147 Conn. App. 669
Conn. App. Ct.
2014
Case Information

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BRANDON GARCIA COMMISSIONER OF CORRECTION (AC 33827) Beach, Alvord and Pellegrino, Js.

Argued October 23, 2013—officially released January 21, 2014 (Appeal from Superior Court, judiсial district of Tolland, Schuman, J.) David B. Rozwaski , assigned counsel, for the appel- lant (petitioner).

Rocco A. Chiarenza , assistant state’s attorney, with whom, on the brief, were Maureen Platt , state’s attor- ney, and Kelly A. Masi , assistant state’s attorney, for the appellee (respondent).

Opinion

PELLEGRINO, J. The petitioner, Brandon Garcia, appeals from the summary judgment rendered by the habeas court in favor of the respondent, the Commis- sioner of Correction. The petitioner claims that the habeas court erred in concluding that the United States Suprеme Court’s decision in , 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), does not apply retroactively. We agree with the court that Gant does not apply retroactively to the petitioner’s habeas trial, and affirm the summary judgment.

The jury in the petitioner’s underlying criminal trial reasonably could have found the following facts, as detailed by this court in the petitioner’s direct appeal. ‘‘On June 22, 2004, undercover members of the Water- bury police tactical narcotics team . . . were surveil- ling the parking lot by the Shell gasoline station and convenience store . . . The police had received numerous complaints about open drug dealing at this location and had made several narcotics arrests there previously. . . .

‘‘Shortly after 9:30 p.m., the officers noticed Matthew Jenkins sitting in a Ford Explorer . . . . Minutes later, the [petitioner] arrived in a black Lexus. Whеn Jenkins sounded his vehicle’s horn, the [petitioner] acknowl- edged him. The [petitioner] parked, exited his vehicle and walked to the Explorer, carrying a white shopping bag. At 9:42 p.m., the officers observed the [petitioner] get into the Explorer, remove a smaller bag from the shopping bag and place it next to Jenkins. They observed Jenkins hand the [petitioner] a roll of cash. The [petitioner] then exitеd the Explorer and headed toward the convenience store. [One of the officers] arrested and searched the [petitioner], finding mari- juana on his person, $2650 in one of his pockets and $570 in another pocket. . . .

‘‘Jenkins, meanwhile, attempted to escape in his Explorer. When [two of the officers] blocked Jenkins’ exit with their vehicles, Jenkins fled on foot. From [Jenkins’] Explorer, the officers recоvered one bag con- taining 2.97 ounces of cocaine and another bag con- taining one half ounce of marijuana. Jenkins was apprehended subsequently. He testified at trial that when he telephoned the [petitioner] to arrange his pur- chase of three ounces of cocaine for $2400 and one half ounce of marijuana for $250, the [petitioner] suggested they meet at the Shell station parking lot. Jenkins also testified that he bought drugs from the [petitioner] in the manner described by the undercover officers, exchanging cash for cocaine and marijuana.

‘‘At the arrest scene, [the officer assigned to drive the petitioner’s vehicle to the police station] quickly examined the [petitioner’s] vehicle to ensure that noth- ing in it would be disturbed or cause any danger during *4 transit. On the rear seаt, he discovered a shoe box containing cash. In the trunk of the car, he discovered another shoe box containing cash. . . . [The officer] drove the car to the station, logged it ‍​‌‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​​‌‌​‌‌​‍in as evidence and conducted an inventory search of its contents. The inventory recovered included the boxes of cash from the rear seat and trunk, which contained $10,510 and $4000, respectively.’’ Garcia , 108 Conn. App. 533, 535–37, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008).

After a jury trial, the pеtitioner was convicted of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Stat- utes § 21a-278 (a), possession of a controlled substance with intent to sell within 1500 feet of a school in viola- tion of General Statutes § 21a-278a (b), possession of marijuana with intent to sell in violation of General Statutes § 21a-277, and possession of marijuana with intent to sell within 1500 fеet of a school in violation of § 21a-278a (b). Id., 537. On direct appeal to this court, the petitioner argued that the court erred in part by admitting into evidence any cash seized from his vehicle because it was either irrelevant or obtained without a warrant in violation of his rights pursuant to the fourth amendment to the United States constitution. Id., 537, 541. We affirmed the conviction, holding that the cash seized was relevant, nоt overly prejudicial, and obtained in accordance with constitutional guarantees. Id., 539, 541, 546, 549–50. Our Supreme Court denied certifica- tion to appeal. Garcia , 289 Conn. 916, 957 A.2d 880 (2008).

