exclusionary rule in Washington

2024In 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)).

2024In 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)).

2026Even where the misconduct was a “but-for” cause of the discovery of the evidence, the evidence “ ‘is not subject to suppression under the exclusionary rule, provided that it ultimately is obtained pursuant to . . . other lawful means independent of the unlawful action.’ ” Mayfield, 192 Wn.2d at 889 (quoting State v. Gaines, 154 Wn.2d 711, 718 , 116 P.3d 993 (2005)). 3 However, even if the admission of the call with Samantha was erroneous, any error would be harmless 2 Emphasis added. 3 See also State v. Betancourth, 190 Wn.2d 357, 373 , 413 P.3d 566 (2018) (finding evidence obtained pursuant t

2026Under the exclusionary rule, evidence obtained during an illegal search must be suppressed. 14 State v. Gaines, 154 Wn.2d 711, 716-17 , 116 P.3d 993 (2005).

2019This exception is based on the view that if evidence would have been discovered regardless of official misconduct, "then the deterrence rationale *69 has so little basis that the evidence should be received." Nix, 467 U.S. at 444 , 104 S.Ct. 2501 . ¶ 33 We rejected that view, again reiterating that a primarily deterrence-based rationale for the exclusionary rule "is at odds with the plain language of article I, section 7, which we have emphasized guarantees privacy rights with no express limitations." Winterstein, 167 Wash.2d at 635 , 220 P.3d 1226 .

2019Federal courts recognize the good faith exception because "[t]o *888 trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. 135 , 144, 129 S.Ct. 695 , 172 L.Ed.2d 496 (2009). ¶ 35 Again, we reaffirmed that "[u]nlike its federal counterpart, Washington's exclusionary rule is 'nearly categorical.' " Afana, 169 Wash.2d at 180 , 233 P.3d 879 (quoting Winterstein, 167 Wash.2d at 636 , 220 P.3d 1226 ).

2020The State acknowledges the warrantless search of Benton’s apartment was based solely on generalized suspicion and was, therefore, unconstitutional. 5 No. 78688-1-1/6 “The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.” State v. Duncan, 146 Wn.2d 166, 176 , 43 P.3d 513 (2002).

2010See Garvin, 166 Wn.2d at 254 . “ ‘The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.’ ” Id. (quoting State v. Duncan, 146 Wn.2d 166, 176 , 43 P.3d 513 (2002)); see also Wong Sun v. United States, 371 U.S. 471 , 83 S. Ct. 407 , 9 L.

2020The State acknowledges the warrantless search of Benton’s apartment was based solely on generalized suspicion and was, therefore, unconstitutional. 5 No. 78688-1-1/6 “The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.” State v. Duncan, 146 Wn.2d 166, 176 , 43 P.3d 513 (2002).

2010See Garvin, 166 Wn.2d at 254 . “ ‘The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.’ ” Id. (quoting State v. Duncan, 146 Wn.2d 166, 176 , 43 P.3d 513 (2002)); see also Wong Sun v. United States, 371 U.S. 471 , 83 S. Ct. 407 , 9 L.

2019Garvin, 166 Wn.2d at 3 Because we find the trial court erred by excluding the evidence, we do not reach the State’s argument that, even if the search was improper, Ketchum may not benefit from the exclusionary rule. 4 Ketchum argues that the State failed to assign error to any findings of facts, and therefore, they are all verities on appeal.

2013App. at 174 (citing State v. Garvin. 166 Wn.2d 242, 249 , 207 P.3d 1266 (2009)). -5- No. 69035-3-1 / 6 recognized as an independent basis for a warrantless search."13 The exclusionary rule prohibits the State from presenting evidence seized during an illegal search in its case in chief.14 For consent to be valid, a person must consent freely and voluntarily.15 If the defendant challenges the free and voluntary character of the consent, the State must show by clear and convincing evidence that the person consented freely and voluntarily, not as a result of duress or coercion.16 Clear and convin

2025The exclusionary rule extends to “verbal evidence” derived “immediately from an unlawful entry and an unauthorized arrest.” Wong Sun v. United States, 371 U.S. 471, 485-86 , 83 S. Ct. 407 , 9 L.

2025The exclusionary rule extends to “verbal evidence” derived “immediately from an unlawful entry and an unauthorized arrest.” Wong Sun v. United States, 371 U.S. 471, 485-86 , 83 S. Ct. 407 , 9 L.

