Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                           Feb. 28, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint                   No.  28050-1-III
Petition of:                                    )
                                                )
                                                )         Division Three
JOHN FRANCIS FARRELL JR.,                       )
                                                )
                                                )         UNPUBLISHED OPINION
                      Petitioner.               )
                                                )

       Siddoway, J.  --  In a timely personal restraint petition, John Francis Farrell Jr. 

seeks relief from his 2007 convictions of possession of methamphetamine with intent to 

deliver and possession of methadone.  We find a challenge to his conviction on the basis 

of Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) to be 

dispositive.  We grant the petition, reverse the convictions, and remand with directions to 

the trial court to dismiss the charges with prejudice.

                      FACTS AND PROCEDURAL BACKGROUND

       In November 2006, a Spokane police officer stopped a car for having expired 

license tabs.  When the officer ran a driver's license check on the driver -- Mr. 

Farrell -- the officer learned that Mr. Farrell's license had been suspended.  The officer  

No. 28050-1-III
In re Pers. Restraint of Farrell

arrested Mr. Farrell on that basis, required him to step out of the car, and placed him in 

handcuffs.  In a search of Mr. Farrell's person, the officer found over $600 in cash and a 

piece of cardboard on which was written a list of names and dollar amounts.  The officer 

concluded it was a drug ledger.  Incident to the arrest, the officer searched Mr. Farrell's 

car and found a black digital scale, drug paraphernalia, and about 73 grams of 

methamphetamine and methadone.  

       Mr. Farrell was charged and convicted of possession of a controlled substance 

with intent to deliver and possession of a controlled substance.  His judgment and 

sentence was affirmed on appeal.  See Commissioner's Ruling, State v. Farrell, No. 

26608-7-III (Wash. Ct. App. Jan. 29, 2009). The mandate issued, terminating review, on 

May 28, 2009.  During the pendency of his appeal -- on April 21, 2009 -- the United 

States Supreme Court decided Gant.  

       On May 4, 2009, Mr. Farrell filed the personal restraint petition (PRP) before us.  

After considering the record and documents accompanying Mr. Farrell's petition, and in 

light of the prospect that Gant would apply retroactively to Mr. Farrell, we concluded that 

the petition and its attachments satisfied the prerequisites for a reference hearing.  We

remanded the matter to the Spokane County Superior Court for that purpose, directing the 

superior court to enter findings of fact and conclusions of law concerning (1) the 

circumstances of the November 2006 arrest and search; (2) whether the search of the car 

                                               2 

No. 28050-1-III
In re Pers. Restraint of Farrell

was unlawful under Gant; and (3) if the search was unlawful under Gant, how Mr. 

Farrell's judgment and sentence would be affected. 

       Following the reference hearing, the superior court concluded that the warrantless 

search of Mr. Farrell's car would have been unlawful if Gant had applied at the time of 

his arrest.  It nonetheless concluded that Mr. Farrell waived the suppression issue because 

he had not raised it before the trial court, on appeal, or even in his PRP.  In reaching the 

last conclusion, the superior court assumed that the Gant issue was raised sua sponte by 

this court.  That assumption was mistaken.  Mr. Farrell had complained of ineffective 

assistance of counsel in the petition and had appended a newspaper article that discussed

Gant, as one example of his counsel's deficient performance.  Later, in his reply brief, he 

complained that the State's response failed to address the application of Gant.  

       Given the superior court's findings and conclusions establishing that the search 

and seizure were unlawful under Gant, the questions that remained in determining Mr. 

Farrell's right to relief were whether Gant applies retroactively and whether the failure to 

challenge the admission of the evidence in the trial court foreclosed Mr. Farrell from 

raising it in a PRP.

       By this time, the Washington Supreme Court had accepted review of three cases 

examining (1) whether Gant was retroactive, (2) whether retroactive application of Gant

may be waived, and (3) whether a good faith exception to the Gant rule may apply.  State 

                                               3 

No. 28050-1-III
In re Pers. Restraint of Farrell

v. Robinson, 171 Wn.2d 292, 253 P.3d 84 (2011) (consolidated with State v. Millan, 

Supreme Court No. 83613-2) and State v. Afana, 169 Wn.2d 169, 233 P.3d 879 (2010).  

We stayed decision on Mr. Farrell's PRP pending the decision and mandate in Robinson.  

       In its April 2011 decision in Robinson, the Supreme Court held that Gant and State 

v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009) (applying Gant) applied retroactively to 

all state and federal cases that were not yet final, and that the Gant issue was preserved 

for criminal defendants whose trials were completed before Gant and Patton were 

decided.  Afana, decided in July 2010, had established that a good faith exception to the 

exclusionary rule was incompatible with article I, section 7 of the Washington 

Constitution.  Afana, 169 Wn.2d at 184.  

       The stay in this matter was lifted on June 1, 2011 and we requested supplemental 

briefing from the State.  The State responded with a letter that addressed Robinson and 

concluded, "Applying Gant pursuant to the Supreme Court's decision in State v. 

Robinson, the Superior Court's holding that the search was unlawful becomes effective."  

