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This opinion was filed for record

GMIEFJUSTKE

at a.tM on

SUSAN L. CARLSON

SUPREME cbURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

JOHN DOUGLAS MAYFIBLD,

Petitioner.

No. 95632-4

En Banc

Filed: fEB 0 7 2019

YU, J.—This case concerns an exception to the federal exclusionary rule

known as the attenuation doctrine. The attenuation doctrine provides that evidence

obtained in violation of the Fourth Amendment to the United States Constitution is

not subject to the exclusionary rule if "the connection between unconstitutional

police conduct and the evidence is remote or has been interrupted by some

intervening circumstance." Utah v. Strieff, 579 U.S. , 136 S. Ct. 2056, 2061,

195 L. Ed. 2d 400 (2016). We are asked whether the attenuation doctrine is

compatible with article I, section 7 of the Washington State Constitution and our

state exclusionary rule.
State V. Mayfield, No. 95632-4

We have repeatedly held that our state exclusionary rule is considerably

broader than the federal exclusionary rule. Nevertheless, our exclusionary rule

does not automatically require suppression of all evidence that would not have

been discovered but for a prior violation of article I, section 7. Because our state

exclusionary rule does not operate on a strict "but for" causation basis, it is not

categorically incompatible with the attenuation doctrine. However, to comply with

the heightened protections of article I, section 7, the attenuation doctrine must be

narrow and apply only where intervening circumstances have genuinely severed

the causal connection between official misconduct and the discovery of evidence.

It is clear that there were no intervening circumstances sufficient to satisfy

the attenuation doctrine in this case as a matter of law. We therefore hold that

petitioner John Mayfield's motion to suppress must be granted, and we reverse and

remand to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On January 3, 2015, Derek Salte came home to find an unfamiliar truck

parked in his driveway, with a man (later identified as Mayfield) asleep in the

driver's seat. Salte told Mayfield to leave, threatening to call the police if he did

not. Mayfield started the truck's engine and tried to put it in reverse, but the truck

would not move. Eventually, Mayfield got out of the truck through the passenger
State V. Mayfield, No. 95632-4

door and ran away, leaving the door open with the engine and windshield wipers

still running. Salte called the police, and Deputy Andy Nunes responded.

Deputy Nunes turned off the truck's engine, placed the keys on the driver's

seat, and closed the passenger door. He "did not search for or observe anything

within the truck's passenger compartment." Clerk's Papers (CP) at 19. He then

determined that the truck was registered to Mayfield and had not been reported

stolen. Around this time. Deputy Nunes spotted Mayfield walking on the other

side of the street, and Salte identified him as the person who was in the truck.

Deputy Nunes believed that Mayfield was trying to walk past them without making

contact, which Deputy Nunes thought was odd behavior for the truck's apparent

owner. He therefore crossed the street to talk to Mayfield.

Mayfield initially said he was parked in Salte's driveway because he needed

to use the restroom in the church next door but later said he was there because he

was having vehicle problems. Mayfield explained that he ran away because he

was afraid that Salte was about to assault him. At the suppression hearing. Deputy

Nunes testified that he did not suspect Mayfield of committing any crime, of being

under the influence of alcohol or other drugs, or of being armed or dangerous.

Nevertheless, Deputy Nunes thought the situation seemed strange.

A second officer, Sergeant Corey Huffme, arrived to assist while Deputy

Nunes asked for Mayfield's identification and checked for outstanding warrants.
State V. Mayfield, No. 95632-4

No warrants were discovered, but Deputy Nunes learned that Mayfield "was a

convicted felon, was on active [Department of Corrections] supervision, and had

prior contacts in regards to controlled substances." Id.

Deputy Nunes then asked Mayfield about recent drug use, which Mayfield

denied. Deputy Nunes asked for consent to conduct a pat-down search and told

Mayfield he could refuse. Mayfield consented, and Deputy Nunes found $464 in

cash, bundled in a way that made him suspect "the money was the result of drug

transactions." Id. Deputy Nunes then asked for consent to search the truck,

informing Mayfield he had the right to refuse and the right to limit or revoke his

consent. Mayfield consented. Deputy Nunes discovered methamphetamine in the

truck and arrested Mayfield.

Mayfield was charged with one count of possession of a controlled

substance with intent to deliver. He moved to suppress the money and the

methamphetamine, arguing that Deputy Nunes unlawfully seized him without

reasonable suspicion and that his consent to search was vitiated by the unlawful

detention. The State contended that the attenuation doctrine provided an exception

to the exclusionary rule in this case.

The trial court concluded that Mayfield was unlawfully seized "when

Deputy Nunes began asking questions about [his] drug use, whether he would have

anything illegal on his person, and when he sought permission to conduct a pat-
State V. Mayfield, No. 95632-4

down search." Id. at 20. However, the court denied the motion to suppress,

concluding that the evidence was attenuated from the unlawful seizure because

Deputy Nunes gave Ferrier" warnings before Mayfield consented to the search of

his truck. The court did not separately address the money discovered on

Mayfield's person, and the parties did not ask for clarification on that point. The

jury convicted Mayfield as charged.

On appeal, Mayfield argued that the attenuation doctrine is incompatible

with article I, section 7. In the alternative, he argued that Ferrier warnings alone

are insufficient to satisfy the attenuation doctrine. In a split opinion, the Court of

Appeals declined to reach Mayfield's state constitutional argument because he did

not conduct a GunwalP analysis. State v. Mayfield, No. 48800-1-II, slip op. at 5-7

(Wash. Ct. App. Jan. 4, 2018) (unpublished), http://www.courts.wa.gov/opinions/

pdf/D2%2048800-l-II%20Unpublished%200pinion.pdf. The majority further

held that the federal attenuation doctrine was satisfied "[bjecause Ferrier warnings

were an intervening circumstance and there was not purposeful or flagrant police

' State V. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). Ferrier applies "when police

officers conduct a knock and talk for the purpose of obtaining consent to search a home, and

thereby avoid the necessity of obtaining a warrant." M at 118. To obtain valid consent, police

must "inform the person from whom consent is sought that he or she may lawfully refuse to

consent to the search and that they can revoke, at any time, the consent that they give, and can

limit the scope of the consent to certain areas of the home." Id. Mayfield's case does not require

us to determine whether Ferrier warnings are required where police seek consent to search a car,

rather than a home, and we do not purport to do so.

^ State V. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
State V. Mayfield, No. 95632-4

misconduct." Id. at 10. One judge dissented on the basis that "[a] Gunwall

analysis is not required every time article I, section 7 is applied in a new context."

Id. at 14 (Bjorgen, C.J., dissenting). We granted Mayfield's petition for review.

