Opposition Brief — David Zachary Morgan, Petitioner v. Washington

NO. 19-494

IN THE SUPREME COURT OF

THE UNITED STATES

DAVID ZACHARY MORGAN,

Petitioner,

V.

STATE OF WASHINGTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ADAM CORNELL

Snohomish Collnty

Prosecllting Attorney

Seth A. Fine

Deputy Prosecuting Attorney

Counsel of Record

3000 Rockefeller Ave. MIS 504

Everett, WA 98201

(425) 388-3618

l

TABLE OF CONTENTS

JURISDICTION ........................................................ I

CONSTITUTIONAL AND STATUTORY

PROVISIONS ............................................................ I

STATEMENT OF THE CASE .................................. I

A. Initial Investigation And Seizure Of

Petitioner's Clothes ........................................ 1

B. State Court Proceedings ................................ 3

SUMMARY OF ARGUMENT .................................. 4

ARGUMENT ............................................................. 6

A. Because The Petitioner's A1:guments In The

Washington Supreme Court Were Solely

Based On The State Constitution, This Court

Lacks Jurisdiction To Review A NewlyAsserted Federal Claim.............................. 6

B. Since The Record Is Unclear About What

Facts We1·e Perceived By The Officers At The

Time Of The Seizure, This Case Presents An

Unsuitable Vehicle For Clarifying The

"Immediately Apparent" Requirement.... 12

C. The Test Applied By The Washington

Supreme Court In This Case Is Similar To The

Test Used By Other Jurisdictions ............ 17

CONCLUSION ........................................................ 21

ll

TABLE OF AUTHORITIES

Cases

Adams u. Robertson

520 U.S. 83 (1997) ................................................. 6

Coolidge u. New Hampshire

403 U.S. 443 (1971) ............................................ 6-7

Horton u. California

496 U.S. 128 (1990) ............................ 6-7, 9, 11, 20

Soldal u. Cooll County

506 U.S. 56 (1992) ............................................... 11

State u. Chrism.an

100 Wash. 2d 814, 676 P.2d 419 (1984) ......... 7, 11

State u. Dobbs

323 S.W.3d 184 (Tex. Crim. App. 2010) .... 6, 18-20

State u. Hatchie

161 Wash. 2d 390, 166 P.3d 698 (2007) ........... 7, 9

State u. Kull

155 Wash. 2d 80, 118 P.3d 307 (2005) ........ 7-9, 11

State u. Ladson

138 Wash. 2d 343, 979 P.2d 833 (1999) ............. 10

State u. McKinney

148 Wash. 2d 20, 60 P.3d 46 (2002) ..................... 9

State u. Murray

84 Wash. 2d 527, 527 P.2d 1303 (1974) ......... 7, 19

State u. Myers

117 Wash. 2d 332, 815 P.2d 761 (1991) ............... 7

iii

State v. Myrick

102 Wash. 2d 506, 688 P.2d 151 (1984) ........... 9-10

State u. 0 'Neill

148 Wash. 2d 564, 62 P.3d 489 ............................. 7

State v. Parll.er

139 Wash. 2d 486, 987 P.2d 73 (1999 ................ 10

State v. Reep

161 Wash. 2d 808, 167 P.3d 1156 (2007) .......... 7, 9

United States v. Aguirre

839 F.2d 854 (1st Cir. 1988) ................................ 17-18

United States v. Beal

810 F.2d 574 (6th Cir. 1987) ....................... 6, 18-19

United States v. Garces

133 F.3d 70 (D.C. Cir. 1998) ...................... 6, 19-20

United States v. Mclernon

746 F.2d 1098 (6111 Cir. 1984) .............................. 18-19

United States v. McLevain

310 F.3d 434 (6111 Cir. 2002) ..................................... 18

United States v. Rull.owshi

877 F.2d 139 (1st Cir. 1989).................. 6, 17-18, 20

Whren v. United States

517 U.S. 806 (1996) ............................................. 10

Constitutional Provisions

U.S. Const., amend. 4............................ 4-5, 9-11, 20

Wash. Const., art. I,§ 7 ....................... 1, 3-4, 7, 9-10

iv

Statutes

28 u.s.c. § 1257 .............................................. l, 6, 11

Court Rules

Wash. Super. Ct. Crim. R. 3.6 ........................... 16-17

1

JURISDICTION

This court does not have jurisdiction under 28

U.S.C. § 1257(a). As discussed below, no right under

the United States Constitution was set up or claimed

in the Washington Supreme Court

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Article 1, § 7 of the Washington Constitution

states:

No person shall be disturbed in his private

affairs, or his home invaded, without authority

of law.

