State v. McGee

557 P.3d 688, 3 Wash. 3d 855

• Court: Washington Supreme Court
• Decided: October 24, 2024
• Docket: 102,134-8
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON OCTOBER 24, 2024

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON OCTOBER 24, 2024 SARAH R. PENDLETON ACTING SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 102134-8 Petitioner, EN BANC v. Filed: October 24, 2024 MALCOLM OTHA MCGEE,

Respondent.

STEPHENS, J.— In keeping with the strong privacy protections recognized

in article I, section 7 of the Washington State Constitution, this court has developed

a rigorous exclusionary rule to prevent the use of evidence obtained in violation of

privacy rights. Describing our exclusionary rule as “nearly categorical,” State v.

Winterstein, 167 Wn.2d 620, 636, 220 P.3d 1226 (2009), we have allowed only

narrow exceptions, one of which is the attenuation doctrine, at issue in this case. See

State v. Mayfield, 192 Wn.2d 871, 434 P.3d 58 (2019). Today, we are asked whether

our attenuation doctrine allows police to apply for a warrant using tainted evidence

when a new circumstance—here, an independent criminal act—lends new State v. McGee, No. 102134-8

significance to the knowledge they gained from that evidence. Our answer is no, as

a new reason for seeking to use tainted evidence does not dissipate the taint. We

affirm the Court of Appeals order vacating McGee’s conviction and remanding for

a new trial.

BACKGROUND AND PROCEDURAL HISTORY

On June 3, 2017, King County Sheriff’s Office (KCSO) Deputy Alexander

Hawley saw a man get into the passenger seat of a silver Chrysler Sebring with tinted

windows outside the Boulevard Park Library in Burien. The car drove less than a

block, stopped, and the passenger exited the vehicle, appearing to place something

small in his pocket. Suspecting a drug transaction had occurred, Hawley followed

and stopped the vehicle. From this stop—later ruled illegal—Hawley obtained the

identity of the driver, Malcolm Otha McGee, and McGee’s phone number and seized

drugs and items associated with selling drugs. In questioning McGee during the

stop, Hawley learned that McGee and the man seen exiting the vehicle (later

identified as Keith Ayson) had a drug dealing relationship—McGee claimed Ayson

was his dealer. Hawley offered to refrain from referring a violation of the Uniform

Controlled Substances Act (VUCSA), ch. 69.50 RCW, charge against McGee if he

signed a confidential informant (CI) agreement, and McGee agreed. Deputy Hawley

gave McGee his phone number but never heard back from him.

2 State v. McGee, No. 102134-8

Hawley then returned to the area where he had seen the passenger exit the car,

and he found Ayson sitting behind a laundromat near the library. Hawley told Ayson

about his conversation with McGee, and Ayson flatly denied being a drug dealer.

He said McGee was his dealer, and he had been regularly buying crack cocaine and

marijuana from McGee for the two months he had known him. Ayson named his

dealer “TJ,” but when Hawley showed Ayson a recent booking photo of McGee,

Ayson confirmed McGee was the person he knew as “TJ.” Hawley concluded

McGee had fabricated the story about Ayson being McGee’s dealer and recorded the

details of his interactions with McGee and Ayson in a police report.

The next day, June 4, 2017, a 911 caller reported hearing gunfire near his

house, which was located on a dead-end street next to a forested creek bed. The

caller said he and a friend saw a parked car he believed was a silver-gray 2000

Chrysler with tinted windows and two black men they did not recognize walking

toward the dead-end. Sometime later he heard gunshots and then saw the car drive

away. Police investigated and found nothing that day. 1 On July 11, 2017, the same

911 caller reported finding a decomposing body in the forested area. The body was

identified as Ayson, who appeared to have been shot multiple times. Police

1 The record shows some inconsistencies between the witness reports provided by the caller and his friend concerning the age and color of the car, the apparent race of the two men they saw walking down the street, and how much time elapsed between seeing the men and hearing gunfire. We acknowledge these inconsistencies, but we do not find them material to the issue before us. 3 State v. McGee, No. 102134-8

recovered a cell phone from Ayson’s body and obtained a warrant to search the

phone. The investigating KCSO detective, Michael Glasgow, was unable to power

on the device or obtain any information other than its phone number on the SIM

(subscriber identity module) card.

Police searched Ayson’s name in their database to determine whether he had

any known associations and found Deputy Hawley’s report from the June 3 narcotics

investigation. From this, detectives identified McGee as a potential suspect. On

July 12, 2017, Detective Glasgow called Deputy Hawley to confirm the information

in his report, including McGee’s phone number. To further verify the connection

between McGee and the phone number listed in the report, Detective Glasgow

researched the number in two places: on Facebook, where he entered the number in

the “Find Friends” function and learned it was associated with a user profile that

appeared to belong to McGee, and in the law enforcement database, which turned

up an earlier police report, dated March 3, 2017, from a prior interaction between

McGee and law enforcement.

Detective Glasgow applied for a warrant to obtain phone records from

Ayson’s cell provider. Specifically, the warrant application sought subscriber

information, device identifying information, usage information, GPS (global

positioning system) data, connection logs and records, the physical addresses of

cellular towers to which the phone had connected, and stored information such as 4 State v. McGee, No. 102134-8

voicemail and text messages. In the same warrant application, police sought records

for the phone number associated with McGee. This warrant application relied

heavily on the evidence from Deputy Hawley’s illegal stop to establish probable

cause: specifically, that he pulled over McGee while McGee was driving a silver

Chrysler Sebring with tinted windows—which roughly fit the description the 911

caller gave—and, most critically, that McGee and Ayson each told Deputy Hawley

that they knew the other in the context of a drug dealing relationship. From McGee’s

phone records, police hoped to discover McGee’s whereabouts at the time the 911

caller reported hearing gunshots, and to possibly establish his motive for the murder

“considering that Ayson had pointed the finger at McGee as the drug dealer.”

