State v. Redmond , 177 Conn. App. 129 ( 2017 )

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STATE OF CONNECTICUT v. PATRICK S. REDMOND
(AC 39725)
Keller, Prescott and Harper, Js.
Syllabus
The plaintiff in error, C, who is the father of S, the defendant in the underlying
criminal proceeding, brought a writ of error following the trial court’s
denial of C’s motion for the return to him of certain property he claimed
to own. The writ of error concerned various firearms and ammunition
that were seized by police pursuant to a valid search warrant issued in
the course of a narcotics investigation. S was arrested and later charged
with various drug and weapons offenses. After engaging in negotiations,
the state and S entered into a plea agreement, pursuant to which the
state agreed to nolle six of the eight charges against S, and, in return,
S agreed to, inter alia, forfeit the seized property to the state for destruc-
tion. Although C was not a party to the criminal action, C’s awareness
of both the plea negotiations and the contemplated forfeiture of the
weapons was made clear to the court and the state through S’s attorney.
During the sentencing hearing, C did not object to the court’s order for
the forfeiture and destruction of the seized property. Subsequently, C
filed a motion for stay of order of destruction and return of seized
property with the criminal court. The trial court denied C’s motion, and
C appealed to this court, which dismissed his appeal on the ground that
this court lacked subject matter jurisdiction to consider the claims in
a direct appeal of the criminal conviction because C was not a party to
the underlying criminal proceeding. Thereafter, C filed a petition for a
writ of error in the Supreme Court, which transferred the matter to this
court. C claimed, inter alia, that the trial court improperly ordered the
forfeiture of the seized property pursuant to the statute (§ 54-36a [c])
that governs the disposition of seized property, which he claimed applied
only to seized contraband and certain cash linked to illegal drug transac-
tions, and not to firearms. C claimed that the trial court, instead, should
have conducted in rem forfeiture proceedings pursuant to statute ([Rev.
to 2013] § 54-33g) in order to effectuate the forfeiture of his seized
firearms. Held:
1. The trial court properly acted pursuant to § 54-36a (c) in ordering the
forfeiture of the seized property; that statute was not limited to contra-
band and certain cash linked to illegal drug transactions as claimed by
C, but rather empowers courts presiding over criminal actions to dispose
of seized property, provided a nexus exists between the seized property
and the crimes charged, and, thus, so long as a nexus exists between
the seized property and the crimes charged, it is irrelevant whether the
property was contraband, and, in the present case, the court’s determina-
tion that the requisite nexus existed between the seized firearms and
S’s narcotics business was logical and supported by the record, which
showed that S was selling narcotics from a residence owned and co-
occupied by C, that the weapons were found throughout the residence,
and that S either possessed or had easy access to all of the weapons
for use in his illicit business dealings.
2. C could not prevail on his claim that the trial court improperly entered the
forfeiture order without providing him with notice and an opportunity
to be heard, in violation of the in rem forfeiture procedures set forth
in § 54-33g: that court properly ordered the forfeiture under § 54-36a
(c), which does not require the court or the state to provide formal
notice to any individual that may have an interest in seized property
that is to be forfeited, and C was not deprived of an opportunity to be
heard on the disposition of the property, as the record indicated that
he was aware of the proposed disposition of the property and chose
not to file a timely motion pursuant to the applicable rule of practice
(§ 41-13) for the return of the seized property during the pendency of
the criminal action and, instead, chose to assert his claim to the seized
property after the final disposition of the criminal action; accordingly,
the writ of error was dismissed.
Argued January 17—officially released October 10, 2017
Procedural History
Writ of error from an order of the Superior Court in
the judicial district of Litchfield, Ginocchio, J., denying
the motion for the return of certain property filed by
the plaintiff in error, brought to the Supreme Court,
which transferred the matter to this court. Writ of
error dismissed.
Mitchell Lake, for the plaintiff in error.
