State v. Smith

Armstrong, J.

¶69 (dissenting) — Because I do not agree with the majority’s reliance on the attenuation doctrine or application of the independent source doctrine, I respectfully dissent.

I. Attenuation Doctrine

¶70 In its attenuation analysis, the majority relies on Court of Appeals cases that address federal constitutional violations and apply the attenuation doctrine as an exception to the federal exclusionary rule. See State v. Stone, 56 Wn. App. 153, 160-62, 782 P.2d 1093 (1989); State v. West, 49 Wn. App. 166, 168-70, 741 P.2d 563 (1987);State v. Childress, *32635 Wn. App. 314, 316, 666 P.2d 941 (1983).14 The Supreme Court of Washington recently discussed the exclusionary rule under our state constitution in State v. Afana, 169 Wn.2d 169, 179-81, 233 P.3d 879 (2010), and State v. Winterstein, 167 Wn.2d 620, 631-36, 220 P.3d 1226 (2009). Based on these cases, I do not believe the attenuation doctrine is a valid exception to the exclusionary rule under our state constitution.

¶71 In Afana and Winterstein, our Supreme Court observed that unlike its federal counterpart, Washington’s exclusionary rule is “ ‘nearly categorical.’ ” Afana, 169 Wn.2d at 180 (quoting Winterstein, 167 Wn.2d at 636). This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835, 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180; Winterstein, 167 Wn.2d at 631-32. Our Supreme Court has repeatedly stated that the right to privacy under this provision “shall not be diminished by the judicial gloss of a selectively applied exclusionary remedy.” White, 97 Wn.2d at 110; see also Afana, 169 Wn.2d at 180; Winterstein, 167 Wn.2d at 632. Therefore, “any evidence seized unlawfully will be suppressed.” Afana, 169 Wn.2d at 180; see also Winterstein, 167 Wn.2d at 632-33; State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999) (“When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.”). “With very few exceptions, whenever the right of privacy is violated, the remedy follows automatically.” Afana, 169 Wn.2d at 180. Our strict exclusionary rule “ ‘saves article 1, section 7 from becoming a meaningless promise.’ ” Ladson, 138 Wn.2d at 359 (quoting Sanford E. Pitler, The Origin and Development of Washington’s *327Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459, 508 (1986)).

¶72 For example, our Supreme Court has recognized the independent source doctrine as a valid exception to the exclusionary rule but rejected the inevitable discovery doctrine. Winterstein, 167 Wn.2d at 634, 636; State v. Gaines, 154 Wn.2d 711, 722, 116 P.3d 993 (2005); State v. Coates, 107 Wn.2d 882, 886-89, 735 P.2d 64 (1987). The Winterstein court explained the distinction between these two exceptions:

The independent source doctrine is much different from the inevitable discovery doctrine. The independent source doctrine recognizes that probable cause may exist based on legally obtained evidence; the tainted evidence, however, is suppressed____
In contrast, the inevitable discovery doctrine is necessarily speculative and does not disregard illegally obtained evidence.

Winterstein, 167 Wn.2d at 634. Thus, the Winterstein court concluded, the inevitable discovery exception is “incompatible with the nearly categorical exclusionary rule under article I, section 7.” Winterstein, 167 Wn.2d at 636. The Afana court subsequently rejected the good faith exception for these same reasons: “Like inevitable discovery, the State’s proposed ‘good faith’ exception does not disregard illegally obtained evidence.” Afana, 169 Wn.2d at 181.