2019Federal courts recognize the good faith exception because "[t]o *888 trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. 135 , 144, 129 S.Ct. 695 , 172 L.Ed.2d 496 (2009). ¶ 35 Again, we reaffirmed that "[u]nlike its federal counterpart, Washington's exclusionary rule is 'nearly categorical.' " Afana, 169 Wash.2d at 180 , 233 P.3d 879 (quoting Winterstein, 167 Wash.2d at 636 , 220 P.3d 1226 ).

2018Afana, 169 Wash.2d at 180 , 233 P.3d 879 . ¶ 21 In contrast, because the paramount concern of our state's exclusionary rule is protecting an individual's right of privacy, we have explicitly declined to adopt a good faith or reasonableness exception to the exclusionary rule under article I, section 7.

2021Evidence seized during an illegal search may be suppressed under the exclusionary rule as “fruit of the poisonous tree.” State v. Ladson, 138 Wn.2d 343, 359 , 979 P.2d 833 (1999).

2011Our strict exclusionary rule "saves article 1, section 7 from becoming a meaningless promise." *267 Ladson, 138 Wash.2d at 359 , 979 P.2d 833 (citation omitted). ¶ 72 For example, our Supreme Court has recognized the independent source doctrine as a valid exception to the exclusionary rule but rejected the inevitable discovery doctrine.

2026“Despite the broad application of our exclusionary rule, we have long recognized that the exclusionary rule applies only to the so-called ‘fruit of the poisonous tree,’ that is, evidence obtained as a direct or indirect result of an article I, section 7 violation.” State v. Mayfield, 192 Wn.2d 871, 888-89 , 434 P.3d 58 (2019).

2026“Despite the broad application of our exclusionary rule, we have long recognized that the exclusionary rule applies only to the so-called ‘fruit of the poisonous tree,’ that is, evidence obtained as a direct or indirect result of an article I, section 7 violation.” State v. Mayfield, 192 Wn.2d 871, 888-89 , 434 P.3d 58 (2019).

2023But the inevitable discovery exception to the exclusionary rule is inconsistent with article 1, section 7 because it “is necessarily speculative and does not disregard illegally obtained evidence.” Id.

2019This exception is based on the view that if evidence would have been discovered regardless of official misconduct, "then the deterrence rationale *69 has so little basis that the evidence should be received." Nix, 467 U.S. at 444 , 104 S.Ct. 2501 . ¶ 33 We rejected that view, again reiterating that a primarily deterrence-based rationale for the exclusionary rule "is at odds with the plain language of article I, section 7, which we have emphasized guarantees privacy rights with no express limitations." Winterstein, 167 Wash.2d at 635 , 220 P.3d 1226 .

2024In 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)).

2024In 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)).

2022“Even if the entry or arrest by law enforcement officers was unlawful, the exclusionary rule does not foreclose admission of evidence of the assaults where the officers are identified as such, are performing official duties in good faith, and there was no exploitation of any constitutional violation.” State v. Mierz, 127 Wn.2d 460, 475 , 901 P.2d 286 (1995).4 Rather, the exclusionary rule extends only to the fruits of the unlawful search or seizure resulting from the illegal actions of the police.

2022“Even if the entry or arrest by law enforcement officers was unlawful, the exclusionary rule does not foreclose admission of evidence of the assaults where the officers are identified as such, are performing official duties in good faith, and there was no exploitation of any constitutional violation.” State v. Mierz, 127 Wn.2d 460, 475 , 901 P.2d 286 (1995).4 Rather, the exclusionary rule extends only to the fruits of the unlawful search or seizure resulting from the illegal actions of the police.

2021Evidence seized during an illegal search may be suppressed under the exclusionary rule as “fruit of the poisonous tree.” State v. Ladson, 138 Wn.2d 343, 359 , 979 P.2d 833 (1999).

2011Our strict exclusionary rule "saves article 1, section 7 from becoming a meaningless promise." *267 Ladson, 138 Wash.2d at 359 , 979 P.2d 833 (citation omitted). ¶ 72 For example, our Supreme Court has recognized the independent source doctrine as a valid exception to the exclusionary rule but rejected the inevitable discovery doctrine.

