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.
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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
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WE CONCUR:
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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.
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7
