dissenting.
I respectfully dissent. The majority opinion misapplies the statutory good faith exception. Indiana Code Section 35-37-4-5 cannot nullify our Supreme Court’s holding in Litchfield, requiring that a trash search be supported by reasonable suspicion, in this and other cases pending or not yet final when Litchfield was decided. Because Trooper Gill did not have reasonable suspicion to support the trash search, I would reverse.
In Edwards v. State, 832 N.E.2d 1072 (Ind.Ct.App.2005), we concluded that evidence discovered during a trash search could not be excluded because, under the state of the law as it existed at the time of the search, it was not unreasonable. Thus, we concluded that according to Indiana Code Section 35-37-4-5, the evidence could not have been properly excluded and could provide support for the finding of probable cause to issue a warrant. Id. at 1077. I was a member of the panel that decided Ediuards. But in Edwards, we did not consider the fundamental question of whether Litchfield supersedes the statutory good faith exception in those cases where, as here, the search straddles an old rule and a new rule. Having now considered the issue, I am convinced that the Richardsons are entitled to the constitutional protection afforded by Litchfield, notwithstanding the Indiana good faith statute.
*1106“It is firmly established 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.’ ” Smylie v. State, 823 N.E.2d 679, 687 (Ind.2005) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). “A rule is new for the purposes of retroactivity ‘if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ ” Id. (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). Prior to Litchfield, “officers were free to search curbside trash willy-nilly[.]” Turner v. State, 843 N.E.2d 937, 941 (Ind.Ct.App.2006). In Litchfield, our Supreme Court enunciated a new rule and held that “law enforcement officers may only search curbside trash if they have an articulable, individualized suspicion that the trash may contain evidence of criminal conduct.” Id. “Litchfield represents a significant development in Indiana constitutional law because it prohibits the State from randomly searching and seizing trash containers and holds that there must be an evidentiary foundation for such activity.” Id. at 942. As we noted in Turner, after Litchfield “Indiana residents enjoy greater protection from trash searches under Article I, Section 11 than they do under the Fourth Amendment to the United States Constitution.” Id.
Despite the new standard announced in Litchfield, the majority holds that the search of the Richardsons’ trash passes constitutional muster even though it was not supported by reasonable suspicion. Specifically, the majority relies on Indiana Code Section 35-37-4-5(b)(l)(B) and concludes that the officers who executed the trash search obtained evidence in good faith because they acted pursuant to a judicial precedent that was later ruled unconstitutional. Therefore, the majority reasons that under the statute the evidence obtained during the trash search cannot be excluded. But the dispositive and overarching issue presented is whether the statutory good faith exception can nullify a retroactive rule of constitutional law announced by our Supreme Court.
The State argues that the exclusionary rule does not apply because Trooper Gill relied in good faith on a facially valid warrant. The State contends that because the exclusionary rule is designed to deter police misconduct, “[it] serves no purpose here.” Brief of Appellee at 8. But the State mischaracterizes the issue. The question in this case is not whether the police acted in good faith but whether the Richardsons have recourse to a new rule of substantive constitutional law. To prevail, the Richardsons do not have to allege police misconduct but only have to show that they are entitled to invoke the new rule articulated by our Supreme Court in Litchfield.
Today’s holding creates several other concerns. First, the good faith exception, as applied here, nullifies our Supreme Court’s holding in Litchfield. That is, the majority holds that in those cases pending on direct review or not yet final, as long as a police officer conducting a trash search acts in accordance with existing law before Litchfield, the good faith exception negates the reasonable suspicion requirement for trash searches and renders the evidence seized admissible. But, as noted above, a new rule for the conduct of criminal prosecutions shall be applied retroactively to all cases pending on direct review or not yet final. See Smylie, 823 N.E.2d at 687. A conviction becomes final for purposes of retroactivity analysis when the availability of direct appeal has been exhausted. Robbins v. State, 839 N.E.2d 1196, 1199 (Ind.Ct.App.2005) (citation *1107omitted). Thus, because the Richardsons’ case is not yet final, the new constitutional rule announced in Litchfield applies in their case, notwithstanding the statutory good faith exception.
Further, today’s holding treats similarly situated defendants, the Litchfields and the Richardsons, differently simply because the Litchfields were the lucky defendants whose case was chosen as the vehicle for announcing the new principle. See Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (Powell, J., concurring); see also Pirnat v. State, 607 N.E.2d 973, 974 (Ind.1993). The Richardsons should not be penalized simply because our Supreme Court chose the Litchfields’ case to hold that Article I, Section 11 provides more protection than the Fourth Amendment in the area of warrantless trash searches. Retroactive application of a new constitutional rule is an illusion if it can be taken away by statute.
Finally, it is the province of the judiciary to determine the admissibility of evidence. See Campbell v. Shelton, 727 N.E.2d 495, 500 (Ind.Ct.App.2000) (“The Indiana Rules of Evidence were adopted by the Indiana Supreme Court on August 24, 1993, and became effective on January 1, 1994.”), trans. denied. More than 80 years ago, in Callender v. State, 193 Ind. 91, 138 N.E. 817, 819 (1922), our Supreme Court adopted an exclusionary rule under Article I, Section 11, which was almost 40 years before the United States Supreme Court made the federal exclusionary rule applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). See Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. L.Rev. 575, 578-79 (1989). The Indiana exclusionary rule sits on its own constitutional bottom. And because the exclusionary rule is a rule of evidence, a statute cannot divest our Supreme Court of its authority to determine its operation and effect. Indeed, where, as here, a “conflict exists [between a statute and a rule of evidence], the conflicting statute is nullified.” Humbert v. Smith, 664 N.E.2d 356, 357 (Ind.1996) (citation omitted). “Rules of procedure, including rules of evidence, established by [our Supreme Court] court prevail over any statute.” Harrison v. State, 644 N.E.2d 1243, 1251 n. 14 (Ind.1995), superseded in part on other grounds by statute.
Under the hierarchy of law governing our state, the Indiana Constitution controls a statute to the contrary enacted by the General Assembly. See Ind.Code § 1-1-2-1. In Litchfield, our Supreme Court determined that Article I, Section 11 requires an “articulable individualized suspicion” before trash may be searched or seized. Litchfield, 824 N.E.2d at 364. And, once more, our Supreme Court has held that a new rule for the conduct of criminal prosecutions which constitutes a “clear break with the past” applies retroactively “with no exception.” Smylie, 823 N.E.2d at 687. No exception means no exception. In this case, and other cases in the same procedural posture, the statutory good faith exception must yield to Article I, Section 11 of the Indiana Constitution as interpreted by our Supreme Court.18 Thus, I respectfully dissent.
. It is important to note that the issues presented in this case apply to a narrow class of transitional cases, namely, to those cases pending on direct review or not yet final when Litchfield was announced. Eventually, this issue will run its course.