State v. Smith

DATE rn 1bl 0 ~ 2013'
~~!

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 86951-1

v.
ENBANC
CHRISTOPHER LEON SMITH,

Petitioner. Filed - - - - -6 2013
'JUN 0
--

STEPHENS, J.-When officers ran the names in a motel registry to check

for warrants, they found an outstanding arrest warrant for motel guest Christopher

Smith. As they apprehended Smith at the threshold of his motel room, they saw

Quianna Quabner, bloodied and limping, inside the room. Officers entered the

room and learned that Quabner and her 12-year-old daughter, L.S., had been

assaulted in the hours preceding the officers' arrival; L.S. alleged she had been

raped. An immediate investigation ensued, resulting in charges against Smith.

Before the case went to trial, however, this court invalidated the practice of random

motel registry searches under article I, section 7. State v. Jorden, 160 Wn.2d 121,

156 p .3d 893 (2007).

At a suppression hearing, Smith argued that the evidence supporting the

charges against him was fruit of the unlawful registry search and must be
State v. Smith, 869 51-1

suppressed. The trial court allowed the evidence under the inevitable discovery

doctrine, which we later invalidated in State v. Winterstein, 167 Wn.2d 620, 220

P.3d 1226 (2009). On appeal, the Court of Appeals nonetheless upheld Smith's

convictions, concluding the evidence against him was admissible under the

attenuation doctrine and the independent source doctrine. The court also rejected

Smith's claim that his convictions for first degree rape and second degree rape of a

child, arising from his assault against L.S., violate double jeopardy.

We affirm the conviction, though on different grounds than the Court of

Appeals. We hold that the evidence presented against Smith was admissible

because the warrantless search that led to its discovery was justified under an

exception to the warrant requirement for actions by law enforcement when lives

are in danger.

FACTS AND PROCEDURAL HISTORY

On the morning of October 22, 2006, Officer Lee of the Lakewood Police

Department stopped by the Golden Lion Motel in Lakewood as part of the Crime

Free Motel Program. Clerk's Papers (CP) at 488 (Findings of Fact and

Conclusions on Admissibility of Evidence CrR 3.6). A normal practice under the

program was to randomly view the guest registry and run the names against the

outstanding arrest warrant database. Id. Officer Lee got a hit with motel guest

Christopher Smith. !d. at 489.

Officers went to Smith's room and knocked on the door. He answered and

was arrested on the outstanding warrant. During the arrest, while the door was still

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State v. Smith, 869 51-1

open and police were outside the room, they "observed an adult female present in

the motel room." Id. She was badly injured, sobbing, limping, and bloodied. Id.

Officers entered the room to render aid. Id. They observed the room was in

disarray and there were signs of a struggle. They also discovered 12-year-old L.S.,

Quabner's daughter, and were told that Smith had sexually assaulted L.S. Id.

Quabner alleged that she had been beaten about the head and body by Smith. Id.

L.S. told police that items used in the assaults were in a dumpster in the motel

parking lot. Id. at 490. When police later searched the dumpster they found bags

of bloodied clothing and pieces of braided curtain cord consistent with restraints

described by the victims. I d. A warrantless search of the motel room ensued, as
1
well as interviews with the victims at the motel and later at the hospital.

Smith was charged with rape, assault, harassment, kidnapping, and child

rape, with deadly weapon enhancements. Before trial, this court invalidated the

practice of random searches of motel registries, holding it violates privacy rights

under article I, section 7 ofthe Washington Constitution. Jorden, 160 Wn.2d 121.

Smith moved to suppress evidence gathered following the illegal Jorden search,

including: evidence recovered from the motel room, officer observations of the

victims, victim testimony, and evidence recovered from the dumpster. The State

conceded that any evidence recovered from the motel room itself should be

1
An additional note about chronology: The attacks in question began late in the
night on October 21 and stretched into the early hours of October 22. By Quabner's
account, she was exhausted and drained when the attacks ended. She and L.S. fell asleep,
and were awakened by the officers' arrival. See VII Verbatim Report of Proceedings
(Oct. 22, 2008) at 395-96.

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State v. Smith, 86951-1

excluded because that evidence was recovered without a warrant. II Verbatim

Report of Proceedings (VRP) (Oct. 13, 2008) at 152. The State argued that the

evidence Smith continued to challenge (officer observations of the victims, victim

testimony, and evidence recovered from the dumpster) was exempt from the

exclusionary rule under the inevitable discovery doctrine, i.e., because it would

have eventually been discovered. The trial court agreed. CP at 492. Smith was

tried by a jury and convicted of first degree rape and second degree rape of a child

for his assault on L.S., and first degree assault upon Quabner, as well as two counts

of first degree kidnapping and two counts of felony harassment.

Following trial, this court invalidated the inevitable discovery doctrine in

Winterstein, 167 Wn.2d 620. Smith appealed his convictions, arguing that the

evidence against him should have been excluded. He also argued that his

convictions for first degree rape and second degree child rape, arising from the

same act, violate double jeopardy. In response, the State acknowledged that

inevitable discovery-the trial court's stated grounds for admitting the evidence

tainted by the Jorden search-was no longer good law. The State instead urged

the Court of Appeals to uphold the admission of the evidence under either the

independent source doctrine or the attenuation doctrine. Smith replied that the

State had not timely raised the argument and that in any event these doctrines

could not save the evidence, in particular .because the attenuation doctrine is

inconsistent with article I, section 7.

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State v. Smith, 86951-1

A majority of the Court of Appeals ruled that the evidence against Smith

was not fruit of the poisonous tree because it was both independently gained and

sufficiently attenuated from the unlawful registry search. Judge David H.

Armstrong dissented on this issue, arguing that the court had misapplied the

independent source doctrine and agreeing with Smith that the attenuation doctrine

is incompatible with article I, section 7 protections. The Court of Appeals rejected

Smith's double jeopardy claim.

Smith filed a petition for review, which we granted.

ANALYSIS

Smith makes two distinct and unrelated challenges to his convictions. First,

he claims that the evidence presented against him at trial was illegally obtained in

violation of his article I, section 7 protections and should have been suppressed.

