author: YU, J. JOHNSON, J. (concurring)

text:
    STATE of Washington, Respondent, v. John Douglas MAYFIELD, Petitioner.
    No. 95632-4
    Supreme Court of Washington.
    Argued November 8, 2018 Filed: February 07, 2019
    Mary Swift, Nielsen, Broman & Koch P.L.L.C., 1908 E. Madison Street, Seattle, WA 98122-2842, for Petitioner.
    Sean M. Brittain, Cowlitz County Prosecutors Office, Hall of Justice, 312 SW 1st Avenue, Kelso, WA 98626-1739, Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W. Mallon Avenue, Spokane, WA 99260-0270, for Respondent.
    Nancy Lynn Talner, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, John Charles Roberts Jr., Christopher Mark Petroni, Wilson Sonsini Goodrich & Rosati, 701 5th Avenue, Suite 5100, Seattle, WA 98104-7036, for Amicus Curiae (American Civil Liberties Union of Washington).
    Robert S. Chang, Jessica Levin, Seattle University School of Law, 901 12th Avenue, Seattle, WA 98122-4411, for Amicus Curiae (Fred T. Korematsu Center for Law and Equality).
    Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).
    Hillary Ann Behrman, The Washington Defender Association, 110 Prefontaine Place S #610, Seattle, WA 98104-2626, for Amicus Curiae (Washington Defender Association).
   YU, J.

¶ 1 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.

¶ 2 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.

¶ 3 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

¶ 4 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 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.

¶ 5 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.

¶ 6 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.

¶ 7 A second officer, Sergeant Corey Huffine, arrived to assist while Deputy Nunes asked for Mayfield's identification and checked for outstanding warrants. 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.

¶ 8 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.

¶ 9 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.

¶ 10 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-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.

¶ 11 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 Gunwall analysis. State v. Mayfield , No. 48800-1-II, slip op. at 5-7, 2018 WL 286810 (Wash. Ct. App. Jan. 4, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2048800-l-II%20Unpublished%20Opinion.pdf. The majority further held that the federal attenuation doctrine was satisfied "[b]ecause Ferrier warnings were an intervening circumstance and there was not purposeful or flagrant police 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

¶ 12 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.

¶ 13 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 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

¶ 14 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 Wash.2d 379, 400, 402 P.3d 831 (2017) (quoting Gunwall, 106 Wash.2d at 58, 720 P.2d 808 ). 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. ¶ 15 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 Gunwall analysis is required to justify an independent state constitutional analysis of article I, section 7 in new contexts. Courts and parties may assume an independent state analysis is justified and move directly to the merits of the article I, section 7 claim presented.

¶ 16 "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 Wash.2d 454, 462, 158 P.3d 595 (2007) (citing State v. McKinney, 148 Wash.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, 158 P.3d 595 (citing State v. Jackson, 150 Wash.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 Wash.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 Wash.2d 169, 179-84, 233 P.3d 879 (2010) (rejecting the good faith exception); State v. Winterstein, 167 Wash.2d 620, 631-36, 220 P.3d 1226 (2009) (rejecting the inevitable discovery doctrine); State v. Gaines, 154 Wash.2d 711, 717-22, 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 Wash.2d 907, 259 P.3d 172 (2011) (plurality opinion).

¶ 17 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.

¶ 18 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 Wash. App. 2d 318, 339-41, 415 P.3d 639 (Sutton, J., concurring), review denied , 191 Wash.2d 1016, 426 P.3d 747 (2018). The majority's analysis implies that Blomstrom reimposed a Gunwall requirement when applying article I, section 7 in new contexts. We clarity that it did not.

¶ 19 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 Wash.2d at 383-84, 402 P.3d 831. The majority did conduct an abbreviated Gunwall analysis before turning to the merits.

Id. at 401-02, 402 P.3d 831. 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.

¶ 20 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 Wash.2d 1, 10 n.7, 948 P.2d 1280 (1997). Parties must provide argument and relevant authorities supporting the specific 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 Wash.2d at 463, 158 P.3d 595. 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

¶ 21 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.

¶ 22 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 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 Wash.2d 907, 259 P.3d 172. The applicability of the attenuation doctrine as a matter of state constitutional law therefore remains an open question.