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was David S. Shepack, state’s
attorney, for the defendant in error.
Opinion
HARPER, J. This case comes before the court on a
writ of error brought by the plaintiff in error, Patrick
C. Redmond, who is the father of Patrick S. Redmond,
the defendant in the underlying criminal proceeding.1
In his writ of error, Redmond alleges that the trial court
improperly (1) ordered the forfeiture of certain seized
property pursuant to General Statutes § 54-36a and (2)
entered its forfeiture order without providing him
notice and an opportunity to be heard in violation of
the in rem forfeiture procedures set forth in General
Statutes (Rev. to 2013) § 54-33g.2 For the reasons that
follow, we disagree and dismiss the writ of error.3
The following relevant facts and procedural history
are apparent on the record.4 This writ of error concerns
sixteen firearms,5 at least one magazine, and an
unknown quantity of ammunition that were seized by
the police on February 13, 2013, pursuant to a valid
search warrant issued in the course of a narcotics inves-
tigation.6 That investigation revealed that the defendant
was selling drugs from a residence owned by Redmond,
and occupied by both Redmond and the defendant. The
residence was not subdivided, and Redmond and the
defendant had equal access to all areas of the residence.
During their search of the residence, the police found
nine of the sixteen firearms ‘‘scattered about the living
quarters, hidden in the seat cushions, in a dresser,
leaned up against the walls,’’ hidden under a couch in
the living room, as well as in the defendant’s bedroom.
The remaining seven weapons were found in a safe on
the second floor of the residence, which the defendant
opened using a key in order to surrender the weapons
to the police. Alongside these weapons, the police also
seized various narcotics and narcotics paraphernalia.
Redmond was not present for the search of the res-
idence.
Later that day, the defendant was arrested. After
receiving Miranda7 warnings, the defendant provided
the police with a sworn statement in which he admitted
his ownership of many of the seized weapons, and
asserted that Redmond consented to his possession and
use of the remaining weapons. The defendant also told
the police that Redmond knew that he was selling nar-
cotics from the residence and had previously asked him
to cease doing so. Nothing in the record suggests that
Redmond took steps to limit the defendant’s access to
the weapons.
The defendant thereafter was charged with eight
counts of drug and weapon offenses,8 for which he
faced a significant term of imprisonment if convicted.
Over the next four months, the defendant engaged in
plea negotiations with the state in which the court,
Ginocchio, J., actively participated. During those nego-
tiations, the defendant was represented by Attorney
Anthony F. DiPentima. At that time, DiPentima also
provided counsel to Redmond, though Redmond was
not a party to the criminal action.9 Redmond’s aware-
ness of both the plea negotiations and the contemplated
forfeiture of the weapons was made clear to the court
and the state through DiPentima, and it appears that
Redmond was present for at least some of those negotia-
tions. From the outset, the plea negotiations involved
leveraging the disposition of the seized property to
obtain a more favorable disposition of the charges
against the defendant.
On March 18, 2013, Redmond executed an affidavit,
witnessed by DiPentima in his capacity as a commis-
sioner of the Superior Court, claiming ownership of
the seized weapons, ammunition, and magazine. This
affidavit, however, was never submitted to the court
or the state. The prosecutor also indicated that the
agreement to surrender all of the disputed property in
return for favorable treatment was suggested by
DiPentima.
On May 31, 2013, the state agreed to nolle six of
the eight charges against the defendant. In return, the
defendant agreed to (1) forfeit the seized property to
the state for destruction; (2) plead guilty to one count
of possession with intent to sell in violation of General
Statutes § 21a-277 (b); and (3) enter an Alford plea10 to
one count of illegal transfer of a pistol or revolver in
violation of General Statutes (Rev. to 2013) § 29-33.11
At that time, the terms of the plea agreement were put
on the record, including the forfeiture and destruction
of the disputed property.12 The agreement contemplated
a total effective sentence of eight years, execution sus-
pended after three years, with three years of probation,
and the defendant retained the right to argue for a
lesser sentence at the sentencing hearing on December
10, 2013.