The petitioner filed a petition for a writ of habeas corpus on August 13, 2008, arguing that v. , supra, 556 U.S. 332, should apply retroactively to his habeas trial. He further contends that applying to the facts of the present case would require a conclusion that the search of his car was unconstitu- tional and, therefore, he is entitled to a new trial. The petitioner and the respondent filed cross motions for summary judgment. The court, noting that the retroac- tivity issue was dispositive, held that the rule announced in is not retroactive and rendered sum- mary judgment in favor of the respondent. The habeas court granted the petitioner’s petition for certification to аppeal. This appeal followed.

‘‘Our standard of review is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . On appeal, we must determine whether the legal conclu- sions reached by the trial сourt are legally and logically correct . . . .’’ (Internal quotation marks omitted.) J.P. Alexandre, LLC Egbuna , 137 Conn. App. 340, 346, *5 49 A.3d 222, cert. denied, 307 Conn. 913, 53 A.3d 1000 (2012). The issue of whether a judicial decision is retro- active is a question of law, and our review is plenary. See Duperry Solnit , 261 Conn. 309, 318, 803 A.2d 287 (2002).

I We briefly summarize the relevant precedent regard- ing law enforcement’s ability to search a motor vehicle incident to the arrest of an occupant. In the seminal case of Chimel California , 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the United States Supremе Court held that when police make an arrest, it is reasonable to ‘‘search . . . the arrestee’s person and the area within his immediate control . . . .’’ (Internal quotation marks omitted.) When the police lawfully arrest the occupant of a motor vehicle, officers ‘‘may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobilе . . . [and] any containers found within the passenger compartment . . . .’’ (Footnotes omitted.) New York Belton , 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). In line with the majority of jurisdictions, we applied Belton broadly; see Gant 556 U.S. 341–43; permitting ‘‘a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area.’’ Badgett , 200 Conn. 412, 425, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 273 (1986); but see Waller , 223 Conn. 283, 292, 612 A.2d 1189 (1992) (state constitution requires that arrestee be detained at scene at time of vehicle search). Faced with the fact that courts had used Belton to perpetuate the ‘‘fiction . . . that the interior of the car is always within the immediate control of an arrestee who has recently been in the car’’; (emphasis in original; internal quotation marks omitted) Arizona Gant , supra, 341; the United States Supreme Court revisited the contours of the Belton rule in Gant

In , the defendant was handcuffed and secured in a police сar for the crime of driving with a suspended license. Id., 336, 344. A subsequent search of the defen- dant’s vehicle uncovered cocaine and a firearm. Id., 336. On appeal, the state argued, pursuant to Belton that the validity of a vehicle search incident to the arrest of a recent occupant of the vehicle does not depend on whether the occupant could gain access to the inte- riоr of the vehicle at the time of the search. Id., 344. The court declined to endorse the state’s broad interpre- tation of Belton , and held: ‘‘Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compart- ment at the time of the search or it ‍​‌‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​​‌‌​‌‌​‍is reasonable to believe the vehicle contains evidence of the offense of arrest.’’ Id., 351. The petitioner argues that if the holding in was applied retroactively to his habeas petition, *6 he is entitled to relief because the search of his vehicle was invalid pursuant to the fourth amendment to the federal constitution. We disagree with the petitioner with respect to the threshold issue. We conclude that does not apply retroactively, and affirm the judg- ment of the habeas court.

II The question of retroactivity has been decided in Teague Lane , 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and its progeny. [3] ‘‘The threshold question is whether the rule of law under which the petitioner seeks relief is procedural or substantive in nature.’’ Luurtsema Commissioner of Correction , 299 Conn. 740, 753, 12 A.3d 817 (2011). [4] If the rule is substantive, it generally applies retroactively. Schriro Summerlin , 542 U.S. 348, 351–52, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). A procedural rule, on the other hand, is only retroactive if it is considered ‘‘watershed.’’ (Internal quotation marks omitted.) Id., 352. We con- clude that, according to the framework, Gant is not retroactive.

A A rule is substantive in naturе, and generally applies retroactively, when the judicial decision announcing the rule narrows the scope of the conduct punishable under a criminal statute or is a ‘‘constitutional [determi- nation] that place[s] particular conduct or persons cov- ered by the statute beyond the State’s power to punish . . . .’’ (Internal quotation marks omitted.) State Hen- derson , 130 Conn. App. 435, 447, 24 A.3d 35 (2011), appeals dismissed, 308 Conn. 702, 66 A.3d 847 (2013) (certification improvidently granted). The rule аnnounced in applies to the conduct of police when executing a search. , supra, 556 U.S. 351. It is therefore not substantive because it does not narrow the conduct or class of persons punishable pursuant to a criminal statute. Henderson supra, 447; see, e.g., Luurtsema Commissioner of Correction , supra, 299 Conn. 746–47, 753 (rule nar- rowing conduct punishable pursuant to kidnapping stat- ute substantive).

