State v. Kinch ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. PHIL KINCH
(AC 37433)
(AC 37434)
Beach, Alvord and Gruendel, Js.
Argued April 12—officially released September 6, 2016
(Appeal from Superior Court, judicial district of
Fairfield, geographical area number two, Cronan, J.)
Gwendolyn S. Bishop, assigned counsel, for the
appellant (defendant).
Matthew R. Kalthoff, deputy assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, Richard L. Palombo, Jr., senior assis-
tant state’s attorney, and Marc R. Durso, assistant
state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. This case involves an investigatory
stop of a motor vehicle. The defendant, Phil Kinch,
appeals from the judgments of conviction, rendered
after jury trials, of possession of narcotics with intent
to sell by a person who is not drug-dependent in viola-
tion of General Statutes § 21a-278 (b) and failure to
appear in the first degree in violation of General Statutes
§ 53a-172 (a) (1). On appeal, the defendant claims that
the trial court improperly denied his motion to suppress
certain evidence. He further maintains that, should he
prevail on that claim, his conviction for failure to appear
also must be set aside. We affirm the judgments of the
trial court.
The relevant facts are largely undisputed. On the eve-
ning of July 12, 2011, members of the Bridgeport Police
Department were conducting surveillance in the vicinity
of 740 Ellsworth Street (property), which was consid-
ered a ‘‘hot zone’’ due to the prevalence of violent crime
in that area. A multistory apartment complex with a
small parking lot was located on the property.
From an unmarked police vehicle, Sergeants Brad-
ford Seely and Ronald Mercado were on the lookout
for an individual with a ‘‘weird walk . . . a weird gait’’
who allegedly ‘‘had been robbing people in this neigh-
borhood numerous times within the past few weeks
. . . .’’ At approximately 11 p.m., they observed an indi-
vidual with a distinctive gait wearing a red shirt and
black pants, who met with a ‘‘black male, a white male
and a white female’’ as he approached the property. At
that time, Seely placed a request over police radio for
the assistance of a marked police vehicle to ‘‘help iden-
tify the individual wearing the red shirt and the black
pants.’’1
Officers Manual Santos and Bobby Jones, who were
on patrol in a marked police vehicle, responded to See-
ly’s request. When they arrived at the property, they
observed three individuals walking toward a black Toy-
ota Scion XD (vehicle) in the parking lot. Those individ-
uals then entered that vehicle. At that time, the officers
were ‘‘acting on orders to stop parties in that [parking]
lot.’’ Santos observed a white male in the driver’s seat,
a white female in the front passenger seat, and a black
male in the rear passenger seat of the vehicle. At the
suppression hearing, Santos identified the defendant as
the individual in the rear passenger seat.
As they parked their patrol car behind the vehicle,
the officers observed ‘‘a lot of movement going on’’ in
the vehicle. Santos testified that ‘‘both the driver and
the front right passenger, the female, they just kept
looking towards the rear of the vehicle, the rear com-
partment to the passenger that was in the rear, [their]
hands were moving, their heads were moving, they kept
looking at us and . . . looking at this rear seated pas-
senger.’’ Santos, who was dressed in full uniform, exited
his patrol car and approached the driver’s side of the
vehicle with a flashlight in hand. As Santos ‘‘was looking
at the rear passenger [from outside the vehicle, he]
observed on the floor next to his feet . . . a small digi-
tal scale, a clear plastic Ziploc type sandwich bag which
had a white or off-white type substance inside it. [He]
observed . . . a blood cigarette, which . . . is a ciga-
rette wrapper with contraband in it that someone would
smoke. [He] also observed a brown paper bag that had
cigar tubes kind of protruding from it.’’ All three individ-
uals then exited the vehicle and were placed under
arrest. At that time, the police seized various items from
the vehicle.
