State v. Betancourth

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CHIEF JUSTKE
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 94208-1

V.

EN BANC
RAY LENY BETANCOURTH,

Petitioner. Filed MAR 2 2 2018

STEPHENS, J.—This case requires us to consider the "independent source

doctrine," which is a recognized exception to the exclusionary rule under article I,

section 7 of the Washington State Constitution. The superior court admitted into

evidence Ray Betancourth's cell phone records, which were initially obtained under

a jurisdictionally invalid district court warrant. Though a valid superior court

warrant was subsequently issued for the same records, police did not physically

return and reseize the evidence. In upholding admission of the cell phone records,

the Court of Appeals fashioned what it deemed an "invalidity correction corollary"

to the independent source doctrine. State v. Betancourth, No. 32683-7-III, slip op.
State V. Betancourth (Ray Leny), 94208-1

at 43-44 (Wash. Ct. App. Dec. 8, 2016) (unpublished), http://

www.courts.wa.gov/opinions/pdf/326837_ord%20rec%20amn.pdf. Betancourth

argues that this corollary improperly interjects reasonableness or good faith

considerations that are incompatible with our state constitutional privacy rights.

We affirm the Court of Appeals. While we do not embrace the notion of an

"invalidity correction corollary," we agree with the lower courts that the

exclusionary rule does not apply in this case. We hold that Betancourth's cell phone

records were admissible under our existing independent source doctrine.

FACTS AND PROCEDURAL HISTQRY

On September 19,2012, Betancourth assembled a group offriends to look for

Terrance Frank, whom Betancourth suspected of breaking his car windows a few

days earlier. 8 Verbatim Report ofProceedings(VRP)(June 20, 2014) at 1211-12.

Betancourth drove the group around in his pickup truck until they located Frank

walking down the sidewalk with two other men, Jordan Lemus and Jose Rodriguez.

Betancourth's group exited the truck and chased after Frank,Lemus,and Rodriguez.

Betancourth turned back after realizing he had left his truck running, while his

friends chased Lemus and Rodriguez into an alley. Betancourth's friend, Marco

Cardenas, pulled out a pistol and fired twice, killing Rodriguez. 6 VRP (June 18,

2014) at 919.

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On September 21, 2012, Toppenish police seized Betancourth's truck after

witnesses identified the vehicle as having been used by Rodriguez's attackers. 1

VRP (Feb. 10, 2014) at 32-33. Betancourth arrived at the police station with his

father and consented to an interview with Toppenish detectives. After the interview,

Toppenish police obtained Betancourth's cell phone number. Later that afternoon.

Detective Damon Dunsmore sent a preservation letter to Verizon Wireless to

preserve records from September 19th to September 25th associated with

Betancourth's number. Verizon preserved the phone records as requested.

On September 25, 2012, the Yakima County District Court granted a search

warrant ordering Cellco Partnership, d/b/a Verizon Wireless, to provide

Betancourth's cell phone records, including text messages, from September 19 to

September 25, 2012. Clerk's Papers(CP)at 215, 9-14. Detective Dunsmore faxed

the warrant to Verizon's custodian of records in New Jersey, and Verizon provided

the requested phone records to Detective Dunsmore in pdfformat via e-mail. Id. at

9, 69.

On October 9, 2012, Toppenish police called Betancourth back in for

questioning. Betancourth denied any involvement in the crime. 8 VRP (June 20,

2014) at 1172. Police then showed Betancourth text messages fi-om his cell,

including a text message exchange with his girlfriend, Nancy Arriaga, where

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Betancourth told Arriaga he wanted to '"beat the shit [out of] them.'" 7 VRP (June

19, 2014) at 1122. Toppenish police also played Betancourth an audio recording of

Arriaga's statement. As the audio played, Betancourth stated,'"Guess you know

what happened then.'" 8 VTP (June 20, 2018) at 1179. Toppenish police arrested

Betancourth the following day.