At that hearing, DiPentima argued for a suspended
sentence for the defendant, as the defendant had
already been incarcerated for approximately four
months. He also offered the following argument regard-
ing Redmond’s interest in the seized firearms: ‘‘We’ve
talked about the weapons. There’s been a lot of angst
and concern, especially from [Redmond], a devout
hunter, a man who has owned firearms responsibly
for a number of years, [about] the ownership of those
firearms, despite the fact as to where in the house the
firearms were located, even though it was not a separate
apartment, per se, where [the defendant] resided with
his fiance´.’’ At the conclusion of that hearing, the court
imposed a total effective sentence of eight years of
imprisonment, execution suspended, with three years
of probation. The court also ordered the forfeiture and
destruction of the weapons, magazine, and ammunition.
At the sentencing hearing, Redmond did not object to
the forfeiture and destruction of the disputed property.
The leniency of the defendant’s sentence is apparent
when compared with the maximum sentence allowed
by the General Statutes that the defendant would have
potentially faced had he proceeded to trial under these
charges. The total effective sentence, for the charges
the defendant entered pleas on, was twelve years of
imprisonment.13 Additionally, had the defendant pro-
ceeded to trial on the charges the state agreed to nolle
pursuant to this agreement, he would have potentially
faced an additional twenty-nine years and three months
of imprisonment.14 Redmond subsequently hired new
counsel who filed on his behalf a ‘‘Motion for Stay of
Order of Destruction and Return of Seized Property’’
with the criminal court, in which he claimed to be the
owner of the firearms and argued that § 54-33g gave
him a right to notice of any forfeiture proceeding. See
State v. Redmond, 161 Conn. App. 622, 624–25, 128 A.3d
956 (2015), cert. denied, 320 Conn. 918, 132 A.3d 1093
(2016). Redmond made this motion in the concluded
criminal matter rather than initiating a separate action.
The court held hearings on the motion on March 14,
2014, and April 15, 2014, at which Redmond and the
state offered argument, but no evidence or testimony
was taken.
The court thereafter denied Redmond’s motion.
Although the court did not issue a written decision, the
grounds on which the court denied the motion were
stated during the April 15, 2014 hearing. Specifically,
the court indicated that (1) no notice was required
because the property was ordered forfeited under § 54-
36a (c), as interpreted by State v. Garcia, 108 Conn.
App. 533, 554–55, 949 A.2d 499, cert. denied, 289 Conn.
916, 957 A.2d 880 (2008), and not under § 54-33g, as
argued by Redmond, and (2) the nexus between the
property and the crimes rendered an in rem forfeiture
proceeding unnecessary because, under Garcia, that
nexus allows the court to order forfeiture pursuant to
§ 54-36a (c).15
From that judgment, Redmond appealed to this
court, claiming that the court improperly (1) concluded
that the seized property met the statutory definition of
contraband in § 54-36a and (2) disposed of the property
without giving him proper notice and an opportunity
to be heard. State v. Redmond, supra, 161 Conn. App.
624. We dismissed his appeal on the ground that this
court lacked jurisdiction to consider these claims in a
direct appeal of the criminal conviction because Red-
mond was not a party to the underlying proceeding. Id.
In so doing, we observed that the appropriate vehicle
for such claims is a writ of error. Id., 626–27. Redmond
then filed this writ of error with the Supreme Court,
which transferred the case to our docket pursuant to
Practice Book § 65-1.16
In his writ of error, Redmond raises two claims. First,
he argues that the court improperly ordered the forfei-
ture of the seized property under § 54-36a (c) because
an in rem forfeiture proceeding under § 54-33g was
required to effectuate the forfeiture. Second, Redmond
argues that the order of forfeiture was improper
because the court failed to provide him proper notice
and an opportunity to be heard as required by § 54-33g,
which requires the court to give notice to any person
with an interest in property that is proposed to be for-
feited on the ground that it is a nuisance as the instru-
mentality of a crime, and to hold a hearing on the
forfeiture within six to twelve days of such notice.17 In
his claim for relief, he asks this court to reverse and
set aside the April 15, 2014 decision on his motion for
return of his property.
