156 WASHAPP 82 - State v. Johnson

Houghton, J.*

¶1¶21 (concurring and dissenting) — I concur in part and dissent in part. I agree with the majority’s analysis on the traffic stop and seizure, but for the following reasons I dissent from its analysis on the search incident to arrest.

¶2¶22 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, 556 U.S. 332, 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 *95P.3d 603 (2009), review granted, 168 Wn.2d 1005, 226 P.3d 781 (2010), which denied a similar challenge on appeal.20

¶3¶23 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 Gantby failing to bring a then meritless motion to suppress before the pre-Gant trial.21State v. Harris, 154 Wn. App. 87, 99, 224 P.3d 41 (2010). More recently, in State v. Burnett, 154 Wn. App. 650, 228 P.3d 39 (2010), a third panel, Judges Penoyar (writing), Houghton (concurring), and Van Deren (concurring), followed McCormick. To date, three judges, Judges Quinn-Brintnall, Bridgewater, and Hunt, have followed the Millan analysis and four judges, Judges Houghton, Armstrong, Van Deren, and Penoyar, have followed the McCormick and Harris analyses.

¶4¶24 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-Garei 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.

¶5¶25 Based on the reasoning in McCormick, Harris, and Burnett, I dissent.

¶6 Judge Elaine Houghton is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.

¶7 The Millan panel, Judges Quinn-Brintnall (writing), Bridgewater (concurring), and Hunt (concurring), also denied a similar challenge in State v. Cardwell, 155 Wn. App. 41, 226 P.3d 243 (2010).

¶8 In State v. Nyegaard, 154 Wn. App. 641, 646, 226 P.3d 783 (2010), another panel, Judges Hunt (writing), Bridgewater (concurring), and Houghton (dissenting), held that waiver occurred under similar circumstances.