In September 2013,almost a year after Betancourth's arrest, a Yakima County

Superior Court judge ruled in a separate case that RCW 10.96.060 authorizes only

superior courts to issue warrants for the records of out-of-state companies.^ Based

on this ruling. Deputy Prosecuting Attorney David Soukup, who was assigned to

Betancourth's case, contacted Toppenish Police Department Detective Jaban

Brownell and requested that he obtain a new warrant for the Verizon phone records

from a superior court judge. Soukup requested that Detective Brownell use exactly

the same information he had used in obtaining the search warrant from the district

courtjudge. Essentially, the new warrant was intended to cure ajurisdictional defect

in the prior warrant.

1 RCW 10.96.060 provides:
A judge ofthe superior court may issue any criminal process to any recipient
at any address, within or without the state, for any matter over which the
court has criminal jurisdiction pursuant to RCW 9A.04.030. This section
does not limit a court's authority to issue warrants or legal process under
other provisions of state law.

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On October 9, 2013, Detective Brownell presented an affidavit for probable

cause to Yakima County Superior Court Judge Susan Hahn. The affidavit was

essentially identical to the affidavit used in September 2012. The only information

Detective Brownell added was that the district court had granted a search warrant on

the same information, and that he had been requested by the prosecutor's office to

reapply for the warrant fi-om a superior court judge. Id. Judge Hahn authorized the

search warrant that day.

On October 15, 2013, Detective Dunsmore faxed the new warrant to the

custodian of records at Verizon Legal Compliance located in Texas. The facsimile

face page stated, '"These records were requested by a district court warrant

previously. Based on [a] recent court ruling they need to be based on a superior

court warrant.'" CP at 216. The warrant did not request any additional information

or records fi-om Verizon. Verizon did not produce any records in response to the

2013 warrant because, as Verizon's executive relations analyst later testified, "[i]t

would have been for the same information we had already provided." Id.\ 2 VRP

(June 2, 2014) at 147.

Before trial, Betancourth moved to suppress the Verizon cell phone records.

Betancourth argued that the records were obtained as a result of an unlawful search

and seizure because the 2012 district court warrant was invalid and Toppenish police

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failed to obtain a second set of records pursuant to the 2013 superior court warrant.

The trial court denied Betancourth's motion to suppress the text messages. 2 VRP

(June 2, 2014) at 185-87. Without expressly mentioning the independent source

doctrine in its ruling, the trial court stated that producing the records again would be

fruitless and any violation of the statute was technical in nature. Id. at 186-87.

Betancourth was ultimately found guilty of second degree felony murder and first

degree assault.

The Court of Appeals affirmed the trial court's ruling allowing admission of

the Verizon phone records.^ Although the appellate court agreed with Betancourth

that the independent source doctrine did not apply, at least not in its classic form,the

court held that the records were admissible under a corollary to the independent

source doctrine, which it called the "invalidity correction corollary." Betancourth,

slip op. at 43-44. Under this corollary,"[ejvidence seized through an invalid search

warrant need not be returned and reseized once the State gamers a later valid search

warrant as long as the invalid warrant does not taint the valid warrant." Id. at 42

(italics omitted). Finding that the phone records were properly admitted at trial, the

Court of Appeals affirmed Betancourth's first degree assault conviction.

^ The Court of Appeals reversed Betancourth's felony murder conviction and
remanded for a new trial, based on Betancourth's argument that the prosecutor prejudicially
misstated the law in closing arguments. Betancourth, slip op. at 24.

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Betancourth petitioned this court for review, which we granted. State v.

Betancourth, 189 Wn.2d 1008,403 P.3d 39(2017).

ANALYSIS

We review conclusions oflaw relating to the suppression ofevidence de novo.

State V. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). Unchallenged findings

of fact are treated as verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62

P.3d 489(2003).

The dispute in this case is over the scope of the independent source doctrine,

an exception to the exclusionary rule recognized under article 1, section 7.

Betancourth argues that the Court of Appeals erred in holding that his cell phone

records were properly admitted at trial under the so-called '"invalidity correction

corollary'" to the independent source doctrine. Pet. for Review at 8. He asserts the

corollary is inconsistent with article 1, section 7 and simply a guise for importing a

good faith or reasonableness analysis into state law. Id. at 8-9. The State counters

that the independent source doctrine applies regardless of whether the challenged

evidence is kept in police possession, so long as the police later obtain a valid search

warrant that is untainted by the initial illegality. Answer to Pet. for Review at 3-4.