Practice Book § 72-1 (a) (1) provides that a nonparty
may bring a writ of error in matters of law from the final
judgment of the Superior Court where that judgment
is binding on that nonparty and the nonparty is
aggrieved by that judgment. Accordingly, our scope of
review is circumscribed in such matters and is limited
to questions of law only. See E. Prescott, Connecticut
Appellate Practice & Procedure (5th Ed. 2016) § 9-1:6,
p. 524. ‘‘A writ of error . . . necessarily presents a
question of law. When the trial court draws conclusions
of law, our review is plenary and [an appellate court]
must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Sowell v. DiCara, 161 Conn. App. 102, 120, 127
A.3d 356, cert. denied, 320 Conn. 909, 128 A.3d 953
(2015). This standard of review governs both of Red-
mond’s claims.
I
Redmond’s first claim, that the court improperly
ordered the forfeiture of the seized property under § 54-
36a (c), hinges on his claim that this section provides
the court with the authority to order the forfeiture of
contraband only, including cash linked to illicit narcot-
ics transactions, and that firearms are not contraband
under the statute. He contends that § 54-36a (a) (1)
defines ‘‘contraband’’ as ‘‘any property, the possession
of which is prohibited by any provision of the general
statutes,’’ and that possession of the disputed property
is not prohibited by the General Statutes. He argues
that because § 54-36a (c) applies only to contraband
and certain cash linked to illegal drug transactions, the
court should have conducted in rem forfeiture proceed-
ings under § 54-33g in order to effectuate the forfeiture.
Proceeding under § 54-33g would have required notice
of the proposed forfeiture and a hearing prior to the
court’s forfeiture order. Had Redmond received notice
and a hearing, he asserts that the property would not
have been ordered forfeited and destroyed. In light of
established precedent, we disagree that § 54-36a (c) is
limited to contraband and certain cash, and conclude
that the court properly acted under this section.
Section 54-36a (c) addresses the final disposition, at
the conclusion of a criminal prosecution, of property
that was seized by the police in connection with a crimi-
nal arrest. It provides in relevant part that ‘‘unless the
court finds that such property shall be forfeited or is
contraband . . . it shall, at the final disposition of the
criminal action or as soon thereafter as is practical . . .
order the return of such property to its owner within
six months upon proper claim therefor.’’ (Emphasis
added.) General Statutes § 54-36a (c). The pivotal
phrase in this section is that the court is not required
to return the property to its owner if the court finds
that the property ‘‘shall be forfeited or is contraband
. . . .’’ (Emphasis added.) In State v. Garcia, supra, 108
Conn. App. 554–55, this court considered that statutory
language when faced with arguments substantially the
same as Redmond’s arguments, and concluded that
‘‘§ 54-36a (c) empowers courts presiding over criminal
actions to dispose of [seized property] . . . provided
that a nexus exists between the [seized property] and
the crimes charged.’’18 So long as a nexus exists between
the seized property and the crimes charged, it is irrele-
vant whether the property is contraband.
