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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 83043-1-I Respondent, DIVISION ONE v. PUBLISHED OPINION MALCOLM OTHA MCGEE

Appellant.

BIRK, J. — As the State acknowledges, a sheriff’s deputy unconstitutionally

seized Malcolm McGee, questioned him, searched him, and collected his phone

number and other information. In a later murder investigation, the State relied on

the evidence it had unconstitutionally gathered to connect McGee to the crime and

obtain at least four warrants for his phone records, cell site location information,

and, among other things, his arrest, all leading to McGee’s conviction for second

degree murder. The State asks us to hold under Washington’s attenuation

doctrine the homicide attenuated the taint of the deputy’s unconstitutional conduct.

Because the State fails to show attenuation, we reverse.

I

A

On June 3, 2017, King County Sheriff’s Deputy Alexander Hawley, while

working as a plainclothes narcotics detective, observed a man, later identified as

Keith Ayson, pacing back and forth on the sidewalk. Hawley observed Ayson For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83043-1-I/2

continually look down at a cell phone and then look around the area as if waiting

for someone. A silver Chrysler Sebring approached, and Ayson got into the front

passenger seat. The vehicle drove approximately one block, then stopped on the

side of the road. After no more than two minutes, Ayson exited the Chrysler.

Hawley saw Ayson put something small into his pocket. Ayson walked back

towards where he had been.

Hawley followed the Chrysler to an apartment complex. Hawley called for

backup support. Detective Hawley put on his marked exterior sheriff’s vest, exited

his vehicle at “about the same time” the driver “exit[ed] his vehicle.” Hawley did

not recognize the driver. Hawley “announced [himself] as law enforcement and

ordered [the driver] to stay in the vehicle.”

Detective Hawley made contact with the driver. The driver identified himself

as Malcolm McGee. Before June 3, 2017, Hawley had never met or seen McGee.

Hawley ordered McGee out of the vehicle and provided Miranda1 warnings.

Hawley explained he had “just watched” the interaction with Ayson and asked

McGee, “[W]here’s the dope?” McGee initially said it was all gone, but then

produced a “baggie” of cocaine. Hawley asked to search McGee’s car. McGee

granted permission. Hawley found a bag filled with smaller baggies. McGee said

Ayson was his supplier, and he had purchased the cocaine from Ayson during the

interaction Hawley observed. Hawley invited McGee to “work off” his possession

charge by entering into a confidential informant agreement to provide information

1 Miranda v. Arizona,

,

,

(1966).

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and conduct a controlled buy. McGee signed a written agreement. McGee

provided Hawley with his phone number. McGee never contacted Hawley.

Hawley returned to his original location to look for Ayson. Hawley found

Ayson and interviewed him. Ayson said he knew McGee as “TJ.” Ayson reported

he had purchased cannabis from TJ. According to Ayson, he had known TJ for

about two months, and regularly bought cocaine and cannabis from him. He

denied being a drug dealer. Ayson did not have any illegal drugs on his person.

He also did not have any items of contraband suggesting he was selling drugs,

and he had no money.

Hawley showed McGee’s latest King County Jail booking photo to Ayson,

who confirmed McGee was the person he knew as TJ. Hawley concluded McGee

was the dealer and had fabricated the story about Ayson. Hawley placed a report

from this incident into a police database. Later, Hawley completed a certification

for determination of probable cause and McGee was charged with Violation of the

Uniform Controlled Substances Act (VUCSA).

B

The next day, June 4, 2017, witness Ronald Elliott called 911. Elliott lived

on a dead-end street adjacent to a forested creek bed. Elliott testified he saw two

men walking away towards the dead-end and a car he estimated was about a 2000

Chrysler, silver or silver-gray, with tinted windows.2 After an unknown period of

2 We acknowledge the existence of inconsistencies between Elliott’s and

another witness’s reports, but these inconsistencies are not material to our analysis concerning the information Hawley learned from McGee during the June 3 stop.