¶73 A majority of our Supreme Court has not expressly adopted the attenuation doctrine under article I, section 7. Recently, three members of the court applied the doctrine in a case where the police illegally arrested the defendant, advised him of his Miranda15 rights, and then questioned him at the police station. State v. Eserjose, 171 Wn.2d 907, 259 P.3d 172 (2011). The defendant initially denied committing the burglary but after the police told him that his *328partner in the crime had confessed, he admitted his involvement. Eserjose, 171 Wn.2d at 911. Three members of the lead opinion adopted the federal rule that such a confession is admissible if the record demonstrates that the “confession is sufficiently an act of free will to purge the taint of an illegal arrest.” Eserjose, 171 Wn.2d at 922-23. One justice concurred in the lead opinion result and another justice concurred in the result but did not join the lead opinion’s application of the attenuation doctrine because it was not necessary to the result. Eserjose, 171 Wn.2d at 929, 930 (Madsen, C.J., concurring). Four dissenting justices found the attenuation doctrine incompatible with Washington’s nearly categorical exclusionary rule under article I, section 7. Eserjose, 171 Wn.2d at 934 (C. Johnson, J., dissenting). The lead opinion found that Eserjose’s confession was free of taint because the circumstances of the arrest were not egregious, the confession was not compromised by a prior confession, and Eseijose’s confession was not the product of his emotional distress. Eserjose, 171 Wn.2d at 914-15, 923-24. But even if we apply the lead opinion reasoning here, it would not justify the officers’ visit to and entry of the room, however minimal, by knocking and getting Smith to open the door. First, the lead opinion applied two attenuation factors—passage of time and presence of intervening circumstances—and explained that “ [i]f evidence is obtained ‘without authority of law,’ i.e., while the violation is ongoing, no time will have passed and no circumstances will have intervened, in which case the evidence will not be attenuated.” Eserjose, 171 Wn.2d at 927. The lead opinion found that the officers obtained Eserjose’s confession with the “authority of law” because they had probable cause to arrest Eserjose, and the illegality of the arrest—the officers’ entry without permission in part of the home where Eserjose was actually arrested—was not an operative fact in obtaining the confession. Eserjose, 171 Wn.2d at 926. Here, the illegal visit to Smith’s room followed immediately *329after their illegal search of the motel registry.16 And no intervening circumstances attenuated the illegal visit from the illegal search, i.e., the officers had no reason to visit the room other than the illegally obtained evidence.

¶74 I agree with the Eserjose dissenters that the attenuation doctrine is incompatible with our “ ‘nearly categorical’ ” exclusionary rule and our Supreme Court’s express disapproval of exceptions that admit illegally obtained evidence. Afana, 169 Wn.2d at 180 (quoting Winterstein, 167 Wn.2d at 636). By attempting to quantify exactly how “tainted” the fruits of an unlawful search may be and determine whether the taint has been sufficiently dissipated to avoid suppression, we undermine our strict exclusionary rule, ignore the automatic nature of the remedy, and allow the admission of evidence obtained from an illegal search. Moreover, even if we apply Eserjose's lead opinion analysis, the officers’ visit to and entry of Smith’s room is not attenuated from the illegal search; the officers obtained the evidence and statements only by exploiting the illegality of the registry search.

¶75 Finally, I believe State v. Ibarra-Cisneros controls our decision. State v. Ibarra-Cisneros, 172 Wn.2d 880, 263 P.3d 591 (2011). In Ibarra-Cisneros, the court held that “[c]ourts should not consider grounds to limit application of the exclusionary rule when the State at a CrR 3.6 hearing offers no supporting facts or argument.” Ibarra-Cisneros, 172 Wn.2d at 885. Here, the State argued that the search was justified under the inevitable discovery doctrine, and the trial court limited its findings and conclusions to that doctrine, ruling that “[a]rticle I, [s]ection 7 of the Washington State Constitution is not violated by applying the doctrine of‘inevitable discovery’ to the facts of this particular case.” Clerk’s Papers at 493. The majority attempts to *330distinguish Ibarra-Cisneros by asserting that the record here was sufficiently developed for us to consider the doctrines of attenuation and independent source. But the parties did not litigate the elements of attenuation, and the trial court made no findings or conclusions that would apply to the elements of that doctrine. If the trial court had considered attenuation, it would have applied the passage-of-time and presence-of-intervening-circumstances factors; where the violation is ongoing, no time will have passed and no circumstances will have intervened. Eserjose, 171 Wn.2d at 927-28. The unlawful search of the motel registry occurred minutes before the illegal entry into the motel room. And the record reveals no intervening circumstances. Thus, to the extent the record was developed, it would support only that the room entry was not attenuated from the illegal registry search.

