       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,                                  No. 75072-1-1

                      Respondent,                      DIVISION ONE

          V.

 DAVID ZACHERY MORGAN,                                 UNPUBLISHED

                      Appellant.                       FILED: May 29, 2018


       Cox, J. — David Morgan appeals his convictions for one count of first

degree attempted murder, first degree arson, and first degree assault, all crimes

of domestic violence. The trial court did not abuse its discretion in declining to

dismiss these charges following Morgan's mistrial motion. And double jeopardy

did not bar retrial of these charges. But police authorities seized Morgan's

clothing from bags inside his hospital room without authority of law. The State

failed to prove by clear and convincing evidence that exigent circumstances

existed. That clothing was later admitted into evidence at trial. Accordingly, we

reverse and remand for a new trial.

       David Morgan and Brenda Welch were divorced and shared custody of

their eight-year old daughter, K. Morgan spent three weekends per month with

K. Welch would pick her up at Morgan's house on Sunday evenings.
No. 75072-1-1/2

       On Saturday night, November 15, 2014, Morgan left K. with his mother.

Morgan claims to have been sick. He was supposed to pick up K. before Welch

arrived at his home on Sunday evening. But he told officers who interviewed him

that he fell asleep.

       Welch left her house around 6:25 p.m. on Sunday, November 16, 2014, to

pick up K. from Morgan's. Around 7:00 p.m., a neighbor saw that Morgan's

house was on fire. Firefighters arrived within minutes and found Morgan on the

ground, in the driveway. A lieutenant, the first firefighter to arrive, repeatedly

asked Morgan if anyone else was in the house. Morgan mumbled the word

"garage," and handed the garage door opener to the lieutenant.

       The door opener did not work because a bin was blocking the door. After

getting inside, firefighters found Welch on her back, in a pool of blood. She had

severe burns on her upper body. She also smelled strongly of gasoline. She

was taken to Harborview Medical Center for observation and treatment.

       Welch had a skull fracture with a pattern of head lacerations that

resembled a garden tool found by the front door of Morgan's home. She suffered

permanent injuries. She did not remember how she got hurt.

       Morgan had blood on his hands and clothing but no lacerations. He had a

small wound on his forehead and his hair was singed. He was taken to Swedish

Edmonds Hospital for observation and treatment.

       Officer Christopher Breault of the Lynnwood Police Department went to

the hospital, where Morgan was in a room being treated for smoke inhalation.




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No. 75072-1-1/3

He asked Morgan what had occurred that evening. Morgan spoke freely with the

officer regarding his memory of events.

       Later that same evening, two other police officials arrived at the hospital

room to interview Morgan. During this interview, Morgan declined to give a

recorded statement. Sometime during this interview, police seized his clothing,

which was stored in several plastic bags located on the back counter of his

hospital room.

       Police arrested Morgan the next day, upon his release from the hospital.

      The State charged him with attempted first degree murder, first degree

assault, and first degree arson. Each charge included an allegation that it

constituted a crime of domestic violence.

       On the fourth day of Morgan's first jury trial, the trial court granted a

mistrial due to prosecutorial misconduct. At the second trial that followed a short

time later, the jury convicted Morgan on all counts. The trial court sentenced him

accordingly.

       Morgan appeals.

               DISMISSAL UNDER CrR 8.3(b) AND CrR 4.7(h)(7)(I)

       Morgan first claims that he was entitled to dismissal of the charges with

prejudice under CrR 8.3(b) and CrR 4.7(h)(7)(i) due to the prosecution's allegedly

outrageous and prejudicial conduct. The court did not abuse its discretion in

declining to dismiss the charges with prejudice on these grounds.

       CrR 8.3(b) authorizes dismissal "due to arbitrary action or governmental

misconduct when there has been prejudice to the rights of the accused which


                                              3
No. 75072-1-1/4

materially affect the accused's right to a fair trial." CrR 4.7(h)(7)(i) authorizes the

trial court to impose sanctions, including dismissal for discovery violations.

