Brandon Garcia v. Warden (2011)

Memorandum of Decision

The only claim in this habeas case is that a search of the petitioner's automobile was invalid under Arizona v. Gant, 129 S.Ct 1710 (2009).  Gant held that the search incident to arrest doctrine “does not authorize a whole search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle ․ [unless] it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”  Id., 1714.   The parties have filed cross-motions for summary judgment raising the threshold issue of whether Gant is retroactive.   For the reasons that follow, the court concludes that Gant is not retroactive to cases, such as this one, in which the conviction is final.   Accordingly, the court grants the respondent's motion for summary judgment and denies the petitioner's motion.

The petitioner was convicted of possession of cocaine with intent to sell by a person who is not drug-dependent, possession of a controlled substance with intent to sell within 1,500 feet of a school, possession of marijuana with intent to sell, and possession of marijuana with intent to sell within 1,500 feet of a school, and sentenced to thirty-one years of incarceration.   In 2008, before the decision in Gant, the Appellate Court affirmed the conviction and the Supreme Court denied certification.  State v. Garcia, 108 Conn.App. 533, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008).

On appeal, the Appellate Court held that $10,510 in cash seized from the rear seat of the petitioner's car was lawfully obtained pursuant to the search incident to arrest doctrine even though the petitioner, who was arrested walking away from his car and toward a convenience store, arguably could not reach for weapons or destroy evidence in the car.  Id., 541–47.   The Appellate Court reasoned:  “The defendents theory that the search incident to arrest exception requires that an arrestee be able to reach for weapons or destroy evidence is not supported by our case law.  ‘In New York v. Belton, [453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ], the United States Supreme Court held that a lawful custodial arrest justifies a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area.’  (Emphasis added.)  State v. Santiago, 17 Conn.App. [273,] 277[, 552 A.2d 438 (1989) ].   Indeed, our Supreme Court in State v. Badgett, 200 Conn. 412, 512, A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986), declared that it ‘ordinarily will refuse to evaluate whether or not an individual arrested while in an automobile actually had access to the passenger compartment at the time of the search,’ citing several cases in which the searches were upheld even though the arrestee had no apparent opportunity to gain access to the passenger compartment of the automobile. [fn6 deleted] (Internal quotation marks omitted) State v. Lizotte, 11 Conn.App 11, 22, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987), quoting State v. Badgett, supra, 427.

“Because the scope of a search incident to the arrest of a motor vehicle operator includes the passenger compartment of the vehicle, regardless of whether the arrestee could gain access to it, the cash discovered on the rear seat of the defendants vehicle was admitted properly pursuant to [Officer] Angon's lawful arrest of the defendant. [fn7 deleted] Consequently, the defendants claim that the court improperly denied his motion to suppress this cash must fail.”  State v. Garcia, supra, 545–46.

For purposes of this motion, the court assumes that the search in this case would violate Gant.¹ The question then becomes whether Gant is retroactive to cases, such as this one, in which the conviction is final and the issue arises on collateral review.   The petitioner urges the court to find Gant retroactive under two related theories.   The first is that Gant represented a clarification of the law, rather than a new rule of law, and therefore it is fully retroactive.   The question of whether a clarification of fourth amendment procedures would be fully retroactive is a difficult one that appears to be undecided in Connecticut.   See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 748–53, 12 A.3d 817 (2011).   The court need not resolve that question, however, because it concludes that Gant announced a new rule rather than a clarification of an old rule.   As quoted above, the Appellate Court in this very case stated that “[t]he defendant's theory that the search incident to arrest exception requires that an arrestee be able to reach for weapons or destroy evidence is not supported by our case law.”   State v. Garcia, supra, 108 Conn.App 545.   The Court thus directly rejected the rule that Gant announced.   See also id., 546. (our Supreme Court in State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986), declared that it ‘ordinarily will refuse to evaluate whether or not an individual arrested while in an automobile actually had access to the passenger compartment at the time of the search,’ citing several cases in which the searches were upheld even though the arrestee had no apparent opportunity to gain access to the passenger compartment of the automobile.”)   In other words, the Gant decision completely reverses our prior law on the matter.   Under any reasonable definition of “new,” Gant represents a new rule.   See People v. Tripp, 407 Ill.App.3d 813, 817–20 & n.1, 944 N.E.2d 408, app. denied, 2011 Ill. Lexis 934 (2011) (concluding that Gant announces a new rule and citing other similar decisions.)

