State v. Robinson
| Decision Date | 14 April 2011 |
| Docket Number | Nos. 83525–0,83613–2.,s. 83525–0 |
| Citation | 253 P.3d 84,171 Wash.2d 292 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent,v.Michael Wayne ROBINSON, Petitioner.State of Washington, Respondent,v.Francisco Javier Millan, Petitioner. |
OPINION TEXT STARTS HERE
Thomas Edward Doyle, Attorney at Law, Hansville, WA, Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Petitioner.Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, Stephen D. Trinen, Pierce County Prosecutors Ofc., Tacoma, WA, for Respondent.OWENS, J.
[171 Wash.2d 296] ¶ 1 The petitioners in these two consolidated cases seek to challenge, for the first time on appeal, the admissibility of evidence against them. In both cases, the trials were concluded prior to the United States Supreme Court's decision in Arizona v. Gant, 556 U.S. ––––, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), a case that limited the circumstances in which police may conduct a warrantless search of an automobile incident to arrest. Though the trials were concluded, the cases were still pending on direct appeal at the time Gant was decided. In Francisco Millan's case, the Court of Appeals concluded that any error was waived by his failure to object to the admission of evidence at trial. State v. Millan, 151 Wash.App. 492, 499–500, 212 P.3d 603 (2009), review granted, 168 Wash.2d 1005, 226 P.3d 781 (2010). In Michael Robinson's case, the Court of Appeals considered and rejected his argument that the search was unconstitutional without considering the effect of Gant. We conclude that, in this circumstance, principles of issue preservation and waiver do not preclude criminal defendants from raising a constitutional objection for the first time on appeal. We therefore reverse the Court of Appeals in both cases.1 However, because neither the petitioners nor the State had the opportunity or incentive to develop the record, we remand each case to the superior court for a suppression hearing in light of Gant and its progeny.
FACTS
¶ 2 Shortly before 1:00 am on April 1, 2007, police received a report of a disturbance in Tacoma. Officers Christopher Shipp and Timothy Caber responded, contacted the reporting parties, and located the vehicle that was the source of the disturbance. The officers pulled up behind the vehicle and activated the police car's lights.
¶ 3 Once the vehicle was stopped, Officers Shipp and Caber approached it; Officer Caber approached the driver, Millan, and Officer Shipp approached the passenger, Millan's wife. Officer Shipp reported that the passenger “appeared to be very upset, had been crying, and appeared fearful.” Millan 2 Verbatim Tr. of Proceedings at 65. Officer Caber, meanwhile, asked Millan to step out of the vehicle and then placed him in wrist restraints. Because Millan repeatedly called out his wife's name and gave her what Officer Caber described as “pretty hard and intimidating looks,” Officer Caber placed Millan in the backseat of the police car. Id. at 106.
¶ 4 While Millan was under arrest and located in the backseat of the police car, Officer Caber conducted a search of the vehicle incident to the arrest. On the floor of Millan's car, between the driver's seat and the driver's side backseat, Officer Caber located a handgun.
¶ 5 As a result of the stop and the search, Millan was charged with driving with a suspended license in the first degree and, because he had previously been convicted of a felony, unlawful possession of a firearm in the first degree. Millan pleaded guilty of driving with a suspended license but proceeded to a jury trial on the unlawful possession of a firearm charge. At no time did Millan object to the admission of the firearm found in his vehicle; his motion in limine made no reference to the firearm nor did he object to its discussion at trial or its admission into evidence. Millan was subsequently convicted and, on December 7, 2007, sentenced to 42 months in prison.
¶ 6 Millan appealed his conviction to the Court of Appeals, arguing that the trial court should have granted his motion for a new trial based on jury misconduct. He submitted his brief on October 7, 2008. While his appeal was pending, the United States Supreme Court released its decision in Gant on April 21, 2009. On May 7, 2009, Millan filed a supplemental brief with the Court of Appeals arguing that the court must reverse his conviction because the vehicle search incident to arrest was unconstitutional under Gant. The Court of Appeals agreed that Gant applied to Millan's case, Millan, 151 Wash.App. at 496, 212 P.3d 603, but held that Millan waived any error by failing to object to the admission of the evidence at trial, id. at 499–500, 212 P.3d 603.
