Category Archives: Search and Seizure

State v. Adams: The WA Supremes On a Hot Roll With Yet ANOTHER Decision re. Illegal Car Searches

Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can the Police Legitimately Search My Vehicle Without a Warrant? - FindLaw

“1-2-3!”

You hear this shouted in fight gyms and boxing matches around the world.  It’s a quick, concise statement of one of the deadliest 3-punch combinations in the sport.   It’s a left jab, followed by a right cross and ending with a left hook (consider opposite hands if you’re southpaw).  The jab opens the opponent’s defense and establishes punching range.  The right cross – your power hand – does damage.  The coup de gras left hook should result in more major pain, a knockdown or knockout; especially if ANY of the punches land flush on the chin or temple.  At any rate, somebody is getting hurt.  Or put to sleep.

For the month of August, the WA Supremes issued a 1-2-3 combination with State v. Tibbles, State v. Afana and now State v. Adams; all three decisions upholding the U.S. Supreme Court’s Arizona v. Gant which held that police may search a vehicle incident to 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.”

Lat’s talk about State v. Adams.  On May 24, 2006, Deputy Volpe observed Coryell Adams sitting in a parked car outside a casino.  Volpe checked the license plate number and learned that Adams had an outstanding arrest warrant for driving with a revoked license.

Volpe followed Adams as he drove to a Taco Bell parking lot.  Volpe drove onto the same lot, activated her emergency lights, and parked about eight feet behind Adams’ car.  As she stepped out of her patrol car, Adams stepped out from his car, stood near the driver’s side door and began yelling at Volpe, challenging the stop as racial profiling.  After Volpe repeatedly ordered Adams back into his car, Adams “took 4-5 steps away from the car” and stepped into an adjacent parking stall where he continued to yell and wave his arms.  At Volpe’s request, another deputy arrived and Adams calmed down.  He was then placed under arrest.

After Adams failed to identify himself, Volpe frisked Adams and removed his keys and his wallet, which contained documents identifying him as the registered owner of the vehicle.  The other deputy unlocked Adams’ car. After Volpe placed Adams in the back of her patrol car and read him his rights, she searched his vehicle and found a small black bag containing cocaine in the center console.  He was charged with Possession of Cocaine.  The case wound its way into the WA Supreme Court.  During that time, the U.S. Supremes decided Arizona v. Gant, which was alluded to earlier.

Similar to State v. Afana, the State argued the officer acted in “good faith” when arresting Adams.  However, the WA Supremes made short work of the case:

“Our recent decision in Afana resolves this case.  In Afana we rejected the State’s argument that “good faith” reliance on pre-Gant case law constitutes an exception to the exclusionary rule under article I, section 7 of the Washington State Constitution.  We explained the distinction between an officer’s “good faith” reliance on statutes that were subsequently declared unconstitutional to establish probable cause to arrest . . . [B]ecause the State concedes that Gant applies to the search in this case, and because we have declined to recognize a “good faith” exception based on pre-Gant case law in Afana, we reverse the conviction in this case.”

My opinion?  Criminal defense attorneys have reason to raise a glass and toast the WA Supremes.  These decisions are a fitting end to the summer of 2010.  Take notice, prosecutors: Gant and its Washington progeny are here to stay.  These cases won’t be skirted by “exigent circumstances.”  They won’t be distinguished by “good faith.”  Hurray to a new millennium in cases involving car searches and seizures. 🙂

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Afana: ANOTHER Awesome Decision re. Illegal Car Searches

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington Supreme Court, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

In State v. Afana, the WA Supreme Court held the warrantless search of a vehicle incident to passenger arrest was unlawful, and there is no “good faith” exception under the Washington Constitution.

BACKGROUND FACTS

At 3:40 a.m., Deputy Miller noticed a car which was legally parked on a city street in Spokane County.  He became suspicious, parked his cruiser behind the vehicle, shone his spotlight on it, and made contact.  Two people were inside.  The driver said they were watching a movie on his portable DVD player.  Deputy Miller ran warrant checks on both individuals.  He discovered a warrant existed for the passenger, Ms. Bergeron, for the crime of Criminal Trespass.  He arrests her.

Deputy Miller searched the car and found a black cloth bag behind the driver’s seat.  The bag contained a crystalline substance which looked like methamphetamine.  He also found a glass marijuana pipe, needles, and plastic scales.  Deputy Miller arrested Mr. Alfana, the driver, on Drug Charges.

The case wound up for review before the WA Supreme Court.  in the meantime, the U.S. Supreme Court issued its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009).  There, the Court said that police may search a vehicle incident to 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.”