B Rules that are not substantive under are deemed procedural. See Schriro Summerlin 542 U.S. 352 n.4. Procedural rules dо not apply retroac- tively to a habeas trial unless the rule is deemed ‘‘water- shed,’’ meaning the rule: (1) ‘‘[is] necessary to prevent an impermissibly large risk of an inaccurate convic- tion’’; and (2) ‘‘alter[s] our understanding of the bedrock procedural elements essential to the fairness of a pro- ceeding.’’ (Citations omitted; internal quotation marks omitted.) Whorton Bockting , 549 U.S. 406, 418, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007); accord v. Henderson , supra, 130 Conn. App. 447. These watershed *7 procedural rules are ‘‘so central to an accurate determi- nation of innocence or guilt . . . it [is] unlikely that many such components of basic due process have yet to emerge.’’ (Internal quotation marks omitted.) Dup- erry v. Solnit , supra, 261 Conn. 325. In order to be classified as watershed, and therefore apply retroac- tively, the procedural rule must both improve the accu- racy of a trial and ensure the fundamental fairness of criminal proceеdings. Sawyer Smith , 497 U.S. 227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).

In Teague , the Supreme Court stated that the para- digm watershed procedural rule is the right to counsel pursuant to Gideon Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Lane , supra, 489 U.S. 311–12; see also Whorton Bockting , supra, 549 U.S. 419. A procedural rule does not rise to the watershed level unless it applies to the criminal justice system generally, and not just a narrow selection of cases. See Lane , supra, 314–15 (‘‘the fair cross section requirement [does] not rest on the premise that every criminal trial, or any particular triаl, [is] necessar- ily unfair because it [is] not conducted in accordance with what we determined to be the requirements of the Sixth Amendment’’ [internal quotation marks omitted]). [6]

C With these principles in mind, we consider whether the rule announced in Gant is a watershed rule of crimi- nal procedure, and whether the rule improves the ‍​‌‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​​‌‌​‌‌​‍accu- racy and ensures the fundamental fairness of a trial. The issue in Gant was whether a warrantlеss vehicle search was reasonable when the arrestee was secured and could not access potential weapons or destroy evi- dence still in the vehicle. See 556 U.S. 335. concluded that a search of a vehicle under these circumstances is unreasonable and thus violates the fourth amendment. Id., 351.

‘‘[T]he essential purpose of the Fourth Amendment [is] to shield the citizen from unwarranted intrusions into his privacy.’’ (Internal quotation marks omitted.) Payton New York , 445 U.S. 573, 588 n.26, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). The rule and the fourth amendment do not ensure an accurate trial, but restrict the government’s authority to invade an individ- ual’s privacy. See United States Leon , 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (‘‘[t]he wrong condemned by the [Fourth] Amendment is fully accomplished by the unlawful search and seizure itself’’ [internal quotation marks omitted]). Moreover, evi- dence obtained from a search that violates the fourth amendment does not automatically result in an inaccu- rate verdict which requires a new trial. Esarey 308 Conn. 819, 832, 67 A.3d 1001 (2013) (fourth amend- ment violations subject to harmless error). This leads to the conclusion that the accuracy of any trial is not *8 necessarily determined by the fact that evidence was seized in violation of Gant

Similarly, the rule announced in Gant does not alter our understanding of the bedrock procedural elements essential to a fair trial. The Gant decision was justified by the important, and constitutionally protected, pri- vacy rights of motorists. Arizona Gant , supra, 556 U.S. 344–45. The court reasoned that vehicle searches incident to arrest ‘‘[implicate] . . . the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.’’ Id., 345. ‘‘[T]he Fourth Amendment protects people, not placеs . . . and wherever an individual may harbor a reasonable expectation of privacy . . . he is entitled to be free from unreasonable governmental intrusion.’’ (Citations omitted; internal quotation marks omitted.) Terry v. Ohio , 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). On the basis of these basic principles, we conclude that the fourth amendment does not protect the fairness of a criminal proceeding; it ‘‘safeguard[s] the privacy and security of individuals against arbitrary invasions by governmental officials.’’ Camara Municipal Court , 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Gant therefore does not change our understanding of the bedrock procedural elements that ensure a fair trial. See Whorton Bockting , supra, 549 U.S. 418. We con- clude that the rule announced in Gant is not essential to either the accuracy or fairness of a trial, and therefore is not a watershed procedural rule as contemplated by and its progeny. We hold that is not retroactive and does not apply to the рetitioner’s habeas proceeding.

The judgment is affirmed.