According to the State, in this situation it would be senseless to require the formality

of physically returning and reseizing evidence already seized during the initial

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search. Id. at 6. Instead, the evidence should be treated as having been seized under

the valid, second warrant.

We start by recognizing that the exclusionary rule generally requires that

evidence obtained from an illegal search and seizure be suppressed. Gaines, 154

Wn.2d at 716-17. This includes the initially seized evidence and any fruit of the

poisonous tree. Id.\ Wong Sun v. United States, 371 U.S. 471,484-85, 83 S. Ct. 407,

9 L. Ed. 2d 441 (1963). At its core, the exclusionary rule provides a remedy for

individuals whose constitutional rights have been violated. As we have previously

stated, the rule should be applied to achieve three objectives: first, to protect privacy

interests of individuals against unreasonable governmental intrusions; second, to

deter the police from acting unlawfully in obtaining evidence; and third, to preserve

the integrity of the judicial system by not tainting the proceedings with illegally

obtained evidence. State v. Bonds,98 Wn.2d 1, 11-12, 653 P.2d 1024(1982); State

V. Winterstein, 167 Wn.2d 620, 632,220 P.3d 1226 (2009).

The independent source doctrine is a well-established exception to the

exclusionary rule. Though initially applied under a federal Fourth Amendment

analysis, we have repeatedly held that the independent source doctrine is compatible

with article I, section 7 of the Washington State Constitution. Gaines, 154 Wn.2d

at 722; Winterstein, 167 Wn.2d at 633-34; State v. Smith, 113 Wn. App. 846, 856,

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State V. Betancourth (RayLeny), 94208-1

55 P.3d 686 (2002), review denied, 149 Wn.2d 1014, 69 P.3d 876 (2003); U.S.

Const, amend. IV. Under the independent source doctrine, evidence tainted by

unlawful police action is not subject to exclusion "provided that it ultimately is

obtained pursuant to a valid warrant or other lawful means independent of the

unlawful action." Gaines, 154 Wn.2d at 718. The independent source doctrine

recognizes that probable cause may exist for a warrant based on legally obtained

evidence when the tainted evidence is suppressed. Winterstein, 167 Wn.2d at 634.

The rationale for the rule is that the police should not be in a worse position than

they otherwise would have been in because of the error. Murray v. United States,

487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)(quoting Nix v.

Williams, 467 U.S. 431,443, 104 S. Ct. 2501, 81 L. Ed. 2d 377(1984)).

In applying the independent source doctrine, the determinative question is

whether the challenged evidence was discovered through a source independent from

the initial illegality. Id. at 542. To determine whether challenged evidence truly has

an independent source, courts ask whether illegally obtained information affected

(1) the magistrate's decision to issue the warrant or (2) the decision of the state

agents to seek the warrant. Id.-, Gaines, 154 Wn.2d at 722. If the illegal search in

no way contributed to the issuance ofthe warrant and police would have sought the

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warrant even absent the initial illegality, then the evidence is admissible through the

lawful warrant under the independent source doctrine.

In this case, the Court of Appeals held that Betancourth's cell phone records

were admissible through the valid 2013 superior court warrant. According to the

court, even though Toppenish police failed to physically reseize the records pursuant

to the 2013 superior court warrant,the records were admissible under an "invalidity

correction corollary" to the independent source doctrine because the first warrant did

not contaminate the latter warrant and "it would be senseless to demand that

Toppenish law enforcement require Verizon to send another copy of the text

messages already forwarded once by Verizon." Betancourth, slip op. at 44, 46.

Betancourth's primary argument is that the Court of Appeals' adoption ofthe

"invalidity correction corollary" is simply a guise for importing a federal law good

faith or reasonableness analysis into article I, section 7. Pet. for Review at 8-9.