In the present case, the trial court’s determination
that a nexus existed between the seized weapons,
ammunition, and magazine, and the crimes charged is
logical and finds support in the facts that appear in the
record. Additionally, Redmond has not challenged the
propriety of the trial court’s nexus determination. The
record reflects that the defendant was selling narcotics
from the residence owned by and co-occupied by Red-
mond, and that the weapons were found throughout
this residence, some appearing to be loaded and staged
for quick use, and some in proximity to narcotics. The
defendant had free access to all areas of the residence,
including to the weapons stored in a safe on the second
floor of the residence. ‘‘Connecticut courts repeatedly
have noted that [t]here is a well established correlation
between drug dealing and firearms. . . . Federal
courts also have recognized this fact of life.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Clark, 255 Conn. 268, 284, 764 A.2d 1251 (2001).19 The
defendant either possessed or had easy access to all of
the weapons for use in his illicit business dealings. We,
therefore, conclude that the court’s determination that
the requisite nexus existed between the seized firearms
and the defendant’s narcotics business was logical and
supported by the record.20
II
Redmond next argues that the court’s forfeiture order
was improper because it was entered without giving
him proper notice and an opportunity to be heard, as
required by § 54-33g.21 Redmond’s arguments concern-
ing the requirements of § 54-33g are inapposite because,
as previously noted, the court in the present case prop-
erly ordered the forfeiture under § 54-36a (c). Section
54-36a (c) does not require the court or the state to
provide formal notice to any individual that may have
an interest in seized property that is to be forfeited. It
requires only that, at the final disposition of a criminal
action, the court ‘‘[find] that such property shall be
forfeited or is contraband, or [find] that such property
is a controlled drug, a controlled substance or drug
paraphernalia,’’ before it can order a forfeiture of the
seized property. General Statutes § 54-36a (c).
Moreover, contrary to Redmond’s claims, he was not
deprived of an opportunity to be heard on the disposi-
tion of the property. Rather, the record indicates that
Redmond was aware of the proposed disposition of
the property and chose not to assert his claim to the
property until after the final disposition of the criminal
action. Practice Book § 41-1322 provides a procedure
for any person, whether a party or not, who is aggrieved
by the seizure of property in the course of a criminal
investigation to make a motion in the criminal action
for the return of the seized property. Practice Book
§ 41-1523 restricts such motions to being made during
the pendency of the criminal action. Redmond’s choice
not to make a timely motion pursuant to Practice Book
§ 41-13, whatever his reasons may have been, does not
render the forfeiture improper.
For the foregoing reasons, we conclude that Red-
mond failed to demonstrate that the trial court improp-
erly denied his motion for the return of the seized
property.
The writ of error is dismissed.
In this opinion the other judges concurred.
1
The defendant, Patrick S. Redmond, did not participate in this writ of
error. For purposes of clarity, we refer to Patrick S. Redmond as the defen-
dant and to the plaintiff in error as Redmond.
2
Hereinafter, all references to § 54-33g in this opinion are to the 2013
revision of the statute.
3
Although Redmond also argues in this writ that the forfeiture order
contravened the strictures of General Statutes § 54-36h, he did not raise
that claim before the trial court. We, therefore, decline to review any such
claims in this writ of error. See State v. Pagan, 158 Conn. App. 620, 632–33,
119 A.3d 1259 (‘‘This court is not bound to consider claims of law not made
at the trial. . . . Once counsel states the authority and ground of [her
argument], any appeal will be limited to the ground asserted.’’ [Internal
quotation marks omitted.]), cert. denied, 319 Conn. 909, 123 A.3d 438 (2015).
4
The trial court did not make any factual findings, with the exception of
the finding of a nexus between the seized property and the criminal activity,
in this matter because the underlying criminal trial was resolved pursuant
to a plea agreement, and no evidentiary hearing was held on Redmond’s
motion for the return of the seized property. The facts recounted regarding
the underlying criminal activity are primarily inferred from the prosecutor’s
summary at the sentencing hearing, to which neither the defendant nor
Redmond, or their attorneys, objected. The remaining inferred facts are
gleaned from statements made during the hearings on Redmond’s motion
for return of the property, where those statements indicate substantial
agreement between the court, the state’s attorney, and Redmond’s attorney
as to factual matters. Any instance of disagreement regarding factual matters
that is apparent on the record is noted herein. See Young v. Commissioner
of Correction,104 Conn. App. 188, 190 n.1, 932 A.2d 467 (2007) (‘‘Although
the court made no findings of fact on the record . . . it is clear from the
transcript of the hearing and from the ruling of the court [what the relevant
factual issues are] . . . . From the transcript of the hearing, we are able
to infer the facts on which the court’s decision appears to have been predi-
cated.’’), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008); State v. MacNeil,
28 Conn. App. 508, 515, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d
1044 (1992) (Appellate Court may resort to evidence in the record that
supports trial court’s rulings when trial court does not make detailed factual
findings on the record in support of its decision).