¶ 23 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 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

¶ 24 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.

¶ 25 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 Boyd 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.

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, 34 S.Ct. 341.

¶ 26 The federal exclusionary rule was first held applicable to the states in 1961. Mapp, 367 U.S. at 660, 81 S.Ct. 1684. 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 sheriff's office at gunpoint. On arrival at the sheriff's office, the sheriff removed a suitcase from the defendant's car and found several bottles of whiskey inside.

¶ 27 Easily concluding that the sheriff's 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, 203 P. 390 (quoting WASH. CONST. art. I, §§ 7, 9 ).

¶ 28 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 Wash.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, 241 P.2d 447. 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 Wash.2d 910, 917, 239 P.2d 858 (1952) ; State v. Smith, 50 Wash.2d 408, 409, 314 P.2d 1024 (1957) (italics omitted).

¶ 29 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 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, 258 P. 1030 (citing Boyd, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 ;

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, 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.

¶ 30 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 official misconduct in the future. Washington has repeatedly rejected calls to similarly narrow our own exclusionary rule.

¶ 31 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 Wash.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 Wash.2d at 109, 640 P.2d 1061. 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, 640 P.2d 1061. Suppression is an integral component of the right to privacy itself, and "whenever the right is unreasonably violated, the remedy must follow." Id.

¶ 32 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 Wash.2d at 634, 220 P.3d 1226 (quoting Nix 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, 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. Therefore, "balancing of interests should not be carried out when evidence is obtained in violation of a defendant's constitutional rights." Id. at 632, 220 P.3d 1226. We concluded that the inevitable discovery doctrine cannot 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, 220 P.3d 1226.

¶ 34 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." Afana, 169 Wash.2d at 180, 233 P.3d 879. 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).

¶ 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 ). "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 Wash.2d at 110, 640 P.2d 1061 ). Therefore, our state exclusionary rule does not allow any exception that "does not disregard illegally obtained evidence." Id. at 181, 233 P.3d 879. 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, 233 P.3d 879. If evidence is illegally obtained then it must be suppressed, regardless of an officer's reasonable belief that his or her actions were lawful.

¶ 36 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 selectively applied exclusionary remedy.' " Winterstein, 167 Wash.2d at 632, 220 P.3d 1226 (quoting White, 97 Wash.2d at 110, 640 P.2d 1061 ). 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

¶ 37 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 Wash.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.

¶ 38 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 obtained pursuant to a valid warrant or other lawful means independent of the unlawful action." Gaines, 154 Wash.2d at 718, 116 P.3d 993. 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 Wash.2d at 634, 220 P.3d 1226.

¶ 39 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 Wash.2d at 597, 440 P.2d 184. 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, 440 P.2d 184. 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, 440 P.2d 184.

¶ 40 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, 440 P.2d 184. 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, 440 P.2d 184.

¶ 41 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 Wash.2d at 373, 413 P.3d 566. 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, 413 P.3d 566. 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 warrant even absent the initial illegality." Id. at 365, 413 P.3d 566. Therefore, the State derived no benefit from the defective first warrant, and the evidence was admissible.

¶ 42 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.

¶ 43 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.

3. The federal attenuation doctrine has grown from a narrow exception requiring a superseding cause to a broad exception focused on deterrence

¶ 44 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, 40 S.Ct. 182 ). 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.

¶ 45 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, "[u]nforeseeable intervening acts break the chain of causation between 'the defendant's negligence and the plaintiff's injury.' " Washburn v. City of Federal Way, 178 Wash.2d 732, 761, 310 P.3d 1275 (2013) (quoting Schooley v. Pinch's Deli Mkt., Inc., 134 Wash.2d 468, 482, 951 P.2d 749 (1998) ). This is generally known as "the doctrine of superseding cause." Schooley, 134 Wash.2d at 482, 951 P.2d 749.

¶ 46 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.

¶ 47 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 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, 83 S.Ct. 407.

¶ 48 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, 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. However, as federal courts have increasingly focused on the exclusionary rule's deterrent purpose, they have adopted new exceptions and expanded existing ones, 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, 95 S.Ct. 2254 (Powell, J., concurring in part).