While these doctrines may be relevant under a Fourth Amendment analysis, neither

good faith nor reasonableness are relevant to application of the exclusionary rule

under our state constitution. However,as the State correctly points out,the Court of

Appeals did not base its decision on either of these doctrines, nor was the court's

decision an attempt to do so. Suppl. Br. ofResp't at 5. A close reading ofthe Court

of Appeals' decision shows that the court's analysis properly focused on the

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interplay between the initial defective warrant and the valid, untainted second

warrant.^

It is well established that article I, section 7 provides greater protection to

individual privacy rights than the Fourth Amendment. Winterstein, 167 Wn.2d at

631. Whereas the Fourth Amendment prohibits "unreasonable searches and

seizures," article I, section 7 of our State constitution prohibits any invasion of an

individual's right to privacy without "authority of law." In contrast to the Fourth

Amendment,article I, section 7'"recognizes an individual's right to privacy with no

express limitations.'" Id. at 631-32(quoting State v. White, 97 Wn.2d 92, 110, 640

P.2d 1061 (1982)). Unlike its federal counterpart, Washington's exclusionary rule

is "'nearly categorical.'" State v. Afana, 169 Wn.2d 169, 180, 233 P.3d 879(2010)

(quoting Winterstein, 167 Wn.2d at 636).

^ Betancourth's argument also could be constmed as criticizing the Court of
Appeals' reasoning for being akin to the inevitable discovery doctrine, which we have
rejected as incompatible with our exclusionary rule. Winterstein, 167 Wn.2d at 636. The
inevitable discovery doctrine applies to evidence that would have been discovered by legal
means, whereas the independent source doctrine applies to evidence that was actually
discovered by legal means. In this case, the Court of Appeals concluded that the phone
records were properly admitted through the valid 2013 superior court warrant. The court
did not speculate whether the phone records hypothetically might have been obtained
through lawful means, but instead focused on the existence ofthe valid second warrant and
Verizon's decision not to resend records it had already sent to Toppenish police.

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Because the federal exclusionary rule is focused on deterring unlawful police

action, the United States Supreme Court has held that the rule should not be applied

when police have acted in "good faith." United States v. Leon, 468 U.S. 897, 918-

20, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). "Good faith" refers to the police

officer's '"objectively reasonable reliance'" on something that appeared to justify a

search or seizure when it was made. Herring v. United States, 555 U.S. 135, 142,

129 S. Ct. 695, 172 L. Ed. 2d 496(2009)(quoting Zeo??, 468 U.S. at 922). Thus,the

federal good faith exception is applicable when a search or seizure was

unconstitutional but the police officer's belief that it was constitutional was

objectively reasonable at the time. Afana, 169 Wn.2d at 180.

In contrast, because the paramount concern of our state's exclusionary rule is

protecting an individual's right of privacy, we have explicitly declined to adopt a

good faith or reasonableness exception to the exclusionary rule under article I,

section 7. Id. at 184. If a police officer has disturbed a person's '"private affairs,'"

we do not ask whether the officer's belief that the disturbance was justified was

objectively reasonable, but simply whether the officer had the requisite "'authority

of law.'" Id. at 180. Under article I, section 7, the requisite "'authority of law'" is

generally a valid search warrant. State v. Morse, 156 Wn.2d 1, 7, 123 P.3d 832

(2005)(quoting State v. Ladson, 138 Wn.2d 343, 350,979 P.2d 833 (1999)).

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In admitting Betancourth's phone records,the Court of Appeals did not create

a good faith or reasonableness exception to the warrant requirement. While the good

faith exception considers the police officer's belief at the time of the initial, illegal

search, it was irrelevant to the Court of Appeals' analysis whether Toppenish police

obtained the 2012 district court warrant in good faith. Instead, the court held that

the 2013 superior court warrant was untainted by the 2012 warrant, and concluded

that retrieving additional copies of the phone records under the valid 2013 warrant

would be meaningless because the police had already seized the records.

Betancourth, slip op. at 46-47. Essentially, under the court's reasoning, the

untainted 2013 warrant provided police the requisite "authority oflaw" to seize the

phone records. In this regard, the so-called "invalidity correction corollary" is not a

good faith or reasonableness test, but rather an application ofour independent source

doctrine to unique facts. The only difference is that the physical acquisition ofthe

challenged evidence did not technically occur pursuant to a valid warrant, though it

could have.