Clerk’s Papers (CP) at 361-66. This warrant issued on July 13, 2017.

Records from McGee’s phone obtained with the July 13 warrant showed two

calls received from Ayson’s phone on June 4: one at 3:20 PM and another at 3:43 PM.

During the second call, both phones connected to the same cell tower, which police

believed meant that McGee and Ayson were near each other. This was the last call

showing on Ayson’s phone until June 8, 2017, when the records showed several

missed calls. It was also the last call in McGee’s phone records prior to the time the

911 caller reported hearing shots fired. After that, McGee’s phone placed and

received several calls that connected to cell towers covering the general area where

5 State v. McGee, No. 102134-8

Ayson’s body was later discovered. Police also noticed a clustering of activity (37

calls) in McGee’s phone records within 108 minutes of the “shots fired” 911 call.

The remainder of the investigation relied heavily on this evidence obtained

from the June 3 stop and the July 13 warrant. Police used the evidence to obtain

additional warrants for provider records of phone numbers dialed from or received

by McGee’s phone around the time gunfire was reported and to search McGee’s cell

phone, his ex-girlfriend’s apartment, the Chrysler Sebring, and a Cadillac Seville

associated with McGee. The evidence was also used in warrant applications for

searches of a phone belonging to McGee’s ex-girlfriend that was seized from her

apartment and of another vehicle associated with McGee (a white 1997 Geo Prizm),

and to obtain additional provider records associated with McGee’s phone.

On August 1, 2017, police arrested McGee on probable cause for murder and

on a warrant for VUCSA stemming from the June 3, 2017 arrest. They did not

immediately tell McGee he was a suspect in a homicide investigation in addition to

being arrested on a drug charge. During the ride to the station, McGee stated that he

had not called Deputy Hawley back about their CI agreement because the person he

was intending to provide information about had been murdered. During a

subsequent interview, McGee admitted to speaking with Ayson on June 4, 2017, but

denied meeting him in person that day. When confronted with the cell site location

data police had obtained from his wireless provider, McGee fell silent and invoked 6 State v. McGee, No. 102134-8

his right to counsel. The State filed both VUCSA and murder charges against

McGee on August 4, 2017.

Before trial, McGee moved to suppress physical evidence as well as his

statements, challenging the lawfulness of the June 3 stop. The trial court ruled that

Deputy Hawley lacked reasonable suspicion to stop McGee and that the resulting

arrest and seizure of drugs from his person was illegal. The State did not challenge

this ruling and agreed that suppression would defeat the VUCSA charge, which the

court dismissed before trial. However, the State asked the court to clarify whether

the facts and circumstances culminating in McGee’s later arrest would be admissible

to establish McGee’s motive to kill Ayson. The trial court ruled that the State could

mention McGee and Ayson’s “drug dealing relationship” in its opening statement

and explain its theory that McGee had killed Ayson because he suspected Ayson

was a “snitch.” 6 Verbatim Rep. of Proc. (July 31, 2019) at 578-80. The court also

granted the State’s motion to introduce evidence of the June 3 stop and McGee’s

statements to Hawley—but not of the drugs seized as a result—to substantiate its

argument as to McGee’s motive.

At the end of a 10-day trial, the jury could not arrive at a unanimous verdict,

and on August 21, 2019, the court declared a mistrial.

7 State v. McGee, No. 102134-8

A second trial commenced in early 2021. Before this trial, McGee moved to

suppress evidence obtained pursuant to the July 13, July 28, August 1, and August 3

warrants. McGee relied on the exclusionary rule under our state constitution and

claimed the application for the July 13 warrant used evidence obtained from the

illegal June 3 stop—McGee’s identity, phone number, connection to the silver

Chrysler Sebring, and drug dealing relationship with Ayson. Without this evidence,

McGee argued, the July 13 warrant application failed to establish probable cause to

obtain his phone records or the positioning data gleaned from those records. He

emphasized that the June 3 stop was the tainted source of his cell phone number,

central to this warrant application. Because the application, after backing out the

tainted evidence, failed to demonstrate probable cause, McGee argued all records

obtained from the warrant should be suppressed. And because later warrants built

on the evidence obtained from the July 13 warrant, McGee argued all evidence

obtained from those warrants should likewise be suppressed.

In an oral ruling, the trial court denied McGee’s motion to suppress, finding

that suppression of the drug evidence and dismissal of the VUCSA charge remedied

any violation of his privacy. The court reasoned that several pieces of evidence in

the July 13 warrant application were, by virtue of attenuation or an independent

source, not tainted by the illegal stop on June 3, and held that this evidence was

independently sufficient to establish probable cause to search McGee’s phone

8 State v. McGee, No. 102134-8

records. Specifically, the judge ruled that the police report from March 2017

provided an independent, untainted source from which police had learned McGee’s

phone number, and that the discovery of Ayson’s body and his cell phone—plus the

data mined from that phone, including a call to the phone number associated with

McGee around the time gunfire was reported—was the result of investigative efforts

entirely unrelated to the June 3 arrest. Further, the court noted that Ayson’s

girlfriend had told police about Ayson and McGee’s relationship and supplied an

independent source of information supporting the State’s theory of motive.

