WA: Gant retroactive and no GFE

Gant is retroactive, and a good faith exception is inappropriate, with separate analysis of the Fourth Amendment and state constitution. State v. McCormick, 152 Wn. App. 536, 216 P.3d 475 (2009). Retroactivity:

¶9 The Supreme Court has firmly established that “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, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Likewise, in Johnson, the Court decried the “actual inequity that results” when similarly situated defendants receive different treatment after a change in the law. United States v. Johnson, 457 U.S. 537, 556 n.16, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982) (emphasis omitted); see State v. Counts, 99 Wn.2d 54, 57, 659 P.2d 1087 (1983) (applying Johnson and adopting retroactivity in “all cases still pending on direct appeal at the time of the new decision”).

¶10 In Millan, we held that because Millan did not move to suppress at trial, he waived his Gant issue on appeal under RAP 2.5(a). State v. Millan, ___ Wn. App. ___, 212 P.3d 603, 607 (2009). But the reasoning in Millan is contrary to established law. Griffith, 479 U.S. at 328; Johnson, 457 U.S. at 556 n.16; Counts, 99 Wn.2d at 57-58. McCormick does not prevail on appeal because she moved to suppress at trial, but because justice demands that similarly situated defendants whose appeals are pending direct review deserve like treatment following a change in the law. Johnson, 457 U.S. at 556 n.16. We agree with the basic fairness represented by the Supreme Court’s holding in Griffith and Johnson and follow our Supreme Court’s recognition of these holdings in Counts. Griffith, 479 U.S. at 328; Johnson, 457 U.S. at 556 n.16; Counts, 99 Wn.2d at 57-58. We therefore reject Millan’s reasoning and hold that under both RAP 2.5(a) and controlling precedent, McCormick has preserved the matter for appeal because the Supreme Court’s opinion in Gant applies retroactively to all similarly situated defendants in Washington.

Good faith:

¶19 The State acknowledges that under State v. White, 97 Wn.2d 92, 109-10, 640 P.2d 1061 (1982), Washington does not recognize the federal good faith exception. In Buford, a district court analyzed Gant and the federal good faith exception at length and held that the exception did not apply. United States v. Buford, 623 F. Supp. 2d 923, 927 (M.D. Tenn. 2009) (concluding that because Buford would not have mentioned the gun unless the officers had conducted an unconstitutional search, evidence of the gun should be suppressed as fruit of the poisonous tree); but see United States v. Grote, 2009 WL 2068023 at *3 (E.D. Wash. 2009) (denying a motion for reconsideration that application of the good faith exception was merely an alternative ruling that did not constitute clear error on its part).

¶20 And recently, in Gonzalez, the Ninth Circuit rejected the good faith exception to the exclusionary rule in favor of the doctrine of retroactivity when faced with an argument nearly identical to the State’s position in this appeal. United States v. Gonzalez, ___ F.3d ___, 2009 WL 2581738 (9th Cir. 2009). The court reasoned that to apply the good faith exception would “‘violate[] the principle of treating similarly situated defendants the same’ by allowing only one defendant to be the beneficiary of a newly announced rule.” Gonzalez, 2009 WL 2581738 *2 (quoting Griffith v. Kentucky, 479 U.S. at 322-23). The court ultimately concluded, “Because both Johnson and Griffith remain binding precedent, we cannot apply the good faith exception here without creating an untenable tension within existing Supreme Court law.” Gonzalez, 2009 WL 2581738 *2.

¶21 Ultimately, the State fails to provide us with a sound basis for avoiding the White precedent, which our Supreme Court recently reaffirmed as a rejection of DeFillippo and its progeny. See State v. Chenoweth, 160 Wn.2d 454, 472 n.14, 158 P.3d 595 (2007) (“no good faith exception for arrests made under unconstitutional statute) (rejecting … DeFillippo”) (citing White, 97 Wn.2d at 92)). We follow White, and decline to apply the federal good faith exception. 97 Wn.2d at 109-10.