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time, Elliott heard gunshots and called 911. Within minutes of hearing the

gunshots, Elliott saw the silver car drive away. Police responded to Elliott’s 911

call, arriving between 4:25 p.m. and 4:29 p.m. The police searched the forested

creek bed but found nothing amiss.

C

On July 11, 2017, after investigating a concerning odor, Elliott discovered a

body in the forested creek bed. Responding police recovered a wallet containing

Ayson’s identification with the body. The King County Medical Examiner’s office

later confirmed identification of the body as Ayson. Police found a phone with the

body and recovered its SIM (subscriber identity module) card, but could not

otherwise access the phone’s contents.

Within 15 minutes of discovering Ayson’s identification, a detective

searched for Ayson’s name in a police database. This inquiry produced Hawley’s

report of his interaction with McGee and Ayson on June 3, 2017. The report

included McGee’s name, his phone number and his association with the Chrysler

he was driving on June 3, 2017. A search for McGee’s number in the database

found another report showing McGee was investigated on March 13, 2017. A later

search of Facebook for McGee’s phone number led to McGee’s Facebook profile.

Although the record does not indicate when, officers investigating the death also

spoke to Hawley about the June 3 stop.

The search for Ayson’s name in the database identified Desiree Burchette

as connected to him. On July 11 and July 19, 2017, police interviewed Burchette,

who stated Ayson was her boyfriend. During the July 19 interview, they showed

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Burchette a photograph of McGee from a jail booking database. Burchette said,

“That’s him” and identified McGee as Ayson’s drug dealer. Burchette testified that

McGee had once picked her up near the same location where Hawley had seen

him with Ayson. She stated she recognized McGee by his hairstyle and car and

as “the guy that [Ayson] got in the car with all the time.” She had observed McGee

with Ayson numerous times over four or five months.

On July 13, 2017, police obtained a warrant for service provider records for

two phone numbers: the phone number associated with the SIM card found with

Ayson’s body and, relying on information from the June 3 stop, the phone number

Hawley had obtained from McGee. On July 26, 2017, police received responsive

records with call data for Ayson’s and McGee’s phones. These records indicated

the last two outgoing calls from Ayson’s phone had been placed to McGee’s phone

on June 4 at 3:20 p.m. and 3:43 p.m. The records included cell site location

information suggesting both phones were in the same vicinity at 3:43 p.m., the

vicinity of Hawley’s June 3 observation of McGee and Ayson. The cell site location

information showed that at 4:07 p.m., McGee’s phone connected to a cell tower

approximately one quarter mile from the place where Ayson’s body was found.

Between 4:09 p.m. and 4:11 p.m., McGee’s phone received several calls

connecting through the same cell tower. His phone did not connect to that tower

any other time that day.

Relying on information obtained during the June 3 stop and the July 13

warrant, police obtained subsequent warrants: for service provider records of

phone numbers that called McGee’s phone around the time of the June 4, 2017

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911 call; for searching the apartment of McGee’s girlfriend, the silver Chrysler

Sebring, McGee’s cell phone, and another vehicle associated with McGee; and for

additional service provider records for McGee’s phone, a cell phone belonging to

McGee’s girlfriend, and to search a third vehicle associated with McGee.

On August 1, 2017, police obtained a warrant to arrest McGee based on the

VUCSA charge stemming from the June 3 stop. McGee was not told he was the

subject of a homicide investigation. After the arrest, and while police were

transporting McGee, McGee stated he had not called the other detective back

because the person he was going to provide information on had been murdered.

While being interviewed, McGee acknowledged his cell phone number, the June

3 interaction with Ayson, and speaking by phone with Ayson the next day. McGee

denied meeting Ayson on June 4, 2017, and invoked his right to counsel when

confronted with the cell site location information.