The defendant was charged with possession of nar-
cotics with intent to sell by a person who is not drug-
dependent in violation of § 21a-278 (b). He thereafter
filed a motion to suppress the evidence seized from the
vehicle.2 In that motion, the defendant alleged that the
‘‘seizure and search of the vehicle occupied by the defen-
dant were conducted by members of the Bridgeport
Police Department without a valid warrant, without
probable cause, without reasonable and articulable sus-
picion, and not incident to a lawful arrest.’’ (Empha-
sis added.)
At the outset of the June 27, 2013 suppression hearing,
the state claimed that the defendant lacked standing to
contest the validity of the search of the vehicle, arguing
that ‘‘[i]t was not his car and prior court cases have
indicated that a person who’s a backseat passenger in
a car that he does not own does not have standing to
object to the search of that vehicle.’’ In response, the
defendant argued that he was entitled to proceed pursu-
ant to Brendlin v. California, 551 U.S. 249, 127 S. Ct.
2400, 168 L. Ed. 2d 132 (2007). Perhaps mindful that a
reasonable expectation of privacy analysis entails a fact
specific inquiry; see State v. Boyd, 295 Conn. 707, 718,
992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131
S. Ct. 1474, 179 L. Ed. 2d 314 (2011); the court did not
act on the state’s motion at that time, stating, ‘‘All right.
I’ll allow the matter to go forward.’’3
The only two witnesses at that hearing were Seely
and Santos. At the conclusion of their testimony, the
state renewed its claim that the defendant lacked stand-
ing to contest the seizure of the evidence in question.
The state argued that the present case was ‘‘very simi-
lar’’ to State v. Thomas, 98 Conn. App. 542, 550–51, 909
A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d
53 (2007), in which this court recognized that ‘‘[a] pas-
senger in a motor vehicle, who fails to demonstrate a
possessory interest in the car itself or in any of the
seized evidence, has no reasonable expectation of pri-
vacy in the area of the vehicle searched, and . . . is
precluded from contesting the validity of the search.’’
(Internal quotation marks omitted.) In response, the
defendant again directed the court’s attention to Bren-
dlin v. California, supra, 551 U.S. 249. In rendering its
oral decision, the court stated, ‘‘I’m . . . denying the
state’s motion on the standing, and I’m going to deny
the motion to suppress.’’ The court then detailed the
basis of its determination that the officers possessed a
reasonable and articulable suspicion of criminal activity
at the time of their encounter with the defendant.
A jury trial followed, at the conclusion of which the
defendant was found guilty of possession of narcotics
with intent to sell by a person who is not drug-depen-
dent in violation of § 21a-278 (b). The defendant was
scheduled to be sentenced on September 11, 2013, but
did not appear at that proceeding. Approximately two
months later, the court sentenced the defendant to a
term of twelve years incarceration, execution sus-
pended after eight years, with four years of special
parole.
As a result of his failure to appear for sentencing on
September 11, 2013, the defendant was arrested and
charged with one count of failure to appear in the first
degree. The defendant pleaded not guilty to that charge.
After a trial, the jury found the defendant guilty. The
court rendered judgment accordingly and sentenced
the defendant to a term of two years incarceration, to
be served consecutive to his sentence on his conviction
for possession of narcotics with intent to sell. This
consolidated appeal of the judgments of conviction for
possession of narcotics with intent to sell and failure
to appear followed.
I
The defendant first claims that the court improperly
denied his motion to suppress the evidence seized from
the vehicle because the investigatory stop by police
was not supported by a reasonable and articulable sus-
picion of criminal activity. The state concedes that ‘‘the
seizure of the vehicle’s occupants was not supported
by a reasonable and articulable suspicion that criminal
activity was afoot.’’ The state nonetheless maintains
that, because the defendant did not establish a reason-
able expectation of privacy in the vehicle, the court’s
ruling on the motion to suppress must be affirmed on
the alternate ground that the defendant lacked standing
to contest the search of the vehicle.4 We agree with
the state.5
‘‘[S]tanding is a fundamental requirement of jurisdic-
tion.’’ (Internal quotation marks omitted.) State v. John-
son, 301 Conn. 630, 642, 26 A.3d 59 (2011). ‘‘Standing
is the legal right to set judicial machinery in motion.