28 U.S.C. § 1257(a) states in relevant part:

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari ... where any title,

right, privilege, or immunity is specially set up

or claimed under the Constitution or the

treaties or statutes of ... the United States.

A.

STATEMENT OF THE CASE

Initial Investigation And Seizure Of

Petitioner's Clothes

On the evening of November 16, 2014, police

and firefighters responded to a house fire in

Lynnwood, Washington. The petitioner (defendant),

David Morgan, and his ex-wife, Brenda Welch, were

both injured in the fire. They were taken to separate

hospitals. 1 CP 314-15.

Officer Christopher Breault of the Lynnwood

Police Department was sent to the hospital where the

2

petitioner was being treated. He was told to obtain

information from him and provide medical updates on

his status. 1 RP 115. The petitioner told Officer

Breault that he had gone downstairs because he

smelled something. He found Ms. Welch, who was on

fire. He tried to rip the sweater off her body, because

it was covered in flames. As he was doing so, he

slipped and fell. He couldn't take it anymore, so he ran

out of the residence. 1 CP 316.

While Officer Breault was in the Petitioner's

hospital room, he "noticed that the clothing of the

defendant's had been placed basically in several

plastic bags that the hospital had provided and then

placed on the back counter." 1 RP 151. He described

the bags as "some sort of gift bag; it looked like it had

a hospital logo on it. And they were just regular plastic

bags that you could get at a store."1 RP 158. He was

concerned that the clothing needed to be packaged

properly, so that any evidence on them would not be

lost. 1 RP 154-55. Officer Breault was unsure whether

he had collected the clothing on his own initiative, or

whether another officer had directed him to do so. 1

RP 159, 168.

A crime scene technician, Officer Brad Reo1·da,

was also directed by detectives to go to the hospital. 1

RP 159-60. Officer Reorda had previously been at the

hospital with Ms. Welch. The nurses there had told

him that Ms. Welch's clothes smelled like gasoline. 1

CP 315. At the petitioner's hospital, Officer Reorda

and Officer Breault removed the petitioner's clothes

from the plastic bags and placed them in "arson bags,"

which are designed to preserve volatile chemicals. 1

CP 315; 1 RP 155-57.

3

Later examination of the clothing showed blood

spatter on the jeans and the left side of the shirt. 3/29

RP 80, 84-85. Spatter results when force is applies to

a source of liquid blood. The patte1·n is different from

that which results from blood spurting or transfer.

3/29 RP 81.

B. State Court Proceedings

The petitioner was charged with attempted

first degree murder, first degree assault, and first

degree arson. 1 CP 182. He moved to suppress the

clothing. 1 CP 298-317. The State argued that the

evidence was admissible on theories of exigent

circumstances and plain view seizure. 1 CP 210-18.

Following the hearing, the trial court rejected the

"plain view" argument. It nonetheless admitted the

evidence on the basis of exigent circumstances. Writ

App. 59a, 60a-62a. It later denied a motion to

reconsider that ruling. Writ. App. 56a.

A jury found the petitioner guilty as charged. 1

CP 58-61. At sentencing, the court merged the assault

count into the attempted murder count. 15 RP 2844.

The petitioner was accordingly sentenced for

attempted first degree murder and first degree arson.

1 CP 32-45.

The Washington Court of Appeals reversed the

convictions. It disagreed with the trial court's

conclusion that the State had established exigent

circumstances. Writ App. 43a. It also rejected the

State's argument that the seizure was justified by the

"plain view" doctrine. Writ. App. 44a-45a. The court

therefore held that the warrantless seizure violated

Article I, section 7 of the Washington Constitution.

