 FTtTE
    CLERKS OFFICE
                                                                   This opinion was
  COURT. STATE OF VICaiSHIKQTON                                     filed for record
                                                              at        on M
DATE WAY 1 6 2019
hiijuuM > id •                                                     Susan L^rlson
          JUSTICE
                                                              Supreme Court Clerk




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,

                                  Petitioner,
                                                 No. 96017-8
                                         V.

                                                 En Banc
 DAVID ZACHERY MORGAN,

                                  Respondent.    Filed     way 1 6 2019


           Gonzalez, J.—David Morgan was convicted by a jury of first degree

 assault, attempted murder, and arson. A bloodstain pattern analysis

 performed on his clothing suggested he was in close proximity to the victim

 when she suffered her injuries. We must decide if the warrantless seizure of

 his clothing, which officers reasonably concluded contained evidence, was

 justified by an exception to the waiTant requirement.

           Based on our inconsistent articulation ofthe plain view doctrine, the

 Court of Appeals found that the State was required to establish inadvertence
State V. Morgan, No. 96017-8

as a separate element and reversed Morgan's convictions. We hold

inadvertence is not a separate element required under the plain view

doctrine, reinstate Morgan's convictions, and remand to the Court of

Appeals for further proceedings in that court.


                                        Facts


       Morgan and his ex-wife, Brenda,' shared custody of their daughter.

About the time Brenda came to pick up their daughter from Morgan's house,

Morgan's house was in flames. Firefighters found Morgan kneeling in his

driveway, hair singed and barely able to speak. A firefighter repeatedly

asked Morgan if anyone was in the burning house. After a period of silence,

Morgan directed firefighters to the garage, where Brenda was lying in a pool

of blood. Brenda was nonresponsive and badly injured, with multiple

lacerations on her head, fractures, and severe burns on her upper body.

Morgan and Brenda's clothing smelled of gasoline. Medics transported

them to separate hospitals, observing blood on Morgan's clothing.

       A supervising officer promptly told Officer Christopher Breault to

"collect Morgan's clothing [from the hospital] and try to get an initial




'We use only her first name to avoid subjecting her to unwanted publicity. No disrespect
is intended.
State V. Morgan, No. 96017-8

statement." Clerk's Papers(CP) at 208. A crime scene technician was also

dispatched to collect Brenda's clothing.

      Officer Breault spoke with Morgan in his hospital room for hours.

Morgan disclosed that his daughter was safe at Morgan's mother's home

during the fire. Morgan said he woke up to find his house on fire. He said

he then found Brenda in his house with her sweater burning and tried to help

her remove it. At some point during their conversation, Officer Breault

noticed that hospital staff had put Morgan's clothing in "several plastic

shopping like bags" and left his clothing on the counter in Morgan's hospital

room. 1 Verbatim Report of Proceedings (Feb. 4, 2016) at 151, 154-55. The

officer later testified that it "was almost like [the clothing was] 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." Id. at 158. When the

crime scene technician arrived with arson bags designed to preserve

evidence, he and Officer Breault secured Morgan's clothing. Officer Breault

also secured a utility knife with dried blood on the handle from a counter

near the clothing. Hospital staff told Officer Breault they found the knife in

Morgan's clothing.

      Morgan was charged with attempted first degree murder, first degree

arson, and first degree assault. He unsuccessfully moved to suppress the
State V. Morgan, No. 96017-8

seized clothing.^ The trial court rejected the State's plain view argument

because Officer Breault did not find it inadvertently and he could not

examine the clothing without removing it from the plastic hospital bags.

Nonetheless, the trial court found that the removal of Morgan's clothing was

justified by exigent circumstances because "there are special bags that have

been designed and are available to put clothing and other items into so as to

preserve that particular evidence." Id. at 182.


       The Court of Appeals found the State had not met its burden of

establishing exigent circumstances because it had not shown applying for a

warrant would have resulted in a loss of evidence. It also rejected the State's

claim that the plain view doctrine applied because Officer Breault did not

smell gasoline or see blood through the plastic hospital bags or come across

it inadvertently. The State sought, and we granted, review. State v. Morgan,

191 Wn.2d 1026 (2018).

                                        Analysis


       We are faced with a warrantless seizure of clothing associated with

criminal activity. Under the robust privacy protections of our constitution,

any state intrusion into private affairs must be done under "authority of law."


