Reply Brief — David Zachary Morgan, Petitioner v. Washington

No. 19-494

IN THE

Supreme Court of the United States

_______________________

DAVID ZACHERY MORGAN,

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

Supreme Court of Washington

_______________________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_______________________

AMIR H. ALI

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

777 6th Street NW, 11th Fl.

Washington, DC 20001

(202) 869-3434

amir.ali@macarthurjustice.org

KATHLEEN A. SHEA

LUMINATA, PLLC

2033 Sixth Avenue, Suite 901

Seattle, Washington 98121

Counsel for Petitioner

TABLE OF CONTENTS

Page(s)

Table Of Authorities .......................................................... ii

Introduction........................................................................ 1

Argument ........................................................................... 2

I. The Court Has Jurisdiction.......................................... 2

II. The BIO All But Concedes The Split. .......................... 7

III. The BIO Does Not Dispute The “Immediately

Apparent” Condition Is Of Central Importance, Or

That The Decision Below Renders It Meaningless. ... 11

IV. This Is An Exceptional Vehicle. ................................. 11

Conclusion ........................................................................ 13

Addendum A

Petition for Review, State v. Morgan, No. 96017-8

(Wash. June 29, 2018) ................................................ 1a

Addendum B

Brief of Respondent and Cross-Appellant,

State v. Morgan, No. 75072-1-I

(Wash. Ct. App. Aug. 29, 2017) ................................ 13a

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Robertson, 520 U.S. 83 (1997) ............................ 7

Arizona v. Hicks, 480 U.S. 321 (1987) ........................... 4, 5

Blomstrom v. Tripp, 402 P.3d 831 (2017) .......................... 6

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) .............. 2

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty., Cal.,

482 U.S. 304 (1987) ...................................................... 2

Green Bay & M. Canal Co. v. Patten Paper Co.,

172 U.S. 58 (1898) ........................................................ 7

Kansas v. Marsh, 544 U.S. 1060 (2005) ............................. 7

Local No. 438 Const. & Gen. Laborers’ Union v.

Curry,

369 U.S. 883 (1962) ...................................................... 7

Minnesota v. Dickerson, 508 U.S. 366 (1993) .................... 4

People v. Swietlicki, 361 P.3d 411 (Colo. 2015) ....... 8, 9, 11

Pope v. Atl. Coast Line R.R. Co.,

344 U.S. 863 (1952) ...................................................... 7

Raley v. State of Ohio, 360 U.S. 423 (1959) ................... 2, 5

Sprague v. Spokane Valley Fire Dep’t,

409 P.3d 160 (Wash. 2018) ........................................... 6

State v. Allstead,

86 Wash. App. 1037 (Wash. Ct. App. 1997) ................. 6

State v. Carver, 781 P.2d 1308 (Wash. 1989) .................... 6

State v. Dobbs,

323 S.W.3d 184 (Tex. Ct. Crim. App. 2010) ............... 10

State v. Erickson, 225 P.3d 948 (Wash. 2010) ................... 6

State v. Garcia-Salgado,

240 P.3d 153 (Wash. 2010) ........................................... 6

iii

State v. Harryman,

87 Wash. App. 1054 (Wash. Ct. App. 1997) ................. 6

State v. Hudson, 874 P.2d 160 (Wash. 1994) ..................... 4

State v. Jackman,

No. 48742-0-II, 2018 WL 286809 (Wash. Ct.

App. Jan. 4, 2018) ......................................................... 6

State v. Lair, 630 P.2d 427 (Wash. 1981) .......................... 5

State v. Murray, 527 P.2d 1303 (Wash. 1974) ................... 5

State v. Rangel,

88 Wash. App. 1007 (Wash. Ct. App. 1997) ................. 6

Street v. New York, 394 U.S. 576 (1969) ............................ 2

Texas v. Brown, 460 U.S. 730 (1983) ................................. 5

United States v. Aguirre,

839 F.2d 854 (1st Cir. 1988) ....................................... 10

United States v. Garces,

133 F.3d 70 (D.C. Cir. 1998)....................................... 10

United States v. Garcia,

496 F.3d 495 (6th Cir. 2007) ...................................... 11

United States v. Rutkowski, 877 F.2d 139 (1989) ............ 10

Statutes

28 U.S.C. § 1257 ............................................................. 2, 7

IN THE

Supreme Court of the United States

_______________________

DAVID ZACHERY MORGAN,

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

Supreme Court of Washington

_______________________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_______________________

INTRODUCTION

The BIO is mostly distraction. It tells the Court

there is no conflict because no jurisdiction “precludes

an officer from considering previously known facts”

when assessing probable cause. BIO 18-19. Of course

no court does that; the petition never said otherwise.

The petition described a specific conflict: Whether the

plain-view exception allows the government to justify

a warrantless seizure based on that probable cause

alone, or whether “immediately apparent” requires

that the government’s justification be based on the

perception of something incriminating about the property seized. The evasion all but concedes the conflict.

The BIO otherwise raises a jurisdictional argument that makes little sense and literally hides one of

the questions presented to the Washington Supreme

Court. And its asserted “factual problems” about how

(1)

2

Officer Breault “found Mr. Morgan’s [bagged] clothing” or whether “the clothing was ‘detectable in the

plastic hospital bags,’” BIO 5, 12, are red herrings.

The BIO does not identify a single piece of evidence—testimony or otherwise—that Officer Breault

perceived something incriminating about Petitioner’s

clothing before taking it (a point the State conceded in

the trial court and also in its QP to the Washington

Supreme Court). The government’s failure to introduce that evidence does not make the record “unclear,” BIO 17; it squarely presents whether the government was required to do so.

