Opinion
No. 37547-8-II.
February 23, 2010.
Appeal from a judgment of the Superior Court for Clallam County, No. 07-1-00403-2, Kenneth D. Williams, J., entered April 3, 2008.
Reversed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton, J.; Quinn-Brintnall, J., dissenting.
Deborah L. Cargo appeals her unlawful possession of a controlled substance (methamphetamine) conviction On August 13, 2009, we affirmed the trial court. On October 14, 2009, in light of the United States Supreme Court decision in Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), we withdrew our opinion. We now reverse.
Cargo was also convicted for a no-contact order violation under former RCW 26.50.110(1) (2007). She does not appeal that conviction.
FACTS
On August 13, 2007, Sequim Police Officer Anthony Graham checked a license plate on a Honda Civic parked in a Walmart parking lot. He saw a man and a woman inside the car. Graham learned that the car was registered to Cargo. Graham ran a check on Cargo and discovered an active protection order naming Cargo and Michael Lyman. Graham approached the car and recognized Lyman sitting in the passenger seat.
Graham arrested Lyman for violating the protection order, but Lyman claimed that the order protected him from Cargo's contact. Graham confirmed this fact, released Lyman, arrested Cargo, and put her in the back of his police car. Graham instructed Lyman that he was free to leave. Lyman left the scene, leaving no one in Cargo's car. Graham searched Cargo's car and found suspected drugs and drug paraphernalia, including two pipes and white powder folded inside a piece of paper. The crime laboratory concluded that one of the pipes contained methamphetamine residue and the folded paper contained less than .1 gram of methamphetamine.
The State charged Cargo with unlawful possession of a controlled substance (methamphetamine) and violation of a protection order. The jury found Cargo guilty of both charges. Cargo appealed arguing that the jury instructions were erroneous. On May 4, 2009, Cargo moved to allow supplemental briefing, challenging the search of her vehicle under Gant, 129 S. Ct. 1710. We denied Cargo's motion and affirmed the trial court on August 13, 2009. On October 14, 2009, we withdrew the previous opinion and granted Cargo's motion to allow supplemental briefing.
Cargo did not move to suppress the evidence against her before trial under CrR 3.6 and she does not challenge the admissibility of evidence in her opening brief. Cargo does raise the issue in her supplemental brief, citing Gant, 129 S. Ct. 1710.
ANALYSIS
The United States Supreme Court decided Gant on April 21, 2009, while Cargo's appeal was pending before us. See Gant, 129 S. Ct. 1710. In Gant, the Court clarified and narrowed the search incident to arrest exception to the Fourth Amendment warrant requirement, limiting the exception for searching vehicles to situations where "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" or where it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." 129 S. Ct. at 1719.
Both parties agree that Graham's search of Cargo's car was impermissible under Gant. We agree. Here, as in Gant, the officer secured the arrestee in the back of his patrol car before searching the arrestee's vehicle. See Gant, 129 S. Ct. at 1715. Further, there was no reason to believe that evidence relevant to the crime of violating a protection order would be found in the vehicle.
I. Retroactivity and Waiver
Although the State concedes that the search of Cargo's car was unlawful under Gant, we must consider whether Cargo waived her right to raise Gant when she failed to move to suppress the evidence before trial.
We note that there is a split of opinion among the members of this court regarding the applicability of Gant to appeals pending direct review at the time the Supreme Court issued its opinion. State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009), review granted, No. 83613-2 (Wash. Feb. 9, 2010); State v. McCormick, 152 Wn. App. 536, 216 P.3d 475 (2009). In both Millan and McCormick, the appeals were pending before this court when the Supreme Court decided Gant. Millan, 151 Wn. App. 492; McCormick, 152 Wn. App. 536. In Millan, a panel of this court held that the defendant waived his right to challenge the search of his vehicle under Gant when he failed to file a motion to suppress the evidence before in the trial court. 151 Wn. App. at 493. In McCormick, a different panel of this court rejected the reasoning of Millan, stating that defendants whose cases were pending at the time Gant was decided may argue Gant on appeal, regardless of whether they moved to suppress the evidence before trial. 152 Wn. App. at 540.