2011Compare Hudson v. Michigan, 547 U.S. 586, 603 , 126 S.Ct. 2159 , 165 L.Ed.2d 56 (2006) ("the causal link between a violation of the knock-and-announce requirement and a later search is too attenuated to allow suppression" (Kennedy, J., concurring)), with State v. Coyle, 95 Wash.2d 1, 14 , 621 P.2d 1256 (1980) (stating that suppression is the proper remedy for violations of Washington's knock-and-wait rule), and State v. Richards, 136 Wash.2d 361 , 962 P.2d 118 (1998). [8] E.g., State v. O'Bremski, 70 Wash.2d 425, 428 , 423 P.2d 530 (1967) ("We have consistently adhered to the exclusionary rule

2011Compare Hudson v. Michigan, 547 U.S. 586, 603 , 126 S.Ct. 2159 , 165 L.Ed.2d 56 (2006) ("the causal link between a violation of the knock-and-announce requirement and a later search is too attenuated to allow suppression" (Kennedy, J., concurring)), with State v. Coyle, 95 Wash.2d 1, 14 , 621 P.2d 1256 (1980) (stating that suppression is the proper remedy for violations of Washington's knock-and-wait rule), and State v. Richards, 136 Wash.2d 361 , 962 P.2d 118 (1998). [8] E.g., State v. O'Bremski, 70 Wash.2d 425, 428 , 423 P.2d 530 (1967) ("We have consistently adhered to the exclusionary rule

2010The United States Supreme Court has adopted such an exception to the exclusionary rule for evidence seized in violation of the Fourth Amendment. 5 See United States v. Leon, 468 U.S. 897 , 104 S. Ct. 3405 , 82 L.

2010The United States Supreme Court has adopted such an exception to the exclusionary rule for evidence seized in violation of the Fourth Amendment. 5 See United States v. Leon, 468 U.S. 897 , 104 S. Ct. 3405 , 82 L.

2019Federal courts recognize the good faith exception because "[t]o *888 trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. 135 , 144, 129 S.Ct. 695 , 172 L.Ed.2d 496 (2009). ¶ 35 Again, we reaffirmed that "[u]nlike its federal counterpart, Washington's exclusionary rule is 'nearly categorical.' " Afana, 169 Wash.2d at 180 , 233 P.3d 879 (quoting Winterstein, 167 Wash.2d at 636 , 220 P.3d 1226 ).

2019We also firmly rejected the State's "attempt[ ] to shift the reasonableness test built into the determination of probable cause to the question of whether the exclusionary rule is the appropriate remedy for a violation of a person's right of privacy under article I, section 7." Id. at 183, 233 P.3d 879 .

2011The Court concluded that evidence obtained through an independent source is not subject to the exclusionary rule because the "`exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.'" Murray, 487 U.S. at 537 , 108 S.Ct. 2529 (quoting Nix v. Williams, 467 U.S. 431, 443 , 104 S.Ct. 2501, 2509 , 81 L.Ed.2d 377 (1984)). [T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a

2011The Court concluded that evidence obtained through an independent source is not subject to the exclusionary rule because the "`exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.'" Murray, 487 U.S. at 537 , 108 S.Ct. 2529 (quoting Nix v. Williams, 467 U.S. 431, 443 , 104 S.Ct. 2501, 2509 , 81 L.Ed.2d 377 (1984)). [T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a

2000The court concluded “that the evidence of Mierz’s assaultive behavior was properly admitted regardless of any alleged Fourth Amendment violation[.]” Id. at 473. “[A]n assault against police officers following an illegal entry is outside the scope of the exclusionary rule, because it is sufficiently distinguishable from any initial police illegality ‘to be purged of the primary taint[.]’ ” Id. at 473-74 (citing State v. Aydelotte, 35 Wn.

2000Excluding evidence would allow one whose constitutional rights were violated to “ ‘respond with unlimited force and, under the exclusionary rule, ... be effectively immunized from criminal responsibility.’ ” Id. at 474 (quoting Aydelotte, 35 Wn.

2013Washington also has repeatedly rejected a "but ~ f J I ! ~. 7Washington first applied the exclusionary rule in State v. Gibbons, 118 Wash. ~ f 171, 203 P. 390 (1922).

2011Pitler, The Origin and Development of Washington's Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L.Rev. 459, 466 n. 36 (1986)); State v. Gibbons, 118 Wash. 171 , 203 P. 390 (1922) (first adoption of an exclusionary rule in Washington State).

