State v. Harris

Armstrong, J.

¶1

Stuart J. Harris Jr. appeals his conviction for first degree unlawful possession of a firearm, arguing sufficiency of the evidence, additional evidentiary error, and prosecutorial misconduct. While this appeal was pending, the United States Supreme Court decided Arizona v. Gant,1 which deals with the scope of a car search pursuant to the arrest of its driver. We allowed the parties to provide supplemental briefs on the Gant issue. We now hold that absent other grounds to support it, the search of Harris’s car exceeded the bounds set by Gant and the evidence obtained in the search must be suppressed. Thus, we reverse and remand to the trial court for a hearing as to whether grounds other than the arrest support the search of Harris’s car. If the State cannot show other grounds, the trial court must suppress any evidence gathered from the car.

FACTS

¶2 One night at 2:00 am, Officer Steven Rosmaryn stopped Harris’s car for a stop sign violation. Harris told Officer Rosmaryn that his name was “Jerrell Jeffrey Johnson” and refused to provide a driver’s license or any other identification. 2 Report of Proceedings (RP) at 56-57. Officer Rosmaryn found no record of Jerrell Jeffrey Johnson with the Department of Licensing. When Harris gave his real identity, Officer Rosmaryn discovered that Harris’s license had been suspended. He arrested Harris and placed him in the back of the patrol car. Officer Rosmaryn’s partner, Officer Albert Schultz, then searched the vehicle incident to the arrest and found a .357 magnum revolver under the “forward portion” of the driver’s seat.2 2 RP at 62; 3 RP at 105. Pieces of the gun were missing, and it did not appear to function properly.

¶3 The State charged Harris with first degree unlawful possession of a firearm. Harris did not move to suppress before trial. During trial, the State attempted to show that the gun was operable by asking one officer whether he would fire on a person who pointed the gun at him; the prosecutor then argued in closing that the officer’s testimony supported a finding that the gun met the legal definition of a “firearm.” Harris has raised issues as to this testimony as well as testimony about his ownership of the gun and its status as stolen.

ANALYSIS

¶4 After the parties submitted their briefs in this case, the United States Supreme Court decided Gant, 129 S. Ct. 1710, which addressed the search-incident-to-arrest exception to the warrant requirement of the Fourth Amendment. Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), that predominated in the lower courts, namely, that the Fourth Amendment “allow [s] a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S. Ct. at 1718. The Court held instead that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 129 S. Ct. at 1723.3

¶5 The facts in Gant are similar to those here. Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of the car was unlawful.4

¶6 We granted Harris’s motion to file supplemental briefing addressing the applicability of Gant to his appeal, and we begin our analysis with a discussion of that issue.

The Applicability of Gant

¶7 Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) (failure to apply newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication); State v. McCormack, 117 Wn.2d 141, 144-45, 812 P.2d 483 (1991) (constitutional ruling in criminal case applied retroactively to defendant’s case on direct review). Griffith involved two criminal cases: a state prosecution for robbery and a federal prosecution on a drug charge. While the cases were pending on appeal, the Court filed its opinion in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which held that a state criminal defendant establishes a prima facie case of racial discrimination in violation of the Fourteenth Amendment’s promise of equal protection where the prosecutor strikes all members of the defendant’s race from the jury. Batson, 476 U.S. at 89. The Griffith Court applied Batson to both the state case (equal protection issue) and the federal case (impartial jury issue), concluding 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.” Griffith, 479 U.S. at 328 (emphasis added).

¶8 The Court had previously held that its new Fourth Amendment rulings controlled, with one exception not relevant here, all cases not yet final on appeal. United States v. Johnson, 457 U.S. 537, 563, 102 S. Ct. 2579, 73 L. Ed. 202 (1982) (citing Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)). Johnson applied the Court’s newly announced decision in Payton limiting routine, warrantless felony arrests under the Fourth Amendment to a case not yet final on appeal. Payton, 445 U.S. 573. The Washington Supreme Court has followed this directive, holding that Johnson’s retroactivity rule required it to apply Payton’s warrantless arrest rule even in the face of a state statute that specifically allowed warrantless arrests in the home; the court concluded that “we are nevertheless bound by the Supreme Court.” State v. Counts, 99 Wn.2d 54, 57, 659 P.2d 1087 (1983). In spite of this clear and, on its face, compelling guidance from the United States Supreme Court and the Washington Supreme Court, the State contends that Harris waived his right to obtain relief under Gant because he did not move to suppress before trial.5

¶9 Under RAP 2.5(a)(3), an appellant may raise for the first time on appeal a claim of manifest error affecting a constitutional right. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). In analyzing alleged constitutional error for the first time on appeal, we must determine whether the alleged error in fact suggests a constitutional issue and whether the error is manifest, i.e., whether the asserted error had practical and identifiable consequences in the trial of the case. State u. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). If the alleged error is manifest, we must address the merits of the constitutional issue. If we find a manifest constitutional error, we then must undertake a harmless error analysis. Lynn, 67 Wn. App. at 345.