       A trial court will only order dismissal of charges under CrR 8.3(b) if the

defendant shows by a preponderance of evidence, arbitrary action or

government misconduct and prejudice affecting the defendant's right to a fair

trial.' Likewise, dismissal pursuant to CrR 4.7(h)(7)(i) is an extraordinary remedy

that is only available if a defendant can show actual prejudice.2

       This court reviews the trial court's decision for manifest abuse of

discretion.3 A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds.4

       Here the prosecutor elicited an opinion from an expert witness that had

not been disclosed in pretrial discovery. The State properly concedes that this

constitutes "government misconduct."5 However, Morgan still bears the burden

to show that his right to a fair trial was prejudiced in a manner that could not be

remedied by a new tria1.6 But the trial court specifically determined that Morgan

could be given a fair trial. And he fails to point to anything in the record of the

second trial to show he did not get a fair trial.



       1   State v. Puapuaga, 164 Wn.2d 515, 520, 192 P.3d 360(2008).
       2   See State v. Krenik, 156 Wn. App. 314, 320, 231 P.3d 252(2010).
       3   Puaduada, 164 Wn.2d at 520-21; Krenik, 156 Wn. App. at 320.
       4   State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).
       5   See id. at 239-40.
       6   State v. Whitney, 96 Wn.2d 578, 580,637 P.2d 956 (1981).

                                                4
No. 75072-1-1/5

       Instead, he argues that he was prejudiced by the loss of the jury selected

in his first trial, especially since the media coverage of his case made it

particularly difficult for him to obtain a second unbiased jury. But he fails to point

to anything in this record to show why the original jury selected would have been

any fairer than the jury selected at his second trial.

       Moreover, while Morgan claims that he was subject to adverse pretrial

publicity, the trial court disagreed. Morgan fails to present anything other than

speculation to show that the trial court was wrong in its assessment of this issue.

       Morgan also argues that the mistrial, followed by retrial, worked to the

State's benefit. We see no persuasive explanation why, given the eleven-day

delay between termination of his first trial and commencement of his second trial.

       Morgan relies on State v. Martinez, as support for his contention that

dismissal was appropriate due to the prosecution's allegedly "outrageous"

conduct.7 His reliance is misplaced.

       In Martinez, the prosecution kept exculpatory evidence from Alexander

Martinez until the middle of tria1.8 The exculpatory evidence was revealed right

before the State rested.8 The jury voted 10 to 2 to acquit, and the trial court

declared a mistria1.10




       7 121   Wn. App. 21, 86 P.3d 1210(2004).

       8   Id. at 32-35.

       9   Id. at 32-33.

       18   Id. at 24, 29.

                                              5
No. 75072-1-1/6

       When the State moved to refile the charges, Martinez moved to dismiss

based on double jeopardy and CrR 8.3(b).11 The trial court agreed with Martinez,

dismissed the charges, and the State appealed.12

       This court affirmed. We noted that "dismissal under CrR 8.3(b) is an

extraordinary remedy that is improper except in truly egregious cases of

mismanagement or misconduct that materially prejudice the rights of the

accused."13 We then held that the prosecutor's withholding of exculpatory

evidence until the middle of trial was "so repugnant to principles of fundamental

fairness" that the trial court did not abuse its discretion in dismissing the

charges."

       Here, the undisclosed evidence was not exculpatory. Rather, it supported

the State's theory that Morgan was guilty of arson. It is true that the trial court

found that the prosecution intentionally elicited an opinion that should have been

disclosed earlier, but Morgan has failed to cite to any authority equating such

conduct with a failure to produce exculpatory material or with other outrageous

behavior. Moreover, dismissal pursuant to CrR 8.3(b) is a discretionary decision.

Thus, affirming in this case is consistent with this court's decision to affirm in

Martinez. In both cases, this court defers to the trial court's exercise of

discretion.



      "Id.
       12   Id.
       13   Id. at 30.
       14   Id. at 35-36.