D

McGee’s first trial ended in a hung jury. McGee was convicted of second

degree murder at a second trial. During McGee’s first trial, the court ruled that

Hawley did not have reasonable articulable suspicion for the June 3 stop. The

State does not challenge this ruling. The trial court suppressed reference to the

drugs Hawley found when searching McGee in the June 3 stop and the arrest. On

McGee’s motion and without objection by the State, the trial court dismissed the

VUCSA charge. The pretrial motions and evidentiary rulings from the first trial

remained in effect for the second.

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Before his second trial, McGee moved to suppress evidence from the

warrants, including the July 13, 2017 warrant and the subsequent warrants. The

trial court denied this motion, concluding the causal chain between the June 3 stop

and the warrants was “severed by the murder of Keith Ayson that occurred after

the stop of June 3rd and the ensuing investigation.” The trial court concluded

McGee’s “privacy rights were protected by dismissing the items that were directly

the result of the illegal detention.” McGee also moved to suppress the identification

made by Burchette. The trial court admitted the photo identification because,

although it was impermissibly suggestive, it did not create a substantial likelihood

of irreparable misidentification.

II

Article I, section 7 of the Washington constitution states in part, “No person

shall be disturbed in [their] private affairs . . . without authority of law.” Washington

courts apply an exclusionary rule for evidence obtained in violation of this

provision. State v. Mayfield,

,

(2019). The

attenuation doctrine is a recognized exception to exclusion and applies, generally,

when the connection between official misconduct and the discovery of evidence

may “ ‘become so attenuated’ ” as to dissipate the taint of the misconduct and allow

the evidence to be used despite the misconduct playing a role in its discovery. See

Wong Sun v. United States,

,

,

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(1963) (quoting Nardone v. United States,

,

,

(1939)).

Article 1, section 7 is more protective of privacy than the Fourth Amendment

of the United States Constitution. Mayfield,

. Washington follows

a “nearly categorical” rule of excluding from trial evidence obtained in violation of

article 1, section 7, with “no exceptions that rely on speculation, the likelihood of

deterrence, or the reasonableness of official misconduct.”

. The “narrow,

Washington-specific attenuation doctrine” applies “if, and only if, an unforeseeable

intervening act genuinely severs the causal connection between official

misconduct and the discovery of evidence.”

. To determine whether

an intervening act is sufficiently attenuating, Washington looks to the tort law

doctrine of superseding cause.

. Under this standard, when “ ‘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 . . .

negligence and the . . . injury.’ ”

at 897 (quoting Schooley v. Pinch’s Deli Mkt.,

Inc.,

,

(1998)).

“[T]he ‘theoretical underpinning of an intervening cause which is sufficient

to break the original chain of causation [i.e., constitute a superseding cause] is the

absence of its foreseeability.’ ” Campbell v. ITE Imperial Corp.,

,

(1987) (alteration in original) (quoting Herberg v, Swartz,

,

(1978)).3 “Reasonable foreseeability does not

3 Campbell identifies nonexclusive factors in assessing the foreseeability of

an alleged intervening act, including, “whether (1) the intervening act created a different type of harm than otherwise would have resulted from the actor’s

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require that the precise manner or sequence of events in which a plaintiff is harmed

be foreseeable. . . . ‘[I]f the likelihood that a third person may act in a particular

manner is . . . one of the hazards which makes the [defendant] negligent, such an

act whether innocent, negligent, intentionally tortious, or criminal does not prevent

the [defendant] from being liable’ for the injury caused by the defendant’s

negligence.” Albertson v. State,

,

(2015)

(some alterations in original) (quoting Campbell,

). “[I]ntervening

criminal acts may be found to be foreseeable, and if so found, actionable

negligence may be predicated thereon.” McLeod v. Grant County Sch. Dist. No.

