State v. Riley

225 P.3d 462

154 Wn. App. 433

STATE of Washington, Respondent, v. Eugene RILEY, Appellant.

No. 62418-1-I.

Court of Appeals of Washington, Division 1.

February 8, 2010.

Stephen Paul Hobbs, Office of the Prosecuting Attorney, Seattle, WA, for Respondent.

Thomas Michael Kummerow, Washington Appellate Project, Attorney at Law, Seattle, WA, for Appellant.

PUBLISHED IN PART

AGID, J. Pro Tem.¹

¶ 1 Relying on the prevailing interpretation of a United States Supreme Court case, a police officer searched Eugene Riley's car incident to his arrest under circumstances later declared unconstitutional in Arizona v. Gant.² Because United States Supreme Court retroactivity precedent requires the retroactive application of "clear break" Fourth Amendment rules, the officer violated Riley's Fourth Amendment rights. But the officer in this case was acting in good faith reliance on existing Fourth Amendment law. We therefore hold that under federal constitutional law, suppressing the evidence establishing methamphetamine possession would not deter police misconduct and apply the good faith exception to the exclusionary rule. While it appears the Washington Supreme Court could have a more restrictive view of the good faith exception to the exclusionary rule, its recent decisions rejecting suppression of evidence seized in reliance on a presumptively valid statute support applying the good faith exception to the exclusionary rule under article I, section 7 of our constitution. We therefore affirm the conviction.

FACTS

¶ 2 On January 7, 2007, at about 12:30 a.m., King County Deputy Sheriff Josh Fowler stopped Eugene Riley for running a red light. After reviewing Riley's license, registration, and insurance, Fowler arrested Riley on an outstanding warrant, handcuffed him, and placed him in the back of his patrol car.³ Deputy Sheriff Aaron Thompson searched Riley's car after his arrest and found methamphetamine and glass pipes in the center console of the vehicle between the passenger and driver seats.⁴

¶ 3 Fowler advised Riley of his Miranda⁵ rights and asked if he understood them. Riley said that he did. In response to Fowler's questioning, Riley admitted to using methamphetamine and told Fowler that he had been the only person operating or using the vehicle for the last two months.⁶ Riley testified in his own defense, stating that the vehicle belonged to his brother, who had loaned it to him. He denied knowing that methamphetamine was in the center console and could not recall ever having opened the center console. A jury found Riley guilty of methamphetamine possession. He appeals.

DECISION

I. Federal Constitution

¶ 4 Riley argues that the recently-decided United States Supreme Court case of Arizona v. Gant requires suppression of the evidence found in his car following his arrest.⁷ "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions."⁸ "Among the exceptions to the warrant requirement is a search incident to a lawful arrest. The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations."⁹ Consistent with those interests, the United States Supreme Court held in Chimel v. California that a search incident to arrest may include only the arrestee's person and the area within his immediate control.¹⁰ The Supreme Court applied Chimel to automobile searches in New York v. Belton,¹¹ an "opinion [that] has been widely understood to allow 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."¹²

¶ 5 Because that broad reading of Belton untethered the rule from the justifications underlying the Chimel exception to the warrant requirement, 28 years later the United States Supreme Court rejected that reading in Gant to hold that "Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle."¹³ Instead, police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."¹⁴ In Gant, Arizona police officers arrested Rodney Gant for driving with a suspended license, handcuffed him, placed him in the back of a patrol car, and then conducted a postarrest search of his car.¹⁵ The relevant facts of the search in this case are indistinguishable from the facts in Gant. In both cases, police arrested the defendant on charges unrelated to the incriminating evidence found in the postarrest search. And in both cases, police conducted the postarrest search with the arrestee secure in the back of the patrol car.

Arizona v. Gant and the Good Faith Exception to the Exclusionary Rule¹⁶

¶ 6 Riley argues that the rule announced and applied in Gant should apply to his case because his conviction was not yet final when the United States Supreme Court decided Gant.¹⁷ United States Supreme Court decisions construing the Fourth Amendment are to be "applied retroactively to all convictions that were not yet final at the time the decision was rendered."¹⁸ While agreeing that Gant must be applied to cases currently pending in trial courts and on direct review, the State argues that the good faith exception to the exclusionary rule should prevent the suppression of evidence obtained in good faith reliance on pre-Gant case law.

¶ 7 In United States v. Gonzalez, the Ninth Circuit held that United States v. Johnson¹⁹ and Griffith v. Kentucky²⁰ required it to apply Gant's rule to a pre-Gant search because the "`failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.'"²¹ In Griffith, the Supreme Court explained why applying case-specific retroactivity analysis was constitutionally problematic, even for cases involving the retroactive application of rules representing a clean break from past precedent.²² First, principled decision-making requires that a court apply the current law to the cases before it.²³ "Second, selective application of new rules violates the principle of treating similarly situated defendants the same."²⁴

¶ 8 We agree that the rule announced in Gant must be applied retroactively in accordance with the constitutional principles stated in Griffith. We therefore hold that Thompson violated Riley's Fourth Amendment rights when he conducted the postarrest search of Riley's car with Riley secure in the back of a patrol car.

¶ 9 Having established a Fourth Amendment violation, we must next determine what remedy applies.²⁵ While the Fourth Amendment does not expressly preclude "`the use of evidence obtained in violation of its commands,'"<sup>26</sup> United States Supreme Court "decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial."<sup>27</sup> Because the exclusionary rule is "`designed to safeguard Fourth Amendment rights generally through its deterrent effect,'"²⁸ it "applies only where it `result[s] in appreciable deterrence.'"²⁹ Recognizing that the exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity,"³⁰ the United States Supreme Court established the good faith exception to the exclusionary rule and has repeatedly applied the rule in circumstances where police have not engaged in misconduct.³¹

¶ 10 In United States v. McCane, an officer conducted a pre-Gant search of the arrestee's vehicle consistent with Tenth Circuit precedent adopting the widely-understood, but now erroneous, interpretation of Belton.³² Although the Tenth Circuit agreed that the search was unconstitutional under Gant, it determined that relying on settled Tenth Circuit case law is "`objectively reasonable law enforcement activity.'"³³ Reasoning that suppressing evidence found during a search conducted in compliance with controlling case law could not and would not deter police misconduct, the Tenth Circuit declined to apply the exclusionary rule.³⁴ We adopt that reasoning.

¶ 11 Like Tenth Circuit case law, Washington case law before Gant authorized searches that would now be unconstitutional. For example, in State v. Johnson, an officer searched the arrestee's vehicle following a warrant based arrest while holding the defendant in the back of a patrol car.³⁵ The Washington Supreme Court held that the search did not violate the arrestee's Fourth Amendment rights under Belton.³⁶ Similarly the Ninth Circuit had adopted the prevailing pre-Gant view that Belton allowed vehicle searches incident to arrest "regardless of whether the arresting officer has an actual concern for safety or evidence."³⁷ Thus, Thompson, like the officer in McCane, was reasonably relying on settled case law and would have had no way of knowing that he was conducting an unconstitutional search. We can think of no reason in law or logic to deter law enforcement officers in Washington from relying on federal and state law from this jurisdiction interpreting the Fourth Amendment. To the contrary, the federal exclusionary rule was designed specifically to ensure that they do rely on and follow the law.³⁸

¶ 12 Gonzalez recognizes that the good faith exception to the exclusionary rule has not previously been applied to "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."³⁹ But the rationale for and logic of applying the good faith exception to these facts flows naturally from the deterrence principles underlying the exclusionary rule discussed above and from ...