On April 24, 2021, the jury returned a guilty verdict on the charge of second-

degree murder. The court sentenced McGee to 298 months, plus a 60-month firearm

enhancement.

McGee appealed, arguing, inter alia, that the July 13 warrant relied on

evidence that should have been suppressed as fruit of the poisonous tree and that the

trial court misapplied our state’s attenuation doctrine. The Court of Appeals agreed,

holding the June 3 discovery of McGee’s name, his phone number, his stated reasons

for associating with Ayson, and his possession of drugs and drug paraphernalia

should all have been suppressed. State v. McGee, 26 Wn. App. 2d 849, 530 P.3d

211 (2023). And because each subsequent search warrant relied on this evidence to

establish probable cause, the court held it was necessary to suppress the evidence

uncovered from those warrants, as well as the statements McGee made to police 9 State v. McGee, No. 102134-8

following his August 1, 2017 arrest. Accordingly, the Court of Appeals reversed

McGee’s conviction and remanded for a new trial. We granted the State’s petition

for review.

ANALYSIS

Individuals enjoy a fundamental right under both the United States

Constitution and our Washington State Constitution to be free from unlawful

searches and seizures. See U.S. CONST. amend. IV; WASH. CONST. art. I, § 7. But

we know unlawful searches and arrests happen notwithstanding the protections

called out in our founding documents, raising the question of how individuals may

vindicate their rights in the wake of violations, and when, if ever, illegally obtained

evidence may be used against them. The exclusionary rule developed through case

law provides a partial answer to these questions.

In Weeks v. United States, 232 U.S. 383, 393, 34 S. Ct. 341, 58 L. Ed. 652

(1914), the United States Supreme Court reasoned that if the state could keep and

use illegally seized evidence—private letters, in that case—against a citizen accused

of an offense, the protection of the Fourth Amendment “[would be] of no value, and

. . . might as well be stricken from the Constitution.” Thus, as a general rule, an

individual’s privacy rights are vindicated by excluding from court proceedings any

evidence obtained in violation of those rights. While the remedy must be

meaningful, both the United States Supreme Court, interpreting the Fourth 10 State v. McGee, No. 102134-8

Amendment, and this court, interpreting article I, section 7, have recognized

instances where the suppression of evidence is unwarranted despite the presence of

a privacy violation and have crafted limited exceptions. As will be explained, we

recognize fewer exceptions under article I, section 7 than can be found in Fourth

Amendment jurisprudence; and for attenuation—an exception recognized under

both federal and Washington law—we have construed our exception more narrowly.

Article I, section 7 of the Washington State Constitution dictates that “[n]o

person shall be disturbed in his private affairs, or his home invaded, without

authority of law.” We have long recognized this provision is more protective of

individual privacy than the Fourth Amendment to the United States Constitution,

and textual and historical differences have led this court to recognize article I, section

7 demands a less compromising exclusionary rule than its federal counterpart. See

Mayfield, 192 Wn.2d at 883-89 (mapping the divergence of federal and state

jurisprudence in the application of their respective exclusionary rules). Specifically,

the federal exclusionary rule allows for the use of illegally obtained evidence where

the prejudice of excluding ill-gotten evidence outweighs the deterrent effect

exclusion would have on future police misconduct. In contrast, our state

exclusionary rule is primarily concerned with remedying privacy violations

irrespective of any deterrent value. See id. As such, “[o]ur state exclusionary rule

requires the suppression of evidence obtained in violation of article I, section 7, with

11 State v. McGee, No. 102134-8

no exceptions that rely on speculation, the likelihood of deterrence, or the

reasonableness of official misconduct.” Id. at 888. See generally Justice Charles

W. Johnson & Justice Debra L. Stephens, Survey of Washington Search and Seizure

Law: 2019 Update, 42 SEATTLE UNIV. L. REV. 1277, 1455 (2019) (explaining that

federal exclusionary rule focuses on deterring improper police conduct while

Washington’s rule focuses on protecting privacy).

Recognizing this distinction, our court has rejected any “good faith exception”

as well as the speculative notion of “inevitable discovery.” See State v. Afana, 169

Wn.2d 169, 179-84, 233 P.3d 879 (2010) (rejecting the good faith exception);

Winterstein, 167 Wn.2d at 631-36 (rejecting the inevitable discovery doctrine). To

date, we have formally recognized only two exceptions to our state exclusionary

rule: the independent source doctrine and the attenuation doctrine. State v. Gaines,

154 Wn.2d 711, 116 P.3d 993 (2005) (recognizing the independent source

exception); Mayfield, 192 Wn.2d 871 (recognizing the attenuation doctrine, albeit in

a narrower form than the federal rule). We have previously described the

independent source doctrine as follows: “evidence tainted by unlawful governmental

action is not subject to suppression under the exclusionary rule, provided that it

ultimately is obtained pursuant to a valid warrant or other lawful means independent

of the unlawful action.” Gaines, 154 Wn.2d at 718. The fact that some knowledge

probative of the defendant’s guilt was obtained illegally does not render that

12 State v. McGee, No. 102134-8

underlying fact “sacred and inaccessible.” Silverthorne Lumber Co. v. United States,

251 U.S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319 (1920). Applying this rule in Gaines,

we upheld the seizure of an assault rifle and other incriminating evidence from the

trunk of a defendant’s car despite police having previously seen the rifle during an

unlawful search of the trunk and including this fact in their warrant application. We

reached this conclusion upon finding the affidavit in support of the warrant contained

enough evidence obtained independent of the illegal search to give rise to probable

cause. Stated differently, the warrant application was sufficient even after “backing

out” the tainted evidence.