128,

,

(1953) (superseding cause was fact

question for jury where school district created unsupervised place of concealment

in which student raped another).4 When an act of misconduct is followed by a

subsequent criminal act, the subsequent act is not a superseding cause based

negligence; (2) the intervening act was extraordinary or resulted in extraordinary consequences; (3) the intervening act operated independently of any situation created by the actor’s negligence.” 107 Wn2.d at 812-13 (citing RESTATEMENT (SECOND) OF TORTS § 442 (1965)). 4 Accord Christen v. Lee,

,

(1989)

(criminal assault not a foreseeable result of furnishing intoxicating liquor to obviously intoxicated person, unless drinking establishment had notice of possibility of harm from prior actions of the person); Whitehead v. Stringer,

,

(1919) (King County sheriff’s deputy may be liable in tort based on having reason to know arrestee’s vehicle would be criminally vandalized after warrantless arrest); Johnson v. State,

,

(1995) (“A criminal act may be considered foreseeable if the actual harm fell within a general field of danger which should have been anticipated. The court may determine a criminal act is unforeseeable as a matter of law only if the occurrence is so highly extraordinary or improbable as to be wholly beyond the range of expectability. Otherwise, the foreseeability of the criminal act is a question for the trier of fact.”).

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merely on its being criminal, but will be a superseding cause only if it is not

foreseeable as that term is used in tort law.

Washington decisions have in some cases allowed evidence discovered

after an illegal search that came to light because of a new event—in these cases

a new voluntary act by a person other than law enforcement. In State v. Childress,

,

(1983), police in California conducted an

illegal search and discovered the defendant’s Washington driver’s license, a bank

check showing an Everett, Washington address, and a photograph of two nude

girls.

California officers forwarded the information to Everett police, who

canvassed the neighborhood around the address and located the parents of one

of the girls in the photograph.

The parents made a general, nonsuggestive

inquiry of their daughter, who disclosed sexual involvement with the defendant.

. Under the attenuation doctrine, the daughter’s new, voluntary

disclosure was the cause of the new discovery of her testimony.

.

Other Washington decisions have concluded new acts of free will by the

defendant attenuated the taint of earlier official misconduct. In State v. Rousseau,

,

(1952), overruled on other grounds by State v.

Valentine,

,

(1997), after an initial illegal search and

detention, a detainee pushed an officer into the path of an oncoming car, giving

the officer a new and legal justification to arrest the detainee and lawfully perform

a search incident to arrest. In State v. Mierz,

,

,

(1994), aff’d,

,

(1995), after an

initial illegal entry by officers, the defendant initiated assaults on the officers and

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the court allowed evidence of the assaults. In State v. Aydelotte,

,

(1983), after an illegal entry, the defendant brandished a

weapon towards approaching officers, and the court allowed evidence of these

assaults.

The State points to the homicide of Ayson as a superseding cause of police

discovering the evidence Hawley learned from McGee during the June 3 stop,

arguing the homicide was “an independent act of free will that was not influenced

by any suggestion or coercion from law enforcement.” But the State points to no

new discovery of the information Hawley learned during the June 3 stop. Hawley’s

June 3 stop was the cause of the State’s discovery that day of McGee’s name, his

phone number, his stated reasons for associating with Ayson, and his possession

of cocaine and drug paraphernalia. The homicide that the State believes occurred

the next day, June 4, 2017, was not a cause of any of the State’s June 3, 2017

discoveries. The later recovery of Ayson’s body led the State to look again at its

June 3, 2017 discoveries, but it did not cause those discoveries to occur. The

homicide was not a cause of the discovery of evidence in the June 3 stop, and was

not an intervening act amounting to a superseding cause.

Recognizing the homicide came after its June 3 discoveries, the State

argues the attenuation doctrine applies because the June 4 homicide was the

cause of its “derivative use” of its June 3 discoveries. Mayfield is clear, however,

there must be a superseding cause severing the causal connection “between” the

official misconduct and “the discovery” of the evidence.

. The

State invokes the attenuation doctrine to justify using its original, illegal June 3

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discoveries, rather than a new discovery attributable to a new, superseding cause.