                                              6
No. 75072-1-1/7

       Finally, Morgan argues in his opening brief that he was prejudiced

because the mistrial forced him to waive his speedy trial rights. But he concedes

in his reply brief that this argument was in error. Specifically, the last day for trial

pursuant to CrR 3.3 was Monday, March 21 and trial began on that day. We

need not further address this argument.

       Morgan fails to show that he either could not receive a fair trial, or that he

suffered actual prejudice that could not be remedied by retrial. Accordingly, the

trial court did not abuse it discretion by refusing to dismiss the charges with

prejudice.

                                 DOUBLE JEOPARDY

       Morgan next argues that double jeopardy precluded a second trial,

notwithstanding that he sought the mistrial that the court granted. He further

claims that the prosecutor acted in bad faith by intentionally and repeatedly

eliciting highly prejudicial testimony from the State's expert in violation of the trial

court's discovery order. We disagree.

       Both the federal and Washington constitutions protect persons from being

put into jeopardy twice for the same offense.15 Jeopardy attaches once a jury is

sworn in.16 In general, double jeopardy principles do not preclude retrial if the




       15   State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010).
       16   State v. Corrado, 81 Wn. App. 640, 646, 915 P.2d 1121 (1996).

                                                7
No. 75072-1-1/8

mistrial was granted upon the defendant's motion.17 This is true even if the

defendant sought a mistrial due to prosecutorial error.18

       Federal cases recognize one exception to the usual rule. If the prosecutor

intended to goad the defense into seeking a mistrial, re-trial is precluded.19 Other

bad faith actions by the prosecutor are not enough.20

       Washington courts have recognized the possibility of a slightly broader

exception based on the Oregon Supreme Court's interpretation of its state

constitution.21 Under the "Oregon standard," double jeopardy precludes retrial if

the prosecutor "knows that the conduct is improper and prejudicial and either

intends or is indifferent to the resulting mistrial or reversal."22 The difference

between the federal and Oregon standards is quite narrow with the latter

including cases where the prosecutor "harass[es] the defendant with what the

prosecutor knows to be prejudicial error."23 Washington courts have not yet

decided whether this broader rule applies under the Washington constitution.24




       17 Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct. 2083, 72 L. Ed. 2d 416
(1982); State v. Hopson, 113 Wn.2d 273, 280, 778 P.2d 1014 (1989).
       18   Hopson, 113 Wn.2d at 280.
       19   Kennedy, 456 U.S. at 676.
       29   Id. at 675-76.
       21Hopson, 113 Wn.2d at 280 (citing State v. Kennedy, 295 Or. 260, 276, 666
P.2d 1316, 1326(1983)).
       22   Id. (quoting Kennedy, 295 Or. at 276).
       23   Id. (quoting Kennedy, 295 Or. at 272).
       24   Id. at 277-78; State v. Lewis, 78 Wn. App. 739, 743, 898 P.2d 874(1995).

                                                 8
No. 75072-1-1/9

       Whether the prosecutor intended to goad the defendant into seeking a

mistrial is an issue of fact for the trial court.25 Likewise, a finding whether the

prosecutor intended or was indifferent to the possibility of a mistrial is factual, and

"[t]he trial court may infer its finding from objective facts and circumstances."26

       We will not disturb the trial court's factual findings that are "supported by

substantial evidence."27 We review de novo any questions of law.28

       Snohomish County Deputy Fire Marshall Edwin Hardesty investigated to

determine the cause of the fire. He submitted a report characterizing the cause

as "undetermined," and stating that he "could not rule out it was an incendiary

fire" and he could rule out all natural and accidental causes. The report was

provided to the defense.

       Morgan moved to compel pursuant to CrR 4.7(a), asking the State to

provide a summary of the opinions of its expert witnesses. The trial court granted

the motion, and the State produced a memorandum summarizing Hardesty's

opinion and stating that he was expected to testify that the exact cause of the fire

was undetermined. In the same memorandum, the State provided that Mikael

Makela, the fire investigator assisting Hardesty, signed off on Hardesty's report,

and "it is expected that he would join in the ultimate conclusions listed above if

called to testify."