Writ. App. 33a, 44a.

4

The Washington Supreme Court granted the

State's petition for review. It agreed with the Court of

Appeals that exigent circumstances had not been

established. Writ App. at 4a-5a. The Court held,

however, that the seizure satisfied the requirements

of the "plain view" doctrine. Writ App. at 5a-8a. In so

holding, it clarified that the Washington Constitution

does not contain any separate "inadvertence"

requirement. W1·it App. 6a. The court therefore

concluded that the State had established "authority of

law" for the seizure, as required by Article I, § 7 of the

state constitution. Writ App. at 4a. It remanded the

case to the Court of Appeals for further proceedings

(i.e., consideration of issues that had not been passed

on by that court). Writ App. Sa. The case remains

pending in the Washington Court of Appeals.

SUMMARY OF ARGUMENT

For this court to grant certiorari, the

petitioner's federal claims must have been either

addressed by, or properly presented to, the highest

state court. That requirement has not been satisfied

in this case. The petitioner's arguments in the

Washington courts were based on a three-part test

that had been formulated by the Washington

Supreme Court. That test reflected the court's

inte1·pretation of the "private affairs" provision of the

Washington Constitution, art. I,§ 7. The test included

an "inadvertence" prong that has been rejected by this

court.

In the Washington Supreme Court, the State

argued (successfully) that "inadve1'tence" was not an

independent requirement under the Washington

Constitution. In response, the petitioner criticized the

State for its "misguided effort" to apply Fou1·th

5

Amendment analysis. He claimed that his position

was supported by the Washington Constitution, which

provides greater protection than the Fourth

Amendment. It is thus clear that the petitioner's

arguments in the Washington Supreme Court were

based solely on the Washington Constitution, not the

Fourth Amendment. His belated attempt to raise a

federal constitutional argument is not a basis for

certiorari.

This case also presents factual problems. The

petitioner claims that it is "undisputed" that the

seizing officer could not perceive anything about the

seized object. In the trial court, however, the

petitioner never raised such an argument. Rather, he

claimed that the seizing officers could not "fully view"

the clothing. In the Washington Supreme Court, he

argued that the manner in which the officer found the

clothing was "unknown."

No written findings were entered by the trial

court. The court's oral opinion did not specifically

address this issue, since it focused instead on the

"inadvertence" requirement. The Washington

Supreme Court concluded that the petitioner's

clothing was "detectable in the plastic hospital bags

on the counter" in his hospital room. Writ. App. 7a.

The record does not clearly show that this conclusion

was wrong.

The petitioner claims that the decision of the

Washington Supreme Court conflicts with those of

other jurisdictions. This supposed conflict is illusory.

The Washington Supreme Court said that the

"immediately apparent" requirement is satisfied

"when, considering the surrounding circumstances,

the police can reasonably conclude that the subject

6

evidence is associated with a crime." Writ App. 7a.

This is similar to the formulation applied by the Sixth

Circuit: that the requirement is satisfied if, on the

facts available to the officers, they can at the time of

discovery "detennine probable cause of the object's

incriminating nature." United States v. Beal, 810 F.2d 574, 577

(61h Cir. 1987). It is also similar to formulations applied by the

First Circuit, the District of Columbia Circuit, and the Texas

Court of Criminal Appeals. United States v. Rukowski, 877

F.2d 139 (l51 Cir. 1989); United States v. Garces, 133 F.3d 70,

75 (D.C. Cir. 1998); State v. Dobbs, 323 S.W .3d 184, 189

(Tex. Crim. App. 2010). There is no conflict for this court to

resolve.

A.

ARGUMENT

Because The Petitioner's Arguments In

The Washington Supreme Court Were

Solely Based On The State Constitution,

This Court Lacks Jurisdiction To Review

A Newly-Asserted Federal Claim.

Under 28 U.S.C. § 1257(a), this court has

jurisdiction to review a decision of a state court if a

right under the United States Constitution is

"specially set up or claimed." With "very rare

exceptions," this court "will not consider a petitioner's

federal claim unless it was either addressed by, or

properly presented to, the state court that rendered

the decision we have been asked to 1·eview." Adams v.

