¶24 (dissenting) — I begin with the proposition that appellate courts are error-correcting courts that confine their review to the trial court record. Unless a party files a motion to suppress evidence seized pursuant to a constitutionally infirm search, the trial court will not enter findings of fact or conclusions of law and will not issue a ruling. Thus, the record on appeal will contain no ruling to which error may be assigned and it will contain no decision, correct or otherwise, to review. As Division One of this court stated in State v. Tarica, 59 Wn. App. 368, 372, 798 P.2d 296 (1990), overruled on other grounds by State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995), “There is no question that the search and seizure issue presented is *102constitutional, 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.” In ruling that this case must be remanded with directions to the trial court to conduct a suppression hearing, the majority speculates that the trial court committed reversible error by admitting evidence to which the defendant did not timely object as required by court rule and applies an improper de novo standard of review to the record on appeal. Accordingly, I respectfully dissent.
¶25 Where the voluntariness and reliability of a defendant’s statement are at issue, the statement is inadmissible unless the trial court first determines that the statement was lawfully obtained. CrR 3.5(c) provides, “After [a hearing to determine whether a defendant’s statement is admissible, the trial] court shall set forth in writing [a] conclusion as to whether the statement is admissible and the reasons therefor.” Thus, a trial court that admits a defendant’s statement, without an express ruling that it is voluntary, errs. In contrast, relevant physical evidence is admissible at trial unless the party seeking to exclude it files a motion to suppress. CrR 3.6(a) provides, “Motions to suppress physical . . . evidence . . . shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at the hearing, and a memorandum of authorities in support of the motion.” Thus, a trial court that admits evidence to which no motion to suppress had been made commits no error.
¶26 Here, the trial court committed no error when it admitted unchallenged evidence seized following the search of Stuart J. Harris Jr.’s car. The majority’s speculative ruling that the trial court may have committed an error of constitutional magnitude by admitting such evidence is, in my opinion, mistaken for several reasons. First, there is no manifest error, meaning an error appearing on the record affecting a constitutional right and giving this court authority to address Harris’s untimely evidentiary challenge. RAP *1032.5(a)(3); see McFarland, 127 Wn.2d at 333 (“If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.” (citing State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993))). Second, because Harris did not timely challenge the admissibility of the evidence before or even during trial, the trial court made no ruling for us to review. CrR 3.6; ER 103(a)(1); State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985). And third, the de novo standard of review is the appropriate standard for review of search warrants where all evidence is documentary and appears in the appellate record, State v. Estorga, 60 Wn. App. 298, 304 n.3, 803 P.2d 813, review denied, 116 Wn.2d 1027 (1991), but the appropriate standard of review of other searches differs. See, e.g., State v. Johnson, 104 Wn. App. 409, 414, 16 P.3d 680 (substantial evidence supported trial court’s finding that officer did not push his way into defendant’s house and, thus, lawfully entered home without a search warrant), review denied, 143 Wn.2d 1024 (2001).
¶27 We ruled in State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009), that unless the defendant has filed a motion to suppress evidence seized during a search incident to arrest in the trial court, he may not challenge the admission of the evidence seized during that search for the first time on appeal.6 In determining that Millan was barred from raising a challenge to the admission of the seized evidence by failing to suppress the evidence below, we quoted our Supreme Court’s decision in State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995), which stated that a defendant’s “ ‘failure to move to suppress evidence he contends was illegally gathered constitutes a waiver of any error associated with the admission of the evidence and the trial court properly considered the evidence.’ ” Millan, 151 Wn. App. at 500. Here, the trial court did not have the opportunity, nor was it required, to rule on the admissibility *104of evidence seized from Harris because Harris waived any violation of his right to privacy when he failed to move to suppress the evidence below. CrR 3.6. The unchallenged evidence was admissible. Accordingly, the record here contains no hearing and there is nothing for us to review.
¶28 I turn now to whether the United States Supreme Court’s decision in Arizona v. Gant,_U.S._, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), requires suppression of the evidence obtained in the October 21,2006 search of Harris’s car. Because there is no trial court ruling to which Gant’s analysis would apply, it clearly does not.
¶29 Initially, I note that, in Millan, the State, citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), conceded that Gant applied to all cases not yet final. 151 Wn. App. at 496. Although we accepted the State’s concession, Griffith “concern [ed] the retrospective application of Batson v. Kentucky, 476 U. S. 79[, 106 S. Ct. 1712, 90 L. Ed. 2d 69] (1986).” 479 U.S. at 316. In Batson, the Supreme Court ruled that the systematic use of peremptory challenges to preclude jurors of color violated Batson’s equal protection rights. 476 U.S. at 99. As with other issues that involve “the very integrity of the fact-finding process,” Linkletter v. Walker, 381 U.S. 618, 639, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), retroactive application of Batson was necessary to protect “the clear danger of convicting the innocent.” Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966). In contrast, Linkletter held that the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), excluding evidence obtained through an unreasonable search and seizure, would not be applied retroactively to cases finally decided because “that . . . rule affected evidence The reliability and relevancy of which is not questioned.’ ” Johnson v. New Jersey, 384 U.S. 719, 727, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) (quoting Linkletter, 381 U.S. at 639). The Court’s ruling in Gant mirrors the effects of Mapp, and the considerations expressed by the Linkletter Court are compelling.