In this opinion the other judges concurred. [1] The petitioner additionally claimed that his rights pursuant to article first, § 7, of the Connecticut constitution were violated. Garcia supra, 108 Conn. App. 541. This claim was deemed abandoned, however, because the petitioner did not provide a separate state constitutional analysis of that claim. Id., 541 n.3. Also, the petitioner claimed unsuccessfully that the court lacked jurisdiction to order him to forfeit the cash that was seized. Id., 550. search the car if they reasonably believe the suspect is dangerous and . . . [2] Justice Scalia noted that ‘‘[w]here no arrest is made . ‍​‌‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​​‌‌​‌‌​‍. . officers may may gain immediate control of weapons. Michigan Long , 463 U.S. 1032, 1049 [103 S. Ct. 3469, 77 L. Ed. 2d 1201] (1983). In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vеhicle when the interrogation is completed.’’ (Internal quotation marks omitted.) 556 U.S. 352 (Scalia, J., concurring). The petitioner asks this court to ‘‘apply . . . in accordance with [the ruling in Danforth Minnesota , 552 U.S. 264, 282, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008)] that restrictions should not be applied to state habeas proceedings regarding state convictions.’’ In support of this proposition, the petitioner cites Dukes , 209 Conn. 98, 547 A.2d 10 (1988), and argues that ‘‘state constitutional provisions can afford individuals greater protection than federal constitutional provisions. . . . [I]t is well recognized that Connecticut constitutional protections are greater than those of the fourth amendment to the [federal] constitution.’’

The court in Danforth Minnesota , supra, 552 U.S. 282, held that ‘‘the *9 Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague .’’ Our Supreme Court interpreted this holding to mean ‘‘that the restrictions Teague imposes on the fully retroactive application of new procedural rules are not binding on the states.’’ Luurtsema v. Commissioner of Correction , 299 Conn. 740, 753 n.14, 12 A.3d 817 (2011). The court in Luurtsema did not overrule Teague ’s application in Connecti- cut. It only recognized that the United States Supreme Court provides that states are ‘‘free tо determine whether to follow the federal courts’ rulings on retroactivity or to fashion rules which respond to the unique concerns of that state.’’ (Internal quotation marks omitted.) Danforth Minnesota supra, 552 U.S. 282; Luurtsema Commissioner of Correction , supra, 299 Conn. 753 n.14. Our Supreme Court, however, neither engaged in a Teague analysis nor overruled its application. See Luurtsema Commissioner of Correction , supra, 753 n.14. The current state of the law in Connecticut, therefore, is that the retroac- tive application of new procedural rules is analyzed under the Teague frame- work. See id.; see also Duperry Solnit , supra, 261 Conn. 318. Regardlеss of whether our state constitution’s reach is greater than the federal constitution, ‘‘our obligation is to follow [the Teague framework] until [our] Supreme Court overrules or limits it. It is axiomatic that the trial court and this court are without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions.’’ West Hartford Murtha Cullina, LLP , 85 Conn. App. 15, 24, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004). We therefore apply accordingly. [4] Before reaching the issue of whether the Gant rule is substantive or procedural, the petitioner argued to the habeas court that is inappli- cable because did not announce a ‘‘new rule,’’ but instead was a mere clarification of preexisting law. The petitioner failed to raise this claim either in his brief or at oral argument before this court. This claim is therefore abandoned, and we analyze as announcing a new rule. See Terese B Commissioner of Children & Families , 68 Conn. App. 223, 227 n.7, 789 A.2d 1114 (2002). an exception to the gеneral rule that procedural rules are not retroactive. [5] Prior decisions have considered these constitutional determinations as See, e.g., Duperry Solnit , supra, 261 Conn. 324. The United States Supreme Court clarified, however, that these are ‘‘more ‍​‌‌‌‌‌​‌‌‌​‌‌‌‌​‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​​‌‌​‌‌​‍accurately characterized as substantive rules not subject to the bar.’’ Schriro Summerlin , supra, 542 U.S. 352 n.4. Among the procedural rules that the Supreme Court has considered, yet determined nоt to be watershed, are: the rule that exposing a defendant to a noncapital sentence enhancement twice violates the double jeopardy clause, the rule that the state’s failure to give adequate notice of evidence it intends to use in a petitioner’s capital sentence proceeding violates due process, the rule that failure to instruct the jury that it could not find a defendant guilty of murder if it found a mitigating mental state violates due process, the rule that the eighth amendment bars imposition of the death penalty if a jury is led to believe that the ultimate decision rests elsewhere, the rule that pursuant to the fifth amendment, the police cannot question a suspect after he asserts the right to counsel in the context of a separate investigation, and the rule that the sixth amendment fair cross section requirement applies to the petit jury. United States Mandanici , 205 F.3d 519, 529 (2d Cir.), cert. denied, 531 U.S. 879, 121 S. Ct. 190, 148 L. Ed. 2d 132 (2000).

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