ISSUES

A. Was Mayfield's argument that the attenuation doctrine is incompatible

with article I, section 7 sufficiently briefed on appeal?

B. If Mayfield's state constitutional argument was sufficiently briefed, is

the attenuation doctrine compatible with article I, section 7?

C. If the attenuation doctrine is compatible with article I, section 7, is it

satisfied in this case?

ANALYSIS

It is well established that article I, section 7 often provides broader

protections than the Fourth Amendment. As such, we reaffirm that no Gunwall

analysis is needed to justify an independent state law analysis of article I, section 7

in new contexts. Mayfield's appellate briefing was therefore sufficient, and his

argument that the attenuation doctrine is incompatible with our state exclusionary

rule should be considered on its merits.

Carefully and narrowly applied, the attenuation doctrine is not categorically

incompatible with article I, section 7. However, we hold as a matter of

independent state law that the attenuation doctrine can apply only where the State
State V. Mayfield, No. 95632-4

proves that the causal chain between official misconduct and the discovery of

evidence has been genuinely severed by intervening circumstances. That standard

is not satisfied here, so Mayfield's motion to suppress must be granted.

A. A Gunwall analysis is not required to justify an independent state law

analysis of article I, section 7 in new contexts

In Gunwall, we set forth six nonexclusive factors to guide the threshold

inquiry of'"whether, in a given situation, the Washington State Constitution

should be considered as extending broader rights to its citizens than the United

States Constitution.'" Blomstrom v. Tripp, 189 Wn.2d 379, 400, 402 P.3d 831

(2017) (quoting Gunwall, 106 Wn.2d at 58). In this case, Mayfield's appellate

briefing did not include a threshold Gunwall analysis. We nevertheless hold that

Mayfield sufficiently briefed his state constitutional claim and that he is entitled to

have that claim considered on its merits.

We recognize that our cases have been somewhat unclear on the need to

conduct a threshold Gunwall analysis. We therefore take this opportunity to

reaffirm that no Gwwwa//analysis is required to justify an independent state

constitutional analysis of article I, section 7 in new contexts.^ Courts and parties

^ We confine our holding to article I, section 7 and do not reach the broader question of

whether a Gunwall analysis is needed to justify an independent state constitutional analysis of

other provisions of the Washington State Constitution.
State V. Mayfield, No. 95632-4

may assume an independent state analysis is justified and move directly to the

merits of the article I, section 7 claim presented.

"It is well established that article I, section 7 qualitatively differs from the

Fourth Amendment and in some areas provides greater protections than does the

federal constitution." State v. Chenoweth, 160 Wn.2d 454, 462, 158 P.3d 595

(2007) (citing State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 (2002)).

Therefore, we have previously held that when a new issue arises pursuant to article

I, section 7, parties and courts are not required to conduct a Gunwall analysis

before engaging in an independent state law analysis on the merits. Id. at 463

{ciiing State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003)). Instead,

"the focus is on whether the unique characteristics of the state

constitutional provision and its prior interpretations actually compel a

particular result." This involves an examination of the constitutional

text, the historical treatment of the interest at stake as reflected in

relevant case law and statutes, and the current implications of

recognizing or not recognizing an interest.

Id. (citation omitted) (quoting City of Seattle v. McCready, 123 Wn.2d 260, 267,

868 P.2d 134 (1994)). This approach is reflected in several of our prior cases that

considered federally recognized exceptions to the exclusionary rule on an

independent state law basis without first conducting a Gunwall analysis. State v.

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

exception); State v. Winterstein, 167 Wn.2d 620, 631-36, 220 P.3d 1226 (2009)

(rejecting the inevitable discovery doctrine); State v. Gaines, 154 Wn.2d 711,717-
State V. Mayfield, No. 95632-4

22, 116 P.3d 993 (2005) (adopting the independent source doctrine). And in our

most recent case to consider whether the attenuation doctrine is compatible with

article I, section 7, both the lead opinion and the dissent addressed the merits

without any Gunwall analysis. State v. Eserjose, 171 Wn.2d 907, 259 P.3d 172

(2011) (plurality opinion).

Mayfield's appellate briefing followed this precedent. He did not conduct a

Gunwall analysis, but he presented argument and cited authorities supporting his

specific claim that the attenuation doctrine is incompatible with article I, section 7

based on the constitutional text, relevant precedent, and the differences in history

and purpose between our state exclusionary rule and the federal exclusionary rule.

The State opposed Mayfield's state constitutional argument on the merits, without

suggesting it was inadequately briefed or procedurally barred."^

However, the Court of Appeals declined to reach the merits, concluding that

Mayfield's appellate briefing was insufficient because he did not conduct a

Gunwall analysis. Mayfield, No. 48800-1-II, slip op. at 5-7; see also State v.

Witkowski, 3 Wn. App. 2d 318, 339-41, 415 P.3d 639 (Sutton, J., concurring),

review denied, 191 Wn.2d 1016 (2018). The majority's analysis implies that

^ In its supplemental brief to this court, the State cites RAP 2.5 and notes that Mayfield

did not raise a state constitutional argument at the trial court level. We nevertheless reach the

merits of Mayfield's state constitutional argument because it is an important, unresolved

question of law and the State did not raise RAP 2.5 until after we granted review.
State V. Mayfield, No. 95632-4

Blomstrom reimposed a Gunwall requirement when applying article I, section 7 in

new contexts. We clarity that it did not.

Blomstrom considered whether article I, section 7 allows random urinalysis

testing to be imposed as a condition of pretrial release for individuals arrested for

alleged driving under the influence. 189 Wn.2d at 383-84. The majority did

conduct an abbreviated Gunwall analysis before turning to the merits. Id. at 401-

02. However, it did not suggest that the failure to do so is fatal to an otherwise

fully argued article I, section 7 claim, nor did it undertake the analysis required to

reverse our precedent holding that Gunwall is unnecessary when applying article I,

section 7 in new contexts. The parties in Blomstrom did not dispute the need for a

Gunwall analysis, so this court did not make any holding on that issue.^

We reaffirm that a Gunwall analysis is not required to justify an independent

analysis of article I, section 7 in new contexts. We also reaffirm that on the merits,

it is not sufficient for parties to simply "mention our state constitution in their

briefs" and note that article I, section 7 is often more protective than the Fourth

Amendment. State v. Rojo Armenta, 134 Wn.2d 1, 10 n.7, 948 P.2d 1280 (1997).

Parties must provide argument and relevant authorities supporting the specific

^ Amicus objected to performing a Gunwall analysis in Blomstrom because, according to

amicus, our precedent held that article I, section 7 is not more protective than the Fourth

Amendment regarding the privacy rights of pretrial defendants. Blomstrom, 189 Wn.2d at 400

n.l7. We conducted a Gunwall analysis over this objection, not because we intended to

reimpose a Gunwall requirement but because amicus misread our precedent. Id.