5
Five of the weapons were handguns and the remainder were various
types of long guns, including rifles and shotguns.
6
The police also seized other property that is not at issue here.
7
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
8
The defendant was charged with three counts of illegal transfer of a
pistol or revolver in violation of General Statutes (Rev. to 2013) § 29-33;
one count of attempted sale of a controlled substance in violation of General
Statutes §§ 53a-49 and 21a-277 (b); one count of use of drug paraphernalia
in violation of General Statutes § 21a-267 (a); one count of possession with
intent to sell in violation of § 21a-277 (b); one count of possession of narcotics
in violation of General Statutes (Rev. to 2013) § 21a-279 (a); and, one count
of possession of a hallucinogen in violation of § 21a-279 (b).
9
Although the record supplied by the defendant does not contain an
express statement from DiPentima concerning this dual representation, it
contains enough information to infer that the court and the state viewed
his role as representing both the defendant and Redmond due to the conduct
or statements of DiPentima. We further note that representation by an
attorney is not limited to appearances in court. Although it is true that the
defendant’s plea deal ultimately cost Redmond his weapons, his son was
permitted to plead to fewer charges and received a significantly more lenient
sentence than was likely had the case gone to trial. This plea agreement
may not have served Redmond’s interest in the weapons, but it did serve
his interest in the welfare of his son.
10
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970).
11
Hereinafter, all references to § 29-33 in this opinion are to the 2013
revision of the statute.
12
Redmond has not provided this court with the transcript of the defen-
dant’s May 31, 2013 plea hearing. It therefore is not possible to determine
precisely what transpired beyond the summary provided on the record by
the state’s attorney at the December 10, 2013 sentencing hearing. In the
absence of an objection by the defendant or a correction by the court, we
presume that the state’s summary at sentencing was accurate.
13
This maximum sentence consists of consecutive sentences of seven
years of imprisonment on the drug charge and five years of imprisonment
on the weapons charge.
14
This additional time consists of consecutive maximum sentences
allowed by the General Statutes of: Five years of imprisonment on each of
the two counts of illegal transfer of a pistol or revolver in violation of
§ 29-33; seven years of imprisonment on one count of attempted sale of a
controlled substance in violation of General Statutes § 53a-49 and § 21a-277
(b); five years of imprisonment on one count of possession of a hallucinogen
in violation of General Statutes (Rev. to 2013) § 21a-279 (b); three months
of imprisonment on one count of use of drug paraphernalia in violation of
General Statutes § 21a-267 (a); and, seven years of imprisonment on one
count of possession of narcotics in violation of § 21a-279 (a).
15
The state also argues that the court articulated a third ground for denying
the motion, namely, that Redmond had waived his right to challenge the
forfeiture because he had not made a timely motion for the return of the
property prior to the court rendering final judgment in the criminal action.
Although the record reveals that the trial court discussed this issue with
the parties, it is not clear that the trial court considered this a ground for
denying the motion. Indeed, the court expressed doubt about whether waiver
was a relevant consideration given its clear authority under § 54-36a (c) and
Garcia, stating that ‘‘I’m not even sure if waiver is required based on the
Garcia case.’’ Neither party sought an articulation from the trial court, and
we cannot conclude on the record before us that the trial court considered
waiver as a ground for the denial.
