State v. Nyegaard , 154 Wash. App. 641 ( 2010 )

Houghton, J.

¶15 (dissenting) — In State v. McCormick, Judges Houghton (writing), Armstrong (concurring), and Penoyar (concurring) held that defendants may raise an admissibility of evidence challenge on appeal without having done so in the trial court, following a change in the law under Arizona v. Gant,_U.S._, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009). State v. McCormick, 152 Wn. App. 536, 540, 216 P.3d 475 (2009). The McCormick opinion called into question another panel’s decision in State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009), review granted, 168 Wn.2d 1005 (2010), which denied a similar challenge on appeal.

¶16 Following McCormick, in State v. Harris, another panel (Judges Armstrong (writing), Penoyar (concurring), and Quinn-Brintnall (dissenting)) declined to hold that a defendant waived his right to challenge a search under Gant by failing to bring a then meritless motion to suppress before the pre-Gant trial. State v. Harris, 154 Wn. App. 87, 98-99, 224 P.3d 830 (2010). More recently, in State v. Burnett, 154 Wn. App. 650, 228 P.3d 39 (2010), a third panel, (Judges Penoyar (writing) and Houghton and Van Deren (concurring)) followed McCormick. To date, Judges QuinnBrintnall, Bridgewater, and Hunt have followed the Millan analysis and Judges Houghton, Armstrong, Van Deren, and Penoyar have followed the McCormick and Harris analyses.

¶17 Under RCW 2.06.040, the Court of Appeals hears cases in three-judge panels. Because we do not sit en banc, our opinions on the issue of waiver in post-Gant admissibility of evidence challenges lack uniformity. Justice demands that the outcome of similar cases on the same issue should not depend on the composition of randomly selected three-judge panels. This lack of uniformity should be addressed by our Supreme Court as soon as practical.

¶18 For the reasons I set forth in McCormick, Ryan Nyegaard may raise this issue on appeal. Therefore, I dissent.