       25   Lewis, 78 Wn. App. at 744.
       26   id.

       27   Id.
       28   State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136(2006).

                                               9
No. 75072-1-1/10

       At the first trial, Hardesty testified that, from the nature of the fire, he

concluded that some type of fuel or accelerant had been added to the room to

sustain the fire. Based on Welch's condition and the gasoline on her clothing,

Hardesty testified that he could not rule out that the fire was intentionally set. He

could eliminate all accidental causes in the room of fire origin and could not rule

out an intentionally set fire. He again classified the cause of the fire as

"undetermined."

       On cross-examination, Morgan's counsel questioned Hardesty about

NFPA 921, a peer-reviewed manual that rejects a procedure called "negative

corpus" in which the investigator uses a process of elimination to conclude the

fire was intentionally set. Hardesty denied using that procedure.

       The State later called Makela who testified that he agreed with Hardesty's

conclusions. Towards the end of his testimony, the following exchange occurred:

              Makela:[Reading from the NFPA that]"An incendiary fire is
              a fire that is deliberately set with the intent to cause the fire
              to occur in an area where the fire should not be.

              Prosecutor: And do you believe that's what occurred in this
              case?

              M: Yes, I do.

              P:[Does the NFPA]reiterate anything about ignitable liquid?

              M. It does.

              P. What does it say?

              M: The presence of ignitable liquids may indicate that a fire
              was incendiary, especially when [they] are found in areas in
              which they are not normally expected.

              P: Did you find that in this particular case?

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No. 75072-1-1/11


                M. Yes.

                P: And the last paragraph?

                M: Absence of personal items prior to the fire, the absence
                of items that are personal, irreplaceable, or difficult items to
                replace should be investigated." Examples include...
                photographs, awards,... art, pets [and]the removal of
                important documents, e.g., fire insurance policies, business
                records, tax records, prior to the fire, should be investigated
                and explained.

                P: In consideration of all of that, of the standards of what you
                both eliminated and what you found, do you have an opinion
                as to whether this is an intentionally set fire?

                M: Yes, I do.

                P: Which is?

                M: Yes. It is an incendiary fire.(29]

       On cross-examination, Makela testified that he had told the State of his

opinion a few months before trial and had spoken with the prosecutor about his

conclusion "[m]aybe three of four times."3° He did not provide the State with a

written report of his conclusions.

       Morgan moved for a mistrial because the prosecution had failed to

disclose in discovery Makela's opinion that the fire was intentionally set. The

prosecutor initially claimed that Makela's testimony was consistent with

Hardesty's. The trial court disagreed, noting that Makela had testified that his

professional opinion was that it was an intentionally set fire.



       29   Report of Proceedings Vol. 5(February 29, 2016) at 950-51.

       3° Id. at 951-52.

                                                11
No. 75072-1-1/12

       The prosecutor then claimed that he believed he had provided materials to

the defense about Makela's opinions but would have to check. After a recess,

the prosecutor corrected his earlier statement and informed the court that he had

not intended to elicit this information on direct examination. The trial court

determined that failure to disclose Makela's opinion was a violation of the court's

discovery order and declared a mistrial.

       Morgan then moved to dismiss the charges. The prosecutor responded

that he had elicited far more than he intended and acknowledged that his

questioning was "sloppy, inartful [sic], and unfocused."

       The trial court disagreed with the prosecutor's version of the facts in its

response. The trial court determined that the prosecutor had asked questions

designed to elicit Makela's opinion that the fire was incendiary and that the "five

minutes or so of testimony that was elicited cannot be attributed to a mistake."

Nonetheless, it did not believe that the prosecutor's misconduct warranted

dismissal but reserved the right to impose sanctions at the conclusion of the

case. At the end of the second trial, the court determined that the mistrial was an

appropriate and sufficient sanction and imposed no others.

       Morgan argues that the second trial violated his double jeopardy rights

because his motion for mistrial should not be considered as consent. He is

wrong.