II. Independent Source

¶76 I also disagree with the majority’s application of the independent source doctrine. The majority relies on State v. Miles, 159 Wn. App. 282, 244 P.3d 1030, review denied, 171 Wn.2d 1022 (2011), which, in turn, relies on Gaines, 154 Wn.2d at 716-21, and Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 472 (1988).17 Each of these cases involved a situation where law enforcement officers discovered evidence pursuant to an unlawful search; recognized their error; obtained a search warrant based on independent, untainted information; and subsequently seized the evidence pursuant to that warrant. Murray, 487 U.S. at 535-36; Gaines, 154 Wn.2d at 712-15; Miles, 159 Wn. App. at 284. In each case, the court held that a subsequent search is lawful where (1) it is based on untainted information obtained independently from the initial, unlawful search *331and (2) the State’s decision to seek a warrant was not motivated by their discoveries during the initial, unlawful search. Murray, 487 U.S. at 542; Gaines, 154 Wn.2d at 718-21; Miles, 159 Wn. App. at 291-94.

¶77 For example, in Gaines a man reported that he had been abducted by the defendants and held against his will for two days while they drove him to multiple banks and attempted to force him to withdraw money. Gaines, 154 Wn.2d at 713-14. Police officers spotted the defendants’ car and arrested them, conducted a warrantless search of the car, and discovered an assault rifle in the trunk. Gaines, 154 Wn.2d at 714. The officers closed the trunk without disturbing its contents, obtained a search warrant for the defendants’ house and car, and seized the rifle during a subsequent search pursuant to that warrant. Gaines, 154 Wn.2d at 714-15. Our Supreme Court first addressed whether the independent source doctrine is a valid exception to the exclusionary rule under article I, section 7, and held that it was. Gaines, 154 Wn.2d at 716-18. The court then held that the subsequent search was valid because even after striking all references to the illegal search of the trunk, independent and legally obtained information supported the warrant. Gaines, 154 Wn.2d at 718-20. Also, the trial court’s findings adequately supported the conclusion that the officers were not motivated to seek a warrant because of the unlawful search, but would have sought a warrant for the car based on facts gathered independently from the illegal search. Gaines, 154 Wn.2d at 721.

¶78 In contrast, this case does not involve a situation where officers discovered evidence pursuant to an unlawful search; obtained a warrant based on untainted information wholly independent from the initial, illegal search; and subsequently seized the evidence pursuant to a valid warrant. The officers here discovered evidence of the assault on Quianna Quabner during the course of a single, continuous illegal search. The majority characterizes the officers’ entry into the motel room as a subsequent, independent search *332because it was motivated by their open view observations of the assault rather than their unlawful discovery of the warrant for Smith’s arrest. But absent the initial, unlawful search of the motel guest registry, the officers had no independent basis for knocking on Smith’s door. Absent an open door, the officers would have had no opportunity to observe the interior of Smith’s motel room. Their observations stemmed directly from the initial, illegal search.

¶79 Had the officers attempted to obtain a warrant to search Smith’s motel room, they could not have produced any untainted, independently obtained information to support the warrant. Nor could they demonstrate that they would have been motivated to seek a warrant absent the initial, unlawful search. Accordingly, the State has failed to satisfy the requirements of the independent source exception. Murray, 487 U.S. at 542; Gaines, 154 Wn.2d at 718-21; Miles, 159 Wn. App. at 291-94.

Review granted at 173 Wn.2d 1034 (2012).

These cases rely on Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), and United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The majority misapplies the “passage of time” factor to the time between the officers’ search of the registry and the victims’ testimony. The time is measured between the illegal search and the officers’ immediate discovery of the new crimes. Eserjose, 171 Wn.2d at 927-28.

Although Murray addresses Fourth Amendment violations and the federal exclusionary rule, our Supreme Court has recognized Murray as “controlling authority when analyzing the independent source doctrine under an article I, section 7 violation. Gaines, 154 Wn.2d at 721.