Next, he argues that his convictions for rape violate his constitutional guaranty

against double jeopardy. We address each claim in turn.

A. Article I, Section 7

The parties agree that this case is not about Fourth Amendment protections,

but about article I, section 7 protections. As we have stated many times, article I,

section 7 is often more protective than the Fourth Amendment, particularly where

warrantless searches are concerned. See State v. Morse, 156 Wn.2d 1, 9-10, 123

P.3d 832 (2005). Under our state constitution, warrantless searches are per se

unreasonable unless one of the narrow exceptions to the warrant requirement

applies. Winterstein, 167 Wn.2d at 628.

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State v. Smith, 86951-1

Here, the Court of Appeals relied on the doctrines of attenuation and

independent source in affirming the trial court's decision to deny Smith's

suppression motion. The Court of Appeals agreed with the State that "the victims'

testimonies were admissible under the independent source exception because the

emergency aid and community caretaking exceptions acted as intervening factors."

State v. Smith, 165 Wn. App. 296, 309, 266 P.3d 250 (2011).

Under the independent source doctrine, an unlawful search does not result in

the suppression of evidence ultimately obtained using "a valid warrant or other

lawful means independent of the unlawful action." State v. Gaines, 154 Wn.2d

711, 718, 116 P.3d 993 (2005). But the lawfully gained information must be

genuinely independent of the illegal search. I d. at 721 (citing Murray v. United

States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)).

A majority of the Court of Appeals reasoned that "the officers' decision to

enter the motel room was based on independent, untainted information because

Quabner sought their assistance as community caretakers after the officers had

arrested Smith and were preparing to leave." Smith, 165 Wn. App. at 311. The

need to render aid was a "supervening, intervening factor" triggering the

emergency aid exception to the warrant requirement. Id. Stated differently, the

search that followed was not at all motivated by the illegal Jorden search. See id.

Judge Armstrong disagreed that the State could rely on the independent

source doctrine, noting that "absent the initial, unlawful search of the motel guest

registry, the officers had no independent basis for knocking on Smith's door ....

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State v. Smith, 86951-1

Their observations stemmed directly from the initial, illegal search." !d. at 331-32

(Armstrong, J., dissenting).

The points in Judge Armstrong's dissent are well taken insofar as the

independent source doctrine is concerned. It is impossible to extricate the officers'

presence at the motel rooni threshold and their observation of Quabner from the

illegal search the officers performed just prior to arriving at the threshold. Thus,

this search cannot be justified by the independent source doctrine.

But the State's argument points to another justification. The State argued

before the trial court that the warrantless entry and resulting search was justified by

the officers' community caretaking duties and the need to render emergency aid.

See, e.g., II VRP (Oct. 13, 2008) at 150. "We may sustain a lower court's

judgment upon any theory established by the pleadings and supported by the

proof." Mountain Park Homeowners Ass 'n v. Tydings, 125 Wn.2d 337, 344, 883

P.2d 1383 (1994). Although the State filtered the import of the officers'

emergency aid function through the lens of exceptions to the exclusionary rule, it

clearly argued that the officers' duty to render emergency aid was a central

justification for the officers' actions and built a record supporting that assertion.

We therefore consider this alternative theory.

The undisputed facts of this case make it clear that a warrantless, limited

intrusion into the motel room was justified by the emergency exception to the

warrant requirement, also known as the "save life" exception, a subset of the

community caretaking exception to the warrant requirement. See State v. Acrey,

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State v. Smith, 86951-1

148 Wn.2d 738, 748, 64 P.3d 594 (2003) (describing emergency aid and routine

checks on health and safety as instances of community caretaking). Washington

courts have held on many occasions that law enforcement may make a warrantless

search of a residence if ( 1) it has a reasonable belief that assistance is immediately

required to protect life or property, (2) the search is not primarily motivated by an

intent to arrest and seize evidence, and (3) there is probable cause to associate the

emergency with the place to be searched. 12 ROYCE A. FERGUSON, JR.,

WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 2734, at 649-51

(3d ed. 2004) (collecting cases analyzing warrantless searches under the "save life"

exception); State v. Stevenson, 55 Wn. App. 725, 780 P.2d 873 (1989), review

denied, 113 Wn.2d 1040, 785 P.2d 827 (1990). Notably absent from this standard

is a requirement that the officer's initial presence be justified, in contrast to many

other exceptions to the warrant requirement, including a plain view search. State v.

Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007) (explaining that a plain view

search occurs when officers have a legitimate reason to be in an otherwise
2
protected area).

2
Justice Chambers' dissent complains that under this rule, the search here fails
under the first element because "the officers were not reviewing the motel registry or
knocking on that motel door because they believed someone likely needed assistance."
Dissent at 4, .~. W~. . do not applythe ~emergency aid exc~eption to a point in time preceding
the knowledge that emergency aid was necessary. Certainly, the officers here knocked
on the door as a result of an illegal search, motivated by an intent to arrest. But once the
door was open, they entered the motel room in order to render emergency aid to Quabner,
and the evidence gathered thereafter was a consequence of that justified entry. The
dissent also appears to take issue with our use of the phrase "save life exception."
Dissent at 4-5. We use this phrasing in the context of our already-recognized emergency
aid doctrine to highlight the factual predicate of this very narrow exception.

