Garcia v. Commissioner of Correction

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 BRANDON GARCIA v. COMMISSIONER
OF CORRECTION
(AC 33827)
Beach, Alvord and Pellegrino, Js.
Argued October 23, 2013—officially released January 21, 2014

(Appeal from Superior Court, judicial 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
Supreme Court’s decision in Arizona v. Gant, 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. When 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 exited 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 recovered 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
transit. On the rear seat, 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.’’ State v. 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 petitioner 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 feet 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,
541.1 We affirmed the conviction, holding that the cash
seized was relevant, not overly prejudicial, and obtained
in accordance with constitutional guarantees. Id., 539,
541, 546, 549–50. Our Supreme Court denied certifica-
tion to appeal. State v. 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 Arizona v.
Gant, supra, 556 U.S. 332, should apply retroactively
to his habeas trial. He further contends that applying
Gant 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 Gant is not retroactive and rendered sum-
mary judgment in favor of the respondent. The habeas
court granted the petitioner’s petition for certification
to appeal. 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 court are legally and logically
correct . . . .’’ (Internal quotation marks omitted.) J.P.
Alexandre, LLC v. Egbuna, 137 Conn. App. 340, 346,
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 v. 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 v. California, 395 U.S. 752, 763, 89 S.
Ct. 2034, 23 L. Ed. 2d 685 (1969), the United States
Supreme 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 automobile
. . . [and] any containers found within the passenger
compartment . . . .’’ (Footnotes omitted.) New York
v. 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 Arizona v. Gant, supra,
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.’’ State v. 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 State v. 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
v. Gant, supra, 341; the United States Supreme Court
revisited the contours of the Belton rule in Gant.
In Gant, the defendant was handcuffed and secured
in a police car 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-
rior 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., 351.2 The petitioner argues that if the holding
in Gant was applied retroactively to his habeas petition,
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
Gant does not apply retroactively, and affirm the judg-
ment of the habeas court.
II
The question of retroactivity has been decided in
Teague v. 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 v. Commissioner of Correction,
299 Conn. 740, 753, 12 A.3d 817 (2011).4 If the rule is
substantive, it generally applies retroactively. Schriro
v. 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 Teague framework, Gant
is not retroactive.
A
A rule is substantive in nature, 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 v. 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).5 The rule
announced in Gant applies to the conduct of police
when executing a search. Arizona v. Gant, 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. State v. Henderson,
supra, 447; see, e.g., Luurtsema v. 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 Teague are
deemed procedural. See Schriro v. Summerlin, supra,
542 U.S. 352 n.4. Procedural rules do 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 v. Bockting, 549 U.S. 406, 418, 127
S. Ct. 1173, 167 L. Ed. 2d 1 (2007); accord State v.
Henderson, supra, 130 Conn. App. 447. These watershed
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 proceedings. Sawyer v. 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 v. Wainwright, 372 U.S. 335, 83 S.
Ct. 792, 9 L. Ed. 2d 799 (1963). Teague v. Lane, supra,
489 U.S. 311–12; see also Whorton v. 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 Teague v. Lane, supra, 314–15 (‘‘the fair cross
section requirement [does] not rest on the premise that
every criminal trial, or any particular trial, [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 warrantless vehicle
search was reasonable when the arrestee was secured
and could not access potential weapons or destroy evi-
dence still in the vehicle. See Arizona v. Gant, supra,
556 U.S. 335. Gant 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 v. New York, 445 U.S. 573, 588 n.26, 100 S. Ct.
1371, 63 L. Ed. 2d 639 (1980). The Gant 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 v. 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. State v. 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
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 v. 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 places . . .
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 v. 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 v. 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 Teague and its progeny. We hold that Gant is not
retroactive and does not apply to the petitioner’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. State v. 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.
2
Justice Scalia noted that ‘‘[w]here no arrest is made . . . officers may
search the car if they reasonably believe the suspect is dangerous and . . .
may gain immediate control of weapons. Michigan v. 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 vehicle when the interrogation
is completed.’’ (Internal quotation marks omitted.) Arizona v. Gant, supra,
556 U.S. 352 (Scalia, J., concurring).
3
The petitioner asks this court to ‘‘apply Gant . . . in accordance with
[the ruling in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S. Ct. 1029, 169
L. Ed. 2d 859 (2008)] that Teague restrictions should not be applied to
state habeas proceedings regarding state convictions.’’ In support of this
proposition, the petitioner cites State v. 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 v. Minnesota, supra, 552 U.S. 282, held that ‘‘the
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 to 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 v. Minnesota,
supra, 552 U.S. 282; Luurtsema v. 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 v. 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 v. Solnit, supra, 261 Conn. 318. Regardless 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 v. 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 Teague accordingly.
4
Before reaching the issue of whether the Gant rule is substantive or
procedural, the petitioner argued to the habeas court that Teague is inappli-
cable because Gant 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 Gant as announcing a new rule. See Terese B.
v. Commissioner of Children & Families, 68 Conn. App. 223, 227 n.7, 789
A.2d 1114 (2002).
5
Prior decisions have considered these constitutional determinations as
an exception to the general rule that procedural rules are not retroactive.
See, e.g., Duperry v. 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 v. Summerlin, supra, 542
U.S. 352 n.4.
6
Among the procedural rules that the Supreme Court has considered, yet
determined not 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 v. Mandanici, 205 F.3d
519, 529 (2d Cir.), cert. denied, 531 U.S. 879, 121 S. Ct. 190, 148 L. Ed. 2d
132 (2000).