The BIO never contests the centrality of the “immediately apparent” requirement, and does not dispute that its position renders this Court’s condition

meaningless. The Court should grant certiorari.

ARGUMENT

I. The Court Has Jurisdiction.

This Court has jurisdiction over any federal issues

“specially set up or claimed” before a state high court.

28 U.S.C. § 1257. That is met if the issue was presented “with fair precision,” Street v. New York, 394

U.S. 576, 584 (1969) (quoting New York ex rel. Bryant

v. Zimmerman, 278 U.S. 63, 67 (1928)), or “the state

court has considered and decided” it. First English

Evangelical Lutheran Church of Glendale v. Los Angeles Cty., Cal., 482 U.S. 304, 313 n.8 (1987); Cohen v.

Cowles Media Co., 501 U.S. 663, 667 (1991). Thus, “if

the record as a whole shows either expressly or by

clear intendment that” the federal issue was presented, Street, 394 U.S. at 584, or “the highest state

court passe[d] on it,” Raley v. State of Ohio, 360 U.S.

3

423, 436 (1959), this Court has jurisdiction. Here, both

happened.1

The BIO does not contest that Petitioner’s trial

pleadings challenged the seizure under the Fourth

Amendment and state constitution. Pet. 7; BIO 3 (citing CP 298 and 302, which state “[t]his motion is

based on the United States Constitution” and invoke

“[t]he Fourth Amendment to the United States Constitution”). After the trial court upheld the seizure under the federal and state constitutions based on exigency and after Petitioner challenged that holding under “[t]he Fourth Amendment and article I section 7”

of the state constitution,2 the State presented plain

view to the court of appeals as an alternative basis for

affirming the trial court’s judgment, Addendum 14a15a, and, after losing there, to the Washington Supreme Court, Addendum 2a. The BIO represents that,

when the State presented plain view to the Washington Supreme Court, it “focused on” whether the state

constitution requires inadvertence and the issue was

thus “based solely on the Washington Constitution.”

BIO 5-6. This is nonsense.

To begin with, the argument makes little sense. It

would mean the State presented the plain-view exception as a basis to “alternatively” affirm the district

court’s judgment—which sustained government conduct under the federal and state constitutions—but

would now be construed as exclusive to the state constitution (and thus not actually a basis to affirm). Addendum 15a.

1 Given the BIO’s superficial account, Petitioner attaches perti-

nent pleadings as addenda.

2 Petr’s COA Br. 4.

4

The BIO’s account of the issues presented to the

Washington Supreme Court also is not candid. After

the State asserted plain view as an alternative basis,

the court of appeals rejected it on two grounds: First,

that the state constitution required inadvertence,

Pet.App. 44a; second, the requirement that “the incriminating character must be immediately apparent,” which it found unmet based on Fourth Amendment precedent because Officer Breault did not perceive “relevant crime information” upon seeing the

clothing, such as “blood” or “the scent of gasoline.”

Pet.App. 45a & n.86. For the latter, the court applied

State v. Hudson, 874 P.2d 160 (Wash. 1994), as the

governing standard—a case premised exclusively on

the Fourth Amendment and this Court’s interpretation of “immediately apparent” in Arizona v. Hicks,

480 U.S. 321 (1987), and Minnesota v. Dickerson, 508

U.S. 366 (1993). Hudson, 874 P.2d at 165-67.

To reverse, the State had to present both grounds

to the Washington Supreme Court. And that’s exactly

what it did. Its petition for review asserted two questions: First, whether the court of appeals erred by

adopting an inadvertence requirement; and second,

whether the plain-view exception is satisfied by “probable cause” even though “the incriminating nature of

the evidence is not ‘immediately apparent.’” Addendum 2a. The petition’s body similarly asked the court

to decide whfether the federal “immediately apparent”

standard “set out in” Hudson is “only a requirement

that [officers] have probable cause based on the surrounding circumstances,” and does not require “officers directly observe incriminating evidence.” Addendum 10a. Petitioner responded that “the Court of Appeals properly determined” the incriminating nature

5

“was not immediately apparent” given no perception

of anything incriminating about the clothing. Answer

to Pet. for Review 8.

Three times the BIO purports to describe the procedural posture. Each time it omits the court of appeals’ second ground and the second QP below, saying

the only issue was state-law inadvertence. See BIO 34, 4-5, 6-11. In fact, the State presented the precise

point of conflict described in the certiorari petition,

and this Court has jurisdiction to review it.

In any event, the Court also has jurisdiction because “the highest state court passe[d] on” the Fourth

Amendment’s “immediately apparent” requirement.

Raley, 360 U.S. at 436. After rejecting state-law inadvertence, the Washington Supreme Court expressly

considered whether “it was immediately apparent

that the clothing was associated with criminal activity.” Pet.App. 7a. Every single case the court invoked

for that analysis was grounded exclusively in the

Fourth Amendment: The court set forth the federal

standard it articulated in Hudson, then relied on Arizona v. Hicks, 480 U.S. 321 (1987), and Texas v.

Brown, 460 U.S. 730 (1983), to conclude “immediately

apparent” is satisfied by probable cause, “without having to see blood or smell gasoline on the clothing.”

Pet.App. 7a-8a & nn.5-6.3

It is true that Washington’s constitution “provides

greater protection than the Fourth Amendment.” BIO

5. The Fourth Amendment has been incorporated only

3 The other two cases cited, State v. Lair, 630 P.2d 427 (Wash.

1981), and State v. Murray, 527 P.2d 1303 (Wash. 1974), were

also Fourth Amendment cases.