Robertson, 520 U.S. 83, 86 (1997).

In this case, the arguments focused on an issue

under the Washington Constitution: whether a valid

plain view search requires that the discovery of

evidence be "inadvertent." The "inadvertence"

requirement arose from the plurality decision in

Coolidge v. New Hampshire, 403 U.S. 443 (1971). This

7

court, however, repudiated such a requirement in

Horton v. California, 496 U.S. 128 (1990).

Based on Coolidge, the Washington Supreme

Court set out a three-part test for a valid plain view

search. The requirements under this test were:

[1] A prior justification for intrusion, [2]

an

inadvertent

discovery

of

incriminating

evidence,

and

[3]

immediate knowledge by police that they

have evidence before them.

State v. Mitrray, 84 Wash. 2d 527, 534, 527 P.2d 1303,

1307 (1974). These requirements were later

incorporated into the Washington Supreme Court's

interpretation of the "private affairs" provision set out

in Wash. Const., art. I, § 7. State v. Chrisman, 100

Wash. 2d 814, 819, 676 P.2d 419, 423 (1984).

After Horton, the decisions of the Washington

Supreme Court were inconsistent. Some cases

continued to apply the three-part test. See, e.g., State

v. Myers, 117 Wash. 2d 332, 346, 815 P.2d 761, 769

(1991); State v. Kull, 155 Wash. 2d 80, 85 ,i 8, 118 P.3d

307, 309 (2005); State v. Reep, 161 Wash. 2d 808, 816

ii 20, 167 P.3d 1156, 1160 (2007). Other cases applied

a two-part test that omitted the "inadvertence"

requirement. See, e.g., State u. O'Neill, 148 Wash. 2d

564,583, 62 P.3d 489,500 (2003); State v. Hatchie, 161

Wash. 2d 390, 395 11, 166 P.3d 698, 702 (2007). At

the time the present case was litigated, the three-part

test was thus solely an aspect of Washington law. It

included an "inadvertence" requirement that had

been repudiated by this court in Horton.

ir

Thmughout the litigation in this case, the

defense relied on the three-part test. The defendant's

8

pre-trial motion to suppress evidence quoted the

three-part test from Kull. 1 CP 306. That case was

decided solely under the Washington constitution.

Kull, 155 Wash. 2d at 85 ,r 8, 118 P.3d at 309. The trial

court rejected application of the plain view doctrine

because there was no "inadvertent discovery." App. at

59a. The court instead admitted the evidence on the

basis of exigent circumstances. App. at 60a-61a.

On appeal to the Washington Court of Appeals,

the defendant's opening brief did not mention the

"plain view" doctrine (because the trial court's ruling

on that point was favorable to the defendant). The

State's responsive brief argued that the search could

be upheld under that doctrine. The State pointed out

that this court had 1·ejected any "inadvertence"

requirement,

but

acknowledged that

some

Washington cases continued to recognize it. The State

then argued that the trial court had misconstrued

that requirement as defined by Washington law. Brief

of Respondent at 25-26.1

In the defendant's reply to this argument, he

made it clear that he was relying on the Washington

Constitution:

The State claims the trial court was

wrong to consider whether the discovery

was inadvertent because the United

States Supreme Court has rejected this

requirement

under

the

Fourth

1

The briefs filed in both the Washington Court

of Appeals and the Washington Supreme Court are

available at https://www.courts.wa.gov/appellate_

trial_courts/coaBriefs/index.cfm?fa=coaBriefs.ScHom

e&courtld=AOS (under cause no. 96017-8).

9

Amendment. Resp. Br. at 25 (citing

Horton v. California, 496 U.S 128, 110

S.Ct. 2301, 110 L. Ed. 2d 112 (1990)). But

Kull analyzed the defendant's rights

under article I, section 7, not the Fourth

Amendment. 155 Wn.2d at 85. And

contrary to the State's claim, our

supreme court has continued to require

the discovery of evidence be inadvertent

to satisfy the plain view exception under

article I, section 7, despite recognizing no

such requirement exists under the

Fourth Amendment. See e.g., State v.

