attenuation doctrine in Washington

2025Most recently, in McGee, the Supreme Court favorably cited State v. Childress, 35 Wn. App. 314 , 666 P.2d 941 (1983), and People v. McInnis, 6 Cal. 3d 821 , 494 P.2d 690 , 100 Cal. Rptr. 618 (1972), as cases where an independent act of free will satisfied the attenuation doctrine. 3 Wn.3d at 868, 872-73 .

2025Most recently, in McGee, the Supreme Court favorably cited State v. Childress, 35 Wn. App. 314 , 666 P.2d 941 (1983), and People v. McInnis, 6 Cal. 3d 821 , 494 P.2d 690 , 100 Cal. Rptr. 618 (1972), as cases where an independent act of free will satisfied the attenuation doctrine. 3 Wn.3d at 868, 872-73 .

2011But the State argues that we should not reach either the inevitable discovery rule’s or the “good faith” doctrine’s applicability and, instead, that we should hold the victims’ testimonies were admissible under the attenuation doctrine and independent source rule. ¶20 As an initial matter, Smith argues that the State specifically waived this argument below and, in addition, the State’s failure to raise this argument below precludes our consideration of the issue. 5 We disagree. ¶21 For support, Smith relies on State v. Ibarra-Cisneros, 172 Wn.2d 880, 884-85 , 263 P.3d 591 (2011).

2011But the State argues that we should not reach either the inevitable discovery rule’s or the “good faith” doctrine’s applicability and, instead, that we should hold the victims’ testimonies were admissible under the attenuation doctrine and independent source rule. ¶20 As an initial matter, Smith argues that the State specifically waived this argument below and, in addition, the State’s failure to raise this argument below precludes our consideration of the issue. 5 We disagree. ¶21 For support, Smith relies on State v. Ibarra-Cisneros, 172 Wn.2d 880, 884-85 , 263 P.3d 591 (2011).

2024We 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 ).

2019While the independent source doctrine applies only where the evidence was obtained through a source completely independent *892 of official misconduct, the attenuation doctrine was applied where "[s]ophisticated argument may prove a causal connection between" official misconduct and the discovery of evidence, but the connection was "so attenuated as to dissipate the taint." Id. ¶ 45 Historically, the attenuation doctrine required intervening circumstances that truly severed the chain of causation.

2019"In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of free will to purge the *72 primary taint.' " Brown v. Illinois, 422 U.S. 590 , 602, 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975) (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. 407 ). ¶ 49 The attenuation doctrine thus began as a narrow exception to the exclusionary rule requiring a superseding cause for the discovery of evidence.

2019"In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of free will to purge the *72 primary taint.' " Brown v. Illinois, 422 U.S. 590 , 602, 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975) (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. 407 ). ¶ 49 The attenuation doctrine thus began as a narrow exception to the exclusionary rule requiring a superseding cause for the discovery of evidence.

2011Rather, to ensure that police had not exploited the Fourth Amendment violation, the Court reaffirmed the attenuation analysis of Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963): "In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be `sufficiently an act of free will to purge the primary taint.'" Brown, 422 U.S. at 602 , 95 S.Ct. 2254 (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. 407 ). ¶ 15

2011Ed. 2d 441 (1963): “In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ ” Brown, 422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486 ). ¶15 In Harris , the United States Supreme Court did not engage in the attenuation analysis it employed in Brown , stating that “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘th

2025Id. at 317 .

2013In my view, when the allegedly tainted evidence is the testimony of a person, especially the victim of the crime, we should follow the path set down by the United States Supreme Court in United States v. Ceccolini, 435 U.S. 268, 276 , 98 S. Ct. 1054 , 55 L.

2011Logical Consequences for Washington’s Exclusionary Rule ¶84 Article I, section 7 decrees that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Generally, we have read the phrase “authority of law” to require a warrant, State v. Morse, 156 Wn.2d 1, 7 , 123 P.3d 832 (2005) (citing State v. Ladson, 138 Wn.2d 343, 350 , 979 P.2d 833 (1999)), unlike the more easily satisfied reasonableness standard of the federal exclusionary rule.

2011“When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” Ladson, 138 Wn.2d at 359 .