^ The record contains no written findings or conclusions for the CrR 3.6 hearing, but the
trial court's oral findings adequately present the issues for appellate review. The trial
court's written CrR 3.5 findings concern some of Officer Breault's observations.
State V. Morgan, No. 96017-8

Wash. Const, art. I, § 7. "Authority of law" generally means a warrant or a

well-established exception to the waiTant requirement. State v. Ladson, 138

Wn.2d 343, 350, 979 P.2d 833 (1999)(citing City ofSeattle v. McCready,

123 Wn.2d 260, 273, 868 P.2d 134 (1994)). The plain view doctrine and

exigent circumstances are well-established exceptions. We hold the State

failed to establish that exigent circumstances justified the intrusion, but it did

justify the intrusion under the plain view doctrine.


      We agree with the Court of Appeals' conclusion that the State did not

meet its burden to show that exigent circumstances existed when Officer

Breault seized Morgan's clothing. The State "must establish the exception

to the wan-ant requirement by clear and convincing evidence." State v.

Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266(2009)(citing State v. Smith,

115 Wn.2d 775, 789, 801 P.2d 975 (1990)). Critically, the exigent

circumstance "exception requires a compelling need for officer action and

circumstances that make the time necessary to secure a warrant impractical."

State V. Baird, 187 Wn.2d 210, 221, 386 P.3d 239(2016)(plurality opinion)

(citing Missouri v. McNeely, 569 U.S. 141, 149-50, 133 S. Ct. 1552, 185 L.

Ed. 2d 696 (2013)). While the State had a legitimate concern that trace

evidence on Morgan's clothing could be contaminated by Morgan or

hospital staff, the officers exhibited no urgency in collecting the clothing.
State V. Morgan^ No. 96017-8

which sat undisturbed on the counter for hours, including when Morgan was

alone with hospital staff.

        We disagree, however, with the Court of Appeals' application ofthe

plain view doctrine. We have been inconsistent in articulating the elements

the State must establish to justify a warrantless intrusion under the plain

view doctrine. We have said the plain view doctrine applies "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, 166 P.3d 698

(2007)(citing           V. Myers, 117 Wn.2d 332, 346, 815 P.2d 761 (1991)).

But in some cases, we have also articulated a third element, inadvertence.

See, e.g.. State v. Kull, 155 Wn.2d 80, 85 & n.4, 118 P.3d 307 (2005).^

       We take this opportunity to clarify the law. Properly understood,

there is no separate inadvertence requirement in the plain view doctrine.

Officers are not restricted to seizing evidence solely when they come across

the evidence unintentionally and inadvertently. As the United States

Supreme Court held,"[Ijnadvertence is a characteristic of most legitimate


^ "The requirements for plain view are (1) a prior justification for intrusion,(2)
inadvertent discovery of incriminating evidence, and (3)immediate knowledge by the
officer that [they] had evidence before [them]." Kull, 155 Wn.2d at 85 (citing State v.
Chrisman, 94 Wn.2d 711, 715, 619 P.2d 971 (1980), rev'd, 455 U.S. 1, 102 S. Ct. 812,
70 L. Ed. 2d 778 (1982)). The intrusion is often the detention of a person or entry into a
place, not the seizure ofthe evidence itself.
State V. Morgan,ISo. 96017-8

'plain-view' seizures" but "it is not a necessary condition." Horton v.

California, 496 U.S. 128, 130, llOS.Ct. 2301, 110 L. Ed. 2d 112(1990).

       Officers are "entitled to keep [their] senses open to the possibility of

contraband, weapons, or evidence of a crime." State v. Lair, 95 Wn.2d 706,

719, 630 P.2d 427 (1981).^^ There is, however, an article I, section 7

requirement that a seizure not be based on pretext. See, e.g.. State v.

Montague, 73 Wn.2d 381, 385, 438 P.2d 571 (1968). "Put simply, the law

does not vest in police the discretion to seize first and decipher a piece of

evidence's incriminating nature later." Katie Farden, Recording a New

Frontier in Evidence-Gathering: Police Body-Worn Cameras and Privacy

Doctrines in Washington State, 40 Seattle U. L. Rev. 271, 284-85 (2016).

Thus, a plain view seizure is legal when the police (1) have a valid

justification to be in an otherwise protected area, provided that they are not

there on a pretext, and (2) are immediately able to realize the evidence they

see is associated with criminal activity.

       Here, Morgan challenged the seizure of his clothing. Morgan does

not dispute that "the officers had a lawful reason to be in the hospital room."