*105¶30 Although Linkletter and Tehan concerned the retroactivity of new criminal rules in the context of final judgments, in Johnson, 384 U.S. 719, the United States Supreme Court applied the reasoning of Linkletter and Tehan to find that the new criminal rules announced in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), would apply only to cases in which the trial began after the date of those decisions. In holding that Escobedo and Miranda would apply only prospectively, the Johnson Court stated:
[Linkletter and Tehan] establish the principle that in criminal litigation concerning constitutional claims, “the Court may in the interest of justice make the rule prospective where the exigencies of the situation require such an application.” 381 U.S., at 628; 382 U.S., at 410. [Linkletter and Tehan] also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police [conduct], the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of [new criminal rules].
. . . [T]he retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved. Accordingly as Linkletter and Tehan suggest, we must determine retroactivity “in each case” by looking to the peculiar traits of the specific “rule in question.” 381 U.S., at 629; 382 U.S., at 410.
384 U.S. at 726-27, 728.
¶31 Admittedly, although cases such as United States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982), and Griffith, 479 U.S. 314, indicate a departure from the criteria approach to determining the retroactivity of new criminal rules in favor of a threshold determination, *106the Supreme Court has indicated that, notwithstanding the retroactivity of new criminal rules to cases on direct review, reviewing courts are expected “to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below.” United States v. Booker, 543 U.S. 220, 268, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
¶32 In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Supreme Court held that provisions of Washington’s Sentencing Reform Act of 1981 (ch. 9.94A RCW) allowing aggravating factors supporting an exceptional sentence to be proved to a judge by a preponderance of the evidence rather than beyond a reasonable doubt to a jury violated the defendant’s constitutional due process and jury trial rights. Following Blakely, the Supreme Court invalidated portions of the federal Sentencing Reform Act of 1984, 18 U.S.C. § 3551. Booker, 543 U.S. at 245-46. Discussing the retroactive application of Booker, the Supreme Court stated:
As these dispositions indicate, we must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review. [Citing Griffith, 479 U.S. at 328.] That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
543 U.S. at 268 (citations omitted).
¶33 As Booker indicates, the retroactive application of a new criminal rule does not relieve the defendant of the obligation to preserve a challenge for appellate review. Thus, to preserve a challenge to the admissibility of evidence seized without a warrant, the defendant may consti*107tutionally be required to have filed a timely pretrial motion to suppress the evidence. See, e.g., CrR 3.6.
¶34 The majority makes much of what it perceives to be an inconsistency between my opinion in State v. Monroe, 126 Wn. App. 435, 109 P.3d 449 (2005), remanded, 157 Wn.2d 1016 (2006), and in Millan. I disagree. Although I wrote in Monroe that Blakely applied retroactively such that Monroe could not have knowingly waived his jury trial rights by stipulating to judicial fact finding, that was in the context of a manifest error affecting the integrity of the judgment because the ruling was entered on the lower pre-Blakely preponderance of the evidence standard and not by a jury of Monroe’s peers. Monroe, 126 Wn. App. at 441-42. Where a manifest error of constitutional magnitude exists affecting the truth-seeking function of a criminal prosecution, it is and has been my opinion that such an error impugns the integrity of due process and requires redress. But challenges to the admissibility of evidence obtained during an allegedly unlawful search are not manifest on the record and do not affect the reliability of the evidence or the truth-seeking function of the criminal process, nor do they impugn the integrity of the trial court’s process in conducting the criminal prosecution. Although Gant and the cases following and applying Gant most often deal with seizures of the popular illegal drug of the day, searches incident to lawful arrests can and have secured a knife identified by a rape victim, an abducted child’s tennis shoe, and a murder victim’s brain tissue. The search and seizure rules for all evidence seized incident to a lawful arrest must be the same, and we should neither ignore nor abandon long-standing issue preservation requirements merely because the evidence at issue in the case immediately before the court happens to be an illicit drug. The somewhat summary conclusion that Gant issues may be raised for the first time on appeal, in my opinion, is inconsistent with the long-standing rules requiring preservation of search and seizure challenges for appellate review.
¶35 Under the Fourth Amendment, on which Gant is based, it is well established that the issue of the reason*108ableness of the 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. In United States v. Bravo, 306 F. App’x 436, 440 (10th Cir. 2009) (unpublished),7 the court addressed whether Bravo could challenge the legitimacy of a search conducted by a Canine Interdiction Unit of the Oklahoma Bureau of Narcotics that had been found unreasonable in City of Indianapolis v. Edmond, 531 U.S. 32, 45, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000), when he challenged only the lawfulness of his traffic stop before trial. The Bravo court stated:
Mr. Bravo did not preserve this issue for appeal. While Mr. Bravo reserved the right to appeal the denial of the motion to suppress, R. Doc. 48 at 5 ¶ 8(a), we note that “[a] reservation of the right to appeal a specific pretrial ruling by the district court extends only to theories raised in the challenged ruling,” United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir. 2008). Mr. Bravo did not argue that the initial stop violated Edmond in his written motion, supplement, or oral presentation to the district court; rather, he argued that the agent lacked reasonable suspicion to detain him after the traffic stop, that the agent lacked jurisdiction as a narcotics officer to stop him for a traffic violation, and that the agent’s actions constituted selective enforcement violative of the Equal Protection Clause. See R. Doc. 18 at 3, 7, 14-15; R. Doc. 37. Accordingly, Mr. Bravo failed to preserve the Edmond argument for appeal.