2019Johnson, J., dissenting), 171 Wash.2d 907 , 259 P.3d 172 (2011). *904 ¶ 76 What these cases teach, and relevant to resolution of the issue here, is where evidence is obtained contemporaneously with the constitutional privacy violation, the attenuation doctrine does not apply and the evidence must be suppressed. ¶ 77 Importantly, we have largely rejected the attenuation doctrine under nearly identical material facts in State v. Rojo Armenta, 134 Wash.2d 1 , 948 P.2d 1280 (1997).

2019Johnson, J., dissenting), 171 Wash.2d 907 , 259 P.3d 172 (2011). *904 ¶ 76 What these cases teach, and relevant to resolution of the issue here, is where evidence is obtained contemporaneously with the constitutional privacy violation, the attenuation doctrine does not apply and the evidence must be suppressed. ¶ 77 Importantly, we have largely rejected the attenuation doctrine under nearly identical material facts in State v. Rojo Armenta, 134 Wash.2d 1 , 948 P.2d 1280 (1997).

2014Super. 217, 224 , 723 A.2d 132 (1999)). 73 id at 405. 23 No. 69357-3-1/24 Washington State Constitution "in the same manner as was the inevitable discovery rule, which was abrogated in State v. Winterstein."74 He states that the issue "is currently before the state supreme court in State v. Smith."75 And he "notes" that in the event the supreme court abrogates the attenuation doctrine and the independent source doctrine, then the search warrants in this case will "collapse." But the supreme court decided State v. Smith in June 2013, and it did not abrogate these doctrines.76 Because Hovander d

2014Super. 217, 224 , 723 A.2d 132 (1999)). 73 id at 405. 23 No. 69357-3-1/24 Washington State Constitution "in the same manner as was the inevitable discovery rule, which was abrogated in State v. Winterstein."74 He states that the issue "is currently before the state supreme court in State v. Smith."75 And he "notes" that in the event the supreme court abrogates the attenuation doctrine and the independent source doctrine, then the search warrants in this case will "collapse." But the supreme court decided State v. Smith in June 2013, and it did not abrogate these doctrines.76 Because Hovander d

2013Heavily relying on a factually similar federal constitutional case, the lead opinion found the attenuation doctrine rehabilitated Eserjose's otherwise-tainted confession. !d. at 917-18 (citing 1 Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L.

2013Heavily relying on a factually similar federal constitutional case, the lead opinion found the attenuation doctrine rehabilitated Eserjose's otherwise-tainted confession. !d. at 917-18 (citing 1 Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L.

2011This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110 , 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835 , 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311 , 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180 ; Winterstein, 167 Wn.2d at 631-32 .

2011This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110 , 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835 , 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311 , 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180 ; Winterstein, 167 Wn.2d at 631-32 .

2011This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110 , 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835 , 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311 , 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180 ; Winterstein, 167 Wn.2d at 631-32 .

2011This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110 , 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835 , 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311 , 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180 ; Winterstein, 167 Wn.2d at 631-32 .

2011This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110 , 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835 , 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311 , 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180 ; Winterstein, 167 Wn.2d at 631-32 .

2011This is because article I, section 7 of the Washington Constitution “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110 , 640 P.2d 1061 (1982), abrogated on other grounds by State v. Potter, 156 Wn.2d 835 , 132 P.3d 1089 (2006) and State v. Brockob, 159 Wn.2d 311 , 150 P.3d 59 (2006); see also Afana, 169 Wn.2d at 180 ; Winterstein, 167 Wn.2d at 631-32 .

2011Ed. 2d 441 (1963): “In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ ” Brown, 422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486 ). ¶15 In Harris , the United States Supreme Court did not engage in the attenuation analysis it employed in Brown , stating that “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘th

2011Ed. 2d 441 (1963): “In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ ” Brown, 422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486 ). ¶15 In Harris , the United States Supreme Court did not engage in the attenuation analysis it employed in Brown , stating that “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘th

2025In Wong Sun, the co- 2 State v. Ferrier, 136 Wn.2d 103 , 960 P.2d 927 (1998). 12 defendant, Wong Sun, was arrested without probable cause in violation of the Fourth Amendment. 371 U.S. at 491 .

2025In Wong Sun, the co- 2 State v. Ferrier, 136 Wn.2d 103 , 960 P.2d 927 (1998). 12 defendant, Wong Sun, was arrested without probable cause in violation of the Fourth Amendment. 371 U.S. at 491 .