[t]o determine whether the President possesses the exclusive power of recognition the [c]ourt examines the [United States] [c]onstitution's text and structure, as well as precedent and history bearing on the question”). The reason we must give primacy to the text of the constitution is because that is the language from which state constitutional claims arise. In addition, the principle of stare decisis and common sense dictate that we should look to our prior interpretations of constitutional language to resolve claims involving that same language. See, e.g., Perry v. Perry, 312 Conn. 600, 614, 95 A.3d 500 (2014) (stare decisis “gives stability and continuity to our case law” [internal quotation marks omitted] ); cf. Kasica v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013) (“[i]n interpreting the [statutory] language ... we do not write on a clean slate, but are bound by our previous judicial interpretations of the language”). Finally, our state's constitutional history is relevant in resolving a state constitutional claim because understanding the intent of those who drafted the language in question necessarily clarifies its meaning. See G. Tarr, supra, at p. 194 (“[i]f the distinctive origins or purpose of a provision justifies independent interpretation, then state jurists must pay particular attention to the intent of the framers and to the historical circumstances out of which the constitutional provision arose”); see also Developments in the Law, “The Interpretation of State Constitutional Rights,” 95 Harv. L.Rev. 1324, 1387 (1982) (nontextual factors to consider include “state legal history, state constitutional history, and local tradition”).
In contrast to some provisions of the federal constitution, state constitutional provisions also generally lend themselves to historical analysis because state constitutions often are more recently adopted and more frequently amended. See G. Tarr, supra, pp. at 195–96. Thus, there generally is less concern that historical evidence regarding the intent of the framers will be unavailable. For instance, in Connecticut, the 1965 constitutional convention provides us with an abundant source of information about the provisions added at that convention, as well as proposed provisions that were rejected, which can inform our understanding of provisions from the Connecticut constitution of 1818. Additionally, the Connecticut constitution has been amended multiple times, each of which can provide us with historical insight into why the legislature and citizens of Connecticut had decided to change the language of our constitution.
All three of these interpretive tools are directly related to the document we must interpret when presented with a state constitutional claim. In contrast, the remaining three Geisler factors, namely, federal case law, sister state case law, and economic and sociological considerations, are not directly related to our state constitution. I thus address each of these three factors to explain why we should not consider them without good reason.
I begin with federal precedent, the third Geisler factor. See State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. In Geisler, this factor was accompanied by a citation to State v. Lamme, 216 Conn. 172, 579 A.2d 484 (1990), in which we stated that “[t]he adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.” Id., at 184, 579 A.2d 484 ; see also State v. Joyce, 229 Conn. 10, 18 n. 12, 639 A.2d 1007 (1994) (“our adoption of an analytical framework or methodology used under the federal constitution does not compel this court to reach the same outcome that a federal court might reach when the methodology is applied to a particular set of factual circumstances”). Thus, this Geisler factor apparently is intended to allow a court to consider federal case law, as long as the state constitutional provision is open textured, that is, susceptible to different interpretations, and we do not blindly adopt federal interpretations of a similar federal constitutional provision.I disagree with this understanding because it is too broad. Our system of government is a “system of dual constitutionalism” in which the states have crafted unique constitutions distinct from the federal constitution. G. Tarr, supra, at p. 181. This requires state courts to interpret their own constitutions independently of federal court interpretations of the federal constitution. See id. As Hans A. Linde, a former justice of the Oregon Supreme Court, has suggested: “The right question is not whether a state's guarantee is the same as or broader than its federal counterpart as interpreted by the [United States] Supreme Court. The right question is what the state's guarantee means and how it applies to the case at hand. The answer may [or may not] turn out the same as it would under federal law.” H. Linde, “E Pluribus—Constitutional Theory and State Courts,” 18 Ga. L.Rev. 165, 179 (1984) ; see also G. Tarr, supra, p. at 209 (“[s]tate constitutions are distinctive documents, and the approach to their interpretation must take account of that distinctiveness”). This means that, even when the state constitutional provision at issue is open textured, the focus of our state constitutional analysis should be on factors specific to the Connecticut constitution.
Federal case law is not specific to our constitution and, therefore, should play only a supplementary role, if any, in the interpretation of a state constitutional provision. More specifically, we should consider federal case law only if there is an explicit connection between provisions of the federal constitution and our own constitution. Federal case law may be useful in guiding our interpretation of the state constitution if there is historical evidence that a provision of our constitution was patterned after that of the federal constitution and the phraseology of the provisions is the same or similar in all material respects. See, e.g., State v. Davis, 283 Conn. 280, 306–307, 929 A.2d 278 (2007) (noting resemblance between language of fourth amendment to United States constitution and that of article first, § 7, of Connecticut constitution). Even in that instance, however, we still must independently interpret the state constitutional provision, examining it in the context of our constitution as a whole rather than adopting the federal interpretation of a similar federal constitutional provision in lockstep fashion. In sum, we should not consider federal case law unless the state constitutional provision at issue is open textured, and, if it is, only after providing justification as to how federal precedent is relevant to the state constitutional provision.