¶10 Understanding that an issue involving an unlawful search is one of manifest constitutional error, we have addressed such issues for the first time on review. See, e.g., State v. Littlefair, 129 Wn. App. 330, 338, 119 P.3d 359 (2005) (appellant did not waive error based on bad search warrant because it involved constitutional issue); State v. Contreras, 92 Wn. App. 307, 314, 966 P.2d 915 (1998) (where adequate record exists, appellate court can review suppression issue, even in absence of motion or trial court ruling thereon). The Washington Supreme Court held that RAP 2.5(a)(3) did not apply, however, where an appellant withdrew a motion to suppress before trial. State v. Valladares, 99 Wn.2d 663, 671-72, 664 P.2d 508 (1983). The court cited this affirmative action as an express waiver of his right to raise the admission of evidence seized in a warrantless search. Valladares, 99 Wn.2d at 672. Division Three distinguished this holding where the law applicable to the search changed between the time of trial and appeal. State v. Rodriguez, 65 Wn. App. 409, 417, 828 P.2d 636 (1992). Even though defense counsel withdrew his pretrial motion to suppress, the court allowed him to raise the issue on appeal because of a change in the law announced by our Supreme Court. Division Three found no Valladares waiver because, at the time of trial, the parties and the court would have reasonably relied on a Court of Appeals decision that was subsequently reversed. Rodriguez, 65 Wn. App. at 417. The court found review of the issue permissible under RAP 2.5(a)(3). Rodriguez, 65 Wn. App. at 417.

¶11 Valladares and Rodriguez reinforce the definition of “waiver” as “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” State v. Riley, 19 Wn. App. 289, 294, 576 P.2d 1311 (1978) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). In a case the State cites to support a finding of waiver here, the Washington Supreme Court found that the appellant waived his right to move to suppress evidence because he “was fully aware of the circumstances surrounding his arrest by the time the allegedly illegally seized items were offered into evidence. He chose to remain silent. His motion to suppress at the end of the state’s case in chief came too late.” State v. Baxter, 68 Wn.2d 416, 424, 413 P.2d 638 (1966). Here, Harris was unaware of the change in the law that would render the search of his car potentially unlawful until well after his conviction. The circumstances do not support a finding of waiver under the cases cited above.

¶12 The State encourages us to look to federal law for guidance in resolving the waiver issue. Although the federal courts generally hold that an issue not presented to the trial court cannot be raised for the first time on appeal, there is an exception to this rule where a new theory or issue arises while an appeal is pending because of a change in the law. United States v. Echavarria-Escobar, 270 F.3d 1265, 1268 (9th Cir. 2001); United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983) (citing Hormel v. Helvering, 312 U.S. 552, 557-58, 61 S. Ct. 719, 85 L. Ed. 1037 (1941); Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976)). As Judge Posner of the Seventh Circuit observed,

A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated. A contrary rule would induce parties to drown the trial judge with reservations.

McKnight v. Gen. Motors Corp., 908 F.2d 104, 108 (7th Cir. 1990), cited in United States v. Charley, 189 F.3d 1251, 1279 (10th Cir. 1999) (Holloway, J., concurring and dissenting). This exception allows a federal court to consider sua sponte a claim not initially raised on appeal. See United States v. Garcia, 77 F.3d 274, 276 (9th Cir. 1996) (court considered sua sponte recent United States Supreme Court decision and concluded that it required the conviction to be overturned). Courts also may reach an issue for the first time on appeal in a case of plain error, which is assessed at the time of appellate consideration. See Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (holding that intervening change in the law made error plain on appeal). Where the law has changed between the time of trial and appeal, the Court rejected the argument that the claim of error needed to be preserved with an objection at trial, concluding that “such a rule would result in counsel’s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Johnson, 520 U.S. at 468.

¶13 The federal rules specifically address the failure to file a motion to suppress before trial, stating that such failure is considered waiver of the alleged error for which relief may be granted for good cause shown. United States v. Smith, 131 F.3d 1392, 1397 (10th Cir. 1997) (relying on Fed. R. Crim. P. 12(b)(3) and (f) (now subsection (e))). The Seventh Circuit explains that where a defendant merely neglects to make a suppression motion before trial (as opposed to intentionally forgoing the motion), a rule 12 waiver “ ‘is more akin to a forfeiture than a waiver’ ” and will call for plain-error review provided the defendant can make the good cause showing the rule requires. United States v. Hargrove, 508 F.3d 445, 450 (7th Cir. 2007) (quoting United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005)). The Sixth Circuit has stated that “there is some debate over whether we should treat a suppression argument raised for the first time on appeal as a waiver (subject to review only if the defendant can show ‘good cause’) or a forfeiture (subject to ‘plain error’ review).” United States v. Caldwell, 518 F.3d 426, 430 (6th Cir.) (citations omitted) (quoting Fed. R. Crim. P. 12(e), 52(b)), cert. denied, 554 U.S. 929 (2008). In any event, there are exceptions to the rule’s waiver provision.