10
State V. Mayfield, No. 95632-4

outcome they seek in light of "the constitutional text, the historical treatment of the

interest at stake as reflected in relevant case law and statutes, and the current

implications of recognizing or not recognizing an interest." Chenoweth, 160

Wn.2d at 463. Mayfield did so, and we therefore consider his state constitutional

argument on the merits.

B. A narrowly applied attenuation doctrine is not categorically incompatible

with article I, section 7

Article I, section 7 and its corresponding exclusionary rule provide uniquely

heightened privacy protections. Unlike many other jurisdictions, the primary

purpose of Washington's exclusionary rule is not to deter official misconduct

under threat of suppression. Deterrence is a benefit of our state exclusionary rule,

but its primary purpose is to protect the individual right to privacy and to provide a

certain remedy when that right is violated. We have therefore adopted a broad

exclusionary rule and rejected several exceptions recognized by other jurisdictions.

Nevertheless, our precedent recognizes that our exclusionary rule does not operate

on a strict "but for" causation basis. In narrow circumstances, evidence may be

admissible even if the evidence likely would not have been discovered but for a

prior article I, section 7 violation.

The underlying purpose of the attenuation doctrine is to prevent the

exclusionary rule from operating on a "but for" basis, which is consistent with

article I, section 7. However, a broadly applied attenuation doctrine allows the

11
State V. Mayfield, No. 95632-4

State to benefit from the misconduct of its officials by failing to exclude illegally

seized evidence, which is not at all consistent with article I, section 7. This tension

has made it difficult to determine whether the attenuation doctrine applies as a

matter of independent state constitutional law. In our most recent case to consider

the question, three justices would have adopted the attenuation doctrine as applied

by federal courts, four justices would have rejected the attenuation doctrine

entirely, one justice concurred in result only, and one justice would not have

reached the issue.® Eserjose, 171 Wn.2d 907. The applicability of the attenuation

doctrine as a matter of state constitutional law therefore remains an open question.

After examining the history, purpose, and operation of the attenuation

doctrine and our state exclusionary rule, we hold that they are not categorically

incompatible with each other. However, we strongly caution that in order to

comply with article I, section 7, the attenuation doctrine must be carefully and

narrowly applied. The State must prove that intervening circumstances gave rise to

a superseding cause that genuinely severed the causal connection between official

misconduct and the discovery of evidence. If the State fails to meet its burden then

the attenuation doctrine cannot apply, regardless of whether the official misconduct

® Other cases have declined to reach the issue because it was unnecessary, not raised, or

inadequately briefed. State v. Smith, 111 Wn.2d 533, 545 n.4, 303 P.3d 1047 (2013) (plurality

opinion); State v. Ibarra-Cisneros, 172 Wn.2d 880, 885 n.2, 263 P.3d 591 (2011); Armenta, 134

Wn.2d at 10 n.7.

12
State V. Mayfield, No. 95632-4

was flagrant and purposeful, and regardless of whether suppression is likely to

deter similar misconduct in the future.

1. Washington courts apply a broad exclusionary rule based on

independent state law

In order to determine whether and how the attenuation doctrine might apply

to our state exclusionary rule, we must first explore the historical development,

purposes, and scope of the exclusionary rule in Washington. Doing so reveals a

long-standing commitment to an independent exclusionary rule that broadly

protects the right to individual privacy.

The history of our state exclusionary rule starts with the federal exclusionary

rule. The United States Supreme Court first indicated that federal courts should

suppress illegally seized evidence in 1886, referring "to the use of the evidence

there seized as 'unconstitutional.'" Mapp v. Ohio, 367 U.S. 643, 647, 81 S. Ct.

1684, 6 L. Ed. 2d 1081 (1961) (quoting v. United States, 116 U.S. 616, 638, 6

S. Ct. 524, 29 L. Ed. 746 (1886)). The federal exclusionary rule was further made

explicit in the 1914 case of Weeks v. United States, which recognized that

[i]f letters and private documents can thus be [illegally] seized and

held and used in evidence against a citizen accused of an offense, the

protection of the Fourth Amendment declaring his right to be secure

against such searches and seizures is of no value, and, so far as those

thus placed are concerned, might as well be stricken from the

Constitution.

13
State V. Mayfield, No. 95632-4

232 U.S. 383, 393, 34 S. Ct. 341, 58 L. Ed. 652 (1914). Denying a defendant's

motion to suppress illegally seized evidence was thus "a denial of the

constitutional rights of the accused" and could not be permitted. Id. at 398.

The federal exclusionary rule was first held applicable to the states in 1961.

Mapp, 367 U.S. at 660. Washington, however, adopted an independent state

exclusionary rule almost 40 years earlier, in 1922. State v. Gibbons, 118 Wash.

171, 189, 203 P. 390 (1922). The facts presented in Gibbons well illustrated the

need for an exclusionary rule to protect individual rights. A county sheriff

suspected the defendant possessed liquor, which was illegal at the time. The

sheriff telephoned for a search warrant but, instead of waiting for a warrant to be

issued, ordered the defendant to drive to the sheriffs office at gunpoint. On arrival

at the sheriffs office, the sheriff removed a suitcase from the defendant's car and

found several bottles of whiskey inside.

Easily concluding that the sheriffs actions were unconstitutional, we

considered whether the whiskey could nevertheless be used as evidence in the

defendant's trial for felony unlawful possession of intoxicating liquor. We held it

could not because regardless of whether the federal exclusionary rule applied to the

states, the Washington State Constitution's protections against unlawful searches

and compelled self-incrimination required an exclusionary rule at least as robust as

the federal rule. Id. at 184 (quoting WASH. CONST, art. I, §§ 7, 9).

14
State V. Mayfield, No. 95632-4

Washington was in the minority of states when it adopted the exclusionary

rule, as most states followed English common law and refused to suppress any

relevant evidence, even if it was illegally obtained. State v. Buckley, 145 Wash.

87, 89, 258 P. 1030 (1927). Our minority position was subject to significant

criticism. A prominent commentator asserted that states that had adopted the

exclusionary rule were infected with a '"contagion of sentimentality'" resulting

from the "'heretical influence of Weeks v. United States State v. Rousseau, 40

Wn.2d 92, 98, 241 P.2d 447 (1952) (Finley, J., concurring in result) (quoting 8

John Henry Wigmore, Evidence in Trials at Common Law § 2184, at 31 (3d

ed. 1940)). There were calls from within this court to either abandon the

exclusionary rule or make "some reasonable modification or exception" on the

basis that "it often and unreasonably may obstruct prosecution and confer

immunity upon undeserving law violators." Id. at 99. However, this court

consistently reaffirmed that "[i]t is the duty of courts to protect citizens from

unwarranted, arbitrary, illegal arrests by officers of the law," and there could be

"no doubt that the exclusionary doctrine of the Weeks case ... is the law of this

Jurisdiction." State v. Young, 39 Wn.2d 910, 917, 239 P.2d 858 (1952); State v.