The attenuation doctrine operates differently. This doctrine reflects a

compromise of sorts, recognizing that even where an illegal search or seizure plays

some causal role in the discovery of evidence—meaning it was not derived in a

manner strictly independent of the illegality—the connection between the illegality

and the discovery of the evidence may be “so attenuated as to dissipate the taint.”

Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939);

Mayfield, 192 Wn.2d 871. Stated in terms of causation analysis, while misconduct

may be a “but for” cause of the discovery of evidence, it may not be a proximate

cause. Mayfield, 192 Wn.2d at 882 (“[t]he underlying purpose of the attenuation

doctrine is to prevent the exclusionary rule from operating on a ‘but for’ basis”). In

this case, the State relies solely on the attenuation doctrine, having abandoned the

13 State v. McGee, No. 102134-8

independent source rationale articulated in the trial court’s ruling. See Pet. for Rev.

at 3.

Our state’s attenuation doctrine is narrowly construed consistent with the

strong privacy protections in article I, section 7. Whereas federal courts “‘attempt[]

to mark the point at which the detrimental consequences of illegal police action

become so attenuated that the deterrent effect of the exclusionary rule no longer

justifies its cost,’” we require the State to prove a superseding cause truly severed

the chain of causation. Mayfield, 192 Wn.2d at 892-93 (quoting Brown v. Illinois,

422 U.S. 590, 609, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring

in part)). In defining “superseding cause,” we have imported the meaning given to

that phrase in tort law—an “unforeseeable intervening circumstance[] [that]

genuinely sever[s] the chain of causation between official misconduct and the

discovery of evidence,” giving law enforcement a new, legal basis upon which to

conduct their search or seizure. Id.

The question presented here concerns how to apply this test in the wake of a

new, independent criminal act. The State asks us to hold that the attenuating or

superseding event may occur after the discovery of the evidence, so that it relates to

the use of the evidence in a warrant application as part of a new investigation.

McGee and amicus argue allowing such use would encourage illegal searches and

would disproportionately harm BIPOC (Black, Indigenous, People of Color) 14 State v. McGee, No. 102134-8

individuals, who experience police searches and seizures at disproportionately

higher rates than white individuals compared to their relative shares of the

population. Br. of Amici Curiae WACDL (Wash. Ass’n of Crim. Def. Lawyers) et

al. as Amici Curiae at 10-16 (Br. of Amici); Chong Yim v. City of Seattle, 63 F.4th

783, 788 (9th Cir. 2023), cert. denied, 144 S. Ct. 693 (2024)

We agree with the Court of Appeals that the State’s argument is inconsistent

with our attenuation doctrine and poses too great a risk to individual privacy.

1. The Court of Appeals correctly applied Washington’s attenuation doctrine to require that the superseding event occur between the governmental misconduct and the discovery of the evidence to be used

A superseding cause dissipates the taint of unlawfully seized evidence and

may take the form of an independent act of free will by someone other than law

enforcement, including by the defendant. See State v. Rousseau, 40 Wn.2d 92, 95-

96, 241 P.2d 447 (1952) (holding that defendant pushing an officer into the path of

an oncoming car after being illegally detained gave the officer a new legal basis to

arrest the defendant and conduct a search), overruled on other ground by State v.

Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997); State v. Childress, 35 Wn. App. 314,

317, 666 P.2d 941 (1983) (concluding victim’s testimony of sexual involvement

with the defendant was sufficiently attenuated from the illegal search when it was

obtained through “an act of free will, not coerced by police exploitation of . . .

15 State v. McGee, No. 102134-8

illegally seized evidence”). But see Mayfield, 192 Wn.2d 871 (finding no

attenuation where the defendant’s consent to search his truck during an illegal

seizure was entirely foreseeable and not an independent act of free will); Wong Sun

v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (finding

it “unreasonable to infer” that defendant’s confession made after officers broke into

his bedroom was “sufficiently an act of free will to purge the primary taint of the

unlawful [arrest]”).

The State argues the superseding event need only occur “between unlawful

police conduct and the prosecution’s use of tainted information.” Suppl. Br. of Pet’r

at 4. Building upon Mayfield’s language analogizing to tort law, the State claims the

“injury” the exclusionary rule seeks to remedy is not the unconstitutional act of

obtaining evidence but its use in an investigation. See id. at 8-9. The State reasons

that the discovery of evidence is not integral to attenuation in tort, which instead

turns on “whether an intervening act broke ‘the causal connection between the

defendant’s negligence and the plaintiff’s injury.’” Id. (quoting Schooley v. Pinch’s

Deli Mkt., Inc., 134 Wn.2d 468, 482, 951 P.2d 749 (1998)). Tracing the link between

the tortious act and resulting injury, the State argues Detective Hawley’s illegal stop

was analogous to a tortious act and the “injury . . . could probably be defined several

ways but includes the arrest and charging of McGee for Ayson’s murder.” Id. at 9.

Under this tort law formulation, the attenuating event could happen at any point

16 State v. McGee, No. 102134-8

following the illegal detention, so long as it occurred before the fruits of the illegal

detention were used to arrest and charge McGee.