¶14 The dissent cites a passage from United States v. Booker, 543 U.S. 220, 267, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) , and argues that it stands for the proposition that the retroactive application of a new criminal fule does not relieve the defendant of the obligation to preserve a challenge for appellate review. What the passage cited states, however, is that in reviewing alleged Sixth Amendment errors, a court must determine whether the issue was raised below and whether it fails the plain error test. The latter test allows reviewing courts to review such error where it was not raised at trial. See, e.g., United States v. Brown, 444 F.3d 519, 521 (6th Cir. 2006) (citing Booker and explaining that because defendant did raise sentencing objection below, review is for harmless error rather than plain error); United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005) (citing Booker after stating that because of the lack of objections below, review is for plain error); People v. Nitz, 219 Ill. 2d 400, 412, 848 N.E.2d 982, 302 Ill. Dec. 418 (2006) (stating that Booker allows it to apply plain error review to sentencing error where defendant failed to raise timely objection); State v. Yoh, 2006 VT 49A, 180 Vt. 317, 340, 910 A.2d 853 (citing Booker and stating that issue not raised below is reviewed for plain error).

¶15 As the dissent explains, Booker is the federal counterpart to Blakely, which largely invalidated Washington’s exceptional sentencing procedure. Blakely v. Washington, 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). And both this court and the Washington Supreme Court applied Blakely without regard to whether the defendant challenged his exceptional sentence at trial. See, e.g., State v. Monroe, 126 Wn. App. 435, 109 P.3d 449 (2005), overruled on other grounds by State v. Clarke, 156 Wn.2d 880, 134 P.3d 188 (2006); State v. Brundage, 126 Wn. App. 55, 107 P.3d 742 (2005); In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 147 P.3d 573 (2006); State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005). Indeed, in Monroe, the author of the dissenting opinion here explained that the defendant’s stipulation to certain sentencing facts did not waive his right to seek relief under Blakely.

When Monroe consented to judicial fact-finding, Blakely had not been issued and it was the established rule of this state that a defendant had no right to have a jury decide facts supporting exceptional sentences. Monroe could not have knowingly waived his right to jury fact-finding at sentencing when the only controlling precedent held that he had no such right.

Monroe, 126 Wn. App. at 442 (footnote and citation omitted); see also State v. McConnell, 137 Wn. App. 81, 89, 152 P.3d 349 (Blakely error is manifest constitutional error and may be considered for the first time on appeal), review denied, 162 Wn.2d 1007, 175 P.3d 1094 (2007). The same analysis applies here. Harris did not waive his right to seek relief under Gant.

¶16 We note that a different panel of this court did find a Gant challenge waived where the appellant failed to move to suppress based on pre-Gant law. State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009). The majority in Millan cited a long list of federal cases to support its finding of waiver, but none of those cases involved a change in the applicable constitutional right between the time of trial and appeal. Millan, 151 Wn. App. at 497-98. Another panel recently rejected the waiver analysis in Millan, reasoning instead that defendants may take advantage of Gant on appeal whether or not they moved to suppress before trial. State v. McCormick, 152 Wn. App. 536, 540, 216 P.3d 475 (2009).

f 17 In its briefing to the court in this case, the State cites numerous cases where waiver is applied to reject a Fourth Amendment challenge raised for the first time on appeal. Again, none of these cases involves a change in the law that would invalidate the search that occurred in that case. It is simply unfair, and a contradiction of the Supreme Court’s retroactivity rule, to hold that an appellant cannot challenge a search made unlawful by intervening case law. See McCormick, 152 Wn. App. at 540. On the record before us, the warrantless search of Harris’s car presents an issue of manifest constitutional error prompted by a change in the law, and we decline to hold that Harris waived the right to challenge that search under Gant by failing to bring a meritless motion to suppress before trial. In conclusion, we are satisfied that even if we had the power to do so, we should not deny Harris his constitutional rights under Gant.

¶18 The State also argues that the good faith exception should apply to excuse the warrantless search of Harris’s car. It points out that Harris argues for relief based only on Gant, which rests on an analysis of the Fourth Amendment to the United States Constitution, and that federal law recognizes a good faith exception to the warrant requirement. See State v. Eisfeldt, 163 Wn.2d 628, 639 n.10, 185 P.3d 580 (2008) (“The Fourth Amendment, unlike article I, section 7, allows good-faith exceptions to the warrant requirement.”).