Because Toppenish police never physically reseized the phone records from

Verizon pursuant to the valid 2013 superior court warrant,Betancourth's case differs

from the standard independent source scenario. In its classic form, the independent

source doctrine applies when the State procures the challenged evidence pursuant to

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a valid warrant, untainted by prior illegality. Betancourth, slip op. at 43. In the first

type ofindependent source scenario, police conduct an initial unwarranted search of

a constitutionally protected area, during which they discover but do not seize

incriminating items. Police later obtain a search warrant for the area and seize the

evidence during the warranted search. For example,in Gaines,the police performed

an illegal warrantless search of the trunk of the defendant's car, during which

officers saw what appeared to be the barrel of an assault rifle and numerous roimds

of ammunition. 154 Wn.2d at 714. Rather than seizing the items, officers

immediately closed the trunk without disturbing the contents. Id. The following

day, the police sought a search warrant for the defendant's trunk, which included a

single reference to the officer's observation ofthe weapon, as well as other evidence

to establish probable cause. /J. at 714-15. After obtaining the warrant and searching

the vehicle, the police recovered the rifle and ammunition from the trunk of the

defendant's car. M at 715. We concluded that this conduct violated article I, section

7 and that the appropriate remedy was to strike all references to the initial illegal

search from the warrant affidavit when assessing whether probable caused existed

to issue the original warrant; we held that the evidence was ultimately seized

pursuant to a lawful warrant. Id. at 720, 722; see also State v. Coates, 107 Wn.2d

882, 887,735 P.2d 64(1987)("a search warrant is not rendered totally invalid ifthe

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affidavit contains sufficient facts to establish probable cause independent of the

illegally obtained information"). In this variation, the independent source doctrine

operates to purge the taint of an invalid warrant. No second warrant need be issued.

A different variation of the independent source doctrine involves police

executing a valid warrant authorizing the seizure of evidence that had initially been

seized illegally. For example,in State v. Miles, 159 Wn. App.282,286-87,244 P.3d

1030, review denied, 171 Wn.2d 1022, 257 P.3d 663 (2011), the State seized the

defendant's bank records pursuant to an administrative subpoena. We held that a

judicial warrant or subpoena(not an administrative one) was required, and ordered

the evidence suppressed. State v. Miles, 160 Wn.2d 236, 247-48, 156 P.3d 864

(2007). The State then returned the records to the bank and obtained ajudicial search

warrant for the same records. The defendant moved to suppress the bank records,

arguing in part that the independent source exception applies only where information

is illegally discovered but no evidence is seized during the illegal search. Miles, 159

Wn. App. at 290. The Court of Appeals rejected this argument, holding that the

independent source exception applies to allow the admission of evidence that was

originally seized by means of an unlawful search, so long as the evidence was later

lawfully obtained. Id. at 294-95 (quoting Murray,487 U.S. at 541-42).

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Betancourth's case is not exactly like either of these independent source

scenarios because the phone records were not "ultimately ... obtained" pursuant to

the valid 2013 warrant. Gaines, 154 Wn.2d at 718. The State argues, however,that

the independent source doctrine does not require the formality of physically

reseizing evidence already seized during an initial, unlawful search. To support this

argument,the State relies on United States v. Herrold,962 F.2d 1131 (3d Cir. 1992).

Answer to Pet. for Review at 5-6. In Herrold, police officers unlawfully entered a

residence and noticed drugs and a pistol inside. 962 F.2d at 1134. The officers

seized the pistol during the warrantless entry but did not seize the drugs until after

procuring a valid search warrant. Id. Recognizing that the gun had been seized

during the unlawful entry and not during the subsequent warranted search,the Third

Circuit nonetheless concluded that "we see no reason not to treat the gun as also

being seized pursuant to the search warrant which specifically authorized the seizure

of 'firearms of any type.'" Id. at 1143. The court explained that it would be

dangerous to require officers to leave a weapon unsecured until they obtained a

warrant, and senseless to require the formality of physically reseizing the gun

already seized during the initial entry. Id. Paraphrasing Herrold, the State argues

here that Betancourth's phone records "should be treated as seized under the valid

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Superior Court search warrant that was subsequently issued." Answer to Pet. for

Review at 6.