  The fact that the evidence in plain view is not contraband is of no relevance. See, e.g.,
State V. Welter, 185 Wn. App. 913, 926, 344 P.3d 695 (2015)(seizing a board associated
with an assault); State v. Alger, 31 Wn. App. 244, 248, 640 P.2d 44(1982)(seizing a
sleeping bag associated with a rape).
State V. Morgan, No. 96017-8

CP at 306-07. The State need show only that it was immediately apparent

that the clothing was associated with criminal activity, which it aptly does.

       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.

State V. Hudson, 124 Wn.2d 107, 118, 874 P.2d 160(1994)(citing Lair, 95

Wn.2d at 716). Certainty is not necessary.^

       Morgan's clothing was expected to be in the hospital room and was

detectable in the plastic hospital bags on the counter. Officer Breault's

supervising officer, having become aware of the evidentiary value of

Morgan's clothing—including that it smelled like gasoline—instructed

Officer Breault to collect it. Without examining the clothing. Officer

Breault reasonably concluded that Morgan's clothing would have

evidentiary value given the conversation he had had with Morgan and

observations he made during that time, including a knife with dried blood on

the handle.




^ As the United States Supreme Court has noted,"[T]he use of the phrase 'immediately
apparent' was very likely an unhappy choice of words, since it can be taken to imply that
an unduly high degree of certainty as to the incriminatory character of evidence is
necessary for application of the 'plain view' doctrine." Texas v. Brown,460 U.S. 730,
741, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).
State V. Morgan, No. 96017-8

       In light ofthe fire, Brenda and Morgan's respective injuries, the

supervising officer's knowledge, and observations by Officer Breault and

others, there were more surrounding circumstances than necessary. Officer

Breault did not have to manipulate the bags to know what they contained.''

He reasonably concluded that the clothing contained evidence associated

with suspected criminal activity. Nothing in this record suggests any

ambiguity; it is clear from context that the plastic hospital bags contained the

clothing hospital staff removed in treating Morgan. Thus, the State met its

burden to show that Officer Breault lawfully seized Morgan's clothing under

the plain view doctrine.


                                     Conclusion


       While exigent circumstances did not exist, the plain view doctrine

permitted the seizure of Morgan's clothing. We reverse and remand to the

Court of Appeals for further proceedings in that court.




^ Conversely, an officer's suspicion that an expensive stereo in a rundown house was
stolen would not allow the officer to manipulate it. Arizona v. Hicks, 480 U.S. 321, 326-
27, 107 S. Ct. 1149, 94 L. Ed. 2d 347(1987); accord State v. Murray, 84 Wn.2d 527,
536, 527 P.2d 1303 (1974). This case is different because Officer Breault could
reasonably conclude the clothing was associated with a crime without having to see blood
or smell gasoline on the clothing tHough the plastic hospital bags.
State V. Morgan, No. 96017-8




WE CONCUR:




^cKaIam/vl^ / fiL

             ;V^Arn/L




                               10
State V. Morgan (David Zachery)




                                        No. 96017-8



       MADSEN,J. (dissenting)—I disagree with the majority that the seizure of David

Morgan's clothes falls under the plain view exception to the search warrant requirement.

Under the plain view doctrine, it must be immediately apparent to the seizing officer that

evidence he has discovered is associated with criminal activity. The majority's holding

here divorces the observations of the seizing officer from the seizure. Instead, the

majority says that if an officer has information from a civilian witness who has observed

evidence that may indicate criminal activity when that evidence was at a different

location, a different officer, who was not informed that evidence was incriminating and

who did not himself observe anything incriminating, may seize that evidence in a

different location under the plain view doctrine—a doctrine meant solely to allow law

enforcement an exception to obtain evidence without a warrant when it is obvious to the

seizing officer that the evidence is associated with a crime. While the chain of events

here clearly supports issuance of a warrant, it certainly does not fit within any of the

"jealously and carefully drawn exceptions" to the warrant requirement.
No. 96017-8
Madsen, J., dissenting


       In reaching this unprecedented application of the plain view doctrine, the majority,

sub silentio, imports the "fellow officer" rule, which allows officers to make warrantless

arrests on the strength of collective information. Whiteley v. Warden, Wyo. State

Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306(1971). This rule has never

been imported into the "plain view" exception for obvious reasons—it cannot be plain to

the seizing officer that he is viewing incriminating evidence unless he observes it and is

himself aware of the surrounding facts and circumstances. Beeause the majority severely

undermines the search warrant requirement under article 1, section 7 of our constitution,

which has long been held to provide greater protections than the Fourth Amendment, 1

respectfully dissent. Wash. CONST, art. 1, § 7; U.S. CONST, amend. IV.