One cannot rightfully invoke the jurisdiction of the
court unless he [or she] has, in an individual or represen-
tative capacity, some real interest in the cause of action,
or a legal or equitable right, title or interest in the subject
matter of the controversy. . . . When standing is put
in issue, the question is whether the person whose
standing is challenged is a proper party to request an
adjudication of the issue . . . .’’ (Internal quotation
marks omitted.) State v. Long, 268 Conn. 508, 531, 847
A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160
L. Ed. 2d 340 (2004). The question of standing presents
an issue of law over which our review is plenary. Weiss
v. Smulders, 313 Conn. 227, 239, 96 A.3d 1175 (2014);
see also State v. Kalphat, 285 Conn. 367, 374, 939 A.2d
1165 (2008) (issues raising questions of law in context
of motion to suppress subject to plenary review).
In conducting that plenary review, the factual find-
ings underlying a court’s decision on a motion to sup-
press ‘‘will not be disturbed unless [they are] clearly
erroneous in view of the evidence and pleadings in the
whole record. . . . [H]owever, when a question of fact
is essential to the outcome of a particular legal determi-
nation that implicates a defendant’s constitutional
rights, and the credibility of witnesses is not the primary
issue, our customary deference to the trial court’s fac-
tual findings is tempered by a scrupulous examination
of the record to ascertain that the trial court’s factual
findings are supported by substantial evidence.’’ (Inter-
nal quotation marks omitted.) State v. DeMarco, 311
Conn. 510, 519, 88 A.3d 491 (2014).
A
As a preliminary matter, we note that the parties
presented differing views of the applicable legal stan-
dard at the suppression hearing. The state relied on
Connecticut precedent, and State v. Thomas, supra, 98
Conn. App. 542, in particular. In Thomas, this court
held in relevant part that ‘‘[i]n order to challenge a
search or seizure on fourth amendment grounds, a
defendant must show that he has a reasonable expecta-
tion of privacy in the place searched. . . . A passenger
in a motor vehicle, who fails to demonstrate a possess-
ory interest in the car itself or in any of the seized
evidence, has no reasonable expectation of privacy in
the area of the vehicle searched, and thus, he is pre-
cluded from contesting the validity of the search. . . .
[B]ecause the defendant did not establish an expecta-
tion of privacy in the areas of the automobile that were
searched, he has no standing to challenge the constitu-
tionality of the search.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 550–51; see also State v.
Gonzalez, 278 Conn. 341, 348–49, 898 A.2d 149 (2006)
(‘‘the [United States] Supreme Court has long held that
a reasonable expectation of privacy in the subject of a
search is a prerequisite for fourth amendment protec-
tion’’ [footnote omitted]).
By contrast, the defendant at the suppression hearing
submitted that he possessed standing to contest the
validity of the search of the vehicle pursuant to Bren-
dlin v. California, supra, 551 U.S. 249. In Brendlin, the
United States Supreme Court addressed the question
of whether, when a police officer makes a traffic stop,
a passenger in the motor vehicle ‘‘is seized within the
meaning of the [f]ourth [a]mendment.’’ Id., 251. The
court answered that query in the affirmative, stating
that ‘‘a passenger is seized . . . and so may challenge
the constitutionality of the stop.’’ Id. The defendant in
that case was a passenger in a motor vehicle that was
stopped to verify the validity of a temporary operating
permit. Id., 251. During the course of the investigatory
stop, the police discovered that the defendant ‘‘was a
parole violator with an outstanding no-bail warrant for
his arrest.’’ Id., 252. The police thus ordered the defen-
dant to exit the vehicle and placed him under arrest.