Smith, 50 Wn.2d 408, 409, 314 P.2d 1024 (1957) (italics omitted).

Our exclusionary rule thus has its basis in independent state law.

Nevertheless, for many years our state exclusionary rule was similar in scope to the

15
State V, Mayfield, No. 95632-4

federal exclusionary rule. Sanford E. Pitler, Comment, The Origin and

Development of Washington's Independent Exclusionary Rule: Constitutional

Right and Constitutionally Compelled Remedy, 61 WASH. L. Rev. 459, 486-87

(1986). This 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 (citing 5c»y<7, 116 U.S. 616; Weeks, 232 U.S. 383; 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, 41 S. Ct. 261, 65 L. Ed. 647 (1921); Amos

V. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654 (1921); Agnello v.

United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925)). Because the federal

exclusionary rule was so broad, there was no need for Washington to

independently define the contours of its own exclusionary rule. Pitler, supra, at

487.

However, the federal exclusionary rule is no longer the broad doctrine it

once was. Over time, federal courts have increasingly limited the exclusionary

rule by narrowly focusing on the federal rule's purpose of deterring Fourth

Amendment violations. This narrow focus has allowed for exceptions to the

federal exclusionary rule in cases where suppression appears unlikely to deter

16
State V. Mayfield, No. 95632-4

official misconduct in the future. Washington has repeatedly rejected calls to

similarly narrow our own exclusionary rule.

Our first clear departure from federal law occurred when we held that the

exclusionary rule applies to evidence discovered in a search incident to an arrest

based on an unconstitutional stop-and-identify statute. State v. White, 97 Wn.2d

92, 109-10, 640 P.2d 1061 (1982).^ The United States Supreme Court had recently

reached the opposite conclusion, holding that "[n]o conceivable purpose of

deterrence would be served by suppressing evidence" in such a case. Michigan v.

DeFillippo, 443 U.S. 31, 38 n.3, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). We held

that such a result "is justifiable only if one accepts the basic premise that the

exclusionary rule is merely a remedial measure for Fourth Amendment violations."

White, 97 Wn.2d at 109. We squarely rejected that premise as applied to article I,

section 7 and reiterated that for our state exclusionary rule, "the emphasis is on

protecting personal rights rather than on curbing governmental actions." Id. at 110.

Suppression is an integral component of the right to privacy itself, and "whenever

the right is unreasonably violated, the remedy must follow." Id.

^ We have since clarified that Whitens holding applies only to an arrest made pursuant to a

statute that is '"so grossly and flagrantly unconstitutional by virtue of a prior dispositive judicial

holding that it may not serve as the basis of a valid arrest.'" State v. Brockob, 159 Wn.2d 311,

341 n.l9, 150 P.3d 59 (2006) (internal quotation marks omitted) (quoting White, 97 Wn.2d at

103). However, we have consistently adhered to White's reasoning when considering whether to

recognize a new exception to our state exclusionary rule. Afana, 169 Wn.2d at 180; Winterstein,

167 Wn.2d at 631-34.

17
State V. Mayfield, No. 95632-4

We similarly declined to adopt the federal inevitable discovery doctrine,

which "allows admission of illegally obtained evidence if the State can 'establish

by a preponderance of the evidence that the information ultimately or inevitably

would have been discovered by lawful means.'" Winterstein, 167 Wn.2d at 634

(quoting Mx v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377

(1984)). This exception is based on the view that if evidence would have been

discovered regardless of official misconduct, "then the deterrence rationale has so

little basis that the evidence should be received." Nix, 467 U.S. at 444.

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 Wn.2d at 635. Therefore, "balancing of interests

should not be carried out when evidence is obtained in violation of a defendant's

constitutional rights." Id. at 632. We concluded that the inevitable discovery

doctrine carmot be compatible with article I, section 7 because "the inevitable

discovery doctrine is necessarily speculative and does not disregard illegally

obtained evidence." Id. at 634.

We also rejected the good faith exception, which provides that evidence will

not be suppressed "when a search or seizure was unconstitutional but the police

officer's belief that it was constitutional was objectively reasonable at the time."

18
State V. Mayfield, No. 95632-4

Afana, 169 Wn.2d at 180. Federal courts recognize the good faith exception

because "[t]o 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).

Again, we reaffirmed that "[ujnlike its federal counterpart, Washington's

exclusionary rule is 'nearly categorical.'" Afana, 169 Wn.2d at 180 (quoting

Winterstein, 167 Wn.2d at 636). "In contrast to the Fourth Amendment, article I,

section 7 emphasizes 'protecting personal rights rather than . . . curbing

governmental actions.'" Id. (alteration in original) (quoting White, 97 Wn.2d at

110). Therefore, our state exclusionary rule does not allow any exception that

"does not disregard illegally obtained evidence." /<i. at 181. We 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. If evidence is illegally obtained then it must be suppressed,

regardless of an officer's reasonable belief that his or her actions were lawful.

Thus, as our state law has developed independently over time, we have been

extremely cautious about recognizing exceptions to the exclusionary rule, ensuring

"'that the right of privacy shall not be diminished by the judicial gloss of a

19
State V. Mayfield, No. 95632-4

selectively applied exclusionary remedy.'" Winterstein, 167 Wn.2d at 632

(quoting White, 97 Wn.2d at 110). Our state exclusionary rule requires the

suppression of evidence obtained in violation of article I, section 7, with no

exceptions that rely on speculation, the likelihood of deterrence, or the

reasonableness of official misconduct.

2. Washington's exclusionary rule does not operate on a strict "but for"

causation basis

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. Rothenberger, 73 Wn.2d 596, 600, 440 P.2d 184

(1968). We have also recognized that determining whether evidence actually is

"fruit of the poisonous tree" cannot always be resolved by simply asking whether

the evidence would have been discovered but for the official misconduct. For the

exclusionary rule to apply, there must be some proximate causal connection

between the misconduct and the evidence.

The need for a proximate causal connection is reflected in our cases

applying the independent source doctrine, the only federally recognized exception

to the exclusionary rule that we have expressly adopted. The independent source

doctrine provides that "evidence tainted by unlawful governmental action is not

subject to suppression under the exclusionary rule, provided that it ultimately is

20
State V. Mayfield, No. 95632-4

obtained pursuant to a valid warrant or other lawful means independent of the

unlawful action." Gaines, 154 Wn.2d at 718. This exception applies only where

"the challenged evidence was discovered through a source independent from the

initial illegality." State v. Betancourth, 190 Wn.2d 357, 365, 413 P.3d 566 (2018).