The same is true of case law from other jurisdictions, which is the fourth Geisler factor. See State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. The problem is not the per se relevance of case law from our sister states in our interpretation of the state constitution; rather, the concern is that we sometimes have considered it regardless of whether it has any connection to our state constitution. In the past, we have assumed that case law from other states is relevant in interpreting our constitution without considering whether their constitutional provisions predate ours or whether there are significant textual differences between the language in our constitution and in the constitutions of the other states. See, e.g., State v. Lockhart, 298 Conn. 537, 556–64 and n. 10, 4 A.3d 1176 (2010) (surveying sister state decisions in deciding whether state constitution requires police to electronically record custodial interrogations as prerequisite to admissibility of confessions). Instead, we should not consider case law from another state unless there is a connection between the language in the Connecticut constitution and that of the other state's constitution that renders its case law relevant. For instance, historical evidence indicates that our 1818 constitution was based at least in part on Mississippi's 1817 constitution. See, e.g., State v. Williams, 311 Conn. 626, 634, 88 A.3d 534 (2014). Interpretations of the Mississippi constitution therefore may be useful in understanding our own constitution. Additionally, if we adopt a provision of another state's constitution, then decisions from that state issued before our adoption of the provision may be relevant. See G. Tarr, supra, at p. 207 (“if decisions exist interpreting [another state's] provision, then a state in adopting the provision knows what the consequences of the choice are”). In the absence of such a connection, however, interpretations by other state courts of their respective state constitutions should have no bearing on our understanding of the Connecticut constitution.
This, again, is a consequence of the fact that constitutional claims are controlled by the unique language of the relevant constitutional provision, unlike common-law claims, for which we often have “sought to benefit from the collective wisdom and experience of our sister states.” Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 573, 113 A.3d 932 (2015) ; see also id. (looking to “evolving consensus of our sister states” to determine scope of liability for bystander emotional distress claim). Questions regarding the scope of tort or contract liability, for example, often reflect public policy judgments. Thus, surveying sister state case law and its impact in those states from a policy perspective can inform our own common-law decisions. See, e.g., Ruiz v. Victory Properties, LLC, 315 Conn. 320, 341–43 and nn. 9–10, 107 A.3d 381 (2015) (surveying sister state case law to determine whether public policy supports imposing duty on landlord to remove cinderblocks from common area of apartment building). When deciding a state constitutional claim, on the other hand, we are bound to the language of the specific text unique to our state, which generally makes sister state case law irrelevant in any given case. See, e.g., G. Tarr, supra, at p. 200 (“in interpreting a state constitution, a state court is interpreting a unique collection of provisions with a distinctive generating history”). We thus should not consider the case law of our sister states unless there is good reason to do so.
Finally, with respect to the last Geisler factor, economic and sociological considerations; see State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225 ; otherwise referred to as public policy considerations, we never have precisely defined what type of analysis this factor entails. In Geisler, we cited a number of cases to explain this factor; id.; but those cases vary in their meaning. In State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), we simply stated that, in considering whether to adopt a federal interpretation as a matter of state constitutional law, we first should consider “the history and policy concerns of analogous Connecticut constitutional provisions....” Id., at 546, 594 A.2d 917. In State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), we stated that “[c]onstitutional provisions must be interpreted within the context of the times.” Id., at 114, 547 A.2d 10. Lastly, in State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), the Vermont Supreme Court discussed the usefulness of “Brandeis” briefs, that is, briefs that rely on sociological and scientific statistics, in deciding constitutional questions. Id., at 227, 500 A.2d 233. Although these cases speak to the general purpose of this Geisler factor, they do not define what considerations should be taken into account and the weight they should be accorded.
Irrespective of the purpose this factor originally was intended to serve, we have applied it primarily in two different ways, neither of which justifies its inclusion in the methodology that we use for state constitutional interpretation. First, we have used it to independently review the public policy implications of potential constitutional rulings. See, e.g., Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 247, 957 A.2d 407 (2008) (under sixth Geisler factor, “we consider the public policy ramifications of invalidating the statutory scheme barring same sex marriage”). It is entirely inappropriate for us to engage in this type of analysis, however, because the legislature, not the judiciary, “has the primary responsibility for formulating public policy....” (Citation omitted; internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 410, 54 A.3d 553 (2012) ; see also Cologne v. Westfarms Associates, 192 Conn. 48, 65, 469 A.2d 1201 (1984) (“It is not the role of this court to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication. That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications [that] may arise from the exercise of constitutional rights by some in diminution of those of others.”). Thus, we must leave policy judgments to the legislature, which is free to propose an amendment to the state constitution to effectuate public policy. See Conn. Const.amend. VI; see also footnote 2 of this opinion (noting that our constitution has been amended numerous times).