2009Moreover, subsequently in Boland , we emphasized that Bonds was the exceptional case, and the general rule is that “violation of a constitutional immunity automatically implies exclusion of the evidence seized.” Boland, 115 Wn.2d at 582 ; see also White, 97 Wn.2d at 110 (noting that “whenever the right is unreasonably violated, the remedy must follow”). ¶28 In Coates and Gaines , we applied the independent source doctrine as an exception to the exclusionary rule.

2009Moreover, subsequently in Boland , we emphasized that Bonds was the exceptional case, and the general rule is that "violation of a constitutional immunity automatically implies exclusion of the evidence seized." Boland, 115 Wash.2d at 582 , 800 P.2d 1112 ; see also White, 97 Wash.2d at 110 , 640 P.2d 1061 (noting that "whenever the right is unreasonably violated, the remedy must follow"). ¶ 28 In Coates and Gaines , we applied the independent source doctrine as an exception to the exclusionary rule.

2009Moreover, unlike most home buying consumers, these Buyers may have initially agreed to this allocation of risk in exchange for putting down such small deposits—$5,000 each, with the rest of their 5 percent or 10 percent down payments paid by commissions due right before or at closing. ¶ 20 Furthermore, as this court noted in American Nursery, 115 Wash.2d at 225 , 797 P.2d 477 , the "perhaps misguided judgment" on the part of one party does not make an exclusionary clause unconscionable.

2009Moreover, unlike most home buying consumers, these Buyers may have initially agreed to this allocation of risk in exchange for putting down such small deposits— $5,000 each, with the rest of their 5 percent or 10 percent down payments paid by commissions due right before or at closing. ¶21 Furthermore, as this court noted in American Nursery, 115 Wn.2d at 225 , the “perhaps misguided judgment” on the part of one party does not make an exclusionary clause unconscionable.

2026Even where the misconduct was a “but-for” cause of the discovery of the evidence, the evidence “ ‘is not subject to suppression under the exclusionary rule, provided that it ultimately is obtained pursuant to . . . other lawful means independent of the unlawful action.’ ” Mayfield, 192 Wn.2d at 889 (quoting State v. Gaines, 154 Wn.2d 711, 718 , 116 P.3d 993 (2005)). 3 However, even if the admission of the call with Samantha was erroneous, any error would be harmless 2 Emphasis added. 3 See also State v. Betancourth, 190 Wn.2d 357, 373 , 413 P.3d 566 (2018) (finding evidence obtained pursuant t

2026Under the exclusionary rule, evidence obtained during an illegal search must be suppressed. 14 State v. Gaines, 154 Wn.2d 711, 716-17 , 116 P.3d 993 (2005).

2019This was so because when we first adopted the exclusionary rule, the federal rule was broadly protective, holding "in no uncertain language, that it is beneath the dignity of the state, and contrary to public policy, for the state to use for its own profit evidence that has been obtained in violation of law." Buckley , 145 Wash, at 89, 258 P. 1030 (citing Boyd, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 ; *886 Weeks, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 ; Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920) ; Gouled v. United States, 255 U.S. 298 , 4

2019This was so because when we first adopted the exclusionary rule, the federal rule was broadly protective, holding "in no uncertain language, that it is beneath the dignity of the state, and contrary to public policy, for the state to use for its own profit evidence that has been obtained in violation of law." Buckley , 145 Wash, at 89, 258 P. 1030 (citing Boyd, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 ; *886 Weeks, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 ; Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920) ; Gouled v. United States, 255 U.S. 298 , 4

2010There, the State asked us to find an “inevitable discovery” exception to the exclusionary rule under article I, section 7 as we had the independent source exception in State v. Coates, 107 Wn.2d 882 , 735 P.2d 64 (1987) and Gaines, 154 Wn.2d 711 .

2010There, the State asked us to find an “inevitable discovery” exception to the exclusionary rule under article I, section 7 as we had the independent source exception in State v. Coates, 107 Wn.2d 882 , 735 P.2d 64 (1987) and Gaines, 154 Wn.2d 711 .

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 Wash.2d 1, 7 , 123 P.3d 832 (2005) (citing State v. Ladson, 138 Wash.2d 343, 350 , 979 P.2d 833 (1999)), unlike the more easily satisfied reasonableness standard of the federal exclusionary rule.

2010Our Supreme Court has “long declined to create ‘good faith’ exceptions to the exclusionary rule in cases in which warrantless searches were based on a reasonable belief by law enforcement officers that they were acting in conformity with one of the recognized exceptions to the warrant requirement.” State v. Morse, 156 Wn.2d 1, 9-10 , 123 P.3d 832 (2005).