Reep, 161 Wn.2d 808,816, 167 P.3d 1156

(2007), Kcill remains the controlling

authority, and the trial court was correct

to adhere to its analysis.

Reply Brief of Appellant at 11-12. The Washington

Court of Appeals agreed with this analysis. In

suppressing the evidence, it relied on "the plain view

exception to the warrant requirement imposed by

article 1, section 7." Pet. App. 44a.

The State sought 1·eview of this decision in the

Washington Supreme Court. In his briefing in that

court, the defendant criticized the State for its

"misguided effort" to apply Fourth Amendment

analysis. Supplemental Brief of Respondent at 14.

[A]s this Court has long established,

article I, section 7, provides greater

protection than the Fourth Amendment.

State v. Hatchie, 161 Wn.2d 390, 396,

166 P.3d 698 (2007) (citing State v.

McKinney, 148 Wn.2d 20, 29, 60 P.3d 46

(2002); State v. Myricll, 102 Wn.2d 506,

10

510, 688 P.2d 151 (1984); see also [State

v.] Parlter, [139 Wash. 2d 486, 493, 987

P.2d 73 (1999)] ("It is by now axiomatic

that article I, section 7 provides greater

protection to an individual's right of

privacy than that guaranteed by the

Fourth Amendment."). Where a Fourth

Amendment

analysis

hinges

on

reasonableness, article I, section 7 turns

on whether a seizure was permitted by

"authority of law," or a warrant. Id. at

397 [sic].

Supplemental B1·ief of Respondent at 16.

The decision of the Washington Supreme Court

addressed the arguments that had been raised in the

briefs. It discussed the "robust privacy pmtections" of

Wash. Const., art. I, § 7. Pet. App. 4a. It pointed out

that under the Washington Constitution, a seizure

cannot be based on pretext. Pet. App. 6a. This is

contrary to the conclusion that this court has reached

under the Fourth Amendment. Whren v. United

States, 517 U.S. 806 (1996); but see State v. Ladson,

138 Wash. 2d 343, 358, 979 P.2d 833, 842 (1999)

(rejecting Whren under the Washington Constitution).

The Washington Supreme Court held, however, that

the test under the Washington Constitution does not

include an "inadvertence" requirement. Pet. App.6a7a. The dissent criticized this 1·esult, not because it

was inconsistent with the Fourth Amendment, but

because it "severely undermines the sea1·ch warrant

requirement under article I, section 7 of our

constitution." Pet. App. lla.

In the Washington Courts, the defendant

repeatedly referred to the governing test as

11

"immediate knowledge." 1 CP 206 (motion in trial

court); Reply Brief of Appellant at 11 (brief in

Washington Court of Appeals); Supp. Brief of

Respondent at 11 (brief in Washington Supreme

Court). That is the language that has been used by the

Washington Supreme Court in explaining the

requirements of the Washington constitution. See,

e.g., Kull, 155 Wn.2d at 85 ~j 8, 118 P.3d at 309;

Chrisman, 100 Wash. 2d at 819,676 P.2d at 423. This

court's decisions phrase the Fourth Amendment test

as "immediately apparent." Horton, 496 U.S. at 136;

Soldal v. Coo/i County, 506 U.S. 56, 69 (1992). The

language used in the defendant's briefs thus clearly

reflects an argument under the Washington

Constitution, not the United States Constitution.

In short, an argument based on the United

States Constitution was neither addressed by nor

presented to the Washington Supreme Court. To the

contrary, the defendant's argument was explicitly

based on a three·part test that this court had already

repudiated. In arguing for this test, he repeatedly

emphasized that the Washington Constitution is more

protective than the Fourth Amendment. Reply Brief

of Appellant at 12; Supplemental Brief of Respondent

at 16. He cannot now assert the contrary. Since no

right under the United States Constitution was

"specially set up or claimed" in the Washington

Supreme Court, this court lacks jurisdiction under 28

U.S.C. § 1257(a).

12

B.

Since The Record Is Unclear About What

Facts Were Perceived By The Officers At

The Time Of The Seizure, This Case

Presents An Unsuitable Vehicle For

Clarifying The "Immediately Apparent"

Requirement.