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State v. Smith, 869 51-1

When we bear in mind the relevant standard, it was reasonable for the

officers to believe that immediate assistance was required to protect life after they

observed the badly injured Quabner inside the motel room. The search was not

motivated by any investigatory purpose, as the trial court made an undisputed

finding that the "police entered the motel room to render aid to [Quabner] and to

ensure the safety of any other occupants in the motel room and to secure any

weapons." CP at 489. There is no question that probable cause existed to

associate the emergency with the place to be searched. Consequently, on this

record, we have no trouble concluding that the emergency aid or "save life"

exception applied to this warrantless search. 3

As to the scope of such a search, the admissible evidence is limited to that

which was in plain view when officers entered to perform their emergency aid

function. Stevenson, 55 Wn. App. at 729-30; State v. Lynd, 54 Wn. App. 18, 19-

3
The "save life" exception to the warrant requirement in this context does not
function much differently from the Court of Appeals' independent source rule analysis.
But for the sake of analytical clarity, we think it better to ground the justification for this
search in a warrant exception, rather than in a nullification of the exclusionary rule.
Because the "save life" exception to the warrant requirement does not require that an
officer's initial presence be legitimate, when the officers here crossed the motel door
threshold to render emergency aid, their actions were not tainted by the illegality
stemming from the Jorden search. The Court of Appeals was correct insofar as it
described the observations of Quabner as "intervening circumstances" justifying the entry
and a limited search of the motel room, Smith, 165 Wn. App. at 311, but tying such a
justification to the independent source rule is problematic for the reasons Judge
Armstrong identified in his dissent. Such an expansive view of the independent source
rule could readily lead to mischief where, for example, a plain view observation of drugs
following an illegal search becomes an independent source justifying an exception to the
exclusionary rule. Our decision today, however, acknowledges that an independent
justification for the warrantless search exists under the "save life" exception, a very
limited and specific exception that recognizes law enforcement must be able to respond
to crimes against persons and prosecute those crimes.

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State v. Smith, 869 51-1

23, 771 P.2d 770 (1989) (evidence plainly observed after officer dispatched to

respond to "911 hang-up" and entered home under emergency aid exception not

suppressed); State v. Raines, 55 Wn. App. 459, 461, 464-65, 778 P.2d 538 (1989)

(evidence recovered after officers dispatched to respond to report of domestic

dispute and entered home under emergency aid exception not suppressed). In

Stevenson, officers received information that a murder had been committed at the

defendant's home. Stevenson, 55 Wn. App. at 728. Upon arrival at the home, an

officer could see a body through a window. Id. When backup arrived, officers

entered the home and discovered a grisly crime scene with multiple murders. ld.

Officers first swept the home to check for victims who might yet need medical aid,

noting numerous evidentiary items in plain view such as pools of blood and signs

of a struggle. ld. Having confirmed that all the victims were dead and no

immediate threat was present, the responding officers waited outside for additional

members of their investigative unit to arrive. Id. The team set about collecting

evidence over the next several hours without first securing a warrant. ld. The

defendant moved to suppress the recovered evidence, arguing that once the

emergency created by the discovery of a crime scene ended, additional evidence

should have been secured by warrant. ld. at 729.

The Court of Appeals in Stevenson disagreed. It held that any fruit of the

search that was in plain view need not be excluded. ld. at 729-30. It further held

that "[t]he second entry [of the investigative team] followed hard on the heels of

the initial sweep and was nothing more than a continuation of the prior lawful

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State v. Smith, 86951-1

search." ld. at 731. The Court of Appeals cautioned, however, that the second

search could not exceed the scope of the earlier legitimate intrusion and that any

evidence recovered that was not in plain view must be suppressed. ld. at 732.

Here, the question is whether the evidence used at trial and challenged by

Smith-i.e., officer observations of the victims, victim testimony, and evidence

recovered from the dumpster-was admissible as a result of the "save life"

exception. We hold that it was. Officer observations of the victims were part of

the plain view sweep of the motel room following entry to render aid. Discovery

of the victims was also part of the officers' plain view observations, and hence the

testimony at trial of the victims was not tainted by any illegality.

As to the evidence recovered in the dumpster, the record indicates that L.S.

volunteered this information contemporaneously with the officers' efforts to render

aid and ascertain the nature and extent of the victims' injuries. That is, officers did

not learn of the evidence in the dumpster in the course of their investigation into

the incident but as part of performing their caretaking function. See CP at 490

(findings of fact suggest that officers learned of the evidence in the dumpster in the

course of rendering aid, before calling for medical assistance); I VRP (Oct. 9,

2008) at 57-58, 110, 120 (officer testimony indicating that responding officers, not

investigating officers, learned of the dumpster evidence in the minutes before the

ambulance arrived).

The victims' testimony was also properly admitted at trial. We are dubious

of Smith's claim that Quabner's and L.S.'s testimony can be characterized as

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State v. Smith, 869 51-1

"fruit" of the search. As the Court of Appeals observed, it is reasonable to assume

that as victims of Smith's acts, these witnesses would be willing to testify. Smith,

165 Wn. App. at 315. And, there is a constitutional dimension to the right of crime

victims to participate in criminal proceedings. See WASH. CONST. art. I, § 35.

Moreover, there is no indication in the record that the search of the motel room,

which we conclude was valid under the "save life" exception to the warrant

requirement, had any effect on the victims' testimony.

In sum, the evidence admitted at Smith's trial was legally obtained under the

"save life" exception to the warrant requirement. We affirm Smith's conviction. 4

B. Double Jeopardy

Smith argues that his convictions violate double jeopardy because he was

convicted of both first degree rape and second degree rape of a child arising from

the same assault against L.S.

We review claims of double jeopardy de novo. State v. Hughes, 166 Wn.2d

675, 681, 212 P.3d 558 (2009). Both the federal and state constitutions prohibit a

person from being punished twice for the same offense, although "[w]ithin

constitutional constraints" the legislature is free to define crimes and punishments

as it sees fit. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995).

To analyze a double jeopardy claim, we first examine the statutory
language to see if the applicable statutes expressly permit punishment for
the same act or transaction. If the statutes do not speak to multiple
punishments for the same act, we next apply the "same evidence" analysis.

4
Having affirmed the conviction for the reasons articulated here, we need not
consider the State's attenuation doctrine argument, including the State's request that we
reconsider State v. Afana, 169 Wn.2d 169, 233 P.3d 879 (2010).

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State v. Smith, 86951-1

Even if the two statutes pass the same evidence inquiry, multiple convictions
may not stand if the legislature has otherwise clearly indicated its intent that
the same conduct or transaction will not be punished under both statutes.

Hughes, 166 Wn.2d at 681-82 (footnote omitted). As Hughes notes, this test is

variously called the "'same evidence test'" or the "'Blockburger test."' ld. at 682

n.6 (citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306

(1932)).