6

as the floor: Article I, section 7 “necessarily encompasses those legitimate expectations of privacy protected by the Fourth Amendment,” but “[i]n some

cases . . . may provide greater protection.” State v.

Garcia-Salgado, 240 P.3d 153, 156 (Wash. 2010);

State v. Erickson, 225 P.3d 948, 950 (Wash. 2010);

Blomstrom v. Tripp, 402 P.3d 831, 839 n.15 (2017). Accordingly, when parties make a specific argument for

expansive interpretation of the state constitution,

Washington courts consider it (like “inadvertence” below). But the BIO cites no authority indicating the

Washington Supreme Court would have relegated the

second issue presented—the meaning of “immediately

apparent”—exclusive to the state constitution. That is

because Washington law says the opposite: When an

argument does not specifically assert a difference between the federal and state provisions, courts “analyze [the] claims under the federal provisions.” State

v. Carver, 781 P.2d 1308, 1312 (Wash. 1989); see also,

e.g., Sprague v. Spokane Valley Fire Dep’t, 409 P.3d

160, 172 (Wash. 2018); State v. Jackman, No. 487420-II, 2018 WL 286809, *4 (Wash. Ct. App. Jan. 4,

2018); State v. Allstead, 86 Wash. App. 1037, *1

(Wash. Ct. App. 1997); State v. Rangel, 88 Wash. App.

1007, *6 n.3 (Wash. Ct. App. 1997); State v. Harryman, 87 Wash. App. 1054, *1 (Wash. Ct. App. 1997).

Here, the BIO’s argument again fails on its own

terms. It says one way to know whether Washington

courts believe a claim rests exclusively on the state

constitution or includes the Fourth Amendment is to

look at their language: When Washington courts rely

exclusively on the state constitution, they adopt “the

language that has been used by the Washington Supreme Court,” i.e., “immediate knowledge.” BIO 10-

7

11. When Washington courts consider claims that involve the Fourth Amendment, they adopt this Court’s

language, i.e., “immediately apparent.” Id. Here, (i)

the court of appeals’ decision, (ii) the question presented to the Washington Supreme Court, and (iii) the

Washington Supreme Court itself all applied the federal “immediately apparent” standard, not the state

constitutional language. Addendum 2a; Pet.App. 7a &

n.5, 10a, 12a, 45a.4

Respondents frequently attempt to insulate state

court decisions by marshaling a § 1257 argument, and

have done so for centuries. E.g., Green Bay & M. Canal Co. v. Patten Paper Co., 172 U.S. 58, 66-68 (1898)

(finding argument “sufficiently disposed of” where, as

here, trial pleadings explicitly claimed federal right

and state supreme court ruling “necessarily held adversely to these claims of federal right”). This is one of

the weaker attempts.5

II.

The BIO All But Concedes The Split.

The petition set forth a specific conflict on whether

the plain-view exception allows the government to

forgo a warrant and seize property provided it later

4 Contrast the express presentation and resolution of a Fourth

Amendment claim, applying the Fourth Amendment standard

and Fourth Amendment caselaw, with Adams v. Robertson, 520

U.S. 83, 87-89 (1997), where neither the petitioner or court below

even mentioned a due process claim.

5 Mindful of the duty to oversee federal law conflicts created by

state courts, when respondents advance a plausible § 1257 issue

the Court’s practice is to direct the parties to address it with the

merits. E.g., Kansas v. Marsh, 544 U.S. 1060 (2005); Local No.

438 Const. & Gen. Laborers’ Union v. Curry, 369 U.S. 883, 883

(1962); Pope v. Atl. Coast Line R.R. Co., 344 U.S. 863 (1952). Each

case later confirmed jurisdiction and resolved the federal issue.

8

shows probable cause, or whether “immediately apparent” requires the government to show at least some

causal connection between the perception of the property and the justification for its seizure.

The BIO has nothing to say about that conflict. Instead, it asks whether each jurisdiction “precludes an

officer from considering previously known facts.” BIO

18-19 (repeating this inquiry). Pretending that is the

conflict, the BIO concludes lower courts apply “essentially the same rule,” under which officers can “consider their observations in light of facts previously

known to them.” BIO 17.

The BIO is correct: No court precludes an officer

from considering “previously known facts” to determine whether he has probable cause to believe something is incriminating. But the conflict is whether the

plain-view exception allows a warrantless search

based on that probable cause alone, or whether the

justification must be based on perceiving something

incriminating about the property seized. On that

point, the BIO leaves untouched the account laid out

in the petition, Pet. 15-19, and, in some respects, reinforces it:

A. The petition explained that the Colorado and

Washington high courts equate “immediately apparent” with probable cause, declining to limit the exception to instances in which the seizing officer perceived

something incriminating about the seized property.

Pet. 19-20 (discussing the decision below and People

v. Swietlicki, 361 P.3d 411, 415-16 (Colo. 2015)). The

BIO agrees (and embraces) that the Washington Supreme Court has adopted this rule. See BIO 5-6, 17

(recognizing the rule below requires only that “considering the surrounding circumstances, the police can

9

reasonably conclude that the subject evidence is associated with a crime”). The BIO never cites the Colorado Supreme Court’s decision in Swietlicki, and presumably has no quarrel with its express conclusion to

the same effect: “the ‘immediately apparent’ requirement of the plain view exception means nothing more

than the police must possess probable cause” and “carries [no] independent meaning.” Swietlicki, 361 P.3d

at 415-16.