The petitioner asserts that the record in this

case is "uniquely good to resolve whether 'immediately

apparent' requires an office to perceive at least

something about the seized object because, here, it is

undisputed the Officer Breault did not and could not."

Pet. at 24 {petitioner's emphasis). This assertion is

incorrect. Because of the way this case was litigated,

the record is unclear about what exactly the seizing

officer perceived. In the Washington Supreme Court,

the defendant specifically relied on the lacll of

evidence on this point. Supplemental Brief of

Respondent at 11 ("How Officer Breault found Mr.

Morgan's clothing, which had been placed in plastic

shopping bags in the back counter of Mr. Morgan's

hospital room, is unknown").

As discussed above, the defendant's motion to

suppress was primarily based on a claim that the

seizure was not "inadvertent." The defendant also

argued that the plain view exception was not satisfied

because "Officer Reorda had to manipulate the bag

and remove its contents before being able to fully view

the clothing and recognize the stains that could be

considered incriminating evidence." 1 CP 307. The

motion did not claim that the officers could not see the

clothing at all - it claimed that the officers could not

"fully view the clothing."

At the pre-trial hearing, Officer Breault

testified briefly concerning his discovery of the

clothing:

13

So I noticed that the clothing of the

defendant's had been placed basically in

several plastic bags that the hospital had

provided and then placed on the back

counter of the - kind of the smaller

hospital room.

1 RP 151.

Q In regard to this case, you indicated

that you saw the defendant's clothing

over where? Where was it?

A. It was on the back counter in the

hospital mom that the defendant was

being treated in.

Q And how was it packaged?

A They - all the clothing and everything

had been placed in several plastic

shopping like bags and then placed on

the counter.

1 RP 154-55.

Q And describe the bags that they were

in. You said they were shopping bags.

But what do you mean?

A It was almost like they were in like

some sort of gift bag; it looked like it had

a hospital logo on it. And they were just

regular plastic bags that you could get at

a store.

1 RP 158.

In closing argument at the pre-trial hearing,

the defense did not dispute that the officer saw

clothing in the bag. Rather, he argued that "plain

14

view" requirements were not satisfied because the

seizure had been ordered by another officer:

The State's argument in their brief about

what supports plain view actually

undercuts that we're in a plain view

scenario. As I already stated, and what

we have support - are what the facts are

is that Officer Zatylny ordered the

collection, the seizure of the clothing.

This isn't a situation where an officer is

talking to somebody, they're investigate

- they're investigating something and

then they see something that they

recognize to be incriminating evidence,

and then they have the ability to seize it.

1 RP 175.

In colloquy with the prosecutor, the trial court

introduced the idea that the bags were opaque:

THE COURT; How could plain view

apply?

[PROSECUTOR]: Because it's readily

identifiable as evidence in the - in the THE COURT: They were sent there to

collect them.

[PROSECUTOR]: But THE COURT: Exhibit 4:2 Zatylny sent

them there to collect.

[PROSECUTOR]: Sent Officer Reorda.

But you heard testimony from Officer

Breault that he would have collected it,

2 Exhibit 4 is not part of the record.

15

but for - even if he was told by Detective

Jorgensen to collect it, that he would

have collected it because he recognized it

as important. And he THE COURT: He recognized through

opaque shopping bags? He called them

grocery bags. I know of no grocery bags

that you can see through.

[PROSECUTOR]: No, I understand.

THE COURT: And he saw blood on

clothing that he didn't even identify

through bags that you can't see through?

[PROSECUTOR]: Absolutely not.

THE COURT: And he recognized it

immediately as [PROSECUTOR]: Nope.

THE COURT: .. inadvertent discovery?

[PROSECUTOR]: No. What I'm saying is

that he knew - he suddenly realized

that: There's the defendant's clothing;

we know that this is an arson; we know

that it's - we're being - investigating

possible accelerants; we know we need to

preserve everything.

And that's not properly se - I'm not

saying he saw the blood and goes, wait a

minute, that's blood. What I'm saying is

he saw clothing worn by the defendant THE COURT: So inadvertent discovery

is more in tune with: We're investigating

an arson··

16

[PROSECUTOR]: Right.

