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STATE v. JORDAN—CONCURRENCE

ESPINOSA, J., concurring. Although I agree with the

result reached by the majority, I take issue with the

unnecessary dicta in part I of the majority opinion

regarding whether the defendant, Victor Jordan, Sr.,

could have gained access to the closet interior where

the police ultimately found narcotics. I am compelled

to address this dicta because I believe that the majority

misconstrues the law applicable to searches incident

to an arrest, which could have a deleterious effect on

the investigation and prosecution of drug cases.

In part I of the majority opinion, after setting forth

the relevantfacts,the majority identifies the issue raised

by the defendant on appeal, namely whether the search

of the interior of the closet in which he had been found

was illegal because it was not within his immediate

control at the time of the search. The majority then

proceeds with a discussion of what it deems the unsettled law on ‘‘what it means for an area to be within an

arrestee’s immediate control,’’ and whether the requirements were met in the present case. Rather than resolving the issue on that ground, however, at the end of

the discussion, the majority concludes that ‘‘the present

case does not require us to weigh in on this debate.

Even if we assume, without deciding, that the facts and

the law should have led the trial court to suppress the

evidence seized from the closet, we are fully convinced

that any improper admission of the evidence is harmless

beyond a reasonable doubt in light of the unchallenged

evidence seized from the defendant’s person.’’

Ordinarily, I would not question the inclusion of dicta

in an opinion because, by design, it is not binding

authority. See Honulik v. Greenwich, 293 Conn. 641,

645 n.5, 980 A.2d 845 (2009) (‘‘[d]icta are [o]pinions

of a [court] which do not embody the resolution or

determination of the specific case before the court [and]

[e]xpressions in [the] court’s opinion which go beyond

the facts before [the] court and therefore are individual

views of [the] author[s] of [the] opinion and [are] not

binding in subsequent cases as legal precedent’’ [internal quotation marks omitted]). Because dicta, however,

can act as persuasive authority; see, e.g., Schumann v.

Dianon Systems, Inc., 304 Conn. 585, 612–14, 43 A.3d

111 (2012) (identifying federal circuit courts that followed dicta from United States Supreme Court case);

Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 359, 832 A.2d 611

(2003) (observing that conclusion in that case was consistent with dicta from two prior decisions of this

court); and, in some instances, could be converted to

controlling precedent; see Voris v. Molinaro, 302 Conn.

791, 797 n.6, 31 A.3d 363 (2011) (‘‘[a]lthough dicta is

not binding precedent . . . we may look to dicta as
persuasive authority, and, by relying on it in subsequent

decisions, convert it to binding precedent’’ [citation

omitted]); we must ensure that the dicta is correct.

In the present case, although the majority purports to

analyze the facts in light of the applicable law, its implication that the police acted improperly, in effect, creates a significantly higher burden on police than is

prudent, particularly considering the dangerous situations in which police find themselves during custodial arrests.

The United States Supreme Court has observed that

‘‘[a] custodial arrest is fluid and [t]he danger to the

police officer flows from the fact of the arrest, and

its attendant proximity, stress, and uncertainty . . . .’’

(Citations omitted; emphasis in original; internal quotation marks omitted.) Thornton v. United States, 541

U.S. 615, 621, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004).

Moreover, ‘‘[e]very arrest must be presumed to present

a risk of danger to the arresting officer . . . [because]

[t]here is no way for an officer to predict reliably how

a particular subject will react to arrest or the degree of

the potential danger.’’(Citation omitted.) Washington v.

Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 70 L. Ed. 2d

778 (1982).

Federal and state courts also have consistently

acknowledged that ‘‘[c]ustodial arrests are often dangerous; the police must act decisively and cannot be

expected to make punctilious judgments regarding

what is within and what is just beyond the arrestee’s

grasp. Thus, searches have sometimes been upheld even

when hindsight might suggest that the likelihood of the

defendant reaching the area in question was slight. . . .

And it has been held that an arresting officer is not

obliged, before searching an arrestee’s immediate vicinity, to calculate the probability that weapons or destructible evidence may be involved.’’ (Citation omitted;

internal quotation marks omitted.) United States v.