Id. When they then conducted a search ‘‘incident to
[that] arrest, they found an orange syringe cap on his
person.’’ Id. A subsequent search of the vehicle dis-
closed ‘‘tubing, a scale, and other things used to produce
methamphetamine.’’ Id.
Significantly, Brendlin concerned only the seizure of
a passenger, and not the search of the vehicle itself.
As the United States Supreme Court made clear, the
defendant ‘‘moved to suppress the evidence obtained
in the searches of his person and the car as fruits of
an unconstitutional seizure, arguing that the officers
lacked probable cause or reasonable suspicion to make
the traffic stop. He did not assert that his Fourth Amend-
ment rights were violated by the search of [the] vehicle,
cf. Rakas v. Illinois, [439 U.S. 128, 99 S. Ct. 421, 58 L.
Ed. 2d 387 (1978)],6 but claimed only that the traffic
stop was an unlawful seizure of his person.’’ (Emphasis
added; footnote added.) Id., 253. Brendlin therefore has
little bearing on the question of whether a passenger
has standing to challenge the search of a motor vehicle
and the seizure of items contained therein.7 See, e.g.,
United States v. Wilbourn, 799 F.3d 900, 908 (7th Cir.
2015) (‘‘Passengers in cars stopped by police are
deemed ‘seized’ for Fourth Amendment purposes and
are entitled to challenge the constitutionality of the
detention. Brendlin v. California, [supra, 551 U.S. 249].
This principle, however, does not extend so far that
it recognizes a legitimate expectation of privacy for
passengers who do not have a possessory interest in a
vehicle.’’); United States v. Symonevich, 688 F.3d 12,
19 (1st Cir. 2012) (explaining that Brendlin does ‘‘not
extend Fourth Amendment rights to passengers who
challenge only the search of the vehicle in which they
were traveling’’); Atkins v. Commonwealth, 57 Va. App.
2, 12, 698 S.E.2d 249 (2010) (‘‘[b]y its own language,
Brendlin does not address whether a passenger can
challenge the legality of a search of the vehicle in which
he is a passenger’’).
It therefore is not surprising that, in the years since
Brendlin was decided, the appellate courts of this state
have adhered to the reasonable expectation of privacy
standard in assessing whether a defendant possesses
the requisite standing to contest the search of a motor
vehicle or items discovered therein. See, e.g., State v.
Boyd, supra, 295 Conn. 718; State v. Michael D., 153
Conn. App. 296, 304–305, 101 A.3d 298, cert. denied,
314 Conn. 951, 103 A.3d 978 (2014); State v. Jevarjian,
124 Conn. App. 331, 338, 4 A.3d 1231 (2010), appeal
dismissed, 307 Conn. 559, 58 A.3d 243 (2012); State v.
Vallejo, 102 Conn. App. 628, 635–36, 926 A.2d 681, cert.
denied, 284 Conn. 912, 931 A.2d 934 (2007). Accordingly,
to ‘‘meet this rule of standing, the defendant must dem-
onstrate that he had a reasonable expectation of privacy
in the area or subject of the search.’’ State v. Kimble,
106 Conn. App. 572, 583, 942 A.2d 527, cert. denied, 286
Conn. 912, 950 A.2d 1289 (2008).
B
With that legal standard in mind, we turn our atten-
tion to the present case. Following a suppression hear-
ing, the court orally denied the state’s request to deny
the motion to suppress for lack of standing. Because a
determination that the defendant possessed a reason-
able expectation of privacy was a necessary prerequi-
site to the court’s conclusion that the defendant had
standing to contest the search of the vehicle; see State
v. Davis, 283 Conn. 280, 313, 929 A.2d 278 (2007) (‘‘a
defendant may not invoke the fourth amendment to
challenge the legality of a search unless he first can
establish a legitimate expectation of privacy in the area
searched’’); the issue is whether such a determination
is substantiated by the record before us.
