¶24 (concurring in result) — Although I concur in the lead opinion’s result and in most of the lead opinion’s analysis, I write separately to articulate my disagreement with the lead opinion’s inclusion of what, in my view, is dicta, namely the statement of the lead opinion’s that Arizona v. Gant,_U.S._, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), applies retroactively to all cases not yet final on April 21, 2009, when the United States Supreme *504Court filed its opinion. Lead opinion at 496. We ultimately decide that Gant does not apply in Millan’s case; therefore we do not need to address whether Gant applies retroactively in the abstract, despite what the parties might agree in this case.
¶25 My concern is that inclusion of this unnecessary Gant dicta can lead only to confusion in future cases. For example, other parties and other courts may misconstrue the Millan lead opinion’s Gant retroactivity statement to mean that Gant is controlling whenever there is retroactive application, without regard to other pertinent factors that control here, such as waiver of an alleged search and seizure error and failure to establish a record below. Therefore, I do not concur in the majority’s inclusion of this Gant retroactivity language.
Review granted at 168 Wn.2d 1005 (2010).