¶[19 (concurring) — I agree with the majority that dismissal of the second degree murder charge against Jesie Pele Puapuaga under Criminal Rule (CrR) 8.3(b) is unwarranted. We have no idea what is contained inside the seized box owned by Puapuaga, so we cannot hold that he was so prejudiced by the seizure that it materially affected his right to a fair trial. Nevertheless, warrantless seizure of lawful private property through ex parte orders violates state and local discovery rules and is unconstitutional governmental misconduct under CrR 8.3(b). I would hold that both ex parte orders should be dismissed and Puapuaga’s private property items in the seized box should be returned absent a search warrant. Therefore, I concur.
¶20 Briefly summarizing the facts, Puapuaga was charged with second degree murder and the defense moved for a competency evaluation to be performed at Western State Hospital. Hospital staff performed an inventory search of Puapuaga’s possessions that included a box. Inside the box, the hospital staff found papers that allegedly included autopsy photos and a threatening letter addressed to a testifying codefendant. The State and defense counsel were notified about the contents of the box. Later, a deputy prosecutor obtained two ex parte orders from Judge Susan Serko, who was not assigned to Puapuaga’s case, authorizing police to impound the box of *527materials and also to seize them. The State sought these ex parte orders while the assignment judge and defense counsel were available.
¶21 For a court to dismiss charges under CrR 8.3(b), the defendant must show (1) arbitrary action or governmental misconduct and (2) prejudice materially affecting the defendant’s right to a fair trial. State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997). A warrantless search or seizure is presumed unconstitutional unless an exception applies. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008); U.S. Const, amend. IV; Const, art. I, § 7.
¶22 The majority cites State v. Cheatam, 150 Wn.2d 626, 642, 81 P.3d 830 (2003), to justify the ex parte orders contending that an arrestee such as Puapuaga had no reasonable expectation of privacy in personal items under the state and federal constitutions once they have been viewed by state officials during a valid inventory search. Majority at 523-24. The majority fails to mention that in Cheatam, the defendant was arrested and at the time of his arrest had his personal effects taken from him, inventoried, and stored in the jail’s property room. Cheatam, 150 Wn.2d at 642. Here, unlike Cheatam, Puapuaga was a patient at Western State Hospital when the box was seized by hospital officials, not a jail or prison inmate, and none of the disputed personal effects in his box were seized pursuant to his arrest. Thus, the majority’s claim that Puapuaga had no expectation of privacy in his personal effects at the hospital due to an inventory search is false.
¶23 The ex parte orders crafted by the prosecution were a blatant violation of court discovery rules and the state and federal constitutional rights of Puapuaga to the open administration of justice and to be present at all hearings in his case. See RCW 2.08.030 (superior courts are courts of record); Pierce County Local Rule 40(b) (case assignment); CrR 8.2; Civil Rule (CR) 7(b); CR 6(d); U.S. Const, amend. VI; Const, art. I, § 22; Const, art. I, § 10. The majority rubber stamps the two ex parte orders on the basis that the contents of the seized box do not appear to be related to *528Puapuaga’s second degree murder charge. Majority at 525. Yet, the majority concedes that the box allegedly contained “what appeared to be unredacted state discovery documents, including autopsy photographs of the victim, and what appeared to be a threatening message directed to one of Puapuaga’s codefendants and written on a ‘kite.’ ” Id. at 518.
¶24 If this is true, these documents have a strong connection to Puapuaga’s second degree murder trial as privileged attorney-client materials. The majority’s upholding of the trial court’s appointment of a special master to review the seized box materials encourages future violations of individual procedural constitutional rights. The State cites no authority authorizing it to use ex parte orders to seize a defendant’s personal effects from a mental health facility while the defendant is temporarily confined there. The state and federal constitutions do not allow governments to engage in shadow justice. Neither ex parte order was obtained in open court, no record was made of the proceedings, and the State did not inform defense counsel of either order. The government must instead obtain a valid search warrant based on probable cause and execute a search and seizure of Puapuaga’s private property pursuant to that warrant.
¶25 Here, we cannot dismiss Puapuaga’s second degree murder charge because material prejudice cannot be established without knowing the contents of the seized box. However, the government misconduct prong in this case under CrR 8.3(b) is established due to the unconstitutional and unjustified ex parte orders that violated state and local discovery rules. Thus, I would hold both ex parte orders should be dismissed and Puapuaga’s noncontraband private property items in the seized box should be returned absent a search warrant.
¶26 I concur.