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 [...]
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