Lyons, 706 F.2d 321, 330 (D.C. Cir. 1983); see also

United States v. Bennett, 908 F.2d 189, 193 (7th Cir.

1990); United States v. Queen, 847 F.2d 346, 353 (7th

Cir. 1988); State v. Warren, 949 So. 2d 1215, 1228 (La.

2007); State v. Lanctot, 587 N.W.2d 568, 572 (N.D. 1998).

Thus, when determining whether the police have properly searched an area within an arrestee’s control, the

court must consider the actual situation that the police

faced during an arrest and not import analysis of what

the police should have known or how the police should

have acted.

The majority, in its analysis of the facts, does not

give proper deference to the circumstances of the defendant’s arrest, instead injecting, in effect, a reasonableness standard, rather than the ‘‘realistic possibility’’

standard that it purports to follow. The majority discounts the knowledge that the police had about the

defendant’s violent past and the circumstances of the
arrest, namely, that the defendant had secreted himself

in a dark, messy, and oddly shaped closet, had refused

to come out of the closet when instructed to do so,

obliging at least two officers to enterthe closet to apprehend him, and had to be dragged out of the closet before

being handcuffed. Instead, it chooses to emphasize that

‘‘it would have been extremely difficult for the defendant to gain access to the small closet’’ where two

police officers were searching due to the fact that he

‘‘was surrounded by four police officers, some of whom

were armed, and was lying facedown with his hands

cuffed behind his back.’’ The majority also remarked

on the ‘‘remoteness’’ of the possibility of the defendant

gaining access to the interior of the closet, in the process, implying that the police did not have a reasonable

belief that the defendant could have gained access to

the closet after being handcuffed because officers ‘‘continued to search the closet for up to ten minutes while

leaving the defendant in close proximity rather than

removing him from the scene.’’ On the basis of these

highlighted facts, the majority implies that the police

acted improperly in searching the closet. Such an allusion is a classic example of ‘‘offering critiques with the

20/20 vision of hindsight’’; (internal quotation marks

omitted) United States v. Harris, 735 F.3d 1187, 1191

(10th Cir. 2013); which this court should not be so quick

to do. See United States v. Sharpe, 470 U.S. 675, 686–87,

105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (‘‘[a] creative

judge engaged in post hoc evaluation of police conduct

can almost always imagine some alternative means by

which the objectives of the police might have been

accomplished’’); United States v. Bruton, 647 F.2d 818,

823 (8th Cir.) (‘‘[w]e should not, in the quiet of our

chambers, look with eagle’s eyes to spy out flaws in

the officers’ reasoning after the fact’’), cert. denied,

454 U.S. 868, 102 S. Ct. 333, 70 L. Ed. 2d 170 (1981).

Furthermore, by focusing on how long the search lasted

before drugs were uncovered and the officers’ decision

not to remove the defendant from the room while conducting the search—which are circumstances that

occurred after the police began the search and therefore

should not be a consideration in whether the police

were justified in conducting the search—the majority

is placing on the police a higher burden than the fourth

amendment to the United States constitution requires.

The majority essentially implies that it needed to be

probable that the defendant could have accessed a

weapon, rather than realistically possible that he could

be able to do so.

Moreover, the majority’s suggestion that the police

acted improperly cannot be reconciled with its own

acknowledgment that courts have affirmed searches

where arrestees were handcuffed and unable to access

the searched area for a variety of reasons; see footnote

13 of the majority opinion; or with a number of cases,

cited by the Court of Appeals for the Seventh Circuit
in Queen, where the courts upheld searches where arguably there may not have been a realistic possibility of

a defendant gaining access to the searched area. United

States v. Queen, supra, 847 F.2d 354. The court in Queen

observed that ‘‘the Supreme Court—as well as several

courts of appeals, including our own—have upheld

searches incident to arrest where the possibility of an

arrestee’s grabbing a weapon or accessing evidence

was at least as remote as in the situation before us.