The Court reasoned that, pursuant to Gant, nothing justified the search that happened after arrest.  Although the warrant for Bergeron’s arrest gave Deputy Miller a basis to arrest her, he had no reason to believe that the vehicle she occupied contained evidence of her underlying crime, namely, Criminal Trespass.  The deputy also lacked reason to believe that she posed a safety risk because she was already in custody in the backseat of the patrol vehicle.

Furthermore, the fact that the driver, Afana, was unsecured at the time of the search does not justify the search.  This is so because he was not under arrest at the time the search was conducted, and Gant held that “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.”  Here, the only arrestee was Bergeron; who was already in the backseat of the police cruiser.

The Court addressed the State’s “Good Faith” exception to warrantless searches.  Historically, this exception allows an otherwise unconstitutional search or seizure if the police officer believes the search was constitutional/reasonable at the time.  Here, the court rejected the State’s “Good Faith” argument because there was no probable cause to conduct the illegal search in the first place.  The evidence was suppressed.

My opinion?  August is a BIG month for handing down post Gant-related decisions (please refer to my blog on State v. Tibbles).  I’m really impressed with how the WA Supremes are handling Gant.  They aren’t chipping away at Gant with BS opinions.  They are, in fact, honoring Gant.  Afana was a unanimous decision, with only one Justice dissenting.  Horray!  🙂

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Maddox: Great Decision on Unlawful Vehicle Searches

Constitutional Rights, Drug Offenses, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Washington State Patrol, Washington Supreme Court, , ,

Vehicle Inventory and Community Caretaker - Daigle Law Group

In State v. Maddox, the Ninth Circuit Court of Appeals Evidence found during an inventory search was suppressed, as no statute specifically authorized impounding the vehicle for Reckless driving or DWLS 3, the vehicle was not impeding traffic, it was not abandoned, and the driver offered to have his friend pick up the vehicle.

Officer Bonney pulled Neal Maddox over for driving suspiciously.  Upon contact, Officer Bonney noticed the vehicle’s tags were expired and Maddox’s license was suspended.  Officer Bonney placed Maddox under arrest, handcuffed him, and escorted him to the patrol car.  He search Maddox and found $358 cash.  Maddox posed no threat to officer safety and there was no danger of evidence destruction.

Nevertheless, Officer Bonney returned to Maddox’s vehicle, reached inside, and retrieved a key chain.  Hanging on the key chain was a metal vial with a screw top.  Officer opened the vial’s top and found methamphetamine.  He searched the vehicle, found a computer case, and discovered a handgun and more methamphetamine.

The court reasoned the officer’s search of Maddox’s keychain was unlawful.  Since Maddox was handcuffed in the backseat of the car, there was no possibility of Maddox concealing or destroying the key chain and the items contained therein.  There was also no sighting of weapons or threats to use one.

The court also reasoned the vehicle impoundment was unlawful.  The police were not performing community caretaking, the vehicle was not abandoned, impeding traffic, or threatening public safety or convenience.  Also, because Maddox offered to have his friend move the vehicle, the officer did not rightfully consider any alternatives before impounding it.  Consequently, The officer’s impoundment of the vehicle did not qualify as a valid inventory search and violated the Fourth Amendment.

My opinion?  Obviously, I’m pleased.  Some may argue the court wrongfully decided the case because RCW 46.55.113(1)  specifically authorizes an impound when a driver is arrested for Driving While License Suspended (DWLS).  Nevertheless, there were larger issues at stake transcending a mere DWLS.  The officer’s unlawful search of the keychain itself moved this issue beyond statutory obligations imposed on DWLS.

Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Tibbles: “Exigent Circumstances” for Warrantless Search = Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

Haddonfield Criminal Defense Lawyers | Illegal Search and Seizure

In State v. Tibbles, the WA Supreme Court held the search  of a defendant was not justified by exigent circumstances and the marijuana/paraphernalia evidence obtained as a result of  the search should have been suppressed.

Micah Tibbles was pulled over following a traffic stop.  During the stop, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’s car.  Though he did not arrest Tibbles or seek a warrant, he searched the car and found the contraband.  Trooper Larsen and the prosecutors argued that although they lacked a search warrant, “exigent circumstances” justified the search nonetheless.  Tibbles was convicted of for possession of marijuana and drug paraphernalia.  The case wound up in the WA Supreme Court.