       Morgan relies on State v. Rich, as support for this argument that he did

not consent because he was presented with two equally unacceptable choices—

to allow a mistrial or to proceed with a jury that was tainted by the prosecutor's


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No. 75072-1-1/13

misconduct.31 He is wrong because John Rich objected to the trial court's

decision to grant a mistria1.32 If Morgan was correct, no defendant seeking a

mistrial due to prosecutorial error could ever be seen as consenting because he

or she always faces a choice between giving up the first jury or continuing with a

trial tainted by prosecutorial error.33

       Morgan also argues that retrial should have been barred because the

prosecutor acted in bad faith to goad him into requesting a mistrial or to prejudice

his prospects for acquittal. He also argues the opposite—that the prosecutor

"took a risk by eliciting testimony he knew he had not provided in discovery,

presuming that the evidence would simply be stricken if defense counsel

objected." He argues that the prosecutor's improper questioning, coupled with

his subsequent false assertions, first that he had provided the information in

discovery and then that he had asked the questions by accident, shows bad faith

and thus the trial court erred in refusing to dismiss the charges. We disagree.

       Under either double jeopardy standard, the more narrow one articulated

by the United States Supreme Court in Kennedy or the broader Oregon standard

recognized in Hopson, Morgan was not entitled to dismissal. Both require a "rare

and compelling" set of facts before dismissal is warranted.34




       31   63 Wn. App. 743, 821 P.2d 1269(1992).
       32   Id. at 745-46, 747.
       33   See U.S. v. Dinitz, 424 U.S. 600,609, 96 S. Ct. 1075,47 L. Ed. 2d 267(1976).
       34   Hopson, 113 Wn.2d at 283.

                                               13
No. 75072-1-1/14

         The double jeopardy concerns presented in this case are very similar to

those addressed by this court in State v. Lewis.35 Andre Lewis was charged with

second degree murder, and at his first trial the prosecutor repeatedly asked a

witness about whether someone working for the defense had tried to get him to

change his story.36 Lewis objected three times and each time the trial court

sustained the objection.37 The trial court granted a mistrial concluding that the

prosecution "had introduced irrelevant, prejudicial evidence that denied Lewis a

fair trial."35

        This court affirmed the trial court's refusal to dismiss the charges based on

double jeopardy.33 Turning first to the federal standard, the court observed that

"the critical factor is the trial court's perception that the State's case is going

badly and the prosecutor was looking for an excuse to start over."43

         Here, there is no evidence that the prosecutor wanted to start over. To

the contrary, the trial court specifically found that prior to the improper testimony,

the State's case was strong.

         Turning to the slightly broader Oregon standard, the court in Lewis,

observed that retrial was barred if the deliberate misconduct of the prosecutor



         35   78 Wn. App. 739, 898 P.2d 874 (1995).
         36   Id. at 741-42.
         37   id.

         38   Id. at 742.
         39   Id. at 745-46.
         4° Id. at 743.

                                                14
No. 75072-1-1/15

created a risk of mistrial, perhaps to avoid the serious danger of acquittal,

perhaps to harass the defense, or maybe just to retaliate against defense

counsel in some way. This court agreed with the trial court that the prosecutor's

misconduct was serious, its questions prejudicial, and that the prosecutor had

wrongfully persisted despite three sustained objections. Nonetheless, this court

deferred to the trial court's "first hand observations and sound judgment" and its

determination that the prosecutor's conduct was insufficient to bar retrial.

       In this case, as in Lewis, the trial court did not find that the prosecutor

either intended a mistrial or was indifferent to the possibility. It also recognized

that it had the discretion to "weigh the balance of justice," and it determined that

dismissal would not support the ends of justice.

       As in Lewis, we conclude that the trial court did not abuse its discretion in

determining that retrial was not barred by double jeopardy.