See, e.g., New York v. Belton, 453 U.S. 454, 456, 462–63,

101 S. Ct. [2860], 69 L. Ed. 2d 768 (1981) (arrestees

removed from vehicle and separated prior to search of

vehicle for narcotics); United States v. Hatfield, 815

F.2d 1068, 1071 (6th Cir. 1987) (arrestee ordered to

stand against wall and guarded by officer while other

officer searched vehicle); Davis v. Robbs, 794 F.2d 1129,

1130–31 (6th Cir.) (arrestee handcuffed and placed in

squad car prior to seizure of rifle in house), cert. denied,

479 U.S. 992, 107 S. Ct. 592, 93 L. Ed. 2d 593 (1986);

United States v. Cotton, 751 F.2d 1146, 1147–48 (10th

Cir. 1985) (arrestees handcuffed and apparently

guarded by officer while state trooper searched vehicle); United States v. Silva, 745 F.2d 840, 847 (4th Cir.

1984) (arrestees handcuffed and guarded by federal

agents prior to search of room for weapons), cert.

denied, 470 U.S. 1031, 105 S. Ct. 1404, 84 L. Ed. 2d

791 (1985); United States v. Palumbo, 735 F.2d 1095,

1096–97 (8th Cir.) (arrestee arguably handcuffed and

unarguably surrounded by several officers prior to

search of room for narcotics), cert. denied, 469 U.S.

934, 105 S. Ct. 332, 83 L. Ed. 2d 268 (1984); United

States v. Roper, 681 F.2d 1354, 1357–59 (11th Cir. 1982)

(arrestee handcuffed in hallway of motel and escorted

inside room by federal agents prior to search of

unlocked metal briefcase which uncovered weapon),

cert. denied, 459 U.S. 1207, 103 S. Ct. 1197, 75 L. Ed.

2d 440 (1983); United States v. Fleming, 677 F.2d 602,

606–[607] (7th Cir. 1982) (arrestee handcuffed and

removed from immediate area prior to search of luggage); Virgin Islands v. Rasool, 657 F.2d 582, 585,

588–89 (3d Cir. 1981)(arrestee handcuffed and removed

from automobile priorto search of vehicle which uncovered weapon); United States v. Garcia, 605 F.2d 349,

352, 354 (7th Cir. 1979) (arrestee in custody of several

agents when luggage seized and searched), cert. denied,

446 U.S. 984, 100 S. Ct. 2966, 64 L. Ed. 2d 841 (1980).’’

(Emphasis added.) United States v. Queen, supra, 354.1

The facts in the present case are no more or less

remarkable than those cited by the court in Queen.

Therefore, I think it is inappropriate to suggest that

the police acted improperly.2If the majority wants to

acknowledge the purported unsettled legal question of

what it means for an area to be in the immediate control

of an arrestee, it can do so without implying that the

police in the present case acted inappropriately. By

insinuating wrongdoing, but not resolving the question,
the majority opinion will have the unfortunate effect

of injecting uncertainty into precarious situations, with

the potential for curbing not only zealous law enforcement, but also jeopardizing the protection of the public

and police officer safety. ‘‘[I]t does not make sense to

prescribe a constitutional test that is entirely at odds

with safe and sensible police procedures . . . .’’ (Citation omitted; internal quotation marks omitted.) United

States v. Lucas, 898 F.2d 606, 610 (8th Cir. 1990).

Therefore, I concur.

1 Since Queen, courts have continued to uphold searches when arrestees

were handcuffed and unable to access an area. See, e.g., United States v.

Bennett, 555 F.3d 962, 967 (11th Cir.) (suspects handcuffed behind back

prior to agent’s search of bed which uncovered rifle), cert. denied, 558 U.S.

831, 130 S. Ct. 64, 175 L. Ed. 2d 47 (2009); Commonwealth v. Netto, 438

Mass. 686, 694–95, 783 N.E.2d 439 (2003) (murder suspects handcuffed and

removed from hotel room before police seized evidence).

2 By implying that the police acted improperly, the majority also is indicating, but not explicitly stating, that the trial court abused its discretion in

not granting the defendant’s motion to suppress.