16
We note that we are considering Redmond’s writ of error although it
was not filed within twenty days of the judgment, as required by Practice
Book § 72-3 (a), because of the unusual circumstances of this matter and
because our Supreme Court elected to transfer this matter to this court
under Practice Book § 65-1, rather than dismissing it pursuant to its authority
under Practice Book § 72-3 (a), which provides in relevant part that the
Supreme Court may dismiss a writ of error that is untimely brought without
cause. The state did not move either the Supreme Court or this court to
dismiss this writ as untimely. Additionally, when Redmond brought his direct
appeal, we dismissed it because he was a nonparty to the criminal matter,
and we stated that he should have raised his claims through a writ of error.
Following this suggestion, Redmond initiated the writ of error six days later
on December 14, 2015, which is within the twenty day period provided by
Practice Book § 72-3 (a). Given these circumstances, it is appropriate that
we use our discretion to hear an untimely writ of error. See State v. Reid,
277 Conn. 764, 777–78, 894 A.2d 963 (2006) (failure to take timely appeal
or bring timely writ of error renders the matter voidable, but not void, and
court has discretion to hear matter).
17
General Statutes (Rev. to 2013) § 54-33g provides in relevant part: ‘‘(a)
When any property believed to be possessed, controlled, designed or
intended for use or which is or has been used or which may be used as a
means of committing any criminal offense . . . has been seized as a result
of a lawful arrest or lawful search, which the state claims to be a nuisance
and desires to have destroyed or disposed of . . . the . . . court issuing
the warrant or before whom the arrested person is to be arraigned shall,
within ten days after such seizure, cause to be left with the owner of, and
with any person claiming of record a bona fide mortgage, assignment of
lease or rent, lien or security interest in, the property so seized, or at his
[or her] usual place of abode, if he [or she] is known, or, if unknown, at
the place where the property was seized, a summons notifying the owner
and any such other person claiming such interest and all others whom it
may concern to appear before such . . . court, at a place and time named
in such notice, which shall be not less than six nor more than twelve days
after the service thereof. Such summons may be signed by a clerk of the
court or his [or her] assistant and service may be made by a local or state
police officer. It shall describe such property with reasonable certainty and
state when and where and why the [property] was seized.
‘‘(b) If the owner of such property or any person claiming any interest
in the [property] appears, he [or she] shall be made a party defendant in
such case. Any state’s attorney or assistant state’s attorney may appear and
prosecute such complaint and shall have the burden of proving all material
facts by clear and convincing evidence.
‘‘(c) If the . . . court finds the allegations made in such complaint to be
true . . . [the court] shall render judgment that such property is a nuisance
and order the [property] to be destroyed or disposed of . . . .
‘‘(d) If the . . . court finds the allegations not to be true . . . or that
[the property] is the property of a person [who is] not a defendant, [the
court] shall order the property returned to the owner forthwith and the
party in possession of such property pending such determination shall be
responsible and personally liable for such property from the time of seizure
and shall immediately comply with such order. . . .’’
18
We note that the Garcia decision somewhat imprecisely uses the word
‘‘contraband’’ in explaining the court’s authority under § 54-36a (c), which
potentially has led to a misunderstanding of the scope of the court’s authority
to order forfeiture under this section. It is clear, however, from the court’s
analysis that the portion of the statute that it was construing included the
entire phrase ‘‘shall be forfeited or is contraband . . . .’’ (Emphasis added.)
State v. Garcia, supra, 108 Conn. App. 551. Decisions subsequent to Garcia
show that the Garcia holding is understood to not be limited to contraband,
but rather applicable to any seized property, other than stolen property,
with a nexus to the crimes charged. See, e.g., State v. Perez, 173 Conn. App.
40, 51, 162 A.3d 76 (2017) (replacing phrase ‘‘seized contraband’’ in quotation
of court’s holding in Garcia with ‘‘seized [property]’’).