The Court reasoned the Trooper had probable cause to arrest Tibbles based on the odor of marijuana alone under the Plain View Doctrine.   However, the existence of probable cause, standing alone, does not justify a warrantless search. The Court also reasoned that because Trooper Larsen did not arrest Tibbles, and did not have a warrant when he searched Tibbles’s car, the search must be justified by one of our recognized warrant exceptions; such as “exigent circumstances.”

Here’s the law on exigent circumstances: basically, the exigent circumstances exception to the warrant requirement applies where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Under State v. Tibbles, there are five circumstances types of exigent circumstances: (1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence.”  A court must look to the totality of the circumstances in determining whether exigent circumstances exist.

Here, the WA Supremes decided the State failed to show that exigent circumstances justified the warrantless search of Tibbles’s car.  Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent.  Additionally, the State failed to establish that obtaining a warrant was otherwise impracticable.

“For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant,” said Justice Debra Stephens of WA Supremes.

Additionally, regarding the safety concerns, the facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles’s actions.  Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight.   Tibbles was alone, was compliant with the  trooper’s requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper  Larsen searched the car and seized the marijuana and drug paraphernalia.  For these reasons, the WA Supremes reversed the WA Court of Appeals which upheld Tibbles conviction.

My opinion?  BEAUTIFUL.  The State’s “exigent circumstances” arguments were totally baseless.  Let’s boil it down: exigent circumstances should be found only where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape, or permit the destruction of evidence.  If these situations do not exist, then neither does exigent circumstances.  PERIOD.

Well done, WA Supremes.  Thank you.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Berghuis v. Thompkins: Miranda Applies, BUT Defendants MUST Clearly Invoke Constitutional Rights

Constitutional Rights, Due Process, Duress Defense, felony, Homicide & Manslaughter, Interrogation, law enforcement, police, Privacy, Search and Seizure, Self-Incrimination, United States Supreme Court, , ,

Why Interrogation in Jail May Not Count as “Custodial”: The Supreme Court Makes New Law in Howes v. Fields | Sherry F. Colb | Verdict | Legal Analysis and Commentary from Justia

In Berghuis v. Thompkins, the U.S. Supreme Court ruled that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.

The case centered around the interrogation of Van Chester Thompkins, who was suspected of Homicide. He remained virtually silent for hours in police custody before giving a few brief responses to police questions. Most significantly, Thompkins answered “yes” when asked, “Do you pray to God to forgive you for shooting that boy down?” The statement was introduced at trial and Thompkins was convicted.

In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

My opinion?  Naturally, I’m concerned about any retreat from the basic principle that criminal suspects should not be compelled or coerced into incriminating themselves.  The opinion is wrong because it creates additional challenges for suspects who already understand too little about how their constitutional rights apply during police interrogations.

Fortunately, however, the Berghuis decision leaves intact the best strategy for handling any police interrogation: keeping your mouth shut. Requiring suspects with limited legal knowledge to clearly assert their rights may seem a bit strict, but it’s irrelevant if the suspect never says a word to begin with. The point of the 5th Amendment isn’t to protect you after you’ve foolishly incriminated yourself; it’s to remind you that you’re not obligated to answer police questions in the first place.

Ultimately, the burden is on each of us to understand our rights and use that information to make the best decisions. It’s unlikely that any Supreme Court decision will ever change the fact that remaining silent is your best and only strategy if police ask you incriminating questions.

I can’t stress this enough: your attorney can suppress unlawfully obtained evidence IF you clearly assert your rights.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

How To Protect Your Rights On Facebook

Constitutional Rights, Due Process, felony, law enforcement, misdemeanor, police, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Social Media, , ,

How to protect your privacy from Facebook | ZDNet

Think twice before posting those party pictures on Facebook.

The LaCrosse Tribune wrote an article on a University of Wisconsin-La Crosse student named Mr.  Bauer. He was popular with nearly 400 friends on Facebook. He got an offer for a new one about a month ago. “She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.

He thinks that led to his invitation to come down to the La Crosse police station, where an officer laid out photos from Facebook of Bauer holding a beer — and then ticketed him for underage drinking.

He was among at least eight people who said Wednesday they had been cited for underage drinking based on photos on social networking sites.

*       *       *       *       *       *      *       *       *       *       *       *       *       *       *       *       *

My opinion?  First things first, there’s certainly nothing good to be said about these sorts of law-enforcement tactics. Police always have better things to do than roam the Internet looking for pictures of naughty college kids and there’s no excuse for invading people’s privacy to make a couple petty arrests. The very notion of officers assuming fake identities on Facebook is just inherently repugnant and serves only to destroy their relationship with the very people they’re supposed to be protecting.