The independent source doctrine is compatible with article I, section 7 because

where it applies, the State derives no benefit from the misconduct of its officers.

Winterstein, 167 Wn.2d at 634.

Some cases applying the independent source doctrine have held that even

though official misconduct was arguably a "but for" cause of the discovery of

evidence, the evidence was nevertheless admissible. For instance, in

Rothenberger, the defendant was a passenger in a car that was allegedly unlawfully

stopped by police. 73 Wn.2d at 597. The driver did not have a license, but

Rothenberger did, so police allowed him to drive the car away. Id. Police later

discovered an active warrant for Rothenberger's arrest on felony charges and

transmitted that information to other officers, who ultimately stopped the car and

arrested Rothenberger on the active felony warrant. Id. at 597-98. Rothenberger

moved to suppress the evidence discovered following his arrest, arguing "that the

officer who caused the information to be transmitted to the arresting officers,

would not have acquired the information as to Rothenberger's identity had he not

unlawfully stopped the Rothenberger car." Id. at 598.

21
State V. Mayfield, No. 95632-4

We rejected this argument as "indescribably silly," noting that the active

arrest warrant was an "independent source" and police "not only had the right but

the duty to pursue Rothenberger and arrest him." Id. at 598-99. It was true that,

but for the unlawful stop, police likely would not have arrested Rothenberger at the

time they did because they would not have known where he was. However, the

evidence discovered after his arrest was admissible because it was not "fruit of the

poisonous tree" but, instead, the result of a lawful arrest pursuant to a valid warrant

that provided the authority of law required by article I, section 7. Id. at 600.

Likewise, we recently held that evidence originally obtained pursuant to a

defective warrant was admissible because a second, valid warrant was issued for

the same evidence. Betancourth, 190 Wn.2d at 373. Arguably, the original

defective warrant was a distant "but for" cause of discovering the evidence because

the State did not seek the second warrant until it discovered the defect in the first

one. Id. at 360-61. However the evidence itself was untainted because the second,

valid warrant was a truly independent source. "[T]he illegal search [pursuant to

the defective warrant] in no way contributed to the issuance of the [valid] warrant

and police would have sought the wan-ant even absent the initial illegality." Id. at

365. Therefore, the State derived no benefit from the defective first warrant, and

the evidence was admissible.

22
State V. Mayfield, No. 95632-4

Our exclusionary rule cases thus make clear two basic principles of

Washington law. First, our state exclusionary rule broadly protects the individual

right to privacy and admits no exception that allows the State to benefit from

violations of article I, section 7 by its officers, regardless of the officers' good faith

or the likelihood that suppression will deter similar misconduct in the future.

Second, our state exclusionary rule applies only to "fruit of the poisonous tree" and

therefore does not operate on a strict "but for" causation basis. There must be

some proximate causal connection between official misconduct and the discovery

of evidence for the exclusionary rule to apply.

In the context of the attenuation doctrine, these two principles stand in

tension with each other. On the one hand, a narrow attenuation doctrine could

appropriately prevent our state exclusionary rule from operating on a "but for"

basis. On the other hand, a broadly applied attenuation doctrine could improperly

allow illegally obtained evidence to be admitted based on factors including the

likelihood of deterrence and the purpose and flagrancy of official misconduct. And

as discussed below, the federal attenuation doctrine has broadened significantly

over time, making it difficult to determine whether and how to incorporate the

attenuation doctrine into our independent state law.

23
State V. Mayfield, No. 95632-4

3. The federal attenuation doctrine has grown from a narrow exception

requiring a superseding cause to a broad exception focused on

deterrence

The attenuation doctrine was developed to address "the causal relationship

between the unconstitutional act and the discovery of evidence." Strieff, 136 S. Ct.

at 2061. At its inception, the attenuation doctrine ensured that "facts improperly

obtained do not 'become sacred and inaccessible. If knowledge of them is gained

from an independent source they may be proved like any others.'" Nardone v.

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

Silverthorne Lumber Co., 251 U.S. at 392). While the independent source doctrine

applies only where the evidence was obtained through a source completely

independent 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.

Historically, the attenuation doctrine required intervening circumstances that

truly severed the chain of causation. "The notion of such a disrupting event comes

from the tort law doctrine of proximate causation." Strieff, 136 S. Ct. at 2072

(Kagan, J., dissenting). In tort law, "[ujnforeseeable intervening acts break the

chain of causation between 'the defendant's negligence and the plaintiffs injury.'"

Washburn v. City ofFederal Way, 178 Wn.2d 732, 761, 310 P.3d 1275 (2013)

24
State V. Mayfield, No. 95632-4

(quoting Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 482, 951 P.2d 749

(1998)). This is generally known as "the doctrine of superseding cause."

Schooley, 134 Wn.2d at 482.

The attenuation doctrine originally served the same function in the context

of the exclusionary rule that the superseding cause doctrine serves in the context of

tort law. Where unforeseeable intervening circumstances genuinely severed the

chain of causation between official misconduct and the discovery of evidence, the

intervening circumstances operated as a superseding cause. In such a case, the

official misconduct was not a proximate cause of discovering the evidence, so the

evidence was not "fruit of the poisonous tree." It was the "fruit" of the

superseding cause. See Strieff, 136 S. Ct. at 2072-73 (Kagan, J., dissenting).

Therefore, the attenuation doctrine applied, and the evidence could be admitted.

This historical version of the attenuation doctrine was most likely to be

satisfied where the intervening circumstances at issue were unforeseeable acts of

independent free will. For instance, in the seminal case of Wong Sun, the

defendant was arrested without probable cause in violation of the Fourth

Amendment. Wong Sun v. United States, 371 U.S. 471, 491, 83 S. Ct. 407, 9

L. Ed. 2d 441 (1963). He had been "released on his own recognizance after a

lawful arraignment, and had returned voluntarily several days later" to make a

confession. Id. In concluding that the confession was admissible, the Wong Sun

25
State V. Mayfield, No. 95632-4

Court recognized that not 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."

Id. at 488.

Therefore, instead of applying a strict "but for" causation standard, the

question was whether the evidence was obtained '"by exploitation of that illegality

or instead by means sufficiently distinguishable to be purged of the primary taint.'"

Id. (quoting JOHN MacArthur Maguire, Evidence of Guilt: Restrictions

UPON Its Discovery or Compulsory Disclosure 221 (1959)). The defendant's

voluntary decision to return to the police and give his confession may not have

occurred but for his unlawful arrest. Nevertheless, the defendant's decision was an

intervening circumstance that truly severed the chain of causation. "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 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).