19
This connection is considered strong enough that our Supreme Court
has held that, in narcotics investigations, this link satisfies the reasonable
suspicion requirement for an investigatory search specifically for weapons
under Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
See State v. Clark, supra, 255 Conn. 284.
20
In addition, we note that Redmond’s quest for in rem proceedings runs
contrary to a clear distinction between seized property and unseized prop-
erty in our statutes governing the forfeiture of property. ‘‘[S]eized [property]
does not require in rem forfeiture proceedings, as unseized property does.’’
(Internal quotation marks omitted.) State v. Perez, 173 Conn. App. 40, 51,
162 A.3d 76 (2017). ‘‘The distinction in Connecticut statutes delineating
the disposition of property seized as evidence, pursuant to § 54-36a, from
property subject to [in rem] forfeiture proceedings . . . leads us to conclude
that seized [property] does not require in rem forfeiture proceedings, as
unseized property does. [A] careful reading of all of the relevant provisions
of [the in rem forfeiture statutes], as well as a search of [the] legislative
history, reveal[s] that [the statutes were] only intended to protect from
forfeiture that property that has not yet been seized by the state . . . . This
exemption was not intended, however, to extend to property that has been
seized simultaneously with drugs, incident to a drug sales arrest.’’ (Emphasis
omitted; internal quotation marks omitted.) State v. Garcia, supra, 108 Conn.
App. 553.
21
In his appellate brief, Redmond also alludes to certain due process
concerns. He has not, however, briefed a separate due process claim under
either the federal or state constitutions. Rather, his argument references
due process concerns as support for his position that, because in rem
forfeiture proceedings are disfavored in Connecticut, the notice and hearing
requirements of the statutes should be strictly construed. He does not argue
that the trial court’s proceeding under § 54-36a (c), with no notice or hearing
required or given, is itself a due process violation. The scent of such a claim
nonetheless hovers in this case. ‘‘[T]he United States Supreme Court [has]
recognized the harshness of many forfeiture statutes but noted only two
instances in which such statutes might violate substantive due process. . . .
[I]t would be difficult to reject the constitutional claim of an owner whose
property subjected to forfeiture had been taken from him without his privity
or consent [for it to be used in the crime]. . . . Similarly, the same might
be said of an owner who proved not only that he was uninvolved in and
unaware of the wrongful activity, but also that he had done all that reasonably
could be expected to prevent the proscribed use of his property.’’ (Internal
quotation marks omitted.) State v. Connelly, 194 Conn. 589, 593 n.4, 483
A.2d 1085 (1984), quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 680–90, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974). The record in the
present case demonstrates that neither situation would apply to Redmond,
who allowed the defendant to have free access to the weapons, was aware
that the defendant was selling narcotics from Redmond’s home in which
the weapons were stored, and failed to take reasonably action to prevent his
weapons from being used in furtherance of the defendant’s narcotics trade.
22
Practice Book § 41-13 provides in relevant part that ‘‘[a] person aggrieved
by a . . . seizure may make a motion to the judicial authority who has
jurisdiction of the case, or if such jurisdiction has not yet been invoked,
then to the judicial authority who issued the warrant or to the court in
which the case is pending, for the return of specific items of property and
to suppress their use as evidence on the grounds that: (1) [t]he property
was illegally seized without a warrant under circumstances requiring a
warrant; (2) [t]he warrant is insufficient on its face; (3) [t]he property seized
is not that described in the warrant; (4) [t]here was not probable cause for
believing the existence of the grounds on which the warrant was issued;
or (5) [t]he warrant was illegally executed.’’
23
Practice Book § 41-15 provides in relevant part that such motion must
be made before trial, unless ‘‘the defendant or other moving party was not
aware of the grounds of the motion, in which case such motion may be
made at any time during the trial or the pendency of any proceeding. The
judicial authority in its discretion may entertain such a motion at any time.’’