¶ 50 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 evidence and allowing the State to benefit from the unconstitutional actions of its officers. Winterstein, 167 Wash.2d at 634, 220 P.3d 1226.

¶ 51 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, 95 S.Ct. 2254 ). 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 Wash.2d at 184, 233 P.3d 879.

¶ 52 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 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

¶ 53 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 Wash.2d 907, 259 P.3d 172. 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.

¶ 54 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, 259 P.3d 172 (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, 259 P.3d 172. The purpose of our state exclusionary rule is to protect individual privacy rights, not to permanently immunize suspects from investigation and prosecution.

¶ 55 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, 259 P.3d 172 (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, application of the exception would necessarily be speculative, a departure from our otherwise nearly categorical exclusionary rule." Id. at 940, 259 P.3d 172 (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.

¶ 56 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.

¶ 57 To be held liable in tort, a defendant's actions must have proximately caused the plaintiff's injuries. Proximate causation is present where the defendant's action, "unbroken by any new independent cause produces the injury complained of." Schooley, 134 Wash.2d at 482, 951 P.2d 749. Correspondingly, "[w]hen 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 the plaintiff's injury." Id. Where such an intervening act is present, it constitutes a superseding cause of the plaintiff's injury, and the defendant is not liable.

¶ 58 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.

¶ 59 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 Wash.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 unforeseeable, this narrow attenuation doctrine will not encourage officials to violate article I, section 7 in the hopes of discovering evidence.

¶ 60 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. Armenta, 134 Wash.2d at 14, 948 P.2d 1280. 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 Wash.2d 975, 982, 530 P.2d 254 (1975).

¶ 61 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. 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

¶ 62 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.

¶ 63 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.

¶ 64 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 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.

¶ 65 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 Armenta, the defendant was unlawfully seized, was asked for consent to search his car, and was told he could refuse. 134 Wash.2d at 6, 948 P.2d 1280. He consented and the search yielded cocaine, which the trial court suppressed. Id. at 8-9, 948 P.2d 1280. We affirmed the trial court.

¶ 66 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, 948 P.2d 1280. 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, 948 P.2d 1280 (citing Brown, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 ). 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 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.

¶ 67 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.

¶ 68 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 Wash.2d at 118, 960 P.2d 927. Ferrier warnings were never designed to "purge the taint" of ongoing unlawful seizures for purposes of the attenuation doctrine.

¶ 69 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

¶ 70 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 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.

WE CONCUR:

Fairhurst, C.J.

Stephens, J.

Madsen, J.

Owens, J.

González, J.

Wiggins, J.

Gordon McCloud, J.

JOHNSON, J. (concurring)

¶ 71 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.

¶ 72 Although the majority reaches the correct result, it errs in its reasoning. In addressing the state constitutional issue, the majority correctly recognizes that a Gunwall 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 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, 2018 WL 286810 (Wash. Ct. App. Jan. 4, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2048800-1-II%20Unpublished%20Opinion.pdf (Bjorgen, C.J., dissenting).

¶ 73 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.

¶ 74 In State v. Afana, 169 Wash.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 Wash.2d at 180, 233 P.3d 879 (alteration in original) (quoting State v. White, 97 Wash.2d 92, 110, 640 P.2d 1061 (1982) ). Similarly, in State v. Winterstein, 167 Wash.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."

¶ 75 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 Wash.2d 907, 927, 933, 259 P.3d 172 (Madsen, C.J., concurring), 936-37 (C. Johnson, J., dissenting), 171 Wash.2d 907, 259 P.3d 172 (2011). ¶ 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). 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 Wash.2d at 17, 948 P.2d 1280. 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 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 Wash.2d at 17-18, 948 P.2d 1280. 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.

¶ 78 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" exclusionary rule. Winterstein, 167 Wash.2d at 636, 220 P.3d 1226. We should reject the attenuation doctrine.

      State v. Ferrier, 136 Wash.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." Id. at 118, 960 P.2d 927. 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 Wash.2d 54, 720 P.2d 808 (1986).

      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.

      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.