‘‘The burden of proving the existence of a reasonable
expectation of privacy rests on the defendant.’’ State
v. Gonzalez, supra, 278 Conn. 349; see also State v.
Kalphat, supra, 285 Conn. 375 (defendant bears burden
of establishing facts necessary to demonstrate basis
for standing). To establish a reasonable expectation of
privacy, the defendant bore the burden of demonstra-
ting both (1) that he manifested a subjective expectation
of privacy in the area of vehicle searched and (2) that
his expectation was one that society would consider
reasonable. See State v. Boyd, supra, 295 Conn. 718.
Yet the defendant did not offer any testimonial or docu-
mentary evidence whatsoever at the suppression hear-
ing. The defendant did not testify at that hearing and
at no time did he assert a possessory interest in either
the vehicle or the items discovered therein.8 Put simply,
the record is bereft of any evidence of such an interest.
Our precedent instructs that ‘‘[p]assengers in an auto-
mobile, neither claiming nor demonstrating a possess-
ory interest in the automobile, generally are regarded
as lacking a reasonable expectation of privacy in the
automobile.’’ State v. Kimble, supra, 106 Conn. App.
584; accord United States v. Anguiano, 795 F.3d 873,
878 (8th Cir. 2015) (‘‘a mere passenger does not have
standing to challenge a vehicle search where he has
neither a property nor a possessory interest in the auto-
mobile’’ [internal quotation marks omitted]); State v.
Burns, 23 Conn. App. 602, 612, 583 A.2d 1296 (1990)
(‘‘[t]he defendant acknowledges that he was merely a
passenger and that mere passengers in an automobile
are generally regarded as lacking a legitimate expecta-
tion of privacy in that car’’); State v. Delarosa, 16 Conn.
App. 18, 32, 547 A.2d 47 (1988) (‘‘[a] passenger in a
motor vehicle, who fails to demonstrate a possessory
interest in the car itself or in any of the seized evidence,
has no reasonable expectation of privacy in the area
of the vehicle searched, and thus, he is precluded from
contesting the validity of the search’’); cf. Rakas v. Illi-
nois, supra, 439 U.S. 148–49 (passenger in vehicle gener-
ally does not have expectation of privacy in vehicle’s
glove compartment, trunk, or underseat area); United
States v. Barber, 777 F.3d 1303, 1305 (11th Cir. 2015)
(distinguishing between passenger’s ‘‘expectation of
privacy in a car’’ and ‘‘a passenger’s expectation of
privacy in a bag within a car’’ and holding that defendant
‘‘had standing to challenge the search of his bag, even
if he lacked standing to contest the search of the car’’);
People v. Lewis, 217 A.D. 2d 591, 593, 629 N.Y.S.2d
455 (1995) (‘‘the defendant had a reasonable expecta-
tion that the privacy of the locked briefcase entrusted
to him [by his uncle] would be maintained’’ when found
on backseat of vehicle he was driving).
In addition, it is a fundamental tenet of fourth amend-
ment jurisprudence that a defendant has no reasonable
expectation of privacy in contraband that plainly is
visible to officers outside the vehicle. See Texas v.
Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 75 L. Ed.
2d 502 (1983) (‘‘[t]here is no legitimate expectation of
privacy . . . shielding that portion of the interior of
an automobile which may be viewed from outside the
vehicle by . . . diligent police officers’’ [citation omit-
ted]); United States v. Rascon-Ortiz, 994 F.2d 749, 754
(10th Cir. 1993) (‘‘there is no legitimate expectation of
privacy in a car’s interior if an officer looks through the
car’s window and observes contraband in plain view’’);
United States v. Ramos, 960 F.2d 1065, 1067 (D.C. Cir.
1992) (‘‘the fourth amendment provides protection to
the owner of only a container that conceals its contents
from plain view’’).