The State cites no case applying the attenuation doctrine in this manner. The State

fails to show attenuation as defined in Mayfield allowing the use of the information

Hawley illegally discovered from McGee on June 3, 2017.5

The State last argues its recognition of the relationship between McGee and

Ayson after recovering Ayson’s body “merely spurred a separate investigation that

was conducted by different personnel, served an unrelated purpose, and occurred

much later than Detective Hawley’s initial detention.” The trial court concluded,

“Detectives found McGee’s phone number in their database from a March 2017

contact”—a contact whose legality is not questioned before this court—“and from

a search of McGee’s public Facebook profile.”6 Separate from the June 3 stop,

the State discovered Ayson’s SIM card, obtained the records associated with that

SIM card, from those records learned the last number dialed from Ayson’s phone

and that it was dialed twice on the afternoon of June 4, 2017, near in time to the

5 The State argues that Hawley’s illegal seizure and search were not the

“legal cause” of the discoveries he made that day, referring to the legal causation prong of the tort proximate cause rule. The State’s brief then turns to cases analyzing superseding cause. This comingles different doctrines. The tort doctrine of legal causation is relevant to establishing a causal connection. “The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability. A determination of legal liability will depend upon ‘mixed considerations of logic, common sense, justice, policy, and precedent.’ ” Schooley,

(internal quotation marks omitted) (quoting King v. City of Seattle,

,

(1974)). The question the attenuation doctrine poses under Mayfield is whether an existing causal connection between the official misconduct and the discovery of evidence was severed by an intervening act amounting to a superseding cause. 6 These conclusions were in connection with the trial court’s analysis of the

independent source doctrine. The State does not rely on the independent source doctrine on appeal. Therefore we do not address it.

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911 call, learned the number was associated with McGee based on the March

2017 encounter and Facebook entries, and learned Ayson’s drug dealer, known

as “TJ” drove a silver Chrysler. These circumstances were not causes of the

State’s June 3 discoveries from McGee. The State’s argument amounts to an

inevitable discovery argument, because, through Ayson’s phone records and other

evidence, “the police would have discovered” McGee’s identity and connection to

Ayson “notwithstanding the violation of [McGee’s] constitutional rights” in the June

3 stop. State v. Winterstein,

,

(2009). But the

inevitable discovery exception to the exclusionary rule is inconsistent with article

1, section 7 because it “is necessarily speculative and does not disregard illegally

obtained evidence.”

That Ayson’s information would have led to McGee is

insufficient.

The State says it is “unnecessary” to “individually analyze[] each search

warrant and [McGee’s] August 1, 2017, arrest,” because “Hawley’s detention was

a cause-in-fact for this entire body of evidence.” “Thus,” the State says, “the

admissibility of each portion depends on the answer to the same legal question,”

that is, the application of the attenuation doctrine. We understand the State to

concede that if Hawley’s June 3 discoveries from McGee cannot be used under

the attenuation doctrine, then each subsequent warrant fails. In light of Mayfield

and Winterstein, it is necessary to suppress the June 3 discovery of McGee’s

name, his phone number, his stated reasons for associating with Ayson, and his

possession of cocaine and drug paraphernalia. Because each subsequent warrant

including the August 1, 2017 arrest warrant depended on this information for

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probable cause, it is necessary to suppress the information learned from these

warrants, including McGee’s custodial statements on August 1, 2017. The State

does not contend there was “untainted evidence admitted at trial” that was “so

overwhelming that it necessarily leads to a finding of guilt.” State v. Elwell,

,

(2022). We therefore reverse McGee’s conviction.