                                        Diseussion


       Our constitution provides that "[n]o person shall be disturbed in his private affairs,

or his home invaded, without authority of law." WASH. CONST, art. 1, § 7. Generally, an

officer acts under authority of law when executing a search and seizure under a valid

warrant. State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007). Warrants must be

supported by probable cause and deseribe the places to be searched or persons or things

to be seized with partieularity. State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611

(1992). This is, of course, to prevent a '"general, exploratory rummaging in a person's

belongings.'" Id. (internal quotations omitted){ayxotmg Andresen v. Maryland, 427 U.S.

463, 480, 96 S. Ct. 2737,49 L. Ed. 2d 627(1976)). It is well settled that a warrantless

search is per se unreasonable unless it falls under one of the "'jealously and carefully
No. 96017-8
Madsen, J., dissenting


drawn exceptions.'" State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698(2007)(internal

quotation marks omitted)(quoting State v. Hendrickson, 129 Wn.2d 61, 70,917 P.2d 563

(1996)). The plain view doctrine is one ofthose exceptions.

       A plain view search is legal when officers (1) have a valid justification to be in an

otherwise protected area and (2) are immediately able to recognize the evidence they see

is associated with criminal activity. Id. at 395 (citing State v. Myers, 117 Wn.2d 332,

346, 815 P.2d 761 (1991)). An object is immediately apparent under the second prong of

a plain view search when,"considering the surrounding facts and circumstances, the

police can reasonably conclude they have evidence before them." State v. Lair, 95

Wn.2d 706, 716, 630 P.2d 427(1981). "In other words, police have immediate

knowledge if the officers have a reasonable belief that evidence is present." State v.

Munoz Garcia, 140 Wn. App. 609, 625, 166 P.3d 848(2007)(emphasis added); see also

State V. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986)(it is not an unlawful search and

seizure when an officer, observing from a vantage point where he can legally be present,

immediately recognizes an object as incriminating evidence). Probable cause is required

to satisfy the immediate recognition prong of the plain view doctrine. State v. Hudson,

124 Wn.2d 107, 118, 874 P.2d 160(1994){ciimg Arizona v. Hicks, 480 U.S. 321, 326,

107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)).

       In this case, the officer who seized the clothing. Officer Christopher Breault, was

initially dispatched to Morgan's hospital room to "give medical updates to Sergeant

[Curtis] Zatylny" and to find more information about a possible missing child.
No. 96017-8
Madsen, J., dissenting


1 Verbatim Report of Proceedings (Feb. 4, 2016) at 115. At some point, Sergeant

Zatylny ordered Officer Breault to seize Morgan's clothes as evidence. After going in

and out of Morgan's hospital room, Officer Breault noticed Morgan's clothing had been

placed "in several plastic bags that the hospital had provided and then placed on the back

counter of the . . . hospital room." M at 151. The bags had a hospital logo on it but

otherwise "were just regular plastic bags that you could get at a store." Id. at 158.

       The first step in our analysis must be a recognition that Morgan's clothing is a

private affair and that he has an expectation that his privacy in the clothing is not

disturbed without a warrant. Next, it is important to recognize that clothing is not

inherently incriminating. Here, Officer Breault believed the bags he seized contained

Morgan's clothing, but he did not observe anything about the clothing that could be

described as incriminating. To justify the seizure, the State cites two cases it argues

support the position that "surrounding facts and circumstances" in the context of plain

view means any and all information that any police officer may know related to the

investigation. See Suppl. Br. ofPet'r at 10-11. While the majority agrees with this broad

reading of a "jealously and carefully drawn exception," those eases do not actually

broaden the narrowly drawn plain view exception in the way the majority attempts to do

here. In State v. Alger, a sleeping bag was seized under the plain view doctrine as

evidence of statutory rape. 31 Wn. App. 244, 640 P.2d 44(1982). But the officers who

seized the evidence were themselves "acquainted with the details of the crime." Id. at

247. They were informed that sexual relations between the defendant and the victim
 No. 96017-8
 Madsen, J., dissenting


 occurred on a sleeping bag while she was on her menstrual cyele. Id. at 246. The

 sleeping bag was seized after it was clearly visible from their vantage point near the front

 door, based on the surrounding facts and circumstances known to the officers at the time

 those officers seized the evidence. Similarly, in State v. Weller, officers were called in to

 assist on a wellness check after a Child Protective Services investigator interviewed the

 defendant's children for possible abuse. 185 Wn. App. 913, 344 P.3d 695 (2015). The

 officers there interviewed two of the ehildren who described being beaten with a board.