B. The petition also described the analysis of several lower courts that interpret “immediately apparent” to limit the plain-view exception to circumstances

in which the government can show at least a causal

connection between the officer’s perception of property

and the probable cause justifying its seizure. Pet. 1519 (discussing the Sixth, First and D.C. Circuits, and

the TCCA).

The BIO does not contest those jurisdictions adopt

this limiting principle. In fact, the degree to which the

BIO avoids the lower-court analysis quoted in the petition speaks volumes. For instance, the petition described the Sixth Circuit’s unambiguous rejection that

“immediately apparent” means “the police need only

have probable cause to believe the seized item has

criminal significance or evidentiary value.” Pet. 16

(quoting United States v. McLernon, 746 F.2d 1098,

1125 (6th Cir. 1984)). It pointed to the Sixth Circuit’s

explicit holding that “[t]he agents’ ‘immediate’ sensory

perception must produce probable cause of crime.”

Pet. 15 (quoting McLernon, 746 F.2d at 1125). The

BIO has nothing to say about that, even though it conflicts with the BIO’s description of the rule below. BIO

17.

10

Similarly, in addressing the First Circuit and D.C.

Circuits, the BIO ignores their constraint that where

the probable-cause light bulb “does not shine during

the currency of the search, there is no ‘immediate

awareness’ of the incriminating nature of the object.”

Pet. 16-17 (quoting United States v. Rutkowski, 877

F.2d 139, 142 (1989)); see also United States v. Garces,

133 F.3d 70, 76 (D.C. Cir. 1998) (the probable-cause

light bulb must “shine during the currency of the

search” (emphasis by the court)). The BIO’s only response is United States v. Aguirre, 839 F.2d 854 (1st

Cir. 1988). BIO 18. But that case reinforces the point.

In Aguirre, officers executed a search warrant on the

home of someone who they suspected had just used a

Ford truck to facilitate “a major drug purchase.” 839

F.2d at 858-59. During the search, they found keys

and observed the keys to be “conspicuously marked”

with Ford insignia, providing the probable cause the

officers relied on to connect the keys the crime. Id. Indeed, Rutkowski expressly distinguished Aguirre on

this basis: the officers’ perception of the Ford keys

“closed any remaining gap” by providing an “obvious

connection between the keys and the plot,” triggering

the probable-cause light bulb. Rutkowski, 877 F.2d at

143.6

Finally, the BIO completely ignores the TCCA’s

conclusion that “immediate” must be given its historical connotation, which “denote[s] a causational . . . relationship” and contemplates that observation is a “direct” or “proximate” cause of probable cause. State v.

Dobbs, 323 S.W.3d 184, 189 & n.14 (Tex. Ct. Crim.

6 “Officer Breault seized Petitioner’s clothing because it was con-

spicuously ___________,” is a sentence the State cannot finish.

11

App. 2010). The BIO itself accepts that the TCCA’s determination of whether “the items could properly be

seized” was “[b]ased on” what officers learned about

the items “[d]uring the search.” BIO 18-19; Pet. 18.

The BIO concludes the “thrust of” all cases is the

same because it ignores what they say. BIO 19. Borrowing the lower courts’ words, the distance here is

whether “immediately apparent” “carries [no] independent meaning,” Swietlicki, 361 P.3d at 416, or imposes a “vital constraint,” United States v. Garcia, 496

F.3d 495, 510 (6th Cir. 2007).

III.

The BIO Does Not Dispute The “Immediately Apparent” Condition Is Of Central

Importance, Or That The Decision Below

Renders It Meaningless.

The BIO does not contest that allowing the plainview exception to be satisfied by a showing of probable

cause—untethered from the perception of something

incriminating about the seized property—effectively

swallows the warrant requirement, and enables “the

type of general warrant the Framers abhorred, undermining the Fourth Amendment’s requirement that

the ‘things to be seized’ be described with particularity.” Br. of Profs. Holland & Levin 3; Pet. 22-24. The

BIO also never disputes that its position renders one

of this Court’s express “conditions” meaningless. Pet.

21 (quoting Horton, 496 U.S. at 136).

IV.

This Is An Exceptional Vehicle.

The petition observed that the following features

of this record make it an unusually good vehicle:

(1) The plain-view exception was the sole basis for

the decision below. Pet. 24.

12

(2) The State has never argued harmless error. Id.

(3) It is undisputed Officer Breault perceived nothing incriminating about the clothing before seizing it.

Pet. 5, 24.

All are reinforced. The BIO acknowledges its other

asserted justification, exigency, was unanimously rejected below, BIO 4, and abandons it. The BIO does

not dispute the State has no basis to argue harmlessness. And the BIO does not identify a single piece of

evidence—testimony or otherwise—that Officer

Breault perceived anything incriminating about Petitioner’s clothing.

The BIO claims “factual problems” because it is

“unknown” how Officer Breault “found Mr. Morgan’s

[bagged] clothing” and because “the petitioner’s clothing was ‘detectable in the plastic hospital bags.’” BIO

5, 12-16. This is distraction. This case has nothing to

do with how Officer Breault found the bags and no one

disputes Officer Breault knew it was clothing in the

bags. See Pet. 3 (accepting Officer Breault “believed

[the bags] to contain Petitioner’s clothing”).

The State had the burden to justify its warrantless

seizure and the point of conflict is whether, for the

plain-view exception, that included showing that Officer Breault perceived at least something incriminating about the clothing, rather than preexisting probable cause that could have been brought to a magistrate. Below, the State conceded the seizure was not

based on such perceptions, RP 146—in fact, its question presented to the Washington Supreme Court postulated “the incriminating nature of the evidence

[was] not ‘immediately apparent,’” Addendum 2a.