                      SEIZURE OF MORGAN'S CLOTHING

                               Exigent Circumstances

       Morgan argues that the trial court improperly failed to suppress the

evidence obtained from his clothing because the clothing was illegally seized

without a warrant. He further argues that the subsequent warrant to analyze

bloodstain patterns was unlawful because it was obtained based on evidence

from the unlawfully seized clothing. We agree with both arguments.




                                             15
No. 75072-1-1/16

       As a general rule, a warrantless seizure is a per se violation of article 1,

section 7 of the Washington Constitution.'" There are a few "carefully drawn

exceptions to the warrant requirement" including exigent circumstances.42

"The exigent circumstances exception to the warrant requirement applies where

'obtaining a warrant is not practical because the delay inherent in securing a

warrant would compromise officer safety, facilitate escape or permit the

destruction of evidence."43 The supreme court has identified five circumstances

from federal cases that "could be termed 'exigent" circumstances.'" They

include "(1) hot pursuit;(2)fleeing suspect;(3) danger to arresting officer or to

the public;(4) mobility of the vehicle; and (5) mobility or destruction of the

evidence."45 However, merely because one of these circumstances exists does

not mean that exigent circumstances justify a warrantless search.46 There must

be a true emergency and a warrantless search is unlawful if other, less intrusive,

options were available.47




       41   State v. Tibbles, 169 Wn.2d 364, 370, 236 P.3d 885(2010).

        State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266(2009)(quoting State v.
       42
Duncan, 146 Wn.2d 166, 171,43 P.3d 513(2002)).
       43Tibbles, 169 Wn.2d at 370 (quoting State v. Smith, 165 Wn.2d 511, 517, 199
P.3d 386 (2009)).
       44   State v. Counts, 99 Wn.2d 54, 60,659 P.2d 1087(1983)(emphasis added).

       46Id. (citations omitted); see also State v. Terrovona, 105 Wn.2d 632, 644, 716
P.2d 295 (1986).
        E.c., Tibbles, 169 Wn.2d at 370; State v. Patterson, 112 Wn.2d 731, 735, 774
       46
P.2d 10(1989).
       47   State v. Cruz, 195 Wn. App. 120, 126-27, 380 P.3d 599(2016).

                                               16
No. 75072-1-1/17

       In determining whether exigent circumstances exist, the court looks to the

totality of the circumstances.45 Six nonexclusive factors that may aid in

determining whether exigent circumstances exist are:

      '(1) the gravity or violent nature of the offense with which the
      suspect is to be charged;(2) whether the suspect is reasonably
      believed to be armed;(3) whether there is reasonably trustworthy
      information that the suspect is guilty;(4) there is strong reason to
      believe that the suspect is on the premises;(5) a likelihood that the
      suspect will escape if not swiftly apprehended; and (6)the entry
      [can be] made peaceably.'[49]

       When reviewing the trial court's denial of a motion to suppress, we review

challenged findings of fact for substantial evidence.50 We review de novo

whether exigent circumstances exist to justify the warrantless seizure.51

      "The State bears a heavy burden" and "must establish the exception to the

warrant requirement by clear and convincing evidence."52

      The issue before us is whether, under article 1, section 7 of the

Washington Constitution, the warrantless seizure of Morgan's clothing from the

storage bags in his hospital room—a per se violation of the constitution—was

done "under authority of law." Specifically, whether the State met its heavy

burden to show that either the "exigent circumstances" or "plain view" exceptions

applies.



      48    Smith, 165 Wn.2d at 518.

      49    State v. Cardenas, 146 Wn.2d 400, 406, 47 P.3d 127(2002).

       58   Garvin, 166 Wn.2d at 249.

       51   City of Seattle v. Pearson, 192 Wn. App. 802, 811-12, 369 P.3d 194(2016).

       52   Garvin, 166 Wn.2d at 250.

                                               17
No. 75072-1-1/18

         Here, CrR 3.5 and 3.6 hearings on Morgan's motions to suppress were

held successively on February 4, 2016. There are written findings of fact and

conclusions of law for the CrR 3.5 hearing. For unexplained reasons, the record

contains no written findings or conclusions for the CrR 3.6 hearing that is now at

issue.