A review of the record reveals that the defendant
was merely a passenger in a vehicle in which contra-
band was discovered, which contraband Santos
observed from the outside of the vehicle. We agree with
the state that the present case is materially indistin-
guishable from State v. Thomas, supra, 98 Conn. App.
542, in which ‘‘[t]he defendant conceded . . . that he
was merely a passenger and claimed neither an owner-
ship nor a possessory interest in the [vehicle] or in any
of the seized items. He also has not shown a reasonable
expectation of privacy in the areas of the [vehicle] that
were searched.’’ Id., 551. For that reason, this court
concluded that the defendant ‘‘has no standing to chal-
lenge the constitutionality of the search.’’ Id. That logic
compels a similar conclusion in the present case.
Because the issue of standing was raised at the outset
of the suppression hearing, it was incumbent on the
defendant to provide an evidentiary basis on which the
trial court reasonably could conclude that he possessed
an expectation of privacy in the rear floor area of the
vehicle where the evidence was seized.9 See State v.
Gonzalez, supra, 278 Conn. 348–49 (‘‘a reasonable
expectation of privacy in the subject of a search is a
prerequisite for fourth amendment protection’’[foot-
note omitted]). It nevertheless remains that the defen-
dant presented no evidence of such an expectation of
privacy. Cf. United States v. McCaster, United States
Court of Appeals, Docket No. 94–599968 (6th Cir. Octo-
ber 19, 1995) (defendant ‘‘lacked a reasonable expecta-
tion of privacy in . . . the bag of cocaine found in plain
view on floorboard’’ of acquaintance’s vehicle); State
v. Reldan, 100 N.J. 187, 203, 495 A.2d 76 (1985) (floor
of vehicle not area ‘‘entitled to a justifiable expectation
of privacy’’). Given that dearth of evidence, the defen-
dant cannot meet his burden of establishing a reason-
able expectation of privacy in the area of the vehicle
searched. See State v. Burns, supra, 23 Conn. App. 612
(defendant lacked standing to contest search because
‘‘there was no evidence to show’’ he possessed reason-
able expectation of privacy); State v. Haynes, 7 Conn.
App. 550, 553, 509 A.2d 557 (1986) (‘‘[T]he defendant
did not show that he subjectively believed that the bag
would remain hidden either by introducing direct evi-
dence of his belief, or by introducing circumstantial
evidence from which the trial court could have inferred
such a belief. Nor did he introduce evidence showing
that any subjective expectation of privacy that he had
was reasonable.’’). Indeed, the defendant has not identi-
fied any evidence of such an expectation in his appel-
late brief.10
On our careful review of the record of the suppression
hearing, we conclude that there is no basis on which
the court could find that the defendant satisfied his
burden of proving the existence of a reasonable expec-
tation of privacy in the area of the vehicle searched.
He thus lacked standing to challenge the legality of
that search. Accordingly, the denial of the defendant’s
motion to suppress was not improper.
II
In light of our resolution of that claim, the defendant
cannot prevail on his ancillary contention that his con-
viction for failure to appear must be vacated because
it stems from an improper verdict on the underlying
charge of possession of narcotics with intent to sell.
As the defendant acknowledges in his appellate brief,
that claim is entirely dependent on the success of his
fourth amendment challenge to the search of the vehicle
and seizure of the evidence recovered therefrom. Given
our disposition in part I of this opinion, this ancillary
claim too must fail.11
The judgments are affirmed.
In this opinion the other judges concurred.
1
In his testimony, Seely explained that he requested the assistance of a
marked police vehicle because ‘‘we had an unmarked police vehicle that
we didn’t want to, what we call, burn. The vehicle [is] used to conduct
surveillances and . . . [we] try to stay undercover throughout the
operation.’’
