State v. Millan

• Decision Date: 07 August 2009
• Docket Number: No. 37172-3-II.,37172-3-II.
• Citation: 212 P.3d 603,151 Wn. App. 492
• Parties: STATE of Washington, Respondent, v. Francisco Javier MILLAN, Appellant.
• Court: Washington Court of Appeals

212 P.3d 603

151 Wn. App. 492

STATE of Washington, Respondent, v. Francisco Javier MILLAN, Appellant.

No. 37172-3-II.

Court of Appeals of Washington, Division 2.

August 7, 2009.

Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.

Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, for Respondent.

PUBLISHED IN PART OPINION

QUINN-BRINTNALL, J.

¶ 1 Francisco J. Millan appeals his first degree unlawful possession of a firearm conviction. The charge was filed after police, who were responding to a citizen's report that a man and woman were fighting in a car, arrested Millan and seized the firearm they found during the search of the vehicle incident to Millan's arrest. For the first time on appeal, Millan argues that under the U.S. Supreme Court's recent decision in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of his vehicle was unlawful and the firearm must be suppressed. But Millan waived his right to challenge the search of his vehicle by failing to file a motion to suppress this evidence in the trial court. Because Millan's counsel's conduct in not filing the motion to suppress did not fall below the pre-Gant standard, Millan was not deprived of his right to effective assistance of counsel. None of Millan's other issues have merit,¹ and we affirm.

FACTS

Factual Background

¶ 2 On April 1, 2007, Tacoma Police responded to a report that a domestic violence disturbance was occurring in a vehicle in Tacoma's Hilltop neighborhood. Officers located the vehicle, pulled up behind it, and activated their lights. The driver, Millan, slowed but did not immediately pull over, passing available parking spaces. Concerned that Millan was preparing to elude them, officers activated the patrol vehicle's siren; Millan pulled over in a space located approximately two blocks from where police initially activated their lights.

¶ 3 Officers requested that Millan get out of the car and immediately placed him in wrist restraints and frisk searched him for weapons. They then placed Millan in the back of the patrol vehicle because he "was yelling out the female[passenger's] name and [was] giving ... hard and intimidating looks in her direction." 2 Report of Proceedings (RP) at 106.

¶ 4 Officers also asked Millan's wife to get out of the vehicle. She "appeared to be very upset, had been crying, and appeared fearful." 2 RP at 65. While the officers investigated, Millan's wife stood either at the front of the vehicle or in the open door of the passenger side of the vehicle. After questioning, Millan was arrested for driving while his license was suspended.

¶ 5 Millan was detained in the back of the patrol car. Before conducting a search of Millan's vehicle incident to this arrest, Officer Timothy Caber requested that Millan's wife step away from the vehicle's open door and move to the curb in front of the vehicle. Caber seized a pistol he found on the floor behind the driver's seat. The gun was sitting on its spine, with the magazine pointing toward the front of the vehicle, and the barrel pointing toward the back of the vehicle. Caber ran a records check and, finding that Millan had previously been convicted of a felony, arrested him on the additional charge of first degree unlawful possession of a firearm.

¶ 6 The State charged Millan with first degree unlawful possession of a firearm and first degree driving while license suspended or revoked. Before trial, Millan filed a motion in limine to exclude reference to his domestic violence charges pending in another court, which the trial court granted. He did not move to suppress or otherwise object to the admission of the firearm. On the morning jury trial began, Millan pleaded guilty to first degree driving while license suspended or revoked. The jury returned a verdict finding Millan guilty of first degree unlawful possession of a firearm and, after denying his motion for a new trial on alleged juror misconduct, the trial court calculated Millan's offender score at 4 and sentenced him to a standard range sentence of 42 months incarceration.