13

Contrary to the BIO, the government’s failure to introduce such evidence does not make the record “unclear” or “unsuitable,” BIO 17, it squarely presents the

question of whether the government was required to

do so.

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

AMIR H. ALI

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

777 6th Street NW, 11th Fl.

Washington, DC 20001

(202) 869-3434

amir.ali@macarthurjustice.org

KATHLEEN A. SHEA

LUMINATA, PLLC

2033 Sixth Avenue, Suite 901

Seattle, Washington 98121

JANUARY 2020

Counsel for Petitioner

ADDENDUM

1a

ADDENDUM A

IN THE SUPREME COURT OF THE

STATE OF WASHINGTON

[filed June 29, 2018]

STATE OF WASHINGTON,

)

)

Petitioner,

)

)

v.

)

)

DAVID ZACHERY MORGAN, )

)

Respondent.

)

No. 96017-8

PETITION FOR REVIEW

MARK K. ROE

Prosecuting Attorney

SETH A. FINE

Deputy Prosecuting Attorney

Attorney for Petitioner

Snohomish County Prosecutor’s Office

3000 Rockefeller Avenue, M/S #504

Everett, Washington 98201

Telephone: (425) 388-3333

*

*

*

[1] I. IDENTITY OF PETITIONER

The State of Washington asks for review of the decision designated in part II. The State was plaintiff in

the trial court and respondent in the Court of Appeals.

2a

II. COURT OF APPEALS DECISION

The Court of Appeals reversed the respondent’s

conviction in an opinion filed May 29, 2018. A copy of

the opinion is in the Appendix.

III. ISSUES

(1) While in a place that they had a right to be, police seized evidence that was in plain view. Was this

seizure illegal because police knew in advance that

the evidence was present?

(2) When police have probable cause that items

have evidentiary value, is a “plain view” seizure nonetheless invalid if the incriminating nature of the evidence is not “immediately apparent”?

(3) Police observed items whose evidentiary value

could readily be destroyed by cross-contamination.

The items were accessible to both the defendant and

third parties. Was seizure of these items justified by

exigent circumstances?

[2] IV. STATEMENT OF THE CASE

The defendant (respondent), David Morgan, was

found guilty by a jury of attempted first degree murder and first degree arson.1 1 CP 58, 61. The evidence

at trial is summarized in the Brief of Respondent at

pages 2-10. Since this petition focuses on the seizure

of evidence, only the evidence at the pre-trial hearing

will be summarized.

On November 16, 2015, there was a fire at a house

in Lynnwood. The house was almost completely

1 The jury also found the defendant guilty of first degree assault.

1 CP 59. This conviction merged with the attempted murder conviction. 15 RP 2844. The defendant was therefore sentenced for

only attempted murder and arson. 1 CP 32-45.

3a

burned. Two people were removed from the house and

taken to hospitals. Brenda Welch was transported to

Harborview Medical Center. The defendant, David

Morgan, was transported to Swedish Edmonds Hospital. Police officers were sent to both locations. 1 CP

314-16; 1 RP 63-66. Both people smelled like gasoline.

1 RP 93.

At Harborview, Officer Reorda learned that Ms.

Welch had multiple skull fractures and numerous laceration to the head. These injuries were not common

for someone who had been in a house fire. 1 CP 314.

[3] At Swedish Edmonds, the defendant was questioned by Officer Breault and by Dets. Cohnheim and

Jorgensen. He told them that he was watching TV

when he got hit with something on the side of his

head. He smelled something and went downstairs. He

saw Ms. Welch standing near a door. She was on fire.

He tried to rip the sweater off her body, because it was

covered in flames. He tried to help her, but he

“couldn’t take it anymore,” so he left the house. 1 CP

316; 1 RP 98-99.

Officer Breault noticed that the defendant’s clothing had been placed in plastic shopping bags. They

were on the back counter in the room where the defendant was being treated. He was aware that gasoline and similar substances can dissipate rapidly.

There could also be cross-contamination involving any

evidence that was on the clothing. 1 RP 154-55. After

the detectives left, Officer Reorda arrived at the hospital. He and Officer Breault seized the clothing and

packaged it in bags that would prevent the dissipation

of volatile chemicals. 1 RP 159-60; 1 CP 314-15, 317.

4a

The defendant was charged with attempted first

degree murder, first degree arson, and first degree assault. 1 CP 182-83. He moved to suppress evidence obtained from the clothing. 1 CP [4] 298-317. The State

argued that the seizure of the clothing was justified

by exigent circumstances and by the “plain view” doctrine. 1 CP 213-16.

The trial court concluded that discovery of the

clothing was not “inadvertent.” It therefore held that

the seizure was not justified under the “plain view”

doctrine. 1 RP 180-81. The court held, however, that

the seizure was justified by exigent circumstances. It

therefore denied the motion to suppress evidence. 1

RP 180-83.

On appeal, the Court of Appeals rejected both justifications for the seizure. It held that there was an

insufficient showing of exigent circumstances. Slip op.

at 21-25. Because Officer Breault had been directed to

seize the clothing, his discovery of the evidence was

not “inadvertent.” Additionally, because Officer

Breault had not himself smelled gasoline on the clothing, “the incriminating character of the evidence was

not in plain view.” Slip op. at 25-26. The Court of Appeals therefore reversed the conviction and ordered

suppression of the evidence.

[5] V. ARGUMENT

A. THE COURT OF APPEALS DECISION

REFLECTS ONGOING CONFUSION ABOUT

THE “INADVERTENCE” REQUIREMENT OF

THE “PLAIN VIEW” DOCTRINE.