         Nevertheless, in a careful review of the record, we consider both the

evidence presented at the hearing and the trial court's rationale for its decision to

deny Morgan's motion to suppress the clothing evidence.

         We first note that the trial court considered the written statements of

Officer Breault and Officer Brad Reorda that were attached to Morgan's motion to

suppress. It also considered the written statement of Sergeant Curtis Zatylny

that was introduced into evidence at the hearing. The trial court found these

statements insufficient to justify the seizure of the clothing.53 The State does not

contest this finding on appeal.

         Thereafter, the State presented the testimony of Officer Breault, the only

person to testify at the CrR 3.6 hearing. He was one of several officers who had

testified at the CrR 3.5 hearing that immediately preceded the CrR 3.6 hearing.

         During the CrR 3.6 hearing, Officer Breault testified that he arrived at

Swedish Edmonds Hospital around 8:45 p.m. to obtain information from Morgan




         53   Report of Proceedings Vol. 1 (February 4, 2016) at 149-50.

                                                  18
No. 75072-1-1/19

and provide medical updates to police authorities.54 He spent a couple of hours

with Morgan, in his hospital room, without noticing Morgan's bagged clothing.55

       Two detectives arrived to interview Morgan after the officer had been with

him for a couple of hours. Officer Breault first noticed Morgan's bagged clothing

when he left the room following the arrival of the detectives.56 According to this

officer, the clothing was "in several plastic bags that the hospital had provided

and then placed on the back counter" of Morgan's hospital room.57

      The record is unclear on who directed the seizure of Morgan's clothing.

The officer testified that it might have been the two detectives or some other

police official not present in the hospital room. What is clear is that he did not

seize the evidence on his own.

       He also testified that neither he nor anyone else sought Morgan's

permission to seize the clothing. Moreover, he testified that neither he nor

anyone else sought a telephonic warrant.55

       Nevertheless, Officer Breault testified that, when dealing with clothing that

may contain bodily fluids or gasoline, police procedure is to separate these items

and package them properly depending on the type of evidence. He further

testified that substances such as gasoline and chemicals rapidly dissipate and



       54   Id. at 158.

       55   Id at 159.

       56   Id.

       57   Id. at 151.

       58 Id. at 162.

                                             19
No. 75072-1-1/20

such evidence needs to be packaged quickly and efficiently to preserve it for later

testing.

       On cross-examination, he testified that he had no knowledge of the timing

of dissipation for anything that might have been on Morgan's clothing.59 He

further testified that he could not testify about what chemicals might have been

on the clothing.69 He also testified that his incident report made no mention of

why he assisted in packaging the clothing into the special arson bags that

another officer brought to the scene.61

       A few months after Morgan's clothing was packed, sealed, and taken to

the crime lab, one of the two detectives that interviewed Morgan at the hospital

on the night of the fire visually inspected the clothes and noticed blood spatter on

Morgan's jeans and shirt. The clothing was sent to a forensic scientist with the

Washington State Patrol Crime Lab, who performed a bloodstain pattern

analysis.

       Morgan sought to suppress both the clothing and the bloodstain pattern

analysis. The trial court determined that the State had met its burden to establish

exigent circumstances justifying the seizure of Morgan's clothes. However, it

also determined that any testing for purposes other than the presence of

accelerants was not justified by exigent circumstances and thus required a




       59   Id. at 161.
       6° Id.
       61   Id. at 163.

                                            20
No. 75072-1-1/21

warrant. The trial court then suppressed the results of the forensic scientist's

bloodstain pattern analysis because exigent circumstances no longer applied.

       Morgan moved to reconsider the denial of the suppression motion based

on the absence of any showing by the State that it was impractical to get a

warrant to seize the clothing.62 But the trial court denied the motion. It reiterated

its determination that Officer Breault had to act quickly once he saw the bag of

clothes to preserve any accelerant and avoid cross contamination.