      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 Wash.2d at 400 n.17, 402 P.3d 831. We conducted a Gunwall analysis over this objection, not because we intended to reimpose a Gunwall requirement but because amicus misread our precedent. Id.

      Other cases have declined to reach the issue because it was unnecessary, not raised, or inadequately briefed. State v. Smith, 177 Wash.2d 533, 545 n.4, 303 P.3d 1047 (2013) (plurality opinion); State v. Ibarra-Cisneros, 172 Wash.2d 880, 885 n.2, 263 P.3d 591 (2011) ; Armenta, 134 Wash.2d at 10 n.7, 948 P.2d 1280.

      We have since clarified that White's 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 Wash.2d 311, 341 n.19, 150 P.3d 59 (2006) (internal quotation marks omitted) (quoting White, 97 Wash.2d at 103, 640 P.2d 1061 ). However, we have consistently adhered to White's reasoning when considering whether to recognize a new exception to our state exclusionary rule. Afana, 169 Wash.2d at 180, 233 P.3d 879 ; Winterstein, 167 Wash.2d at 631-34, 220 P.3d 1226.

      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 Wash.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).

      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.

      State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986).

      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.


source: Caselaw Access Project

author: Siddoway, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Ismael M. TARANGO, Appellant.
    No. 35305-2-III
    Court of Appeals of Washington, Division 3.
    FILED JANUARY 31, 2019
    Andrea Burkhart, Two Arrows, PLLC, 8220 W. Gage Blvd. #789, Kennewick, WA, 99336, for Appellant.
    Brian Clayton O'Brien, Spokane County Prosecuting Attorney, 1100 W Mallon Ave., Spokane, WA, 99260-2043, Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W Mallon Ave., Spokane, WA, 99260-0270, for Respondent.
    OPINION PUBLISHED IN PART
   Siddoway, J.

¶ 1 At issue in this appeal is whether a reliable informant's tip that Ismael Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot. In the published portion of this opinion, we hold that it was not, and that Mr. Tarango's motion to suppress the evidence obtained as a result of the stop should have been granted.

¶ 2 In the unpublished portion of this opinion, we hold that the evidence at trial was insufficient to establish his unlawful possession of a second firearm located in the vehicle after it was stopped. We reverse his firearm possession convictions and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 At around 2:00 in the afternoon on a winter day in 2016, Carlos Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who turned out to be Ismael Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

¶ 4 As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. No recording or transcript of the 911 call is in the record, but a computer-aided dispatch (CAD) report offered by Mr. Tarango in support of a later motion to suppress included the following entries:

/142038 (25) ENTRY MALE WITH A HANDGUN IS SITTING IN HIS VEHICLE BEHIND THE BARGAIN GIANT. /142140 SUPP TXT: VEH BRN CHEVY TAHOE. LIC # UNK. H/M, 35 YRS. SEAHAWKS CAP AND SEAHAWKS SHIRT. HE ONLY HAD GUN IN HIS HAND HE DID NOT RAISE THE GUN OR DISPLAY IT. COMP. SAW IN MALES LAP. ###

Clerk's Papers (CP) at 26. These entries were followed in the report by entries identifying the several officers who responded.

¶ 5 The first officer to respond saw a vehicle meeting Mr. Matthews's description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

¶ 6 The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle's owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it. After officers obtained Mr. Tarango's identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

¶ 7 In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm-the visible firearm turned out to be a black semiautomatic-a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

¶ 8 While others contacted DOC and remained at the scene, one of the responding officers contacted Mr. Matthews to obtain a statement as to what he had observed. Mr. Matthews told the officer that after he made the 911 call, Mr. Tarango and the female driver entered the grocery store. He told the officer that as he stood in line waiting to pay for his groceries, Mr. Tarango looked at him and raised his finger to his lips, as if signaling to Mr. Matthews to "keep quiet." Report of Proceedings (RP) (Dec. 5, 2016) at 39.

¶ 9 The State charged Mr. Tarango, who had prior felony convictions, with two counts of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed to report to his community custody officer as ordered, he was also charged with escape from community custody.