This case presents an important issue concerning

the requirements for seizure of evidence under the

5a

“plain view” doctrine. The decisions of this court reflect confusion about the requirements for that doctrine. In particular, it is unclear whether “inadvertence” exists as an independent requirement for a valid

“plain view” seizure.

This court’s early decisions on “plain view” applied

three requirements:

(1) a prior justification for intrusion, (2) an inadvertent discovery of incriminating evidence,

and (3) immediate knowledge by the police that

they have evidence before them.

State v. Daugherty, 94 Wn.2d 263, 267, 616 P.2d 649

(1980), citing State v. Murray, 84 Wn.2d 527, 533-34,

527 P.2d 1303 (1974). These requirements were derived from Federal Fourth Amendment cases. Murray, 84 Wn.2d at 533, quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564

(1971).

Later, however, the United States Supreme Court

held that “inadvertence” is not a separate requirement under the Fourth [6] Amendment. Horton v. California, 496 U.S. 128,110 S.Ct. 2301, 110 L. Ed.2d 112

(1990). Since Horton, this court’s decisions have been

inconsistent. Some cases have continued to apply the

three-part standard set out in Daugherty. E.g., State

v. Kull, 155 Wn.2d 80, 85 ¶ 8, 118 P.3d 207 (2005).

Other cases have applied a two-part test:

A plain view search is legal when the police (1)

have a valid justification to be in an otherwise

protected area and (2) are immediately able to

realize the evidence they see is associated with

criminal activity.

6a

State v. Hatchie, 161 Wn.2d 390, 395 ¶ 11, 166 P.3d

698 (2007); see State v. O’Neill, 148 Wn.2d 564, 583,

62 P.2d 489 (2003). The conflicting cases were summarized by the Court of Appeals in an unpublished

decision in State v. Bunn, 197 Wn. App. 1004, 2016

WL 7109125 (2016).2

The seeming inconsistency may be explained by

this court’s analysis in State v. Myers, 117 Wn.2d 332,

346, 815 P.2d 761 (1991). The court there cited the

three-part standard for “plain view” seizures. Id. at

346. It then explained the “inadvertence” requirement:

[7] Discovery is inadvertent if the officer discovered the evidence while in a position that does

not infringe upon any reasonable expectation of

privacy, and did not take any further unreasonable steps to find the evidence from that position. The requirement that a discovery be inadvertent does not mean that an officer must act

with a completely neutral, benign attitude

when investigating suspicious activity.

Id. (citation omitted). Under Myers, inadvertence is

thus not an independent requirement. If the other two

requirements are satisfied, “inadvertence” is satisfied

as well.

Under a dictionary definition, “inadvertent” means

“unintentional” or “inattentive.” http://www.dictionary.com/browse/inadvertent (visited 6/27/18); Webster’s New Twentieth Century Dictionary at 919 (Unabridged 2nd ed. 1978). Myers makes it clear that the

2 Because this decision is unpublished, it has no precedential

value. This court may give it such persuasive value as the court

deems appropriate. GR 14.1(a).

7a

discovery of evidence need not be “inadvertent” in that

sense for a plain view seizure to be valid. In Myers,

police received a tip that a suspect was selling drugs

from his home. They went there to investigate. After

obtaining the suspect’s permission to enter the house,

they went inside and saw drugs, which they seized.

That seizure was not unintentional or inattentive—

the officers found exactly what they had hoped to find.

Yet the seizure was valid under the “plain view” doctrine:

Because [the suspect] consented to the officers

entering his home, they had a prior justification

for [8] their intrusion. The officers’ discovery

was “inadvertent.” They did not take further

unreasonable steps to find the contraband: the

items were on a table in the room by which the

officers passed at [the suspect’s] invitation. The

officers immediately recognized the items as

contraband. The officers did not violate the

“plain view” doctrine when they seized the [contraband] in [the suspect’s] living room.

Myers, 117 Wn.2d at 347.

In the present case, it was undisputed that the officers were legitimately present in the hospital room.

The trial court agreed that, without further examination of the clothing, the officers could infer that it contained evidence. 1 RP 196-97. The trial court nonetheless held that because the officers expected to find the

evidence, the discovery was not “inadvertent.” 1 RP

180-81. The Court of Appeals reasoned as follows:

Here, Officer Breault did not decide to seize

the clothing when he entered Morgan’s room

or at any time during the next few hours. In-

8a

stead, he testified that he may have been directed by other officers none of whom testified

at the hearing-to seize the bag. His testimony

shows that instead of making the independent decision to seize incriminating evidence in

plain view, he assisted another officer who

came to collect the clothing in a special arson

bag. None of the authorities of which we are

aware apply to this fact pattern.

Slip op. at 26.

The basis for this analysis is unclear. None of this

court’s decisions hold that a “plain view” seizure must

be conducted at the [9] earliest possible moment. Nor

has this court ever distinguished between seizures

made on an officer’s own initiative and those made at

the direction of others. These distinctions could be important if the seizure had to be “inadvertent” in the

sense of “unintentional”. Myers makes it clear, however, that this is not a requirement.

The decision of the Court of Appeals conflicts with

Myers. Both that decision and the trial court’s decision

reflect continuing confusion about the “inadvertence”

requirement. That confusion has been enhanced by

this court’s seemingly-inconsistent formulations of

the “plain view” doctrine.” Clarifying that doctrine

presents a significant question of constitutional law

and an issue of substantial public interest. Review

should be granted under RAP 13.4(b)(1), (3), and (4).