The Court of Appeals properly rejected this argument. It interpreted Mayfield

consistent with the general understanding of the attenuation doctrine as requiring the

curative event to occur between the misconduct and the discovery of evidence to be

used. McGee, 26 Wn. App. 2d at 860 (“Mayfield is clear, however, that there must

be a superseding cause severing the causal connection ‘between’ the official

misconduct and ‘the discovery’ of the evidence.”). The Court of Appeals aptly

observed that the State’s argument is not actually rooted in the attenuation doctrine

but, instead, relies on inevitable discovery, a doctrine this court has expressly

disavowed. Id. at 861-62 (“The State’s argument amounts to an inevitable discovery

argument, because, through Ayson’s phone records and other evidence, ‘the police

would have discovered’ McGee’s identity and connection to Ayson

‘notwithstanding the violation of [McGee’s] constitutional rights’ in the June 3

stop.” (alteration in original) (quoting Winterstein, 167 Wn.2d at 634)).

Mayfield is instructive. There, we recognized that our attenuation doctrine is

narrow and requires an unforeseeable intervening event that breaks the causal chain

between the police misconduct and the discovery of evidence to be admitted, such

that the evidence is deemed the “fruit” of the superseding cause and not of the

illegality. Attenuation does not allow for speculation about what would have been 17 State v. McGee, No. 102134-8

discovered. Moreover, we have been quite clear that our state exclusionary rule is

incompatible with any exception that would allow the State to benefit from illegally

obtained evidence. Mayfield, 192 Wn.2d at 894. The expanded exception the State

asks us to recognize would allow it to use illegally obtained evidence so long as the

reason to use it was unforeseeable at the time of seizure and developed only after

police discovered the relevance of the illegally obtained evidence to an unrelated,

serious crime. This extension of the attenuation doctrine is incompatible with our

analysis in Mayfield, which properly focuses on the individual privacy violation, not

the State’s reason for the violation. As amici point out, relaxing our exclusionary

rule to allow the later use of tainted evidence for a new reason erodes privacy rights

and could potentially “encourage police to stop-and-frisk suspects in high volumes,

with the goal of generating information in the police database to be used in further

investigations of serious crimes.” Br. of Amici at 6. While we do not suggest this

is the State’s intent or goal here, we must consistently interpret our exclusionary rule

to focus on safeguarding privacy rights as the paramount concern.

2. We reject the State’s invitation to recenter deterrence in our attenuation analysis

The State acknowledges its argument fails under “a literal reading of

Mayfield’s statement that any superseding event must sever ‘the causal connection

‘between’ the official misconduct and ‘the discovery’ of the evidence.’” Suppl. Br.

18 State v. McGee, No. 102134-8

of Pet’r at 7-8 (boldface omitted) (quoting Mayfield, 192 Wn.2d at 895-96).

To avoid this result, the State asks us to confine Mayfield to more “typical”

attenuation fact patterns, where the superseding event occurred before police

discovered the evidence to be admitted, and to consider whether “‘logic,

common sense, justice, policy, and precedent’” compel a different result in the

“atypical” scenario in this case. Id. at 11 (quoting Schooley, 134 Wn.2d at 479).

The State also invites us to place the deterrence of police misconduct at the

center of our attenuation analysis. In support of this new approach, the State

offers examples of foreign cases where the attenuation doctrine was applied to

the fruits of illegal searches and seizures that were used in the investigation

and prosecution of later, unrelated crimes. See People v. McInnis, 6 Cal. 3d

821, 494 P.2d 690 (1972); People v. Marquez, 31 Cal. App. 5th 402, 242 Cal.

Rptr. 3d 530 (2019); State v. Booker, 212 Ariz. 502, 135 P.3d 57 (Ct. App.

2006); United States v. Turk, 526 F.2d 654 (5th Cir. 1976). We find the

state’s reliance on these cases misplaced.

To be sure, we have recognized multiple values supported by our

exclusionary rule, including deterrence. In State v. Bonds, we said the

exclusionary rule should be applied to achieve three objectives: [F]irst, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means. 19 State v. McGee, No. 102134-8

98 Wn.2d 1, 12, 653 P.2d 1024 (1982) (citing State v. White, 97 Wn.2d 92, 109-10,

640 P.2d 1061 (1982)). But we disagree with the State “that suppression in this case

would serve no deterrent purpose whatsoever.” Suppl. Br. of Pet’r at 11. We believe

this conclusion fails to account for the broader implications of the State’s argument,

as recognized by amici. While it may be true that law enforcement committed no

misconduct in need of deterrence by simply recognizing new relevance to the

evidence about McGee obtained in Detective Hawley’s illegal stop, that is not the

full arc of police conduct to be considered. A rule that would generally allow the

use of illegally obtained evidence when the defendant commits a later crime to which

that evidence is relevant potentially incentivizes gathering such evidence and

keeping it on hand. See Br. of Amici at 9-10. Stated differently, it fails to deter

downstream privacy violations.

The implications of the State’s proposed approach rightly give us pause. The

negative impact of allowing such a practice inevitably falls disproportionately on

BIPOC individuals, who are stopped, questioned, and searched at far higher rates

than non-Hispanic white persons compared to their relative shares of the population.

Id. at 11-12; see also State v. Sum, 199 Wn.2d 627, 644, 511 P.3d 92 (2022) (“When

it comes to police encounters without reasonable suspicion, ‘it is no secret that

people of color are disproportionate victims of this type of scrutiny.’” (quoting Utah

20 State v. McGee, No. 102134-8

v. Strieff, 579 U.S. 232, 254, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016) (Sotomayor,

J., dissenting))).