Alternatively, in applying this Geisler factor, we have attempted to glean public policy by looking to the legislature's statutory enactments, as the majority does in the present case. See part I of the majority opinion; see also Doe v. Hartford Roman
Catholic Diocesan Corp., supra, 317 Conn. at 436–39, 119 A.3d 462. This approach, however, inevitably is circular in its reasoning, at least with respect to constitutional challenges to statutes. If legislative action defines public policy, then public policy always will support the constitutionality of the challenged statute because the legislature passed the statute. See, e.g., State v. Santiago, 318 Conn. 1, 377, 122 A.3d 1 (2015) (Zarella, J., dissenting). Moreover, it is inappropriate to defer to the legislature to determine the constitutionality of a statute or to interpret the constitution generally because “[w]e ... serve as the body through which our state laws will be measured against the Connecticut constitution.” State v. McCahill, 261 Conn. 492, 504, 811 A.2d 667 (2002). Accordingly, we simply should not interpret our state constitution by examining public policy concerns.
That is not to say that our constitution always should be read literally and that modern realities should be ignored. To the contrary, I agree that many of the most important provisions of the Connecticut constitution were drafted in general language that is open textured because they were “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” (Emphasis omitted.) M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L.Ed. 579 (1819). In interpreting the state constitution, we therefore must determine how constitutional provisions apply in contexts that the framers never could have anticipated. To do so, however, we must, as I previously discussed, determine the applicability of constitutional provisions by analyzing the text, our precedents, and our history, because applying constitutional provisions in new contexts does not mean changing the meaning of constitutional provisions on the basis of the court's public policy concerns.
With that said, I also note that not every state constitutional provision is the same; some are drafted in broad language and others in more specific language. See G. Tarr, supra, at p. 189. Accordingly, how we analyze the text of a constitutional provision may vary depending on the structure and language of a given provision.
The majority's analysis in the present case reveals the problems with applying Geisler as though it mandates consideration of all six factors. The majority begins by correctly noting that there is no support for the defendant's claim in the text of our constitution, its history, or our precedent. The majority nonetheless proceeds to analyze the claim under the remaining three Geisler factors. This suggests that, even though nothing in our constitution, case law, or history indicates that the police are prohibited from recording a phone conversation with the consent of only one party, we nevertheless would impose such a restriction if federal courts and other state courts have done so and if such a rule is preferable as a matter of public policy. In my view, this makes no sense.
I agree with the majority that, in the present case, our constitutional history reveals that the federal constitution, and therefore federal case law, is relevant to the defendant's claim. As the majority explains, the text of article first, § 7, of the Connecticut constitution was based on the fourth amendment to the United States constitution. Thus, on the basis of this historical connection, I agree that federal case law is useful in resolving the defendant's claim.
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The majority's analysis also illustrates why it is illogical to consider sources that have no connection to our state constitution. For instance, the majority surveys cases from two dozen states without explaining how the respective constitutions of those states are relevant to our constitution. See footnote 10 of the majority opinion and accompanying text. The majority analyzes the text of only one state's constitution, namely, Montana, which constitution the majority notes has been interpreted as prohibiting the type of state action challenged in the present case because it includes a provision that protects the “right of individual privacy,” and because, during the debates of a Montana constitutional convention, delegates specifically “decried electronic monitoring and eavesdropping in general....” (Internal quotation marks omitted.) Part I of the majority opinion, quoting State v. Allen, 357 Mont. 495, 511, 514, 241 P.3d 1045 (2010). Instead of worrying about how the Montana Supreme Court has interpreted the Montana constitution, however, we should be concerned with whether the text of our constitution includes a right of individual privacy and whether the delegates to our constitutional conventions disapproved of electronic monitoring generally.
In sum, the text of our constitution, the history and legal traditions of our state, and our precedent interpreting our constitution are the significant “tools of analysis” to be used in understanding the parameters of our constitution. State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. They are the tools that are directly related to the document itself. Federal and state decisions, and economic and sociological considerations, are only marginally useful and then only if they can be shown to have some connection that makes them relevant to the drafting of our constitutional provision. Accordingly, although I agree with the majority that neither the text of our constitution, our history, nor our case law supports the defendant's claim, I object to the majority's further consideration of factors that have no relevance to our state constitution. I therefore respectfully concur.