9a

B. THE COURT OF APPEALS DECISION ALSO

REFLECTS CONFUSION RESULTING FROM A

SEEMING INCONSISTENCY IN THIS COURT’S

FORMULATION

OF

THE

“IMMEDIATE

RECOGNITION” REQUIREMENT OF THE

“PLAIN VIEW” DOCTRINE.

The Court of Appeals decision also raises a second

issue about application of the “plain view’’ doctrinez:

the “immediate recognition” requirement. That requirement has been stated by this court in varying

ways. According to some cases, the police must [10]

immediately know that they have evidence before

them. Daugherty, 94 Wn.2d at 267; Kull, 155 Wn.2d

at 85 ¶ 8. Other cases say that the police must be immediately able to realize that the evidence is associated with criminal activity. Hatchie, 161 Wn.2d at 395

¶ 11. There does not appear to be any significant difference between these formulations. Under them, the

requirement was satisfied in this case. In particular,

the seizing officers were aware that gasoline had been

smelled on the defendant’s clothing, which would be

evidence of the crime of arson. 1 RP 93.

The Court of Appeals, however, relied on a different formulation set out in State v. Hudson, 124 Wn.2d

107, 874 P.2d 160 (1994). Hudson was a “plain feel”

case. While conducting a weapons frisk, a police officer

felt an item that he believed to be a baggie of cocaine.

Citing Myers, this court said that a “plain view” seizure would be proper if “the incriminating character

of the item is immediately recognizable.” Hudson, 124

Wn.2d at 107-14. The court then went on to explain

this requirement:

[P]robable cause is required to satisfy the immediate recognition prong of the “plain view”

10a

doctrine. Objects are immediately apparent

when, considering the surrounding circumstances, the police can reasonably conclude that

the substance before them is incriminating evidence.

[11] Id. at 118.

In the present case, the Court of Appeals determined that the seizing officer had not smelled the

scent of gasoline or observed blood or other relevant

crime information. The Court therefore concluded

that “the incriminating character of the evidence was

not in plain view.” Slip op. at 27. This is a misapplication of the doctrine. There is no requirement that the

officers directly observe incriminating evidence at the

time of the seizure. There is only a requirement that

they have probable cause based on the surrounding

circumstances. Hudson, 124 Wn.2d at 118. The circumstances of this case, including the previously-detected odor of gasoline, provided that probable cause.

The Court of Appeals decision conflicts with the

probable cause standard set out in Hudson. It appears, however, that this court’s re-formulation of the

standard in Hudson has confused the Court of Appeals. This court should grant review to dispel that

confusion. Review should again be granted under RAP

13.4(b)(1), (3), and (4).

[12] C. THIS COURT COULD SHOULD ALSO

REVIEW

THE

COURT

OF

APPEALS’

MISAPPLICATION

OF

THE

“EXIGENT

CIRCUMSTANCES” DOCTRINE.

This court should also review the Court of Appeals

application of the “exigent circumstances” doctrine.

11a

With regard to that doctrine, the Court stated the correct legal standard. The Court made, however, a serious factual error in applying that standard.

As the Court of Appeals recognized, a warrantless

seizure is justified if the delay inherent in securing a

warrant would permit the destruction of evidence.

This is a case-by-case determination that takes into

account the gravity of the offense. State v. Smith, 165

Wn.2d 511, 517-18 ¶¶ 15-16, 199 P.3d 396 (2009). The

court also recognized that the police had a legitimate

concern that trace evidence on the defendant’s clothing could be contaminated. The court believed, however, that this was an insufficient basis for the seizure.

The bagged clothing remained undisturbed for

hours on a shelf in the hospital room, while

Morgan was almost constantly in the presence

of police officers. He was not going anywhere.

There simply is no evidence to support the view

that anyone would have been successful in contaminating the evidence without the police being able to stop them.

Slip op. at 23.

[13] This conclusion mis-states the record. To being with, the defendant was not “constantly in the

presence of police officers.” These events took place in

a hospital. Medical personnel entered the room as necessary to perform their duties. When they did, the officers left the room. 1 RP 69, 103.

As Officer Breault testified, items of evidence can

become cross-contaminated. 1 RP 154. Moving the

bags carelessly would cause the clothing items to rub

against each other. If a member of the hospital staff

12a

needed to use the counter for something else, he or she

could pick the bags up and move them-thereby obscuring the nature and source of trace evidence. The defendant could do the same when officers were out of

the room. Contrary to what the Court of Appeals concluded, the only effective way to protect the evidentiary value of the clothing was to seize it as soon as

possible.

The Court of Appeals decision conflicts with Smith.

Its misapplication of the “exigent circumstances” doctrine creates an issue of substantial public interest.

Review of this issue should be granted under RAP

13.4(b)(1) and (4).

[14] VI. CONCLUSION

This court should accept review, reverse the Court

of Appeal, and reinstate the trial court’s judgment.

Respectfully submitted on June 27, 2018.

MARK K. ROE

Snohomish County Prosecuting Attorney

By: /s/ Seth A. Fine

SETH A. FINE, WSBA #10937

Deputy Prosecuting Attorney

Attorney for Petitioner

13a

ADDENDUM B

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

[filed Aug. 29, 2017]

STATE OF WASHINGTON,

)

)

Respondent,

)

)

v.

)

)

DAVID ZACHERY MORGAN, )

)

Appellant.

)

No. 75072-1-I

DIVISION ONE

BRIEF OF RESPONDENT AND

CROSS-APPELLANT

MARK K. ROE

Prosecuting Attorney

SETH A. FINE

Deputy Prosecuting Attorney

Attorney for Petitioner

Snohomish County Prosecutor’s Office

3000 Rockefeller Avenue, M/S #504

Everett, Washington 98201

Telephone: (425) 388-3333

*

*

*

II. ISSUES

(1) The trial court granted the defendant’s motion

for mistrial because of the prosecutor’s failure to provide discovery concerning an expert witness’s opinion.

