WA Legal Roundup: Division III
Brandenburg was stopped for speeding and the police officer discovered that he had FOUR outstanding warrants and arrested him. The police then searched Brandenburg’s vehicle incident to arrest and discovered a small scale with methamphetamine residue on it. Brandenburg’s criminal history included 18 non-traffic misdemeanor convictions. Sounds like a fine, outstanding citizen!Brandenburg plead guilty and the court imposed an exceptional sentence based on Brandenburg’s misdemeanor convictions.
Brandenburg appealed on two issues: (1) Under the Gant ruling, the police officers had no right to search his vehicle; and (2) the court committed error in imposing an exceptional sentence.
The Gant ruling was quite monumental and thus is worth stating here again:
In Gant, the Supreme Court held that a search similar to the one conducted by the police in Mr. Brandenburg's case violated the Fourth Amendment. Gant, 129 S. Ct. at 1723-24. There, the court held that Mr. Gant's vehicle, which police stopped for a traffic infraction, could not be searched because Mr. Gant could not have accessed his car to retrieve contraband at the time of the search and police had no possibility of discovering offense-related evidence without conducting a search. Id. at 1719. The court further noted there was no officer safety justification or evidentiary basis for the search because "Gant was arrested for driving with a suspended license -- an offense for which police could not expect to find evidence in the passenger compartment of Gant's car." Id. "[T]he Supreme Court's opinion in Gant applies retroactively to all similarly situated defendants in Washington." State v. McCormick, 152 Wn. App. 536, 540, 216 P.3d 475 (2009).
While Brandenburg is correct that the police officers in his case were NOT allowed to search his vehicle incident to arrest, he probably should have bought this issue up BEFORE pleading guilty. While a defendant who pleads guilty may appeal issues such as the judgment and sentence, the jurisdiction of the court, validity of the statute violated, sufficiency of the information, or the circumstances under which the plea was made, he may NOT appeal a Constitutional issue regarding the search of his vehicle. "'[A] guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt.'" State v. Amos, 147 Wn. App. 217, 225-26, 195 P.3d 564 (2008) (quoting In re Pers. Restraint of Bybee, 142 Wn. App. 260, 268, 175 P.3d 589 (2007)). ISSUE WAIVED!
The second issue is the exceptional sentence. An exceptional sentence may not be imposed unless there are substantial and compelling reasons to justify it. Under RCW 9.94A.535(2)(b), an exceptional sentence may be imposed if "the defendant's prior unscored misdemeanor . . . history results in a presumptive sentence that is clearly too lenient.” AND IN ADDTION, Brandenburg stipulated to the exceptional sentence! Nuff said?