The attenuation doctrine thus began as a narrow exception to the

exclusionary rule requiring a superseding cause for the discovery of evidence.

However, as federal courts have increasingly focused on the exclusionary rule's

deterrent purpose, they have adopted new exceptions and expanded existing ones.

26
State V. Mayfield, No. 95632-4

including the attenuation doctrine. The attenuation doctrine as applied by federal

courts no longer asks only whether there was a superseding cause. Instead, "[t]he

notion of the 'dissipation of the taint' attempts 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." Id. at 609

(Powell, J., concurring in part).

As such, intervening circumstances are now sufficient to satisfy the federal

attenuation doctrine if official misconduct is not the sole proximate cause of

discovering evidence, even if the misconduct is still one of several proximate

causes. This is illustrated by a recent decision of the United States Supreme Court

holding that where an officer unlawfully seizes a person without reasonable

suspicion, demands the person's identification, discovers an outstanding arrest

warrant for an unpaid parking ticket, and discovers evidence in a search incident to

arrest on that warrant, the federal attenuation doctrine is satisfied. Strieff 136

S. Ct. at 2062-63. As Justice Sotomayor pointed out in dissent, "This case allows

the police to stop you on the street, demand your identification, and check it for

outstanding traffic warrants—even if you are doing nothing wrong." Id. at 2064.

We have no authority to question this application of the federal exclusionary rule,

but it clearly conflicts with our state exclusionary rule by admitting illegally seized

27
State V. Mayfield, No. 95632-4

evidence and allowing the State to benefit from the unconstitutional actions of its

officers. Winterstein, 167 Wn.2d at 634.

In addition, a "'particularly' significant" factor for courts applying the

modem federal attenuation doctrine is "'the purpose and flagrancy of the official

misconduct.'" Strieff, 136 S. Ct. at 2062 (quoting Brown, 422 U.S. at 604). This

factor is directly related to the deterrence rationale underlying the federal

attenuation doctrine and "reflects that rationale by favoring exclusion only when

the police misconduct is most in need of deterrence—^that is, when it is purposeful

or flagrant." Id. at 2063. Where official misconduct is "at most negligent," the

federal attenuation doctrine "strongly favors the State" and weighs heavily against

suppression. Id. This factor is completely incompatible with our exclusionary

rule's requirement to suppress all illegally seized evidence, regardless of whether

officers acted reasonably, negligently, or intentionally. Afana, 169 Wn.2d at 184.

In sum, the attenuation doctrine has its origins in the tort law doctrine of

superseding cause. The attenuation doctrine was once a narrow exception because

in order to be a superseding cause, unforeseeable intervening circumstances must

truly sever the causal connection between official misconduct and the discovery of

evidence. However, the modern federal attenuation doctrine is not focused on

whether the State can prove a break in the causal connection. Instead, the focus is

on whether suppression in one case is likely to deter similar official misconduct in

28
State V. Mayfield, No. 95632-4

the future and on whether the misconduct was so flagrant and purposeful that it

warrants deterrence at all. This evolution in the federal attenuation doctrine has

caused difficulties for Washington courts because while the narrow historical

version of the federal attenuation doctrine may be compatible with article I, section

7, the broad modern version is not.

4. The attenuation doctrine is compatible with article I, section 7 so long

as it is narrowly applied only where there is a true superseding cause

for the discovery of evidence

In our most recent case concerning whether the attenuation doctrine is

compatible with article I, section 7, we were essentially presented with two

options: adopt the attenuation doctrine as currently applied by federal courts or

reject the attenuation doctrine entirely and apply our exclusionary rule on a "but

for" causation basis. Eserjose, 171 Wn.2d 907. As the lead and dissenting

opinions pointed out, both options are problematic. We were therefore unable to

reach a majority holding. Today, we reaffirm what was made clear by Eserjose,

which is that neither wholesale adoption nor total rejection of the attenuation

doctrine is appropriate as a matter of state constitutional law. Instead, we

recognize a narrow, Washington-specific attenuation doctrine, to be applied only

where the State proves that unforeseeable intervening circumstances truly severed

the causal connection between official misconduct and the discovery of evidence.

29
State V. Mayfield, No. 95632-4

We cannot reject the attenuation doctrine entirely because, as the historical

discussion above makes clear, the lead opinion in Eserjose was correct in noting

that "our cases do not stand for the proposition that the exclusionary rule under

article I, section 7 operates on a 'but for' basis. Rather, we have consistently

adhered to the 'fruit of the poisonous tree' doctrine." Id. at 919-20 (footnote

omitted). We also agree with the lead opinion that on a practical level, "[a]n

alternative 'but for' principle would make it virtually impossible to rehabilitate an

investigation once misconduct has occurred, granting suspected criminals a

permanent immunity unless, by chance, other law enforcement officers initiate an

independent investigation." Id. at 922. The purpose of our state exclusionary rule

is to protect individual privacy rights, not to permanently immunize suspects from

investigation and prosecution.

Meanwhile, the dissent in Eserjose correctly highlighted the ways in which

the broad, modern version of the federal attenuation doctrine is incompatible with

article I, section 7. First, a broad attenuation doctrine not only fails to protect

individual privacy but actually gives police 'less incentive to obtain an arrest

warrant if a station house confession is admissible despite an illegal arrest." Id. at

937 (C. Johnson, J., dissenting) (emphasis added). "Nor does such a doctrine

respect our paramount concern of protecting individual privacy, as it would deny a

remedy to those whose privacy has been unconstitutionally invaded. Additionally,

30
State V. Mayfield, No. 95632-4

application of the exception would necessarily be speculative, a departure from our

otherwise nearly categorical exclusionary rule." Id. at 940 (footnote omitted).

Finally, the factors considered in the federal attenuation doctrine are "time,

intervening circumstances, [and] less egregious misconduct," but it is not clear

how these factors "can infuse the fruits of an illegal seizure with the authority of

law required by article I, section 7." Id.

The concerns raised by the lead and dissenting opinions in Eserjose are all

legitimate. We therefore do not wholly adopt or entirely reject the attenuation

doctrine. Instead, we adopt a narrow, Washington-specific attenuation doctrine

that ensures our exclusionary rule does not operate on a strict "but for" basis, but

protects the individual right to privacy and prevents the State from benefiting from

the unconstitutional actions of its officers. To do this, we look to the attenuation

doctrine's historical origins, which, as discussed above, arose from the tort law

doctrine of superseding cause.

