Opinion
No. 37024-7-II.
January 20, 2010.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00614-1, Robert A. Lewis, J., entered November 30, 2007.
Reversed and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong, J.; Quinn-Brintnall, J., dissenting.
ORDER GRANTING MOTION FOR RECONSIDERATION AND WITHDRAWING UNPUBLISHED OPINION
Appellant filed a motion for reconsideration of our May 5, 2009 unpublished opinion. We grant Appellant's motion and withdraw said opinion. A new opinion will be filed on this same date.
DATED this ___ day of ___, 2010.
PANEL: Jj. Armstrong, Quinn-Brintnall, Penoyar.
Armstrong, J.
Quinn-Brintnall, J.
UNPUBLISHED OPINION
Randy Erwin moved for reconsideration of our unpublished opinion filed on May 5, 2009, arguing that we should reverse his convictions for possession of methamphetamine with intent to deliver and possession of under 40 grams of marijuana based on the United States Supreme Court's decision in Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). We grant Erwin's request, reverse his convictions, and remand for dismissal.
FACTS
The following facts are relevant to Erwin's motion: On April 4, 2007, Officer Troy Rawlins pulled over Erwin for failing to signal while turning. A woman was seated in the passenger's seat. Rawlins asked Erwin for his license, registration, and proof of insurance; Erwin provided only a driver's license. After running Erwin's name through his database, Rawlins discovered an outstanding felony warrant for his arrest. Rawlins called for a "cover officer" to assist him in arresting Erwin. 1 Report of Proceedings (RP) at 13. After the cover officer arrived, Rawlins arrested Erwin and handcuffed him, without incident.
After handcuffing Erwin, Rawlins searched him, finding a digital scale and a gold coin. Rawlins placed Erwin in the back of his patrol vehicle and searched Erwin's car. Rawlins asked the female passenger to exit the car and stand with the cover officer while he completed the search of the car. Inside the center console, Rawlins found a purple leather coin bag that contained several small plastic baggies filled with a white crystal substance, a small plastic measuring spoon, a short plastic straw, 2 small baggies containing a green leafy substance, and empty plastic bags. Between the center console and the driver's seat, Rawlins found a "hard pack" of cigarettes containing cigarettes and a small plastic bag with a white crystal-like substance inside. 1 RP at 19.
Having completed the search, Rawlins returned to his patrol car, read Erwin his Miranda warnings, and asked him about the items he found. Erwin told Rawlins that he used the digital scale to buy gold, but he denied knowing about the other items in the car.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Erwin with unlawful possession of methamphetamine with intent to deliver (count I), possession of under 40 grams of marijuana (count II), and unlawful use of drug paraphernalia (count III). The trial court dismissed the paraphernalia count at the close of Erwin's case based on a defense motion. The jury convicted Erwin on the other two counts. The trial court sentenced Erwin to 90 months in prison on count I, and 90 days in jail on count II.
ANALYSIS
In his motion for reconsideration, Erwin contends that we should, consistent with the law as it now exists under Gant, rule that (1) the trial court should have excluded the evidence the police obtained during their search of his vehicle following his arrest, and (2) absent this illegally obtained evidence, there is insufficient evidence to support his convictions. We agree.
The State concedes that there was no alternative basis to search the vehicle in this case. It argues, however, that under the federal "good faith" exception to the exclusionary rule, and Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), evidence obtained in reliance of presumptively valid
pre- Gant case law should not be suppressed. It also cites State v. Potter, 156 Wn.2d 835, 132 P.3d 1089 (2006), and State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2006), in support of its proposition that a search conducted in reliance on presumptively valid case law should not be suppressed under article I, section 7 of the Washington State Constitution.
We recently rejected these arguments in State v. McCormick, ___ Wn. App. ___, 216 P.3d 475 (2009). In that case, we declined to apply the good faith exception, noting that our Supreme Court recently reaffirmed its rejection of DeFillippo and its progeny in State v. Chenoweth, 160 Wn.2d 454, 472, n. 14, 158 P.3d 595 (2007). McCormick, 216 P.3d at 478. We also held that because the search in that case violated the Fourth Amendment under Gant, it also violated the defendant's privacy rights under article I, section 7 of the Washington Constitution. McCormick, 216 P.3d at 478. Because McCormick adequately addresses, and rejects, the State's responses to Erwin's motion, we see no need to revisit them here. We therefore grant Erwin's motion, reverse his convictions, and remand for dismissal.
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.
I concur:
Armstrong, J.
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 Randy K. Erwin's convictions for possession of methamphetamine with intent to deliver and for possession of under 40 grams of marijuana.
In my opinion, reversal of Erwin's convictions is not required under Gant because he did not move to suppress the seized evidence used to convict him at trial and, thus, he 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 Erwin's challenge to the seized evidence for the first time on appeal. ER 103(a)(1); see 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.); 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).
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 Erwin's appeal, he 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 reasonableness 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 Erwin did not object to the admissibility of the evidence obtained during the search of his vehicle incident to his lawful arrest and, thus, has failed to follow the steps necessary to preserve the challenge for our review. Accordingly, I respectfully dissent.