¶ 10 Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity and that the search of a nonprobationer's vehicle exceeded the DOC's authority. Relying on this court's decision in State v. Cardenas-Muratalla , 179 Wash. App. 307, 319 P.3d 811 (2014), which had relied in turn on the United States Supreme Court's decision in Florida v. J.L. , 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), Mr. Tarango argued that "it is not a crime to have a firearm in a vehicle." CP at 56.

¶ 11 No testimony was provided at the hearing. Mr. Tarango relied on the CAD report and several police reports. The State submitted additional police and DOC officer reports.

¶ 12 After taking the matter under advisement, the trial court convened a hearing at which it announced its findings and denied the suppression motion. RP (Aug. 11, 2016) at 3-6. It distinguished Cardenas-Muratalla as involving an anonymous informant, whereas Mr. Matthews had identified himself. In finding reasonable suspicion of criminal activity, the court appeared to believe, in error, that one of Mr. Matthews's observations "known to law enforcement through his 911 call" was that while in the grocery store,

the defendant allegedly made a gesture as if to admonish Mr. Matthews to be quiet, a shushing gesture if that's the appropriate verb or word. Matthews further described that the defendant has a weird and mean expression on his face.

RP (Aug. 11, 2016) at 4.

¶ 13 Written findings and conclusions were later proposed and entered, which again reflect the court's mistaken belief that Mr. Matthews saw the "shushing" gesture before making the 911 call and reported it to the 911 operator. CP at 75. The court's findings 4 and 5 state:

4. Informant then sees [Mr. Tarango] in the store. [Mr. Tarango] gives informant the "shushing gesture", and had a mean look on his face.
5. Informant then calls 911, and remains in the area to follow the vehicle and makes himself available to the police.

Id .

¶ 14 At the jury trial presided over before a different judge, the State called as witnesses to the firearm possession charges Mr. Matthews and the police and DOC officers who participated in the stop and the related investigation. The defense called three witnesses: Ms. Hutchinson, who testified that Mr. Tarango did not have a handgun in his possession on the day they were stopped; Vera Kay Nickerson, a friend and neighbor of Ms. Hutchinson and Mr. Tarango, who testified she placed the two firearms behind the Suburban's passenger seat, unbeknownst to Ms. Hutchinson or Mr. Tarango; and Raymond Glen Beebe, who confirmed Ms. Nickerson's testimony that he was a friend of hers, owned the Glock, and had allowed her to borrow it.

¶ 15 The jury found Mr. Tarango guilty as charged. He appeals.

ANALYSIS

¶ 16 Mr. Tarango assigns error to the trial court's denial of his suppression motion, making a related assignment of error to the court's fourth and fifth findings of fact. He also argues that insufficient evidence supports his conviction of illegal possession of the revolver recovered from the canvas bag. We address his challenges in that order.

BECAUSE OFFICERS LACKED REASONABLE SUSPICION THAT MR. TARANGO HAD ENGAGED IN OR WAS ABOUT TO ENGAGE IN CRIMINAL ACTIVITY, THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED

¶ 17 We first address whether the trial court erred in denying Mr. Tarango's suppression motion. When reviewing the denial of a suppression motion, we determine whether substantial evidence supports challenged findings of fact and whether the findings support the conclusions of law. State v. Garvin , 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). While Mr. Tarango challenges the trial court's fourth and fifth factual findings, there is no dispute on that score; the State concedes they are in error as to timing. It agrees that officers responding to the 911 call had not heard about Mr. Matthews's report of Mr. Tarango's intimidating conduct in the grocery store, which took place after the 911 call was made. Because the only issue on appeal is whether the correct factual findings support the trial court's suppression decision, our review is de novo.

¶ 18 Warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies. State v. Ladson , 138 Wash.2d 343, 349, 979 P.2d 833 (1999). A Terry investigative stop is a well-established exception. State v. Gatewood , 163 Wash.2d 534, 539, 182 P.3d 426 (2008). The purpose of a Terry stop " 'is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation.' " State v. Armenta , 134 Wash.2d 1, 16, 948 P.2d 1280 (1997) (quoting State v. Kennedy , 107 Wash.2d 1, 17, 726 P.2d 445 (1986) (Dolliver, C.J., dissenting) ).