III

After the trial court ruled the June 3 stop unconstitutional and suppressed

evidence of the cocaine, drug paraphernalia, and the arrest, the State made a

motion arguing evidence of the June 3 stop and information discovered during the

stop should be admitted as motive evidence supporting the murder charge. The

State’s theory at trial was that McGee thought Ayson “had ‘snitched’ on him” and

had “set him up,” and McGee killed Ayson believing Ayson “was responsible for

his arrest and may also be working with police.” The trial court granted the State’s

motion. The trial court delineated the scope of its ruling as follows:

I am, again, excluding any statements attributed to Mr. McGee that would have been made to the detective. I am excluding any contraband object that would have been found in Mr. McGee’s possession or found in his car. I am not excluding the fact that the detective observed Mr. McGee or the person who he later identified to be Mr. McGee, what happened. And I’m not excluding the fact of the [confidential informant] agreement.

McGee challenges the admission of evidence related to the June 3 stop for the

purpose of showing motive, arguing there is no such exception to the exclusionary

rule.

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We agree with McGee there is no “motive” exception to the exclusionary

rule. But we perceive a distinction between the evidence Hawley obtained illegally

during the June 3 stop, and information he learned that day distinct from the illegal

seizure and search. “Under the limits on surveillance established by our case law,

a police officer’s visual surveillance does not constitute a search if the officer

observes an object with the unaided eye from a nonintrusive vantage point.” State

v. Young,

,

(1994). Hawley’s discovery on June

3 of McGee’s name, his phone number, his stated reasons for associating with

Ayson, and his possession of cocaine and drug paraphernalia stemmed from the

illegal seizure of McGee and the subsequent search. But to the extent not the

result of the illegal seizure and search, Hawley’s testimony concerning the events

of June 3, 2017 is not subject to exclusion under article 1, section 7, and to the

extent not excluded may be used by the State to establish motive. Provided

evidence obtained in violation of article 1, section 7 is suppressed, the trial court

on remand is in the best position to determine the admissibility of other evidence

relevant to motive.

IV

McGee next asserts the trial court erred by admitting the identification by

Burchette. We disagree.

When reviewing the denial of a CrR 3.6 suppression motion, we review the

trial court’s findings of fact for substantial evidence and its conclusions of law de

novo. State v. Derri,

, 676,

(2022) (reviewing trial

court’s application of Manson v. Brathwaite,

,

, 53

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(1977)).7 “The presentation of a single photograph is, as a matter of

law, impermissibly suggestive.” State v. Maupin,

,

(1992). “However, impermissible suggestiveness may not constitute a

violation of due process. Rather, [a] court must review the totality of the

circumstances to determine whether that suggestiveness created a substantial

likelihood of irreparable misidentification.”

(citation omitted). This is

determined by considering four factors: the opportunity of the witness to view the

criminal at the time of the crime, the witness’ degree of attention, the accuracy of

their prior description of the criminal, the level of certainty demonstrated at the

confrontation, and the time between the crime and the confrontation.

(citing

Brathwaite,

). The identification of a suspect by an acquaintance

does not raise the due process concerns that arise when an eyewitness

identification is tainted by suggestive procedures. State v. Collins,

,

(2009).

The trial court analyzed each of the Brathwaite reliability factors. The court

ruled, “Even though [the identification] initially was suggestive, it does not show a

substantial likelihood that there would be irreparable misidentification.” The court’s

conclusion was based on evidence including the testimony of detectives who

interviewed Burchette and a transcript of an interview of Burchette conducted by

Greg Walsh, a private investigator for the defense. This evidence showed

7 CrR 3.6(b) requires trial courts to enter written findings of fact and conclusions of law. The trial court did not do so here. However, such an error is harmless “if the court’s oral findings are sufficient to allow appellate review.” State v. Miller,

,

(1998). The court’s oral ruling is sufficient to allow review.

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Burchette was identifying an acquaintance she was familiar with, not an individual

she knew only from witnessing a crime. Substantial evidence supported the trial

court’s factual findings, and the findings support the conclusion McGee’s due

process rights were not violated by admitting Burchette’s identification of McGee.8

Reversed and remanded.

WE CONCUR:

8 Because of our disposition, it is not necessary to reach McGee’s remaining

assignments of error.

17