State v. Smith , 177 Wash. 2d 533 ( 2013 )

Chambers, J.^*

¶49 (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.

¶50 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 doctrine, but that doctrine was mentioned only 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.

¶51 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 playing only a supporting role after the allegedly inevitable 911 call from the victim that would have led to a police response. Winter-stein was almost a year from publication, and the trial court accepted the State’s since-rejected theory.

Exceptions to the Warrant Requirement Must Be Carefully Drawn

¶52 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 rule. Id. (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

¶53 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 care-taking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” Id. (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.” Id. 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

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.”

Id. 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).

¶54 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 “[njotably absent from this standard is a requirement that the officer’s initial presence be justified.” Lead opinion at 541 (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 other establishes the existence of the “ ‘save life’ exception” relied upon by the lead opinion. Lead opinion at 541. 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.

¶55 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:

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.

Id. at 130. Jorden clearly applies to this search. The search lacked authority of law. Its fruits must not come into court.

Attenuation Doctrine

¶56 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 if the 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 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.

¶57 This court has never adopted the attenuation doctrine, and in my view, it has no place under article I, section 7.1 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).

¶58 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. Id. 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 Miranda⁷ 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. Id. at 917-18 (quoting New York v. Harris, 495 U.S. 14, 20, 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

¶59 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 (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

¶60 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 (quoting 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).

¶61 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 themselves into a position to make a plain view observation, id., which, again, is what happened here.

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

* Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).

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