¶ 19 "To conduct a valid Terry stop, an officer must have 'reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.' " State v. Weyand , 188 Wash.2d 804, 811, 399 P.3d 530 (2017) (quoting State v. Fuentes , 183 Wash.2d 149, 158, 352 P.3d 152 (2015) ). The reasonableness of an officer's suspicion is evaluated based on the totality of the circumstances known to the officer. Id. The totality of the circumstances includes the officer's training and experience, the location of the stop, the time of day, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect's liberty. Id. at 811-12, 399 P.3d 530 ; State v. Mendez , 137 Wash.2d 208, 219 n.4, 970 P.2d 722 (1999), abrogated on other grounds by Brendlin v. California , 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

¶ 20 A suspect's activity that is consistent with noncriminal activity as well as criminal activity may still justify a brief detention under Terry. Kennedy , 107 Wash.2d at 6, 726 P.2d 445. The question for the officer and for a reviewing court is whether the circumstances support a reasonable suspicion that there is a "substantial possibility that criminal conduct has occurred or is about to occur." Id.

¶ 21 In evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, we bear in mind that Washington is an "open carry" state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons. RCW 9.41.050, .270; S. COMM. ON LAW AND JUSTICE, WASHINGTON FIREARMS LAWS SUMMARY 2018, at 12 (Wash. 2018), http://leg.wa.gov/Senate/Committees/LAW/Documents/Washington%20Firearms%20Laws.pdf [https://perma.cc/M8QJ-QNUJ]. Apart from the right to carry, legal restrictions on an individual's possession of a firearm are imposed based on, e.g., the type of firearm; the individual's age, criminal history, or mental illness; provisions of protective orders; and on the possession of weapons in certain locations. See id. at 2-6, 11, 15-18; see chapter 9.41 RCW.

¶ 22 Generally, to carry a concealed weapon a person must have a license to carry a concealed pistol. RCW 9.41.050(1)(a). A person may not lawfully carry or place a loaded pistol in a vehicle unless the person has a concealed pistol license and the pistol is either on the licensee's person, the licensee is within the vehicle whenever the pistol is, or, if the licensee is away from the vehicle, the pistol is locked inside and concealed from view from outside. RCW 9.41.050(2)(a). Washington is a "shall issue" state, meaning that law enforcement officials are required to issue a concealed pistol license to any applicant who meets statutory requirements. WASHINGTON FIREARMS LAWS SUMMARY 2018, supra , at 12; RCW 9.41.070.

¶ 23 Mr. Tarango places substantial reliance on the United States Supreme Court's decision in J.L. In that case, police made an investigative stop after an anonymous caller reported that a young black man standing at a particular bus stop and wearing a plaid shirt was carrying a concealed gun. They were able to locate a 15-year-old black man meeting the caller's description at the reported location. No gun was seen by police on arrival, but one was found on J.L.'s person when he was detained and frisked.

¶ 24 Unlike the facts in our case, the clear implication of the opinion in J.L. -and its premise-is that the information law enforcement received from the 911 call was that the young black man illegally possessed the gun. According to the decisions of the Florida courts, the tip received was that a concealed weapon violation was taking place. This is clear from the decision of the intermediate appellate court, see State v. J.L. , 689 So.2d 1116, 1117 (Fla. Dist. Ct. App. 1997) ("The police received an anonymous complaint that a concealed weapon violation was taking place."), and from the decision of the Florida Supreme Court that quashed that decision, J.L. v. State , 727 So.2d 204, 206 (Fla. 1998) (analyzing the case as falling within the class of tips that allege criminal conduct but only describe innocent details of identification). The decision of the United States Supreme Court reveals that under applicable Florida law, it was a crime for someone under the age of 18 to possess a firearm, and as previously indicated, J.L. was 15.

¶ 25 Rather than turning on whether information that an individual possesses a gun is enough to justify an investigative detention, J.L. turned on case law holding that information obtained from an anonymous tip does not provide reasonable suspicion unless, through corroboration, the tip exhibits sufficient indicia of reliability. 529 U.S. at 270, 120 S.Ct. 1375. On appeal to the Supreme Court, the State of Florida argued that because of the danger posed by firearms, officers receiving a tip that an individual illegally possesses a firearm should only need partial corroboration, of any "innocent details" provided by the anonymous source:

To require police, in situations where there is an anonymous tip that a specific individual is unlawfully carrying a firearm not observed by police officers, to wait for the brandishment or use of the firearm before finding reasonable suspicion effectively negates the Terry doctrine. Thus, in the instant situation, where innocent details of the anonymous tip are immediately verified, reasonable suspicion exists that the individual is committing a crime.

