(dissenting) — Today the majority relies on the rule announced in Mierz that evidence of a defendant’s assaultive behavior toward a police officer is not subject to the exclusionary rule. State v. Mierz, 127 Wn.2d 460, 473-75, 901 P.2d 286 (1995). The real issue is whether there is evidence in this case to support application of Mierz. Because I find that nothing in the record indicates Mr. McKinlay knew the man in the unmarked helicopter was a police officer, I find Mierz distinguishable and respectfully dissent.
Evidence obtained as the result of an illegal search and seizure may be admissible if an independent act of the defendant intervenes to purge the taint of the initial police illegality. Mierz, 127 Wn.2d at 473-74. The rationale behind the rule in Mierz and similar cases is that excluding such evidence would allow one whose article I, section 7 or Fourth Amendment rights were violated to " 'respond with unlimited force and, under the exclusionary rule, ... be effectively immunized from criminal responsibility.’ ” 127 Wn.2d at 474 (quoting State v. Aydelotte, 35 Wn. App. 125, 132, 665 P.2d 443 (1983)). As the court noted, "[a]n identified law enforcement officer who oversteps constitutional bounds, without any threat of deadly harm to a defendant or exploitation of his or her position, should not have to pay the ultimate price.” Mierz, 127 Wn.2d at 475.
But the Mierz rule is not applicable where, as here, a defendant is accosted by an unidentified, threatening officer and the defendant responds in self-defense.
In Washington, the exclusionary rule is more than a remedial measure for Fourth Amendment violations; the *401historical emphasis of the rule "is on protecting personal rights rather than on curbing governmental actions.” State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982). The State may not exploit its own illegalities to obtain evidence. State v. Gunkel, 188 Wash. 528, 534, 63 P.2d 376 (1936). See also Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407,. 9 L. Ed. 2d 441 (1963). "It is possible . . . that the nature of a particular Fourth Amendment violation will be such that defensive action by the [suspect] can fairly be characterized as exploitation . . . .”5 Wayne R. LaFave, Search & Seizure, § 11.4(j), at 340 (3d ed. 1996).
An armed response to an intruder is a predictable response, recognized in such cases as People v. Cantor, 36 N.Y.2d 106, 324 N.E.2d 872, 365 N.Y.S.2d 509 (1975) and United States v. Ramirez, 91 F.3d 1297 (9th Cir. 1996), rev’d, 118 S. Ct. 992 (1998). In Cantor, the defendant was in front of his home when three plainclothes police officers surrounded him. The officers did not identify themselves, and Mr. Cantor responded by pulling a pistol out of his pocket. He replaced the pistol in his pocket and surrendered peacefully after the officers identified themselves, but he was arrested and charged with attempted possession of a weapon. The New York Court of Appeals ruled that evidence of the gun should have been suppressed because it "was revealed as a direct consequence of the illegal nature of the stop.” Cantor, 365 N.Y.S.2d at 517.
The key issue is "whether the gun was displayed as a direct consequence of the allegedly unlawful police action, or whether the gun was revealed as a result of defendant’s independent act.” People ex rel. Gonzalez v. Warden of Anna M. Cross Ctr., 79 N.Y.2d 892, 590 N.E.2d 234, 581 N.Y.S.2d 649, 651 (1992). Crucial to this determination is the fact that unidentified, somewhat threatening people are likely to trigger an armed response. Id.
Here, the officer did not identify himself when he intruded on Mr. McKinlay’s expectation of privacy in his *402home and curtilage. The altitude of the helicopter and the fact that it was the second incident in a week made the intrusion threatening and disturbing. Mr. McKinlay’s display of the firearm was not unpredictable under the circumstances. His crime did not intervene; it was "brought to light by the intrusion itself.” Ramirez, 91 F.3d at 1304.
In summary, the exception to the exclusionary rule articulated in Mierz is inapplicable under the facts of this case and, accordingly, is not dispositive. I would reach the issue of whether the aerial surveillance was unreasonable and reverse.
Review denied at 134 Wn.2d 1014 (1998).