The Court of Appeals accepted this argument, and we do too. The Herrold

decision makes good sense and aligns with our reasoning in Gaines, Coates, and

Miles. The purpose of the independent source doctrine is met here because

Betancourth's text messages were required to be produced under the valid 2013

superior court warrant, which was untainted by any prior illegality. Toppenish

police did not gain any information from the phone records initially supplied in

response to the 2012 district court warrant that led them to seek the 2013 superior

court warrant. Nor was the magistrate's decision to issue the 2013 superior court

warrant affected by, or made in reliance on, information obtained from the illegal

search. Assuming Verizon had produced a second copy of the phone records in

response to the superior court warrant, there is no doubt that the records would have

been admissible under the independent source doctrine. The only fact that removes

this case from the classic independent source scenario is the State's failure to return

and then reseize the evidence. But, our law does not require a "do over" in situations

such as this. Indeed, if the lack of a seizure under the second warrant were deemed

fatal, then it would seem difficult to justify Coates and Gaines as legitimate

independent source cases. In neither of those cases did the State obtain a second.

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valid warrant; rather, on appeal we backed out the unlawfully obtained information

in the original warrant and held the warrant was otherwise valid. Similarly here, it

is possible to back out the 2012 district court warrant and deem the records seized

under the valid 2013 superior court warrant.

Further, we have testimony from Verizon that tells us exactly why the records

were never reproduced in response to the second warrant. The testimony shows that

when Verizon received the 2013 superior court warrant, it understood the warrant to

be a request for the same records already provided. 2 VRP (June 2, 2014) at 147.

According to Verizon's executive relations analyst, no documents were sent after

the second search warrant because "[i]t would have been for the same information

we had already provided." Id. Although Verizon never physically reproduced the

records in response to the 2013 superior court warrant, Verizon considered itself in

compliance with the 2013 warrant because Toppenish police already had possession

ofthe records.

Applying the exclusionary rule in this case simply does not advance the

objectives underlying the rule. To always require the physical reseizure of evidence

initially seized unlawfully but later authorized would go beyond protecting the

privacy interests of individuals in this state and would not serve the ends ofjustice.

Toppenish police had a valid warrant for Betancourth's records, and he was in no

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worse position at trial than had the initial warrant not issued. '"The exclusionary

rule is a sanction, and sanctions are supposed to be proportioned to the wrong-doing

that they punish.'" United States v. May, 214 F.3d 900, 906-07 (7th Cir. 2000)

(internal quotation marks omitted)(quoting United State v. Markling, 7 F.3d 1309,

1315 (7th Cir. 1993)).

While we affirm the Court of Appeals, we do not see this case as necessitating

any "corollary" to the well-established independent source doctrine. The facts of

this case simply represent a new application of the existing doctrine that does not

diminish the constitutional protections guaranteed by article I, section 7. While it is

appropriate to recognize the admissibility of the phone records under the

independent source doctrine in this case, the result might be different if we were

faced with a different set of facts. For example, if this case involved fruit of the

poisonous tree derived from the initial unlawful seizure of phone records, the

challenged evidence arguably would not be admissible under the independent source

rule. Here, however, the challenged evidence is not fruit of the poisonous tree, but

rather the phone records themselves. A different result might also be appropriate if

we were dealing with evidence other than static records, such as the weapon seized

in Herrold. Depending on the evidence involved, additional considerations might

be relevant, such as whether the initial seizure was necessary for community or

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officer safety, or whether returning the evidence would risk its destruction. In this

case, we are not dealing with facts and variables that might complicate the analysis

or risk eroding the protections of article I, section 7. The records admitted at trial

were the same as those originally produced, and the sole reason they were not

produced by Verizon a second time was because nothing had changed.

CONCLUSION

While we decline to embrace the Court of Appeals' "invalidity correction

corollary" label, we hold that its application of the independent source doctrine is

consistent with our state's exclusionary rule. Recognizing application of the

independent source doctrine on the facts of this case is not a guise for importing a

good faith or reasonableness test into our article I, section 7 analysis. Rather, it

appropriately recognizes that in certain situations, the failure to reseize evidence

already seized is a mere technical defect that should not preclude its admission.

Although Toppenish police did not physically reseize the phone records pursuant to

the 2013 superior court warrant, this failure was merely technical in nature and did

not diminish Betancourth's constitutional rights. The Court of Appeals properly

held that the phone records were admissible through the 2013 warrant. For this

reason, we affirm the Court of Appeals.

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WE CONCUR:

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