The Court of Appeals held that Smith's rape convictions do not violate

double jeopardy because while the crimes are the same in fact, they are not the

same in law. Smith, 165 Wn. App. at 320. The Court of Appeals reasoned that

first degree rape requires proof of forcible compulsion and use of a deadly weapon,

while second degree rape of a child requires proof only of the victim's status based

on age and marriage. Id.

Smith argues that several cases from this court and the Court of Appeals

instruct that a force-based sex offense cannot be punished as a separate crime from

a status-based sex offense. See Suppl. Br. of Pet'r at 30-32 (citing State v. Birgen,

33 Wn. App. 1, 2, 651 P.2d 240 (1982) (suggesting that a conviction for third

degree rape and statutory rape in the third degree would violate double jeopardy if

not for the fact that the defendant was given concurrent sentences, which under the

law at the time negated any double jeopardy problem); State v. Elswood, 15 Wash.

453, 454, 46 P. 727 (1896) (accepting without comment a forcible rape and

statutory rape charged as a single crime); State v. Roller, 30 Wash. 692, 696-97, 71

P. 718 (1903) (explaining that rape of a child presumes force); State v. Adams, 41

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State v. Smith, 86951-1

Wash. 552, 553, 83 P. 1108 (1906) (same as Roller); State v. Dye, 81 Wash. 388,

389-90, 142 P. 873 (1914) (holding that an acquittal on child rape precluded a

subsequent prosecution for forcible rape based on the same act)).

Notably, among the cases Smith relies upon is State v. Allen, 128 Wash. 217,

222 P. 502 (1924). Smith describes Allen as holding that an "allegation of forcible

rape against [a] 13-year-old charges a single crime." Suppl. Br. of Pet'r at 32.

While this is an accurate summary of Allen so far as it goes, there is more. While

recognizing only a single rape charge, the court in Allen observed:

It is at once apparent, of course, that the provisions of the one section of the
statute overlap the provisions of the other-that is to say, a single act may
be a rape by force and a rape because of the age of the victim of the
offense-but this circumstance does not prohibit a prosecution founded on
either section of the statute. There is no such direct conflict that the one
impliedly repeals the other, and in such cases the prosecuting officer has the
right of election to proceed under either.

128 Wash. at 219. As we later recognized, the Allen court said nothing about

whether the prosecutor could have, alternatively, elected to proceed under both

sections. See State v. Powers, 152 Wash. 155, 160, 277 P. 377 (1929) (explaining

that the Allen court did not intend to suggest that the prosecutor must elect between

the two crimes). Likewise, it is not entirely clear that Powers treats forcible rape

and statutory rape as the same crime for the purposes of double jeopardy. There

we observed that "[t]he crime of rape by force and the crime of rape because ofthe

age of the victim, are defined, it is true, in separate sections of the statute, but this

does not make a single act which is violative of both sections, separate crimes."

Id. We further explained that "[t]he pleader may charge the offense as a rape by

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State v. Smith, 869 51-1

force and as a rape because of age, and if he proves either or both, he satisfies the

statute and the defendant may be convicted." !d. It is not quite clear what we

meant by "the statute." These cases reveal that we have not been entirely

consistent in explaining our view of the propriety of convicting a defendant for

both a force-based sexual assault and an age-based sexual assault. But, we do not

read Allen and Powers as supporting Smith's view.

More recently, we considered the imposition of multiple convictions for sex

crimes arising from the same act in Calle, 125 Wn.2d 769 and Hughes, 166 Wn.2d

675. In Calle, the defendant was convicted of first degree incest and second

degree rape for the same act of intercourse with his minor stepdaughter. Calle, 125

Wn.2d at 771-72. This court held that the convictions did not violate double

jeopardy, reasoning that the crimes were not the same under the Blockburger test

because "[i]ncest requires proof of relationship" whereas rape "requires proof of

force." !d. at 778. In Hughes, the defendant sexually assaulted a 12-year-old child

with cerebral palsy. He was convicted of second degree rape based on the

subsection dealing with the victim's inability to consent due to physical

helplessness or mental incapacity and second degree child rape. Hughes, 166

Wn.2d at 679. The court reasoned that both crimes "require proof of nonconsent

because of the victim's status." !d. at 684. Under the Blockburger test, we held

that "the two offenses are the same in fact and law" and double jeopardy barred a

conviction on separate offense. !d. at 683-84.

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State v. Smith, 86951-1

Distinguishing Hughes, the Court of Appeals here explained that the sex

offenses in question were not the same in law because one crime requires proof of

force with use of a deadly weapon, while the other requires proof of the victim's

status based on age. Smith, 165 Wn. App. at 320. Likewise, the Court of Appeals

reasoned that Calle supported its decision in that it found no double jeopardy

violation where the crimes required proof of different elements. ld. at 322.

The Court of Appeals' reasoning is sound. The elements of first degree rape

and second degree rape are dissimilar enough to satisfy the Blockburger test.

However, we must acknowledge that, as Smith notes, both Hughes and Calle spoke

favorably of Birgen. Suppl. Br. ofPet'r at 30-31 (citing Calle, 125 Wn.2d at 775,

779-80 (discussing Birgen) and Hughes, 166 Wn.2d at 685-86 (same)). And, as

Smith notes, the Court of Appeals here did not acknowledge Birgen at all.

Birgen makes categorical statements about double jeopardy and the sex-

based offenses at issue here.

We conclude that the Legislature has not authorized multiple rape
convictions arising out of a single act of sexual intercourse violating more
than one of the statutory sections defining rape and statutory rape. The
history of the rape statutes shows legislative intent and judicial recognition
that both the rape and the statutory rape statutes define a single crime of
rape with the degree of punishment dependent on the underlying
circumstances.

Birgen, 33 Wn. App. at 14. Birgen recognized that the Blockburger test resolved

the question before it in the State's favor.

The State is correct that under the "same evidence" test of State v.
Roybal, 82 Wn.2d 577, 512 P.2d 718 (1973) and Blockburger v. United
States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), rape in the third
degree and statutory rape in the third degree would not be the "same

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State v. Smith, 86951-1

offense." The Blockburger test, however, 1s merely one means of
determining legislative intent.