       Relying on this court's decision in City of Seattle v. Pearson, Morgan

argues that the warrantless seizure of his clothing was not justified by exigent

circumstances.63 Morgan is correct.

       In Pearson, this court determined that the natural rate of dissipation of

THC in Tamisha Pearson's bloodstream did not justify a warrantless blood draw

under the exigent circumstances exception." This court held that the City failed

to show that waiting for a warrant would result in losing evidence of the

defendant's intoxication, and it "failed to show by clear and convincing evidence

that obtaining a warrant would have significantly delayed collecting a blood

sample."65




       62   Report of Proceedings Vol. 1 (February 17, 2016) at 191-92.
       63   192 Wn. App. 802, 369 P.3d 194(2016).
       64 See Missouri v. McNeely, 569 U.S. 141, 152, 133 S. Ct. 1552, 185 L. Ed. 2d
696 (2013).
       65   Pearson, 192 Wn. App. at 816.

                                                21
No. 75072-1-1/22

       Here, the record at the CrR 3.6 hearing is devoid of any evidence showing

that it was impractical to get a telephonic warrant once police noticed the bagged

clothing in Morgan's hospital room. The only evidence from Officer Breault about

telephonic warrants is that no one applied for one. Why the police did not apply

for a warrant is not satisfactorily explained.

       In Pearson, this court acknowledged that exigent circumstances may exist

"only if the party seeking to introduce evidence of a warrantless blood test can

show that waiting to obtain a warrant would result in losing evidence of the

defendant's intoxication."66 But absent such evidence, the natural dissipation of

THC for example in a suspect's bloodstream, will not, by itself, constitute exigent

circumstances.67

       Applying that rationale here, we see no reason to relieve the State of its

burden to show that applying for a warrant in this case would have resulted in the

loss of whatever evidentiary value was in the bagged clothing. There is simply

nothing in the record of the CrR 3.6 hearing on this critical evidentiary issue.

       Notably, the record of the CrR 3.5 hearing shows that one of the two

detectives who interviewed Morgan at the hospital on the night of the fire, during

a break in questioning, contacted the on-duty homicide deputy prosecutor to

determine how to proceed." Thus, to the extent consideration of material

outside the record of the CrR 3.6 hearing is proper, it appears that the means of


       66   192 Wn. App. at 812-13.
       67   Id.
       68   Report of Proceedings Vol. 1 (February 4, 2016) at 103.

                                                22
No. 75072-1-1/23

seeking a telephonic warrant were readily available. In our view, this buttresses

the absence of evidence that exists at the CrR 3.6 hearing to show that

application for a warrant was impractical.

        We turn again to Officer Breault's testimony in support of the warrantless

seizure. In Pearson, there was testimony that obtaining a warrant would typically

take 60 to 90 minutes and the dissipation window was at least three to five

hours.69 Here, there was no testimony about what chemicals might have been

on Morgan's clothing or what the dissipation rates for such chemicals were.

Simply saying dissipation was likely is patently insufficient to support this seizure.

        There was also testimony about the risk of cross contamination of the

clothing evidence. While we do not dismiss this general concern, this record

does not appear to support the argument. 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.

        The assessment of exigency requires a "careful case-by-case" analysis,

and the seriousness of the crime being investigated is a factor." Here, the

seriousness of the crime weighs in favor of exigency. But that alone is not

enough to overcome the need for a warrant. If officers could reasonably obtain a


        69   192 Wn. App. at 815-16.
        70   McNeely, 569 U.S. at 152; Smith, 165 Wn.2d at 518.

                                               23
No. 75072-1-1/24

warrant before seizing Morgan's clothing without significantly undermining the

seizure, they had to do so.71

      The State relies on State v. Welker to support its argument.that the

potential loss of evidence provided exigent circumstances justifying a warrantless

seizure of Morgan's clothes." Its reliance is misplaced.

       In Welker, officers pursued Kenneth Welker shortly after responding to a

reported rape in the neighborhood." They knew Welker from previous

investigations and came to his house to speak with him