To be held liable in tort, a defendant's actions must have proximately caused

the plaintiffs injuries. Proximate causation is present where the defendant's

action, "unbroken by any new independent cause produces the injury complained

of." Schooley, 134 Wn.2d at 482. Correspondingly, "[wjhen an independent,

intervening act of a third person is one which was not reasonably foreseeable then

there is a break in the causal connection between the defendant's negligence and

31
State V. Mayfield, No. 95632-4

the plaintiffs injury." Id. Where such an intervening act is present, it constitutes a

superseding cause of the plaintiffs injury, and the defendant is not liable.

This formulation of a superseding cause is consistent with the attenuation

doctrine as historically applied, for example in Wong Sun. As discussed above, the

defendant's confession in Wong Sun was preceded by his unlawful arrest.

However, the confession was actually obtained as the result of an unforeseeable

intervening act—the defendant's decision to return to the police and give a

confession days after he was released from custody. The defendant was not

induced or urged to return and confess by the police, but chose to do so as a matter

of independent free will. This decision acted as a superseding cause, allowing the

confession to be admitted.

We have previously indicated that the Wong Sun version of the attenuation

doctrine applies as a matter of state constitutional law. E.g., State v. O'Bremski, 70

Wn.2d 425, 428, 423 P.2d 530 (1967). We now explicitly adopt a state attenuation

doctrine that is satisfied if, and only if, an unforeseeable intervening act genuinely

severs the causal connection between official misconduct and the discovery of

evidence. If such a superseding cause is present, then the evidence is not properly

viewed as "fruit of the poisonous tree" but, instead, as "fruit" of the superseding

cause. In such a case, the State derives no benefit from its officers'

unconstitutional actions. And because a superseding cause must, by definition, be

32
State V. Mayfield, No. 95632-4

unforeseeable, this nan*ow attenuation doctrine will not encourage officials to

violate article I, section 7 in the hopes of discovering evidence.

We caution that the attenuation doctrine we adopt today must be narrowly

and carefully applied. The State bears the burden of proving that the attenuation

doctrine applies and that evidence is admissible despite a violation of article I,

section 7. Armenia, 134 Wn.2d at 14. To meet its burden, the State must prove

that unforeseen intervening circumstances genuinely severed the causal connection

between official misconduct and the discovery of evidence. The State cannot meet

its burden by merely showing that there are one or more additional proximate

causes of the discovery of evidence. The question of whether intervening

circumstances constitute a superseding cause is a highly fact-specific inquiry that

must account for the totality of the circumstances, just as it is in the context of tort

law. See Maltman v. Sauer, 84 Wn.2d 975, 982, 530 P.2d 254 (1975).

We also caution that the narrow attenuation doctrine we adopt today is

entirely independent of the modem attenuation doctrine used by federal courts. As

such, it is irrelevant to our state attenuation doctrine whether suppression in one

case will deter similar misconduct in the future. It is also irrelevant whether the

officer's misconduct was merely negligent or was instead flagrant and purposeful.

The only question is whether unforeseeable intervening actions genuinely severed

the causal connection between official misconduct and the discovery of evidence.

33
State V. Mayfield, No. 95632-4

If not, then the attenuation doctrine does not apply, and the evidence must be

excluded in accordance with article I, section 7 and our state exclusionary rule.

C. The Washington attenuation doctrine is not satisfied here

Although the trial court did not have the opportunity to rule on Mayfield's

suppression motion in accordance with the narrow attenuation doctrine we adopt

today, its findings of fact are sufficient for us to decide the issue as a matter of law.

It is plain that the State cannot carry its burden of proving that the causal chain

between the official misconduct and the discovery of evidence was genuinely

severed by intervening circumstances in this case. We therefore hold that

Mayfield's motion to suppress must be granted.

As related in the facts section above. Officer Nunes illegally seized Mayfield

and requested consent to search his person and his truck while the illegal seizure

was ongoing. The requests to search were certainly not unforeseeable intervening

circumstances. As found by the trial court, these requests were a purposeful

component of "a drug investigation that was not based upon any reasonable and

articulable suspicion of actual criminal conduct." CP at 20.

Mayfield's consents to the two searches were also not independent acts of

free will sufficient to establish a superseding cause. The State relies heavily on the

fact that Mayfield was told he could refuse, limit, or revoke consent to the search

of his truck, arguing that these Ferrier warnings made Mayfield's consent "an

34
State V. Mayfield, No. 95632-4

informed decision" and thus '"an independent act of free will'" sufficient to satisfy

the attenuation doctrine. Suppl. Br. of Resp't at 20. We cannot agree.

First, as the State acknowledges, Mayfield was not given full Ferrier

warnings before consenting to the search of his person.^ He was merely told he

could refuse consent. We have previously considered an almost indistinguishable

case applying the federal attenuation doctrine. In Armenia, the defendant was

unlawfully seized, was asked for consent to search his car, and was told he could

refuse. 134 Wn.2d at 6. He consented and the search yielded cocaine, which the

trial court suppressed. Id. at 8-9. We affirmed the trial court.

First, we noted that although the defendant "freely and voluntarily consented

to the search of his vehicle," it was a separate question "whether the prior illegal

detention vitiated that consent." Id. at 16-17. We then concluded that it did, based

on federal precedent holding that a "confession following issuance of Miranda^^^

warnings [was] nevertheless tainted by illegal arrest and therefore inadmissible."

Id. at 17 (citing Brown, 422 U.S. 590). Because we have already held that warning

a person of the right to refuse consent is insufficient to satisfy the broad federal

attenuation doctrine, we easily conclude that it is insufficient to satisfy our narrow

^ Ferrier warnings are required only "where police request entry into a home for the

purpose of obtaining consent to conduct a warrantless search." State v. Khounvichai, 149 Wn.2d

557, 563, 69 P.3d 862 (2003).

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

35
State V. Mayfield, No. 95632-4

State attenuation doctrine. And because Deputy Nunes asked to search Mayfield's

truck based, in part, on the money he found when searching Mayfield's person, the

two searches are directly causally linked.

Second, giving consent to search upon request during an unlawful seizure is

very different from independently volunteering to be searched or giving a

confession as an act of free will. Mayfield had no time to reflect on his options

and was not free to leave. Ferrier warnings alone cannot change the fact that

Mayfield's consent to search was the direct, foreseeable result of Officer Nunes's

unconstitutional actions. Indeed, it would be unreasonable to expect a person to

believe that he or she actually can refuse consent when the Ferrier warnings are

given by the same officer who is currently subjecting the person to an ongoing

unlawful seizure. A reasonable person might well believe that the officer would

commit further constitutional violations, regardless of consent, so there would be

no benefit to refusing. Therefore, consent to search during an ongoing unlawful

seizure, even if preceded by Ferrier warnings, is entirely foreseeable and not an

independent act of free will.'° Such consent, without more, cannot be a

superseding cause sufficient to satisfy the attenuation doctrine.