I d. at 7. Because the Blockburger test favored multiple convictions, the Birgen

court conducted its own analysis of legislative intent, which it concluded counseled

against adherence to the Blockburger test and in favor of finding a double jeopardy

violation. Id. at 8-14.

We have made it clear on more than one occasion that the Blockburger test

is a rule of statutory construction applied to discern legislative intent in the absence

of clear indications to treat one act as constituting separate crimes. See Calle, 125

Wn.2d at 778; State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008); State v.

Kelley, 168 Wn.2d 72, 77, 226 P.3d 773 (2010). The Court of Appeals in Birgen

seemingly overlooked this admonition. The legislative history identified by the

Court of Appeals in Birgen is insufficient to negate the Blockburger test and

compel its conclusion that the legislature clearly intended to treat crimes of rape

based on use of deadly force and crimes of rape involving status as the same crime

for the purpose of double jeopardy. For this reason, we must now disapprove of
. 5
B zrgen.

As for the other cases cited by Smith (and, for that matter, Birgen), all can be

distinguished. Assuming that Roller and Adams are correct that rape of a child

presupposes force, child rape laws do not require force by deadly weapon, as does

5
While the court in Hughes spoke favorably of Birgen's recitation of the
legislative history, Hughes, 166 Wn.2d at 685-86, Hughes's reliance on Birgen was dicta
because Hughes, using the Blockburger test, found a double jeopardy violation. It was
therefore unnecessary to search the legislative history for indications that the legislature
intended the crimes be punished separately. !d. at 681-82.

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State v. Smith, 86951-1

the first degree rape charge here. 6 And these cases, as well as Dye, 81 Wash. 388,

predate Blockburger by several years.

In sum, while the case law has not been entirely consistent, Calle is a close

analogue here. Adopting the Court of Appeals' analysis of double jeopardy under

the Blockburger test, we conclude Smith suffered no double jeopardy when he was

convicted of first degree rape and second degree rape of a child.

CONCLUSION

The evidence admitted at Smith's trial was lawfully obtained under the

"emergency aid" or "save life" exception to the search warrant requirement. Smith

was not placed in double jeopardy when he was convicted of first degree rape and

second degree rape of a child. Accordingly, we affirm his convictions.

6
Moreover, the entire discussion of force seems arcane. Certainly, consent is
sometimes relevant and the law presumes a child to be incapable of consent. But, in
modern jurisprudence regarding sex crimes, force is no longer the touchstone for
evaluating a claim of sexual assault. See, e.g., RCW 9A.44.060(1)(a) (rape in the third
degree) (criminalizing sexual intercourse under circumstances not involving force (i.e.,
first and second degree rape), but where the victim did not consent). In this regard,
Roller and Adams may represent an antiquated view of our understanding of sexual
assault.

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State v. Smith, 86951-1

WE CONCUR:

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State v. Smith (Christopher Leon)

No. 86951-1

MADSEN, C.J. (concurring in the result)-! concur in the result reached by the

lead opinion and the concurrence. I write separately, however, because these opinions

expand or adopt warrant exceptions that I believe are inconsistent with article I, section 7

of the Washington Constitution. Instead, I would hold that the initial motel registry

search was legal and overrule State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007).

Discussion

Article I, section 7 states that "[n]o person shall be disturbed in his private affairs,

or his home invaded, without authority of law." CONST. art. I,§ 7. We have stated that

these privacy protections apply more broadly than those under the Fourth Amendment to

the United States Constitution. State v. Ladson, 138 Wn.2d 343, 348, 979 P.2d 833

(1999). Although we have acknowledged "a few 'jealously and carefully drawn

exceptions' to the warrant requirement," the lead opinion and the concurrence would

expand these exceptions beyond what has been recognized under our constitution. State

v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004) (internal quotation marks

omitted) (quoting State v. Hendrickson, 129 Wn.2d 61, 72,917 P.2d 563 (1996)).

I have several concerns about the approaches taken by the lead opinion and the

concurrence based on our prior decisions. First, the lead opinion expands the community
No. 86951-1
Madsen, C.J. (concurring in result)

caretaking doctrine. Historically, we have applied this doctrine only in instances where

an officer's initial presence was based on a belief that someone needed aid or assistance.

See, e.g., Kalmas v. Wagner, 133 Wn.2d 210, 217, 943 P.2d 1369 (1997) (petitioners

called 911 asking for police assistance and invited a deputy into a residence); State v.

Lawson, 135 Wn. App. 430, 435, 144 P.3d 377 (2006) (deputies responded to an

anonymous call reporting a strong chemical odor coming from a residence); State v.

Menz, 75 Wn. App. 351, 354, 880 P.2d 48 (1994) (officers responded to a report of

domestic violence and discovered the front door open, lights and TV on, and received no

response to their knocks). However, in this case the only reason the police were at

Christopher Smith's door is because of the "search" of the motel registry. The lead

opinion does not cite any case where this court has applied the community caretaking

doctrine when the officer's initial presence is so tainted. I hesitate to apply this doctrine

here because it will seriously undermine the protections of article I, section 7.

The concurrence's use of the attenuation doctrine is equally concerning because

we have not explicitly adopted it under article I, section 7. State v. Eserjose, 171 Wn.2d

907, 919,259 P.3d 172 (2011). Further, this doctrine requires a balancing of factors,

including speculation of the witness' free will to testify and the deterrent effect of the

exclusionary rule. We have stated that "the balancing of interests should not be carried

out when evidence is obtained in violation of a defendant's constitutional rights." State v.

Winterstein, 167 Wn.2d 620, 632-33, 220 P.3d 1226 (2009) (quoting State v. Bonds, 98

Wn.2d 1, 10-11, 653 P.2d 1024 (1982)). In Winterstein, we compared the independent

2
No. 86951-1
Madsen, C.J. (concurring in result)

source and inevitable discovery doctrines and recognized that the independent source

doctrine does not rely on any balancing of interests prior to the exclusion of unlawfully

obtained evidence. !d. at 634. In contrast, the inevitable discovery doctrine, which

Winterstein rejected, requires speculation and fails to adequately protect privacy rights.

