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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 relevant facts, 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 unset-
tled law on ‘‘what it means for an area to be within an
arrestee’s immediate control,’’ and whether the require-
ments were met in the present case. Rather than resolv-
ing 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’’ [inter-
nal 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 fol-
lowed dicta from United States Supreme Court case);
Fort Trumbull Conservancy, LLC v. Planning & Zon-
ing Commission, 266 Conn. 338, 359, 832 A.2d 611
(2003) (observing that conclusion in that case was con-
sistent 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 impli-
cation that the police acted improperly, in effect, cre-
ates a significantly higher burden on police than is
prudent, particularly considering the dangerous situa-
tions in which police find themselves during custo-
dial 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 quota-
tion 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 dan-
gerous; 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 vicin-
ity, to calculate the probability that weapons or destruc-
tible 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 prop-
erly 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 defen-
dant’s arrest, instead injecting, in effect, a reasonable-
ness standard, rather than the ‘‘realistic possibility’’
standard that it purports to follow. The majority dis-
counts 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 enter the closet to appre-
hend 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 defen-
dant 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 pro-
cess, 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 ‘‘con-
tinued 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 allu-
sion 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 con-
ducting 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 argu-
ably 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 vehi-
cle); 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 lug-
gage); Virgin Islands v. Rasool, 657 F.2d 582, 585,
588–89 (3d Cir. 1981) (arrestee handcuffed and removed
from automobile prior to search of vehicle which uncov-
ered 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.2 If 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 enforce-
ment, 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 . . . .’’ (Cita-
tion 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 indicat-
ing, but not explicitly stating, that the trial court abused its discretion in
not granting the defendant’s motion to suppress.