2
Specifically, the defendant sought to suppress ‘‘(1) [o]ne large plastic
sandwich bag containing an off-white substance; (2) [o]ne brown colored
blunt type cigarette; (3) [o]ne brown paper bag containing three green
colored cigar tubes; (4) [o]ne AMW digital scale; (5) [o]ne medium sized
ziplock clear plastic bag with a red apple print on it and containing numerous
smaller red tinted ziplock type clear plastic baggies and five clear sandwich
bags; (6) [o]ne hundred and sixty ($160.00) dollars in US currency.’’
3
In so doing, the court provided the defendant with the opportunity to
establish his standing to contest the validity of the search of the vehicle.
4
It is well established that we may ‘‘affirm the court’s judgment on a
dispositive alternate ground for which there is support in the trial court
record.’’ (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106,
188, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L.
Ed. 2d 116 (2005); see also State v. John, 210 Conn. 652, 679–80, 557 A.2d
93 (appellate court ‘‘is free to sustain a ruling on a different basis from that
relied upon by the trial court’’), cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107
L. Ed. 2d 50 (1989).
5
Because we conclude that the defendant lacked ‘‘standing to challenge
the legality of a search and seizure under both the fourth amendment to
the United States constitution and article first, § 7, of the constitution of
Connecticut’’; State v. Kimble, 106 Conn. App. 572, 582, 942 A.2d 527, cert.
denied, 287 Conn. 912, 950 A.2d 1289 (2008); we do not consider the merits
of such a challenge. See, e.g., Minnesota v. Carter, 525 U.S. 83, 91, 119 S.
Ct. 469, 142 L. Ed. 2d 373 (1998) (‘‘[b]ecause we conclude that respondents
had no legitimate expectation of privacy in the apartment, we need not
decide whether the police officer’s observation constituted’’ illegal search);
State v. Jevarjian, 307 Conn. 559, 566–67, 58 A.3d 243 (2012) (declining to
reach merits of challenge to legality of search when ‘‘the defendant lacked
standing to contest the search of the recreational vehicle because he did
not have a reasonable expectation of privacy therein’’); State v. Pierre, 139
Conn. App. 116, 128–29, 54 A.3d 1060 (2012) (declining to address defendant’s
claim that statement should be suppressed as ‘‘fruit of the poisonous tree’’
where defendant did not have reasonable expectation of privacy in area
searched), aff’d, 311 Conn. 507, 88 A.3d 489 (2014); State v. Manson, 13
Conn. App. 220, 221–22, 535 A.2d 829 (1988) (where defendant passenger
claimed that police lacked sufficient articulable grounds to conduct investi-
gatory stop and that court improperly denied motion to suppress, court held
that ‘‘[u]nless this defendant can establish . . . that he had a reasonable
expectation of privacy in the area of the vehicle searched, we need not
reach those claims with respect to him’’).
6
In Rakas v. Illinois, supra, 439 U.S. 143, the United States Supreme
Court recognized that a person has standing to raise a fourth amendment
challenge to a search of a motor vehicle only if that person can demonstrate
‘‘a legitimate expectation of privacy in the invaded place.’’ As our Supreme
Court has observed, ‘‘[a]bsent such an expectation, the subsequent police
action has no constitutional ramifications.’’ (Internal quotation marks omit-
ted.) State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S.
919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).
7
We reiterate that the defendant, in his June 17, 2013 motion to suppress,
challenged the ‘‘search and seizure of the vehicle occupied by the defendant
. . . .’’ (Emphasis added.) That motion contains no claim regarding any
seizure of the defendant himself.
8
Santos indicated at the suppression hearing that the defendant was not
the owner of the vehicle.
9
Santos testified at the suppression hearing that the digital scale, the
plastic bag containing an off-white substance, the cigarette containing con-
traband, and the bag containing cigar tubes all were located ‘‘[o]n the floor
board of the vehicle . . . near the [defendant’s] feet.’’
10
The defendant did not file a reply brief in this appeal.
11
We therefore express no opinion as to the viability of the defendant’s
claim.