!d. The same concerns in Winterstein are present with the attenuation doctrine, which

relies on speculation and a balancing of factors before excluding evidence. It is

inconsistent with our analysis in Winterstein to adopt the attenuation doctrine while

rejecting the inevitable discovery doctrine when both implicate similar article I, section 7

interests.

Further, this court has previously suggested that the testimony of a witness

discovered through an illegal search is not admissible unless knowledge of the witness is

gained through an independent source. State v. 0 'Bremski, 70 Wn.2d 425, 428-30, 423

P.2d 530 (1967) (noting that several courts have held the testimony of a witness

discovered as a result of an illegal search is not admissible, but determining that the

witness there could testify because knowledge of her came from an independent source).

Here, the evidence was not lawfully obtained by a source independent of the unlawful

action, and so the independent source doctrine does not apply. We should not now adopt

the attenuation doctrine to reach a desired result, when case law suggests otherwise.

Instead, we should reconsider whether the search was illegal in the first place. I

believe our decision in Jorden was wrong and harmful, as I articulated in my dissent.

Jorden, 160 Wn.2d at 13 5-40 (Madsen, J., dissenting). As a result, it is unsurprising that

3
No. 86951-1
Madsen, C .J. (concurring in result)

a case such as this could arise. Indeed, the resulting search by police was of the very type

Jorden was intended to prevent and which the lead opinion now seeks to validate. Jorden

should be overruled. Accordingly, it is unnecessary to engage in an analysis of warrant

exceptions under the exclusionary rule.

As Justice Chambers notes, the facts in this case are reprehensible. However, we

should not expand the well settled exceptions to the warrant requirement in order to reach

a desirable result. I would overrule Jorden and uphold the Court of Appeals' decision on

the basis that the initial motel registry search was legal.

4
No. 86951-1
Madsen, C.J. (concurring in result)

5
State v. Smith, No. 86951-1 (Gonzalez, J. concurring in result)

No. 86951-1

GONZALEZ, J. (concurring in result)-! concur with the lead opinion that the

trial judge properly admitted the testimony of the victims in this case, albeit on

incorrect grounds. Victims have a right to be found, to be seen, and to be heard. I

recognize this court has shown some recent reluctance to adopt the attenuation

doctrine. In my view, when the allegedly tainted evidence is the testimony of a

person, especially the victim of the crime, we should follow the path set down by the

United States Supreme Court in United States v. Ceccolini, 435 U.S. 268, 276, 98 S.

Ct. 1054, 55 L. Ed. 2d 268 (1978). Under Ceccolini, there is no per se rule barring a

witness's testimony, especially a victim's testimony, merely because an officer broke

the rules in finding that victim. Instead, we consider whether the witness was freely

willing to testify, whether there was a great likelihood that the witness would have

been discovered by legal means, and whether excluding the witness's testimony

would have any deterrent effect on the officer's improper conduct. 435 U.S. at 276-

79. My review of the record persuades me that Quianna Quabner and her daughter

were willing to testify, that their existence would have been soon discovered, and that

excluding their testimony would have no cognizable impact on deterring any improper
State v. Smith, No. 86951-1 (Gonzalez, J. concurring in result)

searches. Similarly, I would not prohibit the officers from testifying about what they

saw in that motel room. The victims were willing to testify; it is highly likely they

would have been found; and, in the wake of State v. Jorden, 160 Wn.2d 121, 156 P.3d

893 (2007), excluding their testimony to prevent warrantless review of motel

registries would be, at best, a quixotic exercise.

As our state constitution explicitly recognizes, victims have rights too. CONST.

art. I, § 35. In my view, among those rights is the right to testify against their

attackers. There may be remarkable cases where some other constitutional principle

would exclude a victim from freely testifying, but like Chief Justice Burger, I have

difficulty imagining what one might be. Ceccolini, 435 U.S. at 280 (Burger, C.J.,

concurring). Courts should not suppress people or treat them like the fruit of the

poisonous tree. They deserve better.

I agree with the lead opinion that double jeopardy was not violated by the entry

of convictions of first degree rape and second degree rape of a child. I see no need,

however, to consider whether the community caretaking exception to the warrant

requirement should be expanded to cover this situation. I respectfully concur in

result.

2
State v. Smith, No. 86951-1 (Gonzalez, J. concurring)

3
State v. Smith (Chris)

No. 86951-1

CHAMBERS, J. * (dissenting)-The facts before us are reprehensible. The
lead opinion's quest to find or create an exception to article I, section 7 of the
Washington Constitution that would allow a court to consider the illegally seized
evidence is understandable. Nonetheless, I must respectfully dissent. Properly
understood, this is nothing more than an inevitable discovery case, and the
inevitable discovery doctrine does not allow what our state constitution forbids.
State v. Winterstein, 167 Wn.2d 620, 636, 220 P.3d 1226 (2009). Under our state
constitution, officers of the law must have actual authority of the law to intrude
into private affairs, even the affairs of bad men.
It is of great concern to me that the community caretaking exception to the

warrant requirement has begun to take a drunken weave through our jurisprudence.
As used by the lead opinion in this case, the community caretaking exception is a
cure for this warrantless search. I am also concerned that the lead opinion resolves
this case on a legal theory not argued at trial or meaningfully developed on appeal,
substantially relying on a "save life" exception never before articulated in our case
law (or, as far as I can tell, in any state's case law). It may be that this evidence
was admissible under some permissible permutation of the community caretaking

*Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to
Washington Constitution article IV, section 2(a).
State v. Smith, No. 86951-1
Chambers, J., dissenting

doctrine, but that doctrine was only mentioned in passing below. We have no

meaningful record or argument before us upon which to consider the issue.

Similarly, this is not an attenuated evidence case. Perhaps it could have been, if

the attenuated evidence exception was compatible with our constitution, and if it

had been so argued at trial. If it had been so argued, facts would have been

developed and court findings made on temporal proximity, intervening

circumstances, the purpose and flagrancy of the official misconduct, and all the

other issues that might play into our analysis.