Pet'r's Br. on the Merits, Florida v. J.L. , No. 98-1993, 1999 WL 1259993, at *8 (U.S. Dec. 23, 1999) (emphasis added). The State of Florida argued that once officers found three black youths at the bus stop, one wearing a plaid shirt, they had sufficient corroboration.

¶ 26 The Supreme Court refused to modify the reliability analysis for anonymous tips of illegal possession of a firearm, holding, "The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality , not just in its tendency to identify a determinate person." J.L ., 529 U.S. at 272, 120 S.Ct. 1375 (emphasis added).

¶ 27 In denying Mr. Tarango's suppression motion, the trial court correctly observed that whether an anonymous tip was sufficiently corroborated was not at issue in this case, which does not involve an anonymous tip. Mr. Matthews provided his name and telephone number to the 911 operator. He even remained in the parking lot of the grocery store until he could see that police had arrived in response to his 911 call.

¶ 28 Mr. Tarango also cites this court's decision in Cardenas-Muratalla , which relies on J.L. We recognize that the opinion in Cardenas-Muratalla states at one point, citing only to J.L. , that "[t]he presence of a firearm in public alone is insufficient for an investigatory stop." 179 Wash. App. at 313, 319 P.3d 811. We view the statement's unwarranted citation to J.L. as dicta, since the remainder of the opinion in Cardenas-Muratalla - which involved an anonymous tip-legitimately follows J.L. 's holding that an anonymous report of someone's illegal possession of a firearm is not, without more, sufficient to support a Terry stop.

¶ 29 We agree that the presence of a firearm in public is insufficient, standing alone, to support an investigatory stop, even if we do not agree with Cardenas-Muratalla 's reliance on J.L. for support. Support for the proposition is provided by the well-settled requirement that to conduct a Terry stop, an officer must have a reasonable and individualized suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop. Our agreement with the proposition is reinforced by the United States Supreme Court's Second Amendment decisions in District of Columbia v. Heller , 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), and by our Supreme Court's similar construction of article I, section 24 of the Washington Constitution in City of Seattle v. Evans , 184 Wash.2d 856, 366 P.3d 906 (2015) and State v. Rupe , 101 Wash.2d 664, 683 P.2d 571 (1984).

¶ 30 In Heller , the Supreme Court construed "the inherent right of self-defense" as "central to the Second Amendment right [to bear arms]" and as extending to the lawful possession of handguns-a "class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose." 554 U.S. at 628, 128 S.Ct. 2783. In McDonald , the Court held that the Fourteenth Amendment incorporates the Second Amendment right, making it fully applicable to the states. 561 U.S. at 749-50, 130 S.Ct. 3020.

¶ 31 In Evans , our Supreme Court held that the Washington Constitution's guarantee of the right to bear arms "protects instruments that are designed as weapons traditionally or commonly used by law-abiding citizens for the lawful purpose of self-defense." 184 Wash.2d at 869, 366 P.3d 906. Our Supreme Court has also characterized Washington's constitutional protection of the right to bear arms as facially broader than the Second Amendment and has held that possession of legal firearms "falls squarely within the confines of the right." Rupe , 101 Wash.2d at 706, 683 P.2d 571.

¶ 32 Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.

¶ 33 The State offers a defense of the trial court's suppression decision by suggesting that the trial court had more:

[T]he facts that police had at the time they stopped Mr. Tarango were: (1) Mr. Tarango was sitting in a vehicle; (2) the vehicle was "behind" the Bargain Giant store; (3) Mr. Tarango had a handgun in his hand; (4) there was a high risk to the public of robberies of establishments such as the Bargain Giant; (5) the named complainant called 911 to report what he had seen and left his information.