The foreign cases the State relies on do not support expanding our attenuation

doctrine by focusing on deterrence as a central rationale. Rather, they are consistent

with maintaining our primary focus on individual privacy rights and with our

existing exceptions to the exclusionary rule. In McInnis, police identified the

defendant as the perpetrator of a liquor store robbery by showing a witness a booking

photo of the defendant from an illegal detention a month prior. 6 Cal. 3d at 823.

The court admitted the witness’s identification and the Court of Appeals affirmed

the conviction, explaining that “[t]o hold that all such pictures resulting from illegal

arrests are inadmissible forever . . . would not merely permit the criminal ‘to go free

because the constable has blundered’ but would . . . in effect be giving [the

defendant] a crime insurance policy . . . .” Id. at 826 (citation omitted) (quoting

People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926)). This result is consistent

with the exclusionary rule under article I, section 7. While the photograph would

not be admissible, the witness’s identification could be considered an independent

act of free will and thus admissible.

The situation in McInnis is similar to that in Childress, 35 Wn. App 314.

There, California police had illegally searched the defendant’s apartment, obtaining

a photograph of two nude girls and a check with an Everett address. 35 Wn. App. 21 State v. McGee, No. 102134-8

at 315. California police sent the evidence to Everett police, who canvassed the

neighborhood around the address on the check. Id. This led them to find one of the

girls in the photo, and when her parents vaguely asked her if she had been keeping

any secrets from them, she voluntarily admitted to having sexual relations with the

defendant. Id. at 315-16. Although the illegally obtained photo and check were

instrumental to the State obtaining the girl’s testimony, the Court of Appeals

recognized her voluntary identification of the defendant was sufficiently

independent of the police misconduct. Id. at 316-17.

The State also relies on the California appellate court’s holding in Marquez,

but that case does not support the State’s call for an expanded attenuation doctrine.

There, police had unlawfully detained the defendant in 2006 and entered his DNA

in a police database. 31 Cal. App. 5th at 405. The defendant’s DNA later connected

him to a robbery committed in 2008, and when police confronted him about it, he

agreed to provide another DNA sample. Id. The trial court refused to exclude DNA

evidence and the Court of Appeals affirmed, noting that Marquez had been arrested

three times between 2006 and 2008 and ordered to submit to DNA testing on each

occasion (although it seems those orders went unfulfilled). Id. at 413. Further, he

was on felony probation, the terms of which required him to submit to DNA testing,

at the time he consented to the 2008 DNA swab. Id. at 407. The Court of Appeals

22 State v. McGee, No. 102134-8

found these intervening circumstances sufficient to attenuate any taint of the illegal

2006 DNA evidence.

This result aligns with our holding on the independent source doctrine in State

v. Betancourth, though not precisely with our attenuation doctrine. 190 Wn.2d 357,

413 P.3d 566 (2018). There, we held that the issuance of a second, valid warrant for

phone records provided an independent, lawful basis to use the records already in

police possession. We said it would be senseless to require police to return and

reseize the evidence already seized during an initial, unlawful search and that the

evidence should instead be treated as having been “seized” under the second warrant.

Id. at 364. Importantly, the records at issue in Betancourth, like Marquez’s DNA,

had not changed since police initially obtained them. 2

In sum, the State does not persuasively show a need to reevaluate our

exclusionary rule and elevate the value of deterrence in our attenuation analysis. As

we have emphasized before, our exclusionary rule is “nearly categorical,”

2 The consistency between these cases and our exclusionary rule answers the State’s complaint that disallowing the evidence from the June 3 stop “would effectively immunize McGee from prosecution in perpetuity even though Detective Hawley’s error occurred before the murder was even committed.” Suppl. Br. of Pet’r at 19. We disagree with the State that refusing to extend the attenuation doctrine to these circumstances risks making any knowledge gained from an initial illegality “ ‘sacred and inaccessible.’ ” Id. (quoting Silverthorne Lumber, 251 U.S. at 392). Attenuation may apply based on superseding events, and there is also a critical distinction between knowledge and illegally obtained evidence. Nothing in our precedent suggests police must blind themselves to known facts or the inferences drawn from them in order to conduct further investigation following an article I, section, 7 violation. What the State seeks here—and what our attenuation doctrine disallows—is the direct use of the tainted evidence in a warrant application. 23 State v. McGee, No. 102134-8

Winterstein, 167 Wn.2d at 636, and we presume that where a privacy violation has

occurred, the remedy must follow.

Here, police undisputedly violated McGee’s privacy without authority of law

and gained valuable evidence that was recorded in the June 3 police report. The

value of this evidence to a murder investigation was not apparent until later, when

different officers—themselves blameless for the manner in which the evidence was

obtained and apparently unaware they were relying on tainted evidence—parlayed

the evidence from the June 3 report into a series of progressively intrusive search

warrants. Our attenuation doctrine focuses on remedying the constitutional harm

flowing from this use of illegally obtained evidence, regardless of whether we can

impute the misconduct of one officer to others who had no role in the illegality or

whether they knew the evidence was tainted.

The fact remains that police relied directly on the fruits of the illegal arrest to

obtain further warrants, thereby benefiting from the violation of McGee’s privacy

rights. The State does not demonstrate any superseding event that produced new

evidence used in the warrant application, only a new reason to make the illegally

obtained evidence useful. Recognizing the strong privacy protections granted in

article I, section 7, we will not extend our narrow attenuation doctrine to such

circumstances.