The United States Supreme Court has held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a `clear break' with the past." Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). The Court has also noted that treating two similarly situated defendants differently because of a change in the law results in "actual inequity." United States v. Johnson, 457 U.S. 537, 556 n. 16, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982) (emphasis omitted) (applying the Court's decision in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), to a case pending direct appeal). In light of Johnson, the Washington State Supreme Court applied Payton to cases pending direct appeal at the time the case was decided. See State v. Counts, 99 Wn.2d 54, 57, 659 P.2d 1087 (1983). The unanimous panel in McCormick, citing Griffith, Johnson, and Counts, held that Gant applies retroactively because "justice demands that similarly situated defendants whose appeals are pending direct review deserve like treatment following a change in the law." McCormick, 152 Wn. App. at 540. We agree.
As noted, the State concedes in its supplemental brief that the search of Cargo's vehicle incident to arrest was unlawful under Gant and does not request a hearing to advance another justification for the search. By further indicating that remand is inappropriate, the State is conceding the remaining evidence is insufficient to support a conviction. Thus, we reverse.
We note that in a statement of additional authorities, the State cites to a Division One case, State v. Riley, No. 62418-1-I, 2010 WL 427118, at *3 (Wash. Ct. App. Feb. 8, 2010) (holding that the good faith exception to the exclusionary rule applied to officer's unconstitutional post-arrest search of defendant's car, where officer acted in good faith reliance on pre-Gant case law) and to State v. Knighten, 109 Wn.2d 896, 901-02, 748 P.2d 1118 (1988) (concluding that a court is not bound by an erroneous legal concession). However, we do not apply the good faith exception. State v. Harris, No. 36565-1-II, 2010 WL 45755, at *7 (Wash. Ct. App. Jan. 7, 2010); McCormick, 152 Wn. App. at 543. We accept the State's concession on the remaining issues.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, J., concur.
For the reasons stated in State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009), and in my dissenting opinion in State v. Harris, No. 36565-1-II (Wash. Ct. App. Jan. 7, 2010) (Quinn-Brintnall, J., dissenting), I must respectfully dissent from the majority's conclusion that the United States Supreme Court case of Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), requires reversal of Deborah L. Cargo's conviction for possession of a controlled substance (methamphetamine).
In my opinion, reversal of Cargo's conviction is not required under Gant because she did not move to suppress the seized evidence used to convict her at trial and, thus, she cannot challenge the admissibility of that evidence for the first time on appeal. See State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (a defendant waives the right to challenge the admission of evidence gained in an illegal search or seizure by failing to move to suppress the evidence at trial); Millan, 151 Wn. App. at 499.
Moreover, in the absence of a motion to suppress physical evidence, the trial court was not required to rule on the admissibility of the evidence and the record on appeal contains no decision, correct or otherwise, for this court to review. See State v. Tarica, 59 Wn. App. 368, 372, 798 P.2d 296 (1990) ("There is no question that the search and seizure issue presented is constitutional, and there is a reasonable possibility that a motion to suppress, had it been made, would have been successful. However, there was no error in the trial court proceedings below.") (alteration in original), overruled on other grounds by State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995); see also Harris, No. 36565-1-II, slip op. at 20-21 (Quinn-Brintnall, J., dissenting) (Because "relevant physical evidence is admissible at trial unless the party seeking to exclude it files a motion to suppress[,] a trial court that admits evidence to which no motion to suppress had been made commits no error.") (alteration in original) (citing CrR 3.6(a)). Thus, this court lacks authority to address Cargo's challenge to the seized evidence for the first time on appeal. ER 103(a)(1); see State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985) ("A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial."), cert. denied, 475 U.S. 1020 (1986); see also McFarland, 127 Wn.2d at 333 (An error is not "manifest" for purposes of appellate review under RAP 2.5(a)(3) if the facts necessary to adjudicate the claimed error are not in the record on appeal.).
Although I continue to question the retroactive application of new criminal rules that are unrelated to preserving the integrity of the fact-finding process, even assuming that Gant applies to Cargo's appeal, she has failed to preserve the issue by not moving to suppress the evidence below. Harris, No. 36565-1-II, slip op. at 22 (Quinn-Brintnall, J., dissenting). And it is well established that under the Fourth Amendment, the issue of the legality of a search must be preserved for appeal by the filing of a motion to suppress in the trial court raising the specific grounds on which the search is challenged. See Harris, No. 36565-1-II, slip op. at 26 (Quinn-Brintnall, J., dissenting); Millan, 151 Wn. App. at 497-99.
Here Cargo did not object to the admissibility of the evidence obtained during the search of her vehicle incident to her lawful arrest and, thus, has failed to follow the steps necessary to preserve a challenge to the admission of that evidence for review. Accordingly, I respectfully dissent.