The petitioner's second theory is that, even if Gant represents a new rule, it is not retroactive under the general rules of retroactivity.   In Teague v. Lane, 489 U.S. 288 (1989), the United States Supreme Court held that the retroactivity of a new rule to cases on federal collateral review depends on whether the rule “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”;  (internal quotation marks omitted) id., 310;  or involves a “watershed [rule] of criminal procedure” that “[implicates] the fundamental fairness of the trial ․” and “without which the likelihood of an accurate conviction is seriously diminished.  Id., 311–13.

Assuming that the Teague test applies to collateral review in Connecticut state court, the petitioner cannot meet the test.   The petitioner agrees that Gant is not a case that “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe ․” (Internal quotation marks omitted.)  Id., 310.   The issue instead is whether Gant “involves a “watershed [rule] of criminal procedure” that “[implicates] the fundamental fairness of the trial ․” and “without which the likelihood of an accurate conviction is seriously diminished.”   Id., 311–13.   It is not.   The “watershed” prong of the test applies only to matters that directly affect the reliability of the truth-finding process, such as the appointment of counsel.   See People v. Tripp, supra, 407 Ill.App.3d 820 (“The only ‘watershed rule’ identified by the Supreme Court was pronounced 16 years before Teague in Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963), where the Supreme Court held that counsel must be appointed for any indigent defendant charged with a felony because the denial of such representation presents an intolerably high risk of an unreliable verdict.)   The admission of evidence seized in violation of Gant does not in any way affect the accuracy of the guilty verdict in this case.   Indeed, if anything, retroactive application of Gant would diminish—not enhance—the accuracy of the verdict in that it would preclude the trier from considering reliable evidence of the petitioner's guilt.   Accordingly, under the Teague test, Gant should not apply retroactively to this case.   Accordingly, People v. Tripp, supra, 407 Ill.App.3d 820–21.

As the petitioner notes, however, Teague does not necessarily apply to state collateral review.   See Danforth v. Minnesota, 552 U.S. 264, 282 (2008).   Instead, states are free to develop their own approach concerning the retroactivity of new rules of criminal procedure to habeas cases.   While it is not entirely clear whether Connecticut has abandoned the Teague standard, in Luurtsema v. Commissioner of Correction, supra, 299 Conn. 753, the Court suggested that the threshold question for retroactive application of judicial decisions in habeas proceedings was the different test of “whether the rule of law under which the petitioner seeks relief is procedural or substantive in nature.²

If this language is the test, then the petitioner cannot possibly prevail.   The petitioner makes no serious contention that Gant creates a new rule of substantive criminal law.   Instead, Gant at most governs the procedures by which evidence obtained by police search and seizure activity are admitted into the courtroom.   Under this test as well, therefore, Gant does not apply retroactively to this case.

The court grants the respondent's motion for summary judgment and denies the petitioner's motion for summary judgment.   Judgment shall enter for the respondent.   Petitioner shall submit a judgment file within thirty days of the date of this decision.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. The respondent concedes that the petitioner could not have reached for weapons or destroyed evidence in the car, but maintains that it was “reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”  Arizona v. Gant, supra, 129 S.Ct. 1714..  FN1. The respondent concedes that the petitioner could not have reached for weapons or destroyed evidence in the car, but maintains that it was “reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”  Arizona v. Gant, supra, 129 S.Ct. 1714.

FN2. The Luurtsema Court added:  “Under Teague, new rules of criminal procedure do not apply retroactively to already final judgments in federal habeas proceedings unless they fall under one of several specified exceptions.  Teague v. Lane, supra, 310.   Although this court has in the past applied the Teague framework to state habeas proceedings as well;  see, e g, Johnson v. Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991);  the United States Supreme Court recently held in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), that the restrictions Teague imposes on the fully retroactive application of new procedural rules are not binding on the states.”   Id., 753 n.14. This statement leaves unclear whether the Court currently adheres to the Teague analysis for new rules of criminal procedure such as Gant..  FN2. The Luurtsema Court added:  “Under Teague, new rules of criminal procedure do not apply retroactively to already final judgments in federal habeas proceedings unless they fall under one of several specified exceptions.  Teague v. Lane, supra, 310.   Although this court has in the past applied the Teague framework to state habeas proceedings as well;  see, e g, Johnson v. Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991);  the United States Supreme Court recently held in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), that the restrictions Teague imposes on the fully retroactive application of new procedural rules are not binding on the states.”   Id., 753 n.14. This statement leaves unclear whether the Court currently adheres to the Teague analysis for new rules of criminal procedure such as Gant.

Schuman, Carl J., J.