Given the State's concession that Mayfield was illegally seized, we do not opine on the

substantive adequacy of Mayfield's consent to the searches.

36
State V. Mayfield, No. 95632-4

Finally, it is clear that if the state attenuation doctrine is satisfied solely by

an unlawfully detained suspect's consent to search after Ferrier warnings, then the

attenuation doctrine would not be a narrow exception to the exclusionary rule at

all. To the contrary, it would be broadly applicable to any case where officials

remember to use the appropriate "magic words" after violating a person's article I,

section 7 rights. Such a broad rule would do little to protect individual privacy and

would thus be inconsistent with article I, section 7 and our state exclusionary rule.

It would also distort the purpose of Ferrier, which is to ensure that a person who

has not been illegally seized can make an informed decision as to whether to

consent to a search of his or her home. Ferrier, 136 Wn.2d at 118. Ferrier

warnings were never designed to "purge the taint" of ongoing unlawful seizures for

purposes of the attenuation doctrine.

It is clear from the trial court's findings that there were no intervening

circumstances here that severed the causal connection between Mayfield's

unlawful seizure and the discovery of the money and methamphetamine used

against him at trial. Without such intervening circumstances, our state attenuation

doctrine cannot apply. Therefore, the evidence must be suppressed.

CONCLUSION

Although the attenuation doctrine is not categorically incompatible with

article I, section 7, we hold that it must be an extremely narrow exception in order

37
State V. Mayfield, No. 95632-4

to preserve the heightened protections of our state exclusionary rule. The

attenuation doctrine can apply only where unforeseeable intervening circumstances

genuinely sever the causal connection between official misconduct and the

discovery of evidence. It is clear from the trial court's findings that there were no

such unforeseeable intervening circumstances here. We therefore hold that

Mayfield's motion to suppress must be granted, and we reverse and remand for

further proceedings consistent with this opinion.

38
State V. Mayfield, No. 95632-4

WE CONCUR:

^nulumi-. ^(l ■ f

39
State V. Mayfield

No. 95632-4

JOHNSON, J. (concurring)—The issue presented in this case is whether the

federal attenuation doctrine is compatible with our state constitutional principles

recognized under article I, section 7 of the Washington Constitution. Our cases

interpreting article I, section 7 have rejected the federal good faith exception

doctrine and the federal inevitable discovery doctrine, and applying the same

reasoning, the federal attenuation doctrine should be rejected based on our state

constitution's stronger privacy protections and the narrower exceptions to

individual constitutional privacy protections.

Although the majority reaches the correct result, it errs in its reasoning. In

addressing the state constitutional issue, the majority correctly recognizes that a

Gunwalf factored argument is unnecessary. As correctly noted in the Court of

Appeals' dissent, "A Gunwall analysis is not required every time article I, section 7

State V. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
State V. Mayfield, No. 95632-4

(Johnson, J., concurring)

is applied in a new context. Instead, the court acknowledges that article I, section 7

generally is more protective and then engages in a conventional legal analysis to

determine its scope and effect in the circumstances presented." State v. Mayfield,

No. 48800-1-II, slip op. at 14 (Wash. Ct. App. Jan. 4, 2018) (unpublished),

http://www.courts.wa.gOv/opinions/pdf/D2%2048800-1 -

II%20Unpublished%200pinion.pdf (Bjorgen, C.J., dissenting).

The United States Supreme Court established a closely related subset of

exceptions to the exclusionary rule under the Fourth Amendment to the United

States Constitution. Those include the good faith exception, the inevitable

discovery doctrine, and the attenuation doctrine. Our cases analyzing article I,

section 7 have addressed these exceptions.

In State v. Afana, 169 Wn.2d 169, 184, 233 P.3d 879 (2010), we rejected the

federal good faith exception doctrine. In doing so, we recognized, "In contrast to

the Fourth Amendment, article I, section 7 emphasizes 'protecting personal rights

rather than . . . curbing governmental actions.'" Afana, 169 Wn.2d at 180

(alteration in original) (quoting State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061

(1982)). Similarly, in State v. Winterstein, 167 Wn.2d 620, 636, 220 P.3d 1226

(2009), we rejected the federal inevitable discovery doctrine as "incompatible with

the nearly categorical exclusionary rule under article I, section 7."
State V. Mayfield, No. 95632-4

(Johnson, J., concurring)

Important to the issue and facts represented here, in those cases and others

cited in those cases, the evidence was obtained contemporaneously with the

constitutional violation. In Eserjose, though three separate opinions were authored,

it appears no disagreement existed that if the confession had been

contemporaneously with the illegal seizure, suppression would be required. State v.

Eserjose, 171 Wn.2d 907, 927, 933 (Madsen, C.J., concurring), 936-37 (C.

Johnson, J., dissenting), 259 P.3d 172 (2011).

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.

Importantly, we have largely rejected the attenuation doctrine under nearly

identical material facts in State v. Rojo Armenta, 134 Wn.2d 1, 948 P.2d 1280

(1997). Armenta involved, similar to the facts here, an illegal seizure of the

defendants and an otherwise voluntary consent to search a vehicle and its trunk

where evidence was found, after advising the defendant he could refuse to consent.

We reversed the conviction and held "consent, although voluntary, was tainted by

the prior illegal detention." Armenta, 134 Wn.2d at 17. In overturning the

conviction, we emphasized because the officer did not have '"specific and

articulable facts'" that defendants were engaged in criminal activity at the time of
State V. Mayfield, No. 95632-4

(Johnson, J., concurring)

the seizure and because the officer obtained consent "immediately after the

detention and without the benefit of Miranda^^^ warnings, [the consent] did not

remove the taint of the prior illegal detention." Armenta, 134 Wn.2d at 17-18.

Likewise, in the present case, the officer received John Mayfield's consent to

search the truck immediately after what the State concedes was an illegal seizure.

Although Armenta purportedly relied on a Fourth Amendment analysis and

not article I, section 7, that federal foundation seems somewhat shaky. However,

its reasoning and language is consistent with our article I, section 7 cases, which

should be expressly recognized. The federal attenuation doctrine should be rejected

in circumstances where the evidence is obtained contemporaneously with the

constitution violation. As amici point out, the attenuation doctrine "denies a

remedy even as it concedes a constitutional violation." Br. of Amici Curiae^ at 13.

This is not consistent with our constitution's strong protection of privacy rights and

our "nearly categorical" exclusionaiy rule. Winterstein, 167 Wn.2d at 636. We

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

^ Amici Curiae include the American Civil Liberties Union of Washington, Fred T.

Korematsu Center for Law and Equality, Washington Association of Criminal Defense Lawyers,

and Washington Defender Association.
State V. Mayfield, No. 95632-4

(Johnson, J., concurring)

should reject the attenuation doctrine.