DocketNumber: No. 38540-6-II
Judges: Brintnall, Hunt, Penoyar, Quinn
Filed Date: 10/25/2011
Status: Precedential
Modified Date: 11/16/2024
¶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 of 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.
¶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.
¶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
Johnson did not appeal his conviction on Count IV, obstructing a law enforcement officer, arising from the same incident. He was acquitted on Count III, possessing dangerous weapons.
The United State Supreme Court issued Oant after Johnson’s trial but before his direct appeal.
More specifically, the court stated:
We hold that principles of issue preservation, as embodied in RAP 2.5(a), do not apply where (1) a court issues a new controlling constitutional interpretation material to the defendant’s case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant’s trial was completed prior to the new interpretation.
Robinson, 171 Wn.2d at 307-08.