Instead, in the wake of State v. Jorden, 160 Wn.2d 121, 156 P.3d 893

(2007), the State argued that the evidence it found by randomly and illegally

reviewing motel registries was admissible under the inevitable discovery doctrine,

with the community caretaking doctrine only playing a supporting role after the

allegedly inevitable 911 call from the victim that would have led to a police

response. Winterstein was almost a year from publication, and the trial court

accepted the State's since-rejected theory.

EXCEPTIONS TO THEWARRANT REQUIREMENT MUST BE CAREFULLY DRAWN

Our constitution is clear. "No person shall be disturbed in his private affairs,

or his home invaded, without authority of law." CONST. art. I, § 7. Generally,

warrants provide this authority of law required by our constitution. State v. Morse,

156 Wn.2d 1, 7, 123 P.3d 832 (2005) (citing State v. Ladson, 138 Wn.2d 343, 350,

979 P.2d 833 (1999)). "Exceptions to the warrant requirement are to be 'jealously

and carefully drawn"' to prevent the exceptions from swallowing the constitutional

2
State v. Smith, No. 86951-1
Chambers, J., dissenting

rule. !d. (internal quotation marks omitted) (quoting State v. Reichenbach, 153

Wn.2d 126, 131, 101 P.3d 80 (2004)); State v. Tibbles, 169 Wn.2d 364,372,236

P.3d 885 (2010).

COMMUNITY CARETAKING EXCEPTION

One such exception to the warrant requirement is the community caretaking

function. This court has never specifically considered the allowable contours of

the community caretaking exception under article I, section 7. However, as we

stressed in State v. Kinzy, 141 Wn.2d 373, 385, 5 P.3d 668 (2000), this exception

arises from the exercise of "'[l]ocal police officers['] ... community caretaking

functions, totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute."' !d. (quoting Cady v.
Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)). Over
the years, "Washington cases have expanded the community caretaking function

exception to encompass not only the 'search and seizure' of automobiles, but also

situations involving either emergency aid or routine checks on health and safety."

!d. at 386 (footnote omitted) (citing State v. Loewen, 97 Wn.2d 562, 567-68, 647
P.2d 489 (1982); State v. Villarreal, 97 Wn. App. 636, 643-44,984 P.2d 1064

(1999)). It may be that article I, section 7 could tolerate an extension of the

emergency aid exception that would encompass the search here. However, I

cannot agree with the lead opinion that, as currently articulated, the exception

applies here. The emergency aid exception

3
State v. Smith, No. 86951-1
Chambers, J., dissenting

applies when "( 1) the officer subjectively believed that someone
likely needed assistance for health or safety reasons; (2) a reasonable
person in the same situation would similarly believe that there was a
need for assistance; and (3) there was a reasonable basis to associate
the need for assistance with the place searched."

!d. at 386-87 (quoting State v. Menz, 75 Wn. App. 351, 354, 880 P.2d 48 (1994)).
As articulated, this search fails on the first element; the officers were not reviewing

the motel registry or knocking on that motel door because they believed someone

likely needed assistance. If the requirement that the officers not be seeking

evidence of a crime is not clear from the first element itself, it is clearly a threshold

requirement under Kinzy and Cady. Kinzy, 141 Wn.2d at 385 (quoting Cady, 413

U.S. at 441).

The lead opinion skirts our case law by drawing our attention to a Court of

Appeals opinion that did not analyze article I, section 7, and Washington Practice,

asserting that "[n]otably absent from this standard is a requirement that the

officer's initial presence be justified." Lead opinion at 8 (citing 12 ROYCE A.

FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE §

2734, at 649-51 (3d ed. 2004); State v. Stevenson, 55 Wn. App. 725, 780 P.2d 873

(1989)). That may be true as articulated in Washington Practice. But the cases

from this court that have considered the issue deeply have stressed that the

exception arises only where the officers were not looking for evidence of a crime.

E.g., State v. Acrey, 148 Wn.2d 738, 749, 64 P.3d 594 (2003); Kinzy, 141 Wn.2d at

385 (quoting Cady, 413 U.S. at 441). And no case I can find in this state or any

4
State v. Smith, No. 86951-1
Chambers, J., dissenting

other establishes the existence of the "'save life' exception" relied upon by the lead

opinion. Lead ·@pinion at 8. Of course, state agents have the power and duty to

save and protect lives when they can. That is not the question before us. The

question is whether the evidence they seize along the way is admissible in court.

In Jorden, we found the very program at issue here, the city of Lakewood's

random inspection of hotel registries, at the very same Golden Lion Motel, violated

article I, section 7. Again, under our constitution, "[n]o person shall be disturbed

in his private affairs, or his home invaded, without authority of law." CONST. art. I,

§ 7. We reasoned:

Our most important inquiry then becomes whether a random
and suspicionless search of a guest registry reveals intimate details of
one's life. We first consider that here there is more information at
stake than simply a guest's registration information: an individual's
very presence in a motel or hotel may in itself be a sensitive piece of
information. There are a variety of lawful reasons why an individual
may not wish to reveal his or her presence at a motel. As the amicus
American Civil Liberties Union (ACLU) points out, couples engaging
in extramarital affairs may not wish to share their presence at the hotel
with others, just as a closeted same-sex couple forced to meet at the
motel also would not. Br. of ACLU at 11. The desire for privacy may
extend to business people engaged in confidential negotiations, id., or
celebrities seeking respite from life in the public eye. One could also
imagine a scenario, as Jorden's trial attorney pointed out during the
motion to suppress, where a domestic violence victim flees to a hotel
in hopes of remaining hidden from an abuser.
Jorden, 160 Wn.2d at 129. We concluded:

5
State v. Smith, No. 86951-1
Chambers, J., dissenting

Therefore, the information contained in a motel registry-
including one's whereabouts at the motel-is a private affair under
our state constitution, and a government trespass into such
information is a search. We hesitate to allow a search of a citizen's
private affairs where the government cannot express at least an
individualized or particularized suspicion about the search subject or
present a valid exception to a warrantless search.
!d. at 130. Jorden clearly applies to this search. The search lacked authority of
law. Its fruits must not come into court.