THE COURT: -- we went to the

defendant, the suspect's room, or the

person's room, and there on the counter

I saw a knife that had blood on it; I

wasn't there for that. That's an

inadvertent discovery.

[PROSECUTOR]: I understand.

THE COURT: It's not a plain-view

argument.

Pet. App. 58a-59a.

The defendant cha1·acterizes this colloquy as a

concession that the officer could not perceive anything

about the seized objects. Pet. at 24; see Pet. at 5, 7-8

(similar claims). This is not correct. To the contrary, the

prosecutor argued that the officer "saw clothing worn by

the defendant." Pet. App. 59a. This is the most

reasonable inference from the officer's testimony that

he "noticed" that the defendant's clothing had been

placed in plastic bags. 1 RP 151. Even if the bags were

opaque, the contents could be seen if the tops were not

closed securely.

In the trial court, the defendant did not argue

that the contents of the bags were completely hidden

- he argued that the officers could not "fully view the

clothing." 1 CP 307. In its oral opinion, the court did

not find that the "immediate knowledge" requirement

was not satisfied - it relied on the State's failure to

show that the seizure was inadvertent. Pet. App. 59a.

Contrary to normal Washington practice, no written

findings were entered to clarify this oral ruling. Pet.

App. 3a, 36a; see Wash. Super. Ct. Crim. R. 3.6(b)

(requiring entry of written findings following an

17

evidentiary hearing on a motion to suppress

evidence).

The petitioner asks this court to hold that the

plain view doctrine "requires an officer to perceive at

least something about the seized object." Pet. at 24

(petitioner's emphasis). From the record in this case,

it appears that this requirement was probably

satisfied. To the extent that the record is unclea1·, this

case is an unsuitable vehicle for resolving the issue

raised by the petitioner.

C.

The Test Applied By The Washington

Supreme Court In This Case Is Similar To

The Test Used By Other Jurisdictions.

The petitioner asks this court to resolve a conflict

between courts as to the meaning of the "immediately

apparent" requirement. This supposed conflict is largely

illusory. All of the cases cited in the petition follow essentially

the same rule: in deciding whether to seize an object in plain

view, police may consider their observations in light of facts

previously known to them.

This is the rule applied by the Washington Supreme

Court: "Objects are immediately apparent under the plain view

doctrine when, considering the surrounding circumstances, the

police can reasonably conclude that the subject evidence is

associated with a crime." Pet. App. 7a. The court concluded

that the officer's observations of the bags, considered in light

of other facts known to police, was sufficient to support a

reasonable conclusion that the clothing in them would have

evidentiary value. Pet. App. 7a-8a.

Cases from other jurisdictions are consistent with this

rule. The petitioner cites the "light bulb" analogy set out in

United States v. Rukowski, 877 F.2d 139 (151 Cir. 1989): "The

sum total of the searcher's knowledge must be sufficient to

tum on the bulb; if the light does not shine during the currency

18

of the search, there is no 'immediate awareness' of the

incriminating nature of the object." Id. at 142. The opinion

makes it clear, however, that the officers' previous knowledge

may "tum on the bulb." The court cited with approval to one

of its prior decisions. Id. at 143, citing United States v.

Aguirre, 839 F.2d 854 (l st Cir. 1988). There, police serving a

search warrant seized a set of keys that were not included in

the warrant. There is, of course, nothing inherently

incriminating about keys. Police knew, however, that the

suspect had used a Ford pickup truck to conduct a major drug

purchase. The keys were conspicuously labeled with Ford's

insignia. Based on these facts, the evidentiary value of the keys

was "immediately apparent" to the officers. Aguirre, 839 F.3d

at 858-59.

The petitioner also cites the Sixth Circuit's formulation

in United State v. Mclernon, 746 F.2d 1098 (6th Cir. 1984):

under the plain view doctrine, probable cause to seize an

object must be "the direct result of the officer's instantaneous

sensory perception of the object." Id. at 1124. Nothing in this

formulation precludes an officer from considering previouslyknown facts. To the contrary, one of the factors considered by

the Sixth Circuit is whether probable cause of an item's

incriminating nature can be determined from the facts

available to the officers at the time of the item's discovery.