¶ 7 Millan timely appealed his conviction and the trial court's denial of his motion for a new trial. On May 11, 2009, Millan filed a supplemental brief, citing Gant, in which he argued for the first time that the firearm used to convict him was obtained illegally. At oral argument, Millan's appellate counsel expressly addressed trial counsel's failure to file a suppression motion, acknowledging that because Gant was unexpected, trial counsel's performance could not be found to have been deficient. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995) (To demonstrate ineffective assistance of counsel, a defendant must show that (1) defense counsel's performance was deficient, meaning that counsel's performance fell below an objective standard of reasonableness based on all the circumstances, and (2) the deficient performance prejudiced him, meaning there was a reasonable probability that the result of the proceeding would have been different absent counsel's unprofessional errors.).

¶ 8 In the published portion of this opinion, we address whether Millan may challenge the search of his vehicle for the first time on appeal. Because the issues raised in Millan's opening brief and SAG are controlled by well-settled law, we address them in the unpublished portion of this opinion.

ANALYSIS

Suppression of Evidence

¶ 9 Millan argues that he may challenge the admissibility of evidence on the grounds that it is the product of an unlawful search for the first time on appeal. We disagree.

¶ 10 Initially, Millan asserts that Gant, which was issued on April 21, 2009, applies retroactively and contends that, under Gant, the warrantless search of his vehicle incident to arrest was unlawful. The State concedes that the rule announced in Gant applies to Millan's appeal but counters that Millan has waived his right to challenge the search of his vehicle by failing to raise the issue below. We agree with the parties that Gant applies to all cases not yet final on April 21, 2009. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("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"); State v. McCormack, 117 Wash.2d 141, 144-45, 812 P.2d 483 (1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1215, 117 L.Ed.2d 453 (1992). We disagree, however, about Gant's effect on the case before us.

¶ 11 In Gant, Tucson, Arizona police officers arrested Gant for driving on a suspended license. 129 S.Ct. at 1715. After handcuffing Gant and placing him in the back of a patrol car, officers searched his vehicle and found cocaine in the pocket of a jacket in the back seat.² Gant, 129 S.Ct. at 1715. The Supreme Court held that the warrantless search of Gant's car was unconstitutional under the circumstances, announcing the rule:

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Gant, 129 S.Ct. at 1723-24.³

¶ 12 At the trial court, Gant moved to suppress evidence seized by police during their warrantless search of his car and, thus, the Supreme Court did not address whether it would review his Fourth Amendment claim absent such a motion. Gant, 129 S.Ct. at 1715. But it is well established that federal courts, applying plain error review, recognize the general rule that a criminal defendant must preserve an error at trial to raise the issue on appeal. Fed.R.Crim.P., 51(b), 52(b); see Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009) ("If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited."). And every circuit of the United States Court of Appeals has routinely declined to address search and seizure issues raised for the first time on appeal. See, e.g., United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir.2006) (declining to address claim that consent to search car was made involuntarily because claim was not asserted below); United States v. Lockett, 406 F.3d 207, 212 (3d Cir.2005) ("It is well settled that arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this Court absent exceptional circumstances."); United States v. Luciano, 329 F.3d 1, 8-9 (1st Cir.2003) (declining to address defendant's claim that consent to search was coerced because this argument was not included in the motion to suppress below); United States v. Walls, 225 F.3d 858, 861-62 (7th Cir.2000) (an argument not included in the motion to suppress below is forfeited); United States v. Lampton, 158 F.3d 251, 258-59 (5th Cir.1998) (defendant waived argument that evidence should have been suppressed by failing to object below), cert. denied, 525 U.S. 1183, 119 S.Ct. 1124, 143 L.Ed.2d 119 (1999); United States v. Childs, 944 F.2d 491, 495 (9th Cir.1991) (declining to address argument raised for the first time on appeal that was not a purely legal issue); United States v. Crismon, 905 F.2d 966, 969 (6th Cir.1990) ("[O]bjections that appear for the first time on appeal are conclusively deemed to be waived, with the effect that [the Court of Appeals is] deprived of jurisdiction"); United States v. Valdes, 876 F.2d 1554, 1558 (11th Cir.1989) (Although a person typically has a legitimate expectation...