State v. Mayfield
State v. Mayfield
Concurring Opinion
¶ 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
¶ 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,
¶ 75 Important to the issue and facts represented here, in those cases and others cited in those cases, the evidence was obtained *77contemporaneously 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,
¶ 77 Importantly, we have largely rejected the attenuation doctrine under nearly identical material facts in State v. Rojo Armenta,
¶ 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 *905constitutional violation." Br. of Amici Curiae
State v. Gunwall,
Miranda v. Arizona,
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.
Opinion of the Court
*874¶ 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. ----,
¶ 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 *875article I, section 7, *63the 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 *876next 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."
¶ 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."
¶ 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 *877illegal 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 *64because Deputy Nunes gave Ferrier
¶ 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
*878ISSUES
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 *879given situation, the Washington State Constitution should be considered as extending broader rights to its citizens than the United States Constitution.' " Blomstrom v. Tripp,
¶ 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,
"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 *880current implications of recognizing or not recognizing an interest.
¶ 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 *881State v. Witkowski, 3 Wash. App. 2d 318, 339-41,
¶ 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.
*66Id. at 401-02,
¶ 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,
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 *883reached the issue.
¶ 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 *67severed 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 ,
*884(quoting Boyd v. United States ,
[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.
¶ 26 The federal exclusionary rule was first held applicable to the states in 1961. Mapp,
¶ 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,
*885¶ 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 ,
¶ 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,
*886Weeks,
¶ 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 ,
¶ 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,
¶ 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,
¶ 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,
¶ 35 Again, we reaffirmed that "[u]nlike its federal counterpart, Washington's exclusionary rule is 'nearly categorical.' " Afana,
¶ 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,
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 *889applies 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,
¶ 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 *70that it ultimately is obtained pursuant to a valid warrant or other lawful means independent of the unlawful action." Gaines,
¶ 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.
¶ 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,
¶ 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,
¶ 42 Our exclusionary rule cases thus make clear two basic principles of Washington law. First, our state exclusionary *891rule 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 *71over 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,
¶ 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,
¶ 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,
¶ 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.
*893Wong Sun v. United States,
¶ 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.' "
¶ 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."
*894¶ 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
¶ 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,
*895¶ 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 *73with 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,
¶ 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,
¶ 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,
*897¶ 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,
¶ 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 *74by 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 *898state constitutional law. E.g., State v. O'Bremski,
¶ 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,
¶ 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 *899official 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, *75or 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 *900of his person.
¶ 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,
¶ 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 *901consent 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.
¶ 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,
*76¶ 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.
*902CONCLUSION
¶ 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.
State v. Ferrier,
State v. Gunwall,
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,
Other cases have declined to reach the issue because it was unnecessary, not raised, or inadequately briefed. State v. Smith,
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,
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,
Miranda v. Arizona,
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.
Reference
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- STATE of Washington, Respondent, v. John Douglas MAYFIELD, Petitioner.
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