Id. at 919. When the offieers moved to the garage for greater privaey, the offieers

 discovered a board that the ehildren later indicated was used for their beatings. Id. The

 board—^which the officers observed had a long groove in it and had discoloration that

 appeared to be dried blood—^was seized by the officers. In both. Alger and Weller, the

seizing officer was aware of the "surrounding faets and circumstances" that justified the

 warrantless seizure of evidence.


        Here, that is not the case. Officer Breault never testified to smelling any gasoline

in the room or near the plastie bags, nor did he state he observed any blood on Morgan's

clothing through the plastic bags.' Indeed, the officer's deseription ofthe plastie bags

suggests the elothing was not observable through the bags at all. Moreover, Officer

Breault was not there to investigate any possible crime committed by Morgan. His only

purpose for being there was to observe Morgan and to determine the location of the child



'At most. Officer Breault noticed and later seized a utility knife with some dried blood near the
bag of clothing. But Morgan does not dispute the seizure of the utility knife.
No. 96017-8
Madsen, J., dissenting


who may have had a connection to the events. While firefighters and paramedics

observed that the clothes belonging to Morgan's ex-wife, Brenda, smelled like gasoline in

the ambulance, as did Morgan's clothing, all of that information was from a non-law-

enforcement source and was relayed only to Sergeant Zatylny. Sergeant Zatylny himself

did not notice any evidence of gasoline or other incriminating evidence when he

responded to the residential fire. Crucially, none of the information regarding Morgan's

or Brenda's clothing was relayed to Officer Breault. To discover that evidence, Officer

Breault would have had to manipulate the bag's contents to determine whether the

clothing actually contained incriminating evidence. But doing so would undoubtedly be

an unlawful seizure. See State v. Johnson, 104 Wn. App. 489, 501-02, 17 P.3d 3(2001)

(discussing Hicks, 480 U.S. at 328-29 (manipulating stereo equipment that an officer

reasonably suspects may be incriminating evidence to determine the serial number, which

would give the officer probable cause, constitutes an unlawful search under the plain

view doctrine)).

       While we have generally recognized that "a policeman in the course of a valid

search is entitled to keep his senses open to the possibility of.. . evidence of a crime,"

Lair, 95 Wn.2d at 719, we have never suggested knowledge obtained by one officer may

be imputed to the seizing officer, who is completely unaware of the facts and

circumstances leading up to the seizure based on "plain view." Indeed, we have

recognized only that a warrantless arrest, not a warrantless search and seizure, may be

executed based on the cumulative knowledge possessed by a team of officers under the
No. 96017-8
Madsen, J., dissenting


"fellow officer" rule. See State v. Bravo-Ortega, 111 Wn.2d 116, 297 P.3d 57(2013).

But to fall under the "fellow officer" rule, the information supplied must be from a law

enforcement agency. See State v. Gaddy, 152 Wn.2d 64, 70-71, 93 P.3d 872(2004).

Here, the information obtained by the police came from first responders on the scene who

were non-law-enforcement sources. Consequently, the officer's warrantless seizure

could not fall under the fellow officer rule even if it were applied here.

       In essence, the majority's holding that Sergeant Zatylny directing Officer Breault

to collect Morgan's clothing falls under the plain view exception is really an "ends justify

the means" argument since Officer Breault saw nothing to justify a plain view seizure.

Importantly, Sergeant Zatylny was not present at Morgan's hospital room to perform a

plain view seizure of the clothing. Sergeant Zatylny had more than enough information

to obtain a warrant to collect Morgan's clothing. There was no concern that obtaining a

warrant here would "be a needless inconvenience [or] dangerous—^to the evidence or to

the police themselves." Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022,

29 L. Ed. 2d 564(1971)(plurality portion). Given the facts and circumstances of the

investigation, a telephonic warrant would have been easily obtainable, should have been

obtained by police here, and, more importantly, is what our constitution required.

                                        Conclusion


       Clothing, without more, is not inherently incriminating evidence. The officer

observing and seizing evidence under plain view, must be aware ofthe surrounding facts

and circumstances to have probable cause justifying the warrantless seizure. Because the
No. 96017-8
Madsen, J., dissenting


officer here was directed only to observe, gain information about a missing child, and,

later, collect Morgan's clothing as evidence without knowing anything about a criminal

investigation, the plain view exception to a warrant is not met. The majority's holding

unnecessarily broadens our plain view doctrine and undermines the search warrant

requirement under article I, seetion 7 of the Washington State Constitution. Probable

cause to justify the warrantless seizure by the seizing officer was not met, and as such, I

respectfully dissent.
No. 96017-8
Madsen, J., dissenting




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