¶ 7 On the afternoon of July 11, 2007, Trooper Tony Doughty was waiting at the intersection of Yelm Highway and Henderson Boulevard, having completed his shift at the Department of Labor and Industries building in Tumwater. As he waited, he heard vehicles that “sounded like they were moving at a very high rate [of speed]” and then, hearing the sound of screeching tires, looked up to see two cars proceeding east on Yelm Highway, turning north onto Henderson Boulevard and breaking traction as they turned. Robinson 1 Verbatim Report of Proceedings at 29. A white Acura was followed by a blue Honda. Trooper Doughty activated his lights and siren and pursued the two vehicles. Though he lost sight of the vehicles for a brief time when they entered a curve in the road, he regained sight shortly thereafter and estimated they were traveling at around 80 mph as they traversed a “heavily traveled road” with crosswalks at 4:30 in the afternoon. Id. at 31.
¶ 8 The three cars, including Trooper Doughty's, turned right onto North Street and Trooper Doughty observed the white Acura drive through a three-way stop. The blue Honda stopped and, as Trooper Doughty pulled up next to it, the driver yelled, “ They just stole my vehicle.' ” Id. at 32–33. Trooper Doughty then continued to pursue the white Acura and stopped behind it on the access road to Washington Middle School. As Trooper Doughty arrived, he observed the driver of the Acura, Daniel Smith, getting out of the vehicle, so Doughty drew his weapon and ordered the driver to get on the ground, which Smith did. As Doughty approached Smith, the passenger of the Acura, Robinson, got out of the vehicle and approached Doughty. Trooper Doughty ordered Robinson to the ground, and Robinson complied. Trooper Doughty then placed handcuffs on Smith and returned to his car to retrieve a second set of handcuffs, which he placed on Robinson.
¶ 9 After Smith and Robinson were on the ground and restrained, the driver of the blue Honda arrived, repeating to Trooper Doughty that the Acura had been stolen from his yard.2 Trooper Doughty had the driver return to his car until backup arrived. Doughty then took Smith and Robinson to sit in the shade because it was a hot day and informed Smith that he was in custody for reckless driving. Approaching the Acura, Trooper Doughty noticed that the ignition was “punched” and falling off the ignition console, which he recognized as being “very common” in stolen vehicles. Id. at 39–40. Trooper Doughty then conducted a vehicle search incident to the arrest of Smith for reckless driving. During this search, which continued once other officers arrived, the officers discovered a number of items, including a loaded handgun that had been burgled from a home the previous day. Upon discovering the handgun, Doughty informed Robinson that he was under arrest for possession of stolen property and read him his Miranda rights.
¶ 10 Following the search, Robinson allegedly told Detective Doug Clevenger that he assisted Smith during the previous day's burglary. Robinson went on to identify some items stolen during the burglary, offer to help get a stolen safe back, state that he had handled the firearm, and state that Smith had a methamphetamine lab in the trunk of the car.3 At trial, Robinson denied participating in the burglary or that he had ever acknowledged his participation.
¶ 11 Robinson was convicted of residential burglary, theft of a firearm, first degree unlawful possession of a firearm, first degree theft, and unlawful possession of methamphetamine while armed with a firearm. At no time prior to or during trial did Robinson object to the search of the car. Robinson appealed his conviction on a number of grounds. In his statement of additional grounds, Robinson, pro se, alleged for the first time that the search of the Acura was unconstitutional. This occurred prior to the United States Supreme Court's decision in Gant. The Court of Appeals, in an unpublished opinion, dismissed the unlawful possession of methamphetamine charge on the basis of insufficient evidence but affirmed the remaining convictions. State v. Robinson, noted at 151 Wash.App. 1030, 2009 WL 2233110, at * 1. The Court of Appeals rejected the unlawful search claim by citing to State v. White, 129 Wash.2d 105, 112, 915 P.2d 1099 (1996), for the proposition that a warrantless search incident to arrest is valid. Robinson, 151 Wash.App. 1030, 2009 WL 2233110, at *12. Robinson then filed a petition for review in this court on two issues, one of which was that the search of the vehicle was unconstitutional under Gant, and this court granted review of the Gant issue only. State v. Robinson, 168 Wash.2d 1001, 226 P.3d 780 (2010).
ISSUE
¶ 12 May a defendant challenge a search for the first time on appeal following a change in constitutional interpretation?
ANALYSIS
¶ 13 Issues of constitutional interpretation and waiver are questions of law, which courts review de novo. City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004).
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...of its own cases, those cases may still constitute a change to settled interpretations of the law in Washington. State v. Robinson, 171 Wash.2d 292, 301–03, 253 P.3d 84 (2011). [166 Wash.App. 332] ¶ 19 Indeed, one panel of Division One of this court has recognized Melendez–Diaz as supersedi......
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