24 State v. McGee, No. 102134-8

CONCLUSION

The underlying purpose of the attenuation doctrine is to prevent the

exclusionary rule from operating on an artificial “but for” basis that potentially

excludes lawfully obtained evidence. Mayfield, 192 Wn.2d at 882. At the same

time, a broadly defined attenuation exception could allow the State to benefit from

the fruits of illegal conduct and encroach on individual privacy. Id. To prevent the

kind of slippage observed in federal attenuation case law, which has eroded the

exclusionary rule’s protection over time, this court in Mayfield limited attenuation

to cases where “an unforeseeable intervening act genuinely severs the causal

connection between official misconduct and the discovery of evidence.” Id. at 898.

That test is not met here, as the State cannot point to a superseding event that broke

the causal chain between McGee’s illegal detention and the discovery of evidence

relied on in the subsequent search warrant applications. We decline the State’s

invitation to expand our attenuation doctrine based on new reasons to use illegally

obtained evidence.

We affirm the Court of Appeals and remand to the trial court for further

proceedings consistent with this opinion.

25 State v. McGee, No. 102134-8

___________________________

WE CONCUR:

___________________________ ____________________________

____________________________ ____________________________

26 State v. McGee (Malcolm Otha)

No. 102134-8

MADSEN, J. (dissenting)—I write separately to express my concern regarding the

broad implications of the majority’s unprecedented expansion of the exclusionary rule

and specifically its application in this case. Our application of the exclusionary rule, may

have “‘substantial social costs,’ which sometimes include setting the guilty free and the

dangerous at large.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed.

2d 56 (2006) (citation omitted) (quoting United States v. Leon, 468 U.S. 897, 907, 104 S.

Ct. 3405, 82 L. Ed. 2d 677 (1984)). While we value protecting individual privacy, we

should not use our protective rule to unduly obstruct police investigations and impede

“the truth-finding functions of judge and jury.” United States v. Payner, 447 U.S. 727,

734, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980).

“The purpose of our state exclusionary rule is to protect individual privacy rights,

not to permanently immunize suspects from investigation and prosecution.” State v.

Mayfield, 192 Wn.2d 871, 896, 434 P.3d 58 (2019) (emphasis added). For the

exclusionary rule to apply, we have held that “there must be some proximate causal

connection between the misconduct and the evidence.” Id. at 889. To avoid application No. 102134-8 Madsen, J., dissenting

of the rule using the attenuation doctrine, the causal connection must be “so attenuated as

to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L.

Ed. 307 (1939). “We need not hold that all evidence is ‘fruit of the poisonous tree’

simply because it would not have come to light but for the illegal actions of the police.”

Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)

(emphasis added). As the majority notes, the exclusionary rule does not apply on a “but

for” basis. Majority at 13; State v. Eserjose, 171 Wn.2d 907, 922, 259 P.3d 172 (2011)

(applying the exclusionary rule on a “but for” basis would “make it virtually impossible

to rehabilitate an investigation once misconduct has occurred, granting suspected

criminals a permanent immunity unless . . . other law enforcement officers initiate an

independent investigation”). Thus, we look for any unforeseen intervening circumstances

that sever the chain of causation “‘between the defendant’s negligence and the plaintiff’s

injury.’” Mayfield, 192 Wn.2d at 892 (quoting Washburn v. City of Federal Way, 178

Wn.2d 732, 761, 310 P.3d 1275 (2013)).

Unforeseeable circumstances that often break the chain of causation include later

criminal acts. Washburn, 178 Wn.2d at 761. Here, it was unforeseeable that Malcolm

McGee would commit a later, separate criminal act of murder. The causal connection

between the unconstitutional June 3 stop and the cellular phone evidence obtained by the

search warrants was broken by Keith Ayson’s murder that occurred five weeks after the

unconstitutional stop. Further, this is not a case of continuing course of conduct. In my

view, the exclusionary rule should generally be applied only to evidence in the case in

2 No. 102134-8 Madsen, J., dissenting

which the unlawful search was conducted, here the violation of the Uniform Controlled

Substances Act (VUCSA), ch. 69.50 RCW, charge, which was directly related to the

unconstitutional stop.

I believe the majority errs in applying the exclusionary rule to a separate case

involving a murder investigation that occurred over a month after the initial stop that was

related to McGee’s suspected drug transaction. These are two completely distinct crimes

committed independently, each with different investigating officers, and could have been

tried separately. The State is not seeking to use the evidence obtained against McGee for

the VUCSA charge, which was dismissed after the June 3 stop was deemed

unconstitutional and the drug evidence was suppressed. This case is distinguishable from

cases where the exclusionary rule is applied within the context of a single proceeding.

Although we have emphasized that the Washington exclusionary rule is more

protective than its federal counterpart, Washington’s exclusionary rule is born out of the

federal exclusionary rule. We have emphasized that our state rule’s purpose is to protect

individual privacy, but once we have determined that a search was unconstitutional under

our state constitution, we have not applied the rule itself differently from the federal

exclusionary rule, which is not typically applied to exclude evidence in separate

proceedings unless the unlawfully obtained evidence is causally connected to the

subsequent proceedings. “Despite its broad deterrent purpose, the exclusionary rule has

never been interpreted to proscribe the use of illegally seized evidence in all proceedings

or against all persons. As with any remedial device, the application of the rule has been

3 No. 102134-8 Madsen, J., dissenting

restricted to those areas where its remedial objectives are thought most efficaciously

served.” United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561

(1974). Here, our objective is to remedy McGee’s privacy violation. This has been

accomplished by suppressing the drug evidence and dismissing his VUCSA charge.