306 F. App’x at 440 (alteration in original).
¶36 In short, it is up to our nation’s highest court to determine whether Gant applies only to searches made after its announcement (which would necessarily be unreasonable as a matter of law by virtue of Gant), and whether we follow the long-standing requirement that challenges to the admissibility of evidence under the Fourth Amendment must be preserved for appellate review.
¶37 I see no reason to repeat the injustice the Linkletter Court identified when it declined to apply the exclusionary *109rule adopted in Mapp to government conduct expressly condoned by our country’s highest court’s prior rulings. As the Court noted in Johnson, at least when it announced Mapp, the states were on notice that they were constitutionally forbidden from engaging in unreasonable searches and seizures under Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), overruled on other grounds by Mapp, 367 U.S. 643. Johnson, 384 U.S. at 731. Because no such notice preceded Escobedo and Miranda, “[l]aw enforcement agencies fairly relied on [our] prior cases, now no longer binding, in obtaining incriminating statements during the intervening years preceding Escobedo and Miranda.” Johnson, 384 U.S. at 731. Likewise, the search incident to Harris’s arrest conducted here was expressly approved by the high court in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), and law enforcement agencies had a right to fairly rely on it when deciding whether to seek a warrant prior to searching the interior of a vehicle following a suspect’s arrest.
¶38 In my opinion, a law enforcement officer who acted in reliance on Belton’s bright line rule is similar to a law enforcement officer who arrests an individual under a statute later found to be unconstitutional. In such a situation, the Washington Supreme Court has ruled that the subsequent invalidation of the statute does not render the arrest unlawful if it was otherwise lawful at the time the arrest was made. See State v. Brockob, 159 Wn.2d 311, 341-43, 150 P.3d 59 (2006) (despite subsequent invalidation of statute upon which arrest was made, search incident to arrest was lawful because officer’s reliance on statute was reasonably prudent at the time of arrest). Brockob’s analysis should not be confused with the fluid concepts of the “good faith” exception to searches conducted under the Fourth Amendment.8 Arizona v. Evans, 514 U.S. 1, 14-16, *110115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995); Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. 981, 988-91, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). Unlike the “good faith” exception, which focuses on the law enforcement officer’s conduct and the degree to which the known facts imply prohibited conduct,9 Brockob recognizes that when the law existing at the time the law enforcement officer acted expressly authorized and approved his conduct, no unlawful act occurs.10 159 Wn.2d at 341-43. Thus, Brockob applies reasoning similar to that stated by the United States Supreme Court in Johnson when it declined to apply Escobedo and Miranda to cases in which “[l]aw enforcement agencies fairly relied on ... prior cases, now no longer binding,” in performing their duties. 384 U.S. at 731.
¶39 Assuming, as I must for now, that Gant applies to Harris’s appeal, he has nonetheless failed to preserve for our review an issue to which the holding in that case applies. He did not object to the admissibility of the evidence obtained during the search of his vehicle incident to a lawful arrest and, thus, has failed to follow the steps necessary to preserve a challenge under the Fourth Amendment to the United States Constitution for our review under any standard. Accordingly, I respectfully dissent.
I note that State v. McCormick, 152 Wn. App. 536, 540, 216 P.3d 475 (2009), questioned Millan’s holding, but McCormick timely filed a pretrial motion to suppress -under CrR 3.6 and McCormick’s comments regarding Millan are dicta.
Fed. R. App. P. 32.1 allows citation to its unpublished opinions for persuasive value. GR 14.1(b).
In McCormick, this court purported to apply rulings rejecting the “good faith” exception issued hy our Supreme Court and governing searches under article I, section 7 of the Washington Constitution to a case in which the defendant was challenging the lawfulness of the search of his vehicle under Gant. 152 Wn. App. *110at 542-44. But Gant rests on the Fourth Amendment to the United States Constitution to which the “good faith” exception clearly applies. Therefore, that portion of McCormick addressing the unavailability of the “good faith” exception in a Gant challenge is not supported by the Washington Supreme Court cases on which it relies.
See, e.g., Krull, 480 U.S. at 347-50 (discussing how the “good faith” exception relates to the exclusionary rule’s purpose of deterring future unlawful police conduct).
Although Washington does not recognize a “good faith” exception to the warrant requirement under article I, section 7 of the Washington Constitution, it has long applied the exclusionary rule to situations in which law enforcement officers have been found to have acted in “bad faith” by using a traffic infraction as a pretext to justify a search of a suspect’s vehicle. State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).