Garcia v. Comm'r of Corr.

BRANDON GARCIA v. COMMISSIONER OF CORRECTION

AC 33827

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 23, 2013

officially released January 21, 2014

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(Appeal from Superior Court, judicial district of

Tolland, Schuman, J.)

David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, 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 Commissioner 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 Waterbury police tactical narcotics team . . . were surveilling 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] acknowledged 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 marijuana 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 containing 2.97 ounces of cocaine and another bag containing one half ounce of marijuana. Jenkins was apprehended subsequently. He testified at trial that when he telephoned the [petitioner] to arrange his purchase 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 nothing in it would be disturbed or cause any danger duringtransit. 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 Statutes § 21a-278 (a), possession of a controlled substance with intent to sell within 1500 feet of a school in violation 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 certification 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 unconstitutional 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 retroactivity issue was dispositive, held that the rule announced in Gant is not retroactive and rendered summary 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 conclusions 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 retroactive 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 regarding 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 defendant'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 interior of the vehicle...