Filed: May 11, 2010
Latest Update: May 11, 2010
Summary: PUBLISHED OPINION AFTER REMAND FROM THE WASHINGTON SUPREME COURT HUNT, J. 1 Jesse Ray Johnson appeals his jury convictions for two counts of unlawful possession of a controlled substance (heroin and cocaine), Counts I and V, and one count unlawful use of drug paraphernalia, Count II. He argues that the search of his vehicle incident to his arrest was illegal and that the evidence should be suppressed. We reverse and remand to the trial court for further proceedings. 2 We incorporate by re
Summary: PUBLISHED OPINION AFTER REMAND FROM THE WASHINGTON SUPREME COURT HUNT, J. 1 Jesse Ray Johnson appeals his jury convictions for two counts of unlawful possession of a controlled substance (heroin and cocaine), Counts I and V, and one count unlawful use of drug paraphernalia, Count II. He argues that the search of his vehicle incident to his arrest was illegal and that the evidence should be suppressed. We reverse and remand to the trial court for further proceedings. 2 We incorporate by ref..
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PUBLISHED OPINION AFTER REMAND FROM THE WASHINGTON SUPREME COURT
HUNT, J.
¶ 1 Jesse Ray Johnson appeals his jury convictions for two counts of unlawful possession of a controlled substance (heroin and cocaine), Counts I and V, and one count unlawful use of drug paraphernalia, Count II. He argues that the search of his vehicle incident to his arrest was illegal and that the evidence should be suppressed. We reverse and remand to the trial court for further proceedings.
¶ 2 We incorporate by reference the facts recited in our May 11, 2010, published opinion affirming Jesse Ray Johnson's convictions.1 State v. Johnson, 156 Wn.App. 82, 231 P.3d 225 (2010) (J. Houghton dissenting in part). We held that, under our decision in State v. Millan, 151 Wn.App. 492, 212 P.3d 603 (2009), reversed sub nom State v. Robinson, 171 Wn.2d 292, 253 P.3d 84 (2011), because Johnson had failed to move to suppress the evidence seized from his car, which police had searched incident to his arrest, he had failed to preserve for appeal whether this seizure was illegal under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).2 Johnson, 156 Wash. App. at 93, 231 P.3d 225. Our state Supreme Court granted Johnson's petition for review and remanded his appeal to us to reconsider in light of Robinson. State v. Johnson, 172 Wn.2d 1001, 257 P.3d 1112 (2011). The parties submitted supplemental briefs addressing the effect of Robinson on Johnson's appeal.
¶ 3 In Robinson, our Supreme Court held that (1) Gant applies retroactively to appellants whose cases were pending on direct appeal when the United States Supreme Court issued Gant, and (2) failure to raise a suppression issue below does not bar a defendant from raising a Gant issue for the first time on appeal if he meets four specific criteria.3 Robinson, 171 Wash.2d at 303-08, 253 P.3d 84. In its supplement brief, the State concedes that (1) under Robinson, Johnson is entitled on appeal to challenge the vehicle search that led to his arrest and conviction; and (2) the vehicle search incident to Johnson's arrest was improper under Gant on the current record, which, in the absence of a motion to suppress based on Gant below, was made without exploring other possible legal grounds for the search. The parties agree that the proper remedy is to remand this matter back to the superior court for a new suppression hearing.
¶ 4 Accepting the State's concession of error and Johnson's concession that remand is the proper remedy, we hold that the vehicle search and seizure of evidence incident to Johnson's arrest was illegal under Gant and the facts before us in this appeal, and we reverse and remand to the trial court for further proceedings consistent with Robinson.
We concur: PENOYAR, C.J., and QUINN-BRINTNALL, J.