There is no clear demonstration of how the evidence obtained as a result of the

unconstitutional stop for the purpose of supporting a VUCSA charge was used to

facilitate the discovery of new evidence in the subsequently committed crime here, which

is murder.

In both Wong Sun and Mayfield, the government was seeking to use evidence that

had been suppressed in the same trial. That is not the case here, where we have two

separate cases that were simply joined for convenience. The case relating to the drug

possession was dismissed and only the murder case remains. Applying the exclusionary

rule to a separate case that has only a tangential relationship to the earlier drug related

case is akin to sealing relevant facts and court records. The trial court was correct to

suppress evidence of any drugs found and any discussion between McGee and the

detective about the drugs. However, the fact of McGee’s arrest and detention, the

entering into a confidential informant agreement, and who was present at the time of the

arrest are facts that should not be excluded; and these are facts relevant to the murder

investigation, rather than evidence of McGee’s initial drug related case, which was

properly dismissed.

4 No. 102134-8 Madsen, J., dissenting

A factually similar case coming out of Arizona is State v. Booker, 212 Ariz. 502,

135 P.3d 57 (Ct. App. 2006). In Booker, the police illegally searched a defendant’s house

and found cannabis paraphernalia: a bong. Id. at 503. The trial court ruled that the bong

was admissible as evidence of motive in a subsequent trial for aggravated assault and

unrelated to the illegal possession of the bong. Id. The Booker court stated that the

assault case did not involve charges related to drug possession and that “[s]uch ancillary

application of the exclusionary rule is an extension of the rule’s protections beyond its

primary use.” Id. at 505. Although the court analyzed the facts under the Fourth

Amendment to the United States Constitution and focused on the deterrent purposes of

the exclusionary rule, it looked at the overarching connection between the drug offenses

and the aggravating assault, finding no such connection in the record. Id. at 507. Here,

no proximate cause connects the misconduct to the evidence. The officers could not have

possibly known that McGee would later shoot Ayson. Moreover, the evidence of motive

would not exist but for the subsequent independent crime occurring. As the trial court

found, there was no unconstitutional taint to the later discovered evidence of motive. 1

1 Although the State relies on the attenuation doctrine here to attempt to uphold the warrant application, an appellate court may affirm a trial court’s ruling “on any grounds the record and the law support.” State v. Grier, 168 Wn. App. 635, 644, 278 P.3d 225 (2012). “[T]he inclusion of illegally obtained information in a warrant affidavit does not render the warrant per se invalid, provided that the affidavit contains facts independent of the illegally obtained information sufficient to give rise to probable cause.” State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). Here, the trial judge found sufficient untainted information in the warrant application to support a finding of probable cause. When Ayson’s body was found along with his cell phone, the data mined from the phone showed McGee’s cell phone number as a recent contact at around the time the gunfire was reported. The number associated with McGee was obtained in the June 3 police report, but also in a separate police report from months prior. Therefore, there was 5 No. 102134-8 Madsen, J., dissenting

In Mayfield, this court noted that the primary purpose of Washington’s

exclusionary rule is to protect the individual right to privacy and to provide a certain

remedy when the right is violated. 192 Wn.2d at 882. In this case, McGee suffered a

violation of his right to privacy when he was stopped for the suspected drug transaction.

McGee obtained the relief guaranteed under our state constitution when the evidence of

his drug possession was excluded and the VUCSA charge was dismissed. Mayfield

recognized that our state constitution confers broad privacy protections, but the case also

noted that our exclusionary rule is not designed to permanently immunize suspects from

investigation. Id. at 896. Thus, certain facts should be allowed as evidence of motive in

a subsequent, unrelated criminal trial and any concerns regarding the jury improperly

weighing the evidence can be remedied using a limiting instruction.

Moreover, I fail to see how allowing police to use evidence in later committed

crimes will incentivize police misconduct on the off chance that a suspect may commit a

future crime for which the police could potentially use the evidence. The police officers

in this case were acting in good faith when they applied for a warrant relying on

information from a report in their database, which the officers were not aware was based

on an unconstitutional stop. It is reasonable to expect law enforcement officers to respect

an independent source for tying McGee to the cell phone number. A Facebook search also tied McGee to the number. Further, as the majority notes, there is a critical distinction between knowledge and evidence. Majority at 23 n.2. Knowledge may be obtained from an illegal detention, such as an officer becoming aware that Ayson and McGee interacted with each other in a public location about a month before the murder. This may lead officers to make a reasonable inference that McGee may be a potential suspect to further investigate combined with the cell data and timing. 6 No. 102134-8 Madsen, J., dissenting

a suspect’s constitutional right to privacy; it is unreasonable to expect officers to be

aware and keep track of all court rulings in suppression hearings and the outcomes of all

potentially relevant criminal cases. Under the majority’s rule, officers applying for

warrants must now check court records before relying on any prior police reports,

assuming that the police report resulted in a criminal charge, and further assuming the

charge resulted in a prosecution and an evidentiary ruling. While beneficial in theory,

this is an unreasonable expectation in practice.

With these considerations in mind, I respectfully dissent.