Under Double Jeopardy principles, does this action

preclude the defendant from being re-tried?

14a

(2) The trial court determined that notwithstanding the prior discovery violation, the defendant could

be given a fair trial. Did the court abuse its discretion

in denying the defendant’s motion to dismiss under

CrR 8.3(b) or 4.7(h)(7)(i)?

(3) Police observed the defendant’s clothing on a

shelf in a hospital room, where the defendant himself

and other people had access to it. Any delay in collecting that evidence presented a likelihood that trace evidence could be contaminated or volatile chemicals

lost by evaporation. Was seizure of this clothing justified by exigent circumstances?

(4) Was seizure of the clothing justified under the

“plain view” doctrine, where police were entitled to be

in the hospital room, and it was immediately apparent

that the clothing constituted evidence? (Issue relating

to counter-assignment of error)

(5) The defendant was questioned by two police officers in a hospital room. The officers did not restrain

the defendant, place him under arrest, or isolate him

from hospital personnel. Was the defendant in “custody” so as to require Miranda warnings?

(6) When a crime can be committed by multiple

means, and there is substantial evidence of each of the

means, must the jury unanimously agree on which

means was proved?

(7) The jury was correctly instructed on the elements of first degree arson, on the burden of proof,

and on the presumption of innocence. Was the court

required to give an additional instruction that fires

are presumed to result from accidental or natural

causes, absent any substantial evidence to support

such an instruction?

15a

*

*

*

[21] B. THE DEFENDANT’S CLOTHING WAS

LAWFULLY SEIZED.

*

*

*

[23] 2. Alternatively, The “Plain View” Doctrine

Allows Police Who Are Lawfully Present To

Seize Items That Can Be Immediately Recognized As Evidence.

If this court determines that the seizure of the

clothing was not justified by exigent circumstances, it

should consider whether the evidence was properly

seized under the “plain view” doctrine. A trial court’s

ruling can be affirmed on any legal basis supported by

[24] the record. State v. Vanderpool, 145 Wn. App. 81,

85 ¶ 12, 184 P .3d 1282 (2008).

A plain view search is legal when the police (1)

have a valid justification to be in an otherwise

protected area and (2) are immediately able to

realize the evidence they see is associated with

criminal activity.

State v. Hatchie, 161 Wn.2d 390, 395 ¶ 11, 166 P .3d

698 (2007).

Here, the defendant conceded that the officers had

a lawful reason to be in the hospital room. 1 CP 30607. The defendant’s clothing was sitting in plastic

bags on a counter in the back of the room. 1 RP 15455. At the time the clothes were seized, police knew

the following: Ms. Welch had suffered burns as a result of a fire. She had also suffered serious lacerations

and a skull fracture. Her clothes smelled of gasoline.

The defendant had described pulling a burning

sweater off of her. 1 CP 314-15; 1 RP 72-73, 81. Based

on this information, it was immediately apparent to

16a

the officers that the defendant’s clothing would contain evidence that would cast light on the perpetrator

of the arson and assault. Consequently, they could

lawfully seize the evidence without a warrant or exigent circumstances.

The trial court believed that the “plain view” doctrine did not apply because the seizure was not inadvertent. The court therefore [25] declined to suppress

evidence of a knife found on a counter in the same

room, because the officers had not expected to find it.

The clothing, however, could not be seized, because

the officers knew that it was in the room. 1 RP 18081.

This reasoning was erroneous. To begin with, it is

doubtful that “inadvertence” is a separate requirement for a valid “plain view” seizure. Some Washington cases have listed this as a requirement. E.g., State

v. Kull, 155 Wn.2d 80, 85 ¶ 8, 118 P.3d 207 (2005). The

United States Supreme Court has, however, rejected

any such requirement. Horton v. California, 496 U.S.

128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); see State

v. Hudson, 124 Wn.2d 107, 114 n. 1, 874 P.2d 160

(1994). Since Horton, some Washington cases have set

out a two-part test for “plain view” seizure, which does

not include an “inadvertence” requirement. Hatchie,

161 Wn.2d at 395 ¶ 11; State v. O’Neill, 148 Wn.2d

564, 583, 62 P.2d 489 (2003); see State v. Bunn, 197

Wn. App. 1004, 2016 WL 7109125 (2016) (unpublished) (summarizing cases).4

4 Because this decision is unpublished, it has no precedential

value. This court may give it such persuasive value as the court

deems appropriate. GR 14.1 (a).

17a

Even if the “inadvertence” requirement still exists,

the trial court misconstrued that requirement.

[26] Discovery is inadvertent if the officer discovered the evidence while in a position that

does not infringe upon any reasonable expectation of privacy, and did not take any further unreasonable steps to find the evidence from that

position. The requirement that a discovery be

inadvertent does not mean that an officer must

act with a completely neutral, benign attitude

when investigating suspicious activity.

State v. Myers, 117 Wn.2d 332, 346, 815 P.2d 761

(1991) (citation omitted).

The trial court accepted that when the clothes

were seized, the officers were in a place that did not

intrude on any expectation of privacy. The court also

accepted that, without any further examination of the

clothes, it was apparent that they constituted evidence. 1 RP 196-97. This being so, the requirement of

“inadvertence” was satisfied. Police can properly seize

evidence from a place where they have lawful access,

even if they know that the evidence is there. Under

the “plain view” doctrine, the clothing was properly

seized.