That said, it’s also worth keeping in mind that you have a 5th Amendment right not to post incriminating pictures of yourself on Facebook. It’s just an unfortunate reality that police do creep around on the web an awful lot for no particularly good reason and you never know where their prying eyes might land. This means you should think about what you’re posting, and keep an eye out for other people incriminating you as well. Simply un-tagging yourself from a couple questionable photos could be all it takes to save you a huge hassle down the road.

In my experience, this issue goes beyond what may or may not have taken place in one photo on one particular night. Seriously, I’ve known – and heard of – people who got passed over for a job because their prospective employer found unflattering photos online. Worse, I know of instances in which online photos were used to attack someone’s character in an otherwise unrelated criminal case. The bottom line is that posting pictures online has much broader implications than simply showing your friends what a kick-ass weekend you had.

Finally, remember that if you’re ever confronted with a photo that shows you in a compromising situation, you don’t have to incriminate yourself. Rarely will the photo itself be sufficient evidence to convict you of anything. What they’re really looking for is the confession that they hope will come spilling out of your mouth after they show you what they’ve got. If you keep your mouth shut and ask for a lawyer, chances are they’ve got nothing.

BTW, I’m not offering legal advice by posting this subject matter.  It’s offered for educational purposes only.   😉

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Eaton: A Defendant’s Sentence Cannot Be Enhanced For Involunatry Acts

Constitutional Rights, Drug Offenses, Due Process, DUI, felony, Jail, law enforcement, Methamphetamine, police, Search and Seizure, Sentencing, Washington Supreme Court, , ,

sentence enhancements Archives - Oklahoma Justice Reform

In State v. Eaton, the WA Supreme Court decided a defendant must act volitionally – with intent – to put himself within a zone that requires an upward sentencing enhancement.  An enhancement should not apply for drugs the defendant possessed when arrested and brought to jail.

Mr. Eaton was arrested for DUI and taken by police to the Clark County Jail.  At the jail, Eaton was searched by staff who discovered a small bag of methamphetamine taped to his sock.  The State charged Eaton with DUI and Possession of Methamphetamine and sought a sentencing enhancement for possessing a controlled substance in a jail or prison.  A jury convicted Eaton on both charges and found by special verdict that Eaton possessed methamphetamine while in a jail.  The trial court imposed an enhanced sentence.

The WA Supremes overturned the sentencing enhancement.  They reasoned that once Eaton was arrested, he no longer had control over his location.  From the time of arrest, his movement from street to jail became involuntary: involuntary not because he did not wish to enter the jail, but because he was forcibly taken there by State authority. He no longer had the ability to choose his own course of action.  Nor did he have the ability through some other course of action to avoid entering the area that would increase the penalty for the underlying crime.

My opinion?  Again, excellent decision.  It’d be different if Eaton knew he was going to jail and tried sneaking meth within the facility. However, those circumstances did not exist.  He was arrested for DUI  – a different matter altogether – and immediately booked into jail.  He never voluntarily brought the drugs into the jail itself.  He merely happened to possess them when arrested for DUI.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Break The Law And Your New “Friend” Might Be The FBI

Constitutional Rights, Privacy, Search and Seizure, Search Warrant, Social Media, Studies, , ,

Feds Accused of Withholding Social Media Surveillance Files – Courthouse News Service

Law enforcement is invading social networking websites. The Feds are on Facebook.  And Myspace, LinkedIn and Twitter, too.

Let’s be frank: it was only a matter a time before the Feds started conducting investigations using social networking sites.  Indeed, I’ve had former clients busted for prostitution because they sell their services on Craigslist, and the police acted as “Johns” to set up a sting.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Whatcom County Jail Gets Record Number of Inmates

Animal Abuse, Assault, Bellingham, Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Domestic Violence, Drug Offenses, Due Process, DUI, felony, Firearm, Homicide & Manslaughter, Jail, law enforcement, marijuana, misdemeanor, police, Pretrial Investigations, Probable Cause, Property Crimes, Retail Theft, Search and Seizure, Search Warrant, Sentencing, Sex Crimes, Speedy Trial & Continuances, Terry Stop, Theft, Washington State Patrol, Whatcom County Criminal Defense, , ,

COVID-19 infections hit record high in California prisons | CalMatters

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.
The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources. From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecessarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

Constitutional Rights, felony, Firearm, Jury Trial, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, United States Supreme Court, Washington Court of Appeals, , ,

The Courts and the Constitution Arizona v Gant

In State v. Harris, the  WA Court of Appeals held that a defendant who did not bring a suppression motion prior to trial, may assert a claim under Arizona v. Gant  for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that 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.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.

Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.