Br. of Resp't at 12-13. From this, the State argues that "[a] reasonable inference ... may be drawn ... that the complainant was concerned about Mr. Tarango's presence with a handgun in the parking lot of the Bargain Giant." Id. at 13.

¶ 34 The evidence and argument at the suppression hearing attached no importance to Mr. Matthews's report that the Suburban was parked "behind" the grocery store-which is, after all, where Mr. Matthews parked. The trial court did not find that the Suburban was parked "behind" the store or that where it was parked was relevant to suspecting criminal activity.

¶ 35 The court's findings also make no reference to a high risk of robberies to neighborhood grocery stores, which was not argued as a basis for reasonable suspicion during the suppression hearing. Only one responding officer mentioned such a risk in his report. The State's suggestion that in a high-risk setting there is a substantial possibility that an individual openly carrying a handgun is planning to commit a robbery rather than merely exercising the constitutional right to self-defense is not persuasive. See Kennedy , 107 Wash.2d at 6, 726 P.2d 445 (adopting the "substantial possibility" standard for deciding whether ambiguous conduct is noncriminal or criminal).

¶ 36 Finally, as to the relevance of the fact that Mr. Matthews was concerned enough to make a 911 call, the federal Court of Appeals for the Sixth Circuit has observed that laypersons in open carry jurisdictions might have a misplaced concern on seeing an individual openly carrying a firearm, unaware that it is legal. Northrup v. City of Toledo Police Dep't , 785 F.3d 1128, 1131-32 (6th Cir. 2015). A police officer, on the other hand, "ha[s] no basis for such uncertainty ... at least with regard to unambiguous statutes." Id. at 1132. In Northrup -a civil rights action against an officer who stopped (and later arrested) a plaintiff openly carrying a handgun-the appellate court rejected the officer's "reasonable suspicion" defense and held that he was not entitled to qualified immunity.

¶ 37 In so holding, Northrup cited with approval a Fourth Circuit case holding that the possibility that an individual's possession of a firearm might be illegal-the person might be a felon, for instance-was not a justification for a Terry stop: "Where it is lawful to possess a firearm, unlawful possession 'is not the default status.' " Id. (quoting United States v. Black , 707 F.3d 531, 540 (4th Cir. 2013) ). Among other jurisdictions that have concluded that where openly carrying a firearm is legal, the exercise of the right, without more, cannot justify an investigatory detention, include the Tenth, Third, Fifth and Eighth Circuit Courts of Appeal and the Supreme Court of Indiana. See United States v. King , 990 F.2d 1552, 1559 (10th Cir. 1993) ; United States v. Ubiles , 224 F.3d 213, 218 (3d Cir. 2000) ; United States v. Roch , 5 F.3d 894, 899 (5th Cir. 1993) ; Duffie v. City of Lincoln , 834 F.3d 877, 883 (8th Cir. 2016) ; Pinner v. State , 74 N.E.3d 226 (Ind. 2017).

¶ 38 Because the officers conducting the Terry stop of the Suburban had no information at the inception of the stop that Mr. Tarango or Ms. Hutchinson had engaged in or were about to engage in criminal activity, they lacked reasonable suspicion. The motion to suppress should have been granted. We grant Mr. Tarango his requested remedy of reversing the firearm possession convictions and remanding the case for further proceedings. For reasons explained in the unpublished portion of this opinion, we direct the trial court to dismiss the charge of unlawful possession of the revolver (count II).

¶ 39 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR:

Fearin J.

Pennell, A.C.J.

      Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      Excepted from the requirement are carrying a concealed weapon in the person's place of abode or fixed place of business. RCW 9.41.050(1)(a).

      E.g., J.L. , 529 U.S. at 268, 120 S.Ct. 1375 ("Apart from the tip , the officers had no reason to suspect any of the three [individuals at the bus stop] of illegal conduct " (emphasis added) ), 271, 120 S.Ct. 1375 (citing to an argument by amicus that "a stop and frisk should be permitted 'when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm,' " along with other factors (emphasis added) ), 272, 120 S.Ct. 1375 (characterizing the State as supporting an exception to Terry under which "a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing" (emphasis added); such an exception could set in motion a search "simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun " (emphasis added) ).

      Article I, section 24 of the Washington Constitution provides:
      The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.