ATTENUATION DOCTRINE

Nor do I believe the attenuation doctrine saves the fruits of this illegal

search, as the lead opinion implicitly (and the concurrence explicitly) suggests.

Under the Fourth Amendment, "evidence obtained by illegal means may

nonetheless be admissible ifthe connection between the evidence and the illegal

means is sufficiently attenuated or remote. [ ] This is an exception to the fruit-of-

the-poisonous-tree doctrine." BLACK'S LAW DICTIONARY 146-47 (9th ed. 2009);

see also State v. Eserjose, 171 Wn.2d 907, 920-21, 259 P.3d 172 (2011) (quoting
Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963)). Because the attenuation doctrine was not argued at trial, no foundation

was laid. If, after examining the motel registry, the police heard cries for help

from the parking lot or just outside the door, this might also have been an

appropriate case to examine the attenuation doctrine. But under the undisputed

facts of this case, the only reason the police were at the door of Christopher Leon

6
State v. Smith, No. 86951-1
Chambers, J., dissenting

Smith's motel room was because of the illegal search of the motel registry. Even if

the doctrine were to apply, it would not save this search.

This court has never adopted the attenuation doctrine and, in my view, it has

no place under article I, section 7. I recognize the issue has badly split this court.

In Eserjose, three justices gave their unqualified signatures to an opinion adopting

it; four justices, including this dissenting justice, lent their unqualified signatures to

an opinion rejecting it. See 171 Wn.2d at 929 (Alexander, J., lead opinion), 940

(C. Johnson, J., dissenting).

If we were to adopt the attenuation doctrine, Eserjose would have been a

poor case to do it. Upon receiving a tip that Eserjose and a housemate might have

been responsible for a burglary, two officers were dispatched to Eserjose's father's

home, where all three men lived. !d. at 909-10. Eserjose's father let the officers

into the house but did not give them permission to go up the stairs to the bedroom

area. The police officers disregarded the father's limited permission to be in his

home, went up the stairs, and arrested both suspects. This violated Payton v. New

York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Eserjose, 171

Wn.2d at 910, 912. Eserjose was taken to the police station and, after being

advised of his Miranda 1 rights and being told his accomplice had implicated him,

confessed to the crime. Eserjose, 171 Wn.2d at 911. Heavily relying on a

factually similar federal constitutional case, the lead opinion found the attenuation

doctrine rehabilitated Eserjose's otherwise-tainted confession. !d. at 917-18 (citing

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

7
State v. Smith, No. 86951-1
Chambers, J., dissenting

New Yorkv. !-farris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990)). The
lead opinion concluded that "the proper inquiry is whether the confession is

'sufficiently an act of free will to purge the primary taint"' and found under the

facts it was. Id. at 918-19 (internal quotation marks omitted) (quoting Brown v.

Illinois, 422 U.S. 590, 602, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). One justice
signed this opinion in result only. Writing separately, the chief justice concluded

under the facts, there was no cause to apply the attenuation doctrine at all because,

in her judgment, the confession was not the fruit of the illegal arrest. Instead, the

confession was "connected to his learning of his accomplice's confession, and not

to any illegality associated with the deputies' exceeding the scope of consent to

enter the home. This should end the analysis." Eserjose, 171 Wn.2d at 931

(Madsen, C.J., concurring). A vigorous dissent signed by four justices rejected the

proposition that "time, intervening circumstances, or less egregious misconduct

can infuse the fruits of an illegal seizure with the authority of law required by

article I, section 7" and concluded that "[ e]vidence obtained in violation of a

person's constitutional rights, even if attenuated, still lacks the authority of law and

should be suppressed." Id. at 940 (C. Johnson, J., dissenting). Whatever else can

be said about Eserjose, we did not use it to adopt the attenuation doctrine.

INDEPENDENT SOURCE DOCTRINE

I do agree with the lead opinion that the Court of Appeals improperly relied

upon the independent source doctrine. The independent source doctrine is a viable

exception to article I, section 7. See State v. Gaines, 154 Wn.2d 711, 116 P.3d 993

8
State v. Smith, No. 86951-1
Chambers, J., dissenting

(2005). However, it requires that the State acquire the evidence "pursuant to a

valid warrant or other lawful means independent of the unlawful action." Id. at

718. The independent source doctrine demands an actual, not hypothetical or

imaginary, independent source. In this case, the evidence was not obtained

lawfully by some second set of officers unconnected with the unlawful random

search of the motel registry. There was no independent source.

INEVITABLE DISCOVERY DOCTRINE

The trial court relied on the inevitable discovery doctrine. And indeed, if the

federal inevitable discovery doctrine were compatible with article I, section 7, this

evidence might have been properly admitted. But the federal inevitable discovery

doctrine "allows admission of illegally obtained evidence." Winterstein, 167

Wn.2d at 634 (citing Nix v. Williams, 467 U.S. 431,444, 104 S. Ct. 2501, 81 L. Ed.

2d 377 (1984)). This "is at odds with the plain language of article I, section 7,

which we have emphasized guarantees privacy rights with no express limitations."

Id. at 635 (citing Ladson, 138 Wn.2d at 348).

The lead opinion suggests those things in plain view of the officers were

admissible. At the very least, "[u]nder the plain view doctrine, an officer must: (1)

have a prior justification for the intrusion; (2) inadvertently discover the

incriminating evidence; and (3) immediately recognize the item as contraband."

State v. Myers, 117 Wn.2d 332, 346, 815 P.2d 761 (1991) (citing State v. Kennedy,
107 Wn.2d 1, 13, 726 P.2d 445 (1986)). But police must not improperly put

9
State v. Smith, No. 86951-1
Chambers, J., dissenting

themselves into a position to make a plain view observation, id., which, again, is

what happened here.

Because much of the evidence relied upon was unconstitutionally seized, I
would reverse Smith's conviction. I respectfully dissent.

10
State v. Smith, No. 86951-1
Chambers, J., dissenting

Ch~ b=;s, \T'PI.
v 7

11