Letter from Mark Lindsey, Deputy Prosecuting Attorney, Office of the Prosecuting 

Attorney of Spokane County, to Renee Townsley, Clerk of Court, Wash. Court of 

Appeals 3, at 3 (June 21, 2011), In re Pers. Restraint of Farrell, No. 28050-1-III (Wash. 

Ct. App.).  The State did not, and has not, challenged the superior court's conclusion that 

the search would have been unlawful had Gant applied, or the findings supporting that 

                                               4 

No. 28050-1-III
In re Pers. Restraint of Farrell

conclusion. The State nevertheless declined to join in an agreed order remanding the 

matter for vacation of the conviction, explaining that it is the State's position that it "was 

legally justified when it originally filed the charges pursuant to the status of the law as it 

existed at the time" and that the State "will not agree that the original filing of charges 

was without legal authority to thereby foreclose petitioner seeking reparation from the 

State for his convictions."  Letter from Mark Lindsey, Deputy Prosecuting Attorney, 

Office of the Prosecuting Attorney of Spokane County, to Renee Townsley, Clerk of 

Court, Wash. Court of Appeals 3, at 2 (Oct. 4, 2011), In re Pers. Restraint of Farrell, No. 

28050-1-III (Wash. Ct. App.). 

       Absent an agreed order, counsel was appointed for Mr. Farrell and the matter was 

set for a decision on the merits.

                                         ANALYSIS

       To prevail in a PRP, the petitioner must show by a preponderance of the evidence 

either an error of constitutional magnitude that caused actual prejudice or a 

nonconstitutional error that caused a complete miscarriage of justice.  In re Pers. 

Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004); In re Pers. Restraint of 

Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083, cert. denied, 528 U.S. 1009 (1999).  Mr. 

Farrell contends prejudicial evidence from the warrantless search of his car was admitted 

in violation of the federal and state constitutions. 

                                               5 

No. 28050-1-III
In re Pers. Restraint of Farrell

       The Fourth Amendment to the United States Constitution protects the right of the 

people to be secure in their houses and possessions against unreasonable searches and 

seizures.  State v. Valdez, 167 Wn.2d 761, 768, 224 P.3d 751 (2009).  A warrantless 

search is per se unreasonable unless the circumstances of the situation made the search 

imperative.  Id. Under article I, section 7 of the Washington Constitution, "[n]o person 

shall be disturbed in his private affairs, or his home invaded, without authority of law."  

The privacy protections under article I, section 7 are more extensive than the protections 

provided by the Fourth Amendment and bar warrantless searches with very limited 

exceptions.  Valdez, 167 Wn.2d at 772. Before Gant, Washington courts held that the 

Fourth Amendment and article I, section 7 generally permitted warrantless vehicle 

searches of a passenger compartment incident to an occupant's arrest.  Robinson, 171 

Wn.2d at 302.  Even after a suspect had been arrested, handcuffed, and placed in a patrol 

car, officers were allowed to search the passenger compartment for weapons or 

destructible evidence.  State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986), 

overruled by Valdez, 167 Wn.2d at 777.  

       In Gant the United States Supreme Court announced a new rule governing the 

warrantless vehicle search incident to arrest exception.  526 U.S. at 343.  The exception 

applies under the Fourth Amendment only if (1) the arrestee is within arm's reach of the 

passenger compartment at the time of the search or (2) it is reasonable to believe that the 

                                               6 

No. 28050-1-III
In re Pers. Restraint of Farrell

vehicle contains evidence related to the crime of the arrest.  Id. at 351.  "When these 

justifications are absent, a search of an arrestee's vehicle will be unreasonable unless 

police obtain a warrant or show that another exception to the warrant requirement 

applies."  Id.  Following Gant, the Washington Supreme Court has held that the search of 

a vehicle incident to arrest is lawful only if, at the time of the search, there is a reasonable 

basis to believe that the arrestee poses a safety risk or that a search is necessary to prevent 

destruction or concealment of evidence of the crime of arrest.  Valdez, 167 Wn.2d at 777; 

Patton, 167 Wn.2d at 394-95.

       Bearing in mind the evidence that would have been suppressed applying Gant, a 

review of the record of Mr. Farrell's trial reveals insufficient admissible evidence to 

prove beyond a reasonable doubt that Mr. Farrell possessed controlled substances.  The 

search of his person produced only $607 in cash and what appeared to be a drug ledger.  

This evidence is clearly insufficient to establish the element of possession of a controlled 

substance.  See RCW 69.50.401(1) (elements of possession of a controlled substance and 

possession with intent to deliver).

       Mr. Farrell has demonstrated that he was prejudiced by the admission of evidence 

violating the Fourth Amendment to the United States Constitution and article I, section 7 

of the Washington Constitution.  Having resolved the petition on this basis, we need not 

address the additional bases for relief urged by Mr. Farrell.

                                               7 

No. 28050-1-III
In re Pers. Restraint of Farrell

       We grant Mr. Farrell's petition, reverse his convictions, and remand his judgment 

and sentence to the trial court for dismissal of the charges with prejudice.  

       A majority of the panel has determined that this opinion will not be printed in the 

                                               8 

No. 28050-1-III
In re Pers. Restraint of Farrell

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040.

                                                ___________________________________
                                                Siddoway, J.

WE CONCUR:

____________________________________
Korsmo, A.C.J.

____________________________________
Brown, J.

                                               9