United States v. McLevain, 310 F.3d 434, 441 (6th Cir. 2002);

United States v. Beal, 810 F.2d 574,577 (6th Cir. 1987).

The petitioner cites the decision of the Texas Court of

Criminal Appeals in State v. Dobbs, 323 S.W.3d 184 (Tex.

Crim. App. 2010). The court held that a plain view seizure is

lawful if probable cause "arises while the police are still

lawfully on the premises, and their 'further investigation' into

the nature of those items does not entail an additional and

unjustified search of ... or presence on ... the premises." Id. at

189. Again, nothing in this test precludes consideration of

previously-obtained information. In Dobbs, police who were

19

serving a search warrant observed golf clubs and golf shirts.

There is nothing inherently incriminating about such items.

During the search, however, police learned that similar items

had been stolen in a burglary. Id. at 186. Based on that

information, the items could properly be seized. Id. at 188.

The District of Columbia Circuit has stated a similar

test: "the incriminating nature of the item must have become

apparent, in the course of the search, without the benefit of

information from any unlawful search or seizure." United

States v. Garces, 133 F.3d 70, 75 (D.C. Cir. 1998). Once

again, this test does not preclude consideration of previouslyobtained information.

The thrust of several of these cases is that an item

cannot be seized if further examination is necessary to

establish its evidentiary significance. McC/ernon, 746 F.2d at

1126; Beal, 810 F.2d at 577; Garces, 133 F.3d at 76. The

Washington Supreme Court agrees with that proposition. It

specifically said that the plain view doctrine would not apply

if an officer had to manipulate the item to determine its

incriminating nature. Writ App. 8a; see Murray, 84 Wn.2d at

535, 527 P.3d at 1308.

The decision of the Washington Supreme Court is thus

consistent with that of other courts that have considered this

issue.

• "Objects are immediately apparent under the plain view

doctrine when, considering the surrounding circumstances, the

police can reasonably conclude that the subject evidence is

associated with a crime." Pet. App. 7a.

• "The immediacy prong of the test requires that the executing

officer can at the time of discovery of the object on the facts

then available to them determine probable cause of the

object's incriminating nature." Beal, 810 F.2d at 577

( emphasis omitted).

20

• "[T]he incriminating nature of the item must have become

apparent, in the course of the search, without the benefit of

information from any unlawful search or seizure." Garces, 133

F.3d at 75.

• "Immediately apparent" means "simply that the viewing

officers must have probable cause to believe an item in plain

view is contraband before seizing it." Dobbs, 323 S.W.3d at

189.

• "The sum total of the searcher's knowledge must be

sufficient to tum on the bulb." Rukowski, 877 F.2d at 142

(1989).

There ts no fundamental difference between these

formulations. Accordingly, there is no conflict that this court

needs to resolve.

The amicus briefs argue that the plain view doctrine,

as applied by the Washington Supreme Court, subverts the

requirement for a search warrant. This is essentially a reformulation of the arguments that were rejected in Horton. The

dissenters in that case argued, "The Fourth Amendment

demands that an individual's possessory interest in property

be protected from unreasonable governmental seizures, not

just by requiring a showing of probable cause, but also by

requiring a neutral and detached magistrate to authorize the

seizure in advance." Horton, 496 U.S. at 148-49 (Brennan, J.,

dissenting). The court, however, held that seizure of items

found in plain view does not violate the warrant requirement,

so long as the scope of the search is limited to that authorized

by the warrant. Id. at 141-42. The same analysis answer the

contentions of amici.

21

CONCLUSION

The petition for ce1·tiorari should be denied.

RESPECTFULLY SUBMITTED

ADAM CORNELL

Snohomish County

Prosecuting Attorney

~ Q~pA(

December 30, 2019

Seth A. Fine

Deputy Prosecuting Attorney

Counsel of Record

3000 Rockefeller Ave. MIS 504

Everett, WA 98201

(425) 388-3618