State v. Johnson and the Retroactivity of Gant

On June 1, 2010, the N.C. Court of Appeals applied Arizona v. Gant in State v. Johnson and held that the defendant’s Fourth Amendment rights were violated when the police searched his vehicle incident to his arrest. There is nothing particularly significant about that holding, as it involved a fairly straightforward application of Gant. However, one aspect of the holding already has generated some traffic on my phone line. Specifically, in its decision, the court stated: “because [Gant] applies retroactively, we conclude that the warrantless search of the defendant’s car following his arrest . . . was unconstitutional.” (emphasis added). My callers have been asking: “Does this mean Gant applies retroactively to cases for which the direct appeal process ended years ago?” The answer to that question is no; Johnson didn’t hold that Gant applies retroactively to cases that became final before Gant was decided.

As I discuss in much more detail in a paper here, retroactivity, as it applies to judge-made rules, is a term referring to a new rule of criminal procedure that applies to cases that became final before the decision adopting the new rule was rendered. Notwithstanding the Johnson court’s use of the term “retroactively,” retroactivity wasn’t at issue in that case. [editor’s note: my summary of Gant is here, and my discussion of Gant and retroactivity is here.]

Consider the procedural history of the case:

July 8, 2008 Trial court denies defendant Johnson’s motion to suppress
Jan. 13, 2009 Defendant pleads guilty, preserving the right to appeal the denial of his suppression motion
Jan. 14, 2009 Defendant files notice of appeal
April 21, 2009 Gant is decided
June 1, 2010 Court of Appeals’ decision on Johnson’s direct appeal is issued

As is readily apparent, Gant was decided while Johnson’s appeal was pending. Gant thus applies to Johnson’s case under clearly established law that new judge-made rules of criminal procedure apply to all cases pending and not yet final on appeal at the time the decision was rendered. In fact the Johnson opinion recognizes this when it states: “Gant applies retroactively to this case, since this case is currently on direct review, and is not yet final.” (Slip op. at 11-12 (citing Griffin v. Kentucky, 479 U.S. 314 (1987)). Although the court’s repeated use of the word “retroactively” initially may create confusion, a careful look at the case’s procedural history makes clear that Johnson was not a case in which Gant was applied to a conviction that was final when Gant was decided. In order for a court to apply Gant in that way, it would have to conclude that the case warrants retroactive application under the Teague retroactivity standard. The United States Supreme Court has not had occasion to apply the Teague test to the Gant rule. Nor did Johnson do so. More information on the Teague retroactivity test is provided in the paper mentioned above.

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