¶19 The federal courts disagree as to whether the good faith exception applies to searches that are unlawful under Gant. The Tenth Circuit noted that the United States Supreme Court has applied the good faith exception to cases where police reasonably relied on a warrant that was subsequently declared invalid, to cases involving warrant-less administrative searches performed in reliance on a statute that was later declared unconstitutional, to a search based on mistaken information in a court’s database indicating that an arrest warrant was outstanding, and to police reliance on the negligent mistake of a fellow law enforcement employee. United States v. McCane, 573 F.3d 1037, 1042-43 (10th Cir. 2009). The McCane court decided to extend the good faith exception to a search justified under settled case law that was later rendered unconstitutional by a Supreme Court decision. McCane, 573 F.3d at 1044. Observing that the purpose of the exclusionary rule is to deter police misconduct, the court reasoned that a police officer who undertakes a search in reasonable reliance on settled law, even though the search is later deemed invalid by Supreme Court decision, has not engaged in misconduct. McCane, 573 F.3d at 1044. Accordingly, the appellant was not entitled to relief under Gant. See McCane, 573 F.3d at 1045; see also United States v. Grote, 629 F. Supp. 2d 1201, 1206 (E.D. Wash. 2009) (“Application of the good faith exception here is not intended to excuse a mistake on the part of [the officer], but to recognize that Gant represents a change in well-established law on which law enforcement officers once reasonably relied.”).

¶20 In an even more recent decision, however, the Ninth Circuit Court of Appeals declined to extend the good faith exception to cases where the officers were relying on preGant case law generated by the United States Supreme Court. United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009); see also United States v. Buford, 623 F. Supp. 2d 923 (M.D. Tenn. 2009). The court observed that neither it nor the Supreme Court had applied the good faith exception to the scenario at issue: a search conducted under a then-prevailing interpretation of a Supreme Court ruling but rendered unconstitutional by a subsequent Supreme Court ruling announced while the defendant’s conviction was on direct review. Gonzalez, 578 F.3d at 1132. The court concluded that the case should be controlled by long-standing precedent governing the applicability of a new rule announced by the Supreme Court while a case is on direct review. Gonzalez, 578 F.3d at 1132. “To hold that Gant may not be fully applied here, as the Government urges, would conflict with the Court’s retroactivity precedents.” Gonzalez, 578 F.3d at 1132. Consequently, the court held that evidence derived from the search at issue required suppression and reversed the conviction. Gonzalez, 578 F.3d at 1133; see also Buford, 623 F. Supp. 2d at 926-27 (finding no logical support for an extension of the good faith exception and granting the defendant’s motion to suppress, based on Gant).

¶21 We too decline to apply the good faith exception here. Such an extension would conflict with the rule granting retroactive application of new constitutional rules in criminal cases. See Griffith, 479 U.S. at 328; McCormick, 152 Wn. App. at 540. We remand this case to the trial court to conduct an evidentiary hearing and consider whether any other exceptions to the warrant requirement might apply in this case. See Gant, 129 S. Ct. at 1724 (referring to possibility that “another exception to the warrant requirement” could validate a search made unlawful by the decision); RAP 9.11(a) (allowing this court to direct trial court to take additional evidence). Because the warrantless search of Harris’s car might still pass constitutional muster, we turn to his remaining issues.

¶22 We remand for further proceedings in accordance with this opinion.

¶23 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Penoyar, A.C.J., concurs.

1 U.S._, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).

2 Officer Rosmaryn testified at a CrR 3.5 hearing that he learned from a computer check that Harris had outstanding warrants for his arrest and a suspended driver’s license.

3 Our Supreme Court recently reevaluated the search incident to arrest exception under article I, section 7 of the Washington Constitution. State v. Valdez, 167 Wn.2d 761, 777, 224 P.3d 751 (2009). The court held that a warrantless search of an automobile is permissible under this exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest. Valdez, 167 Wn.2d at 777-78; see also State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009).

4 Harris challenges his search only under the Fourth Amendment. Our Supreme Court recently held that “inevitable discovery” can no longer justify a warrantless search under article I, section 7 of the Washington Constitution. State v. Winterstein, 167 Wn.2d 620, 636, 220 P.3d 1226 (2009).

5 The State’s argument assumes that a state rule of appellate practice controls over Supreme Court decisions based not on a rule of federal appellate practice, but on the policies of “principled decision making,” the court’s responsibility to do justice to each litigant, and its goal of treating similarly situated litigants similarly. See Griffith, 479 U.S. at 323. The State does not address this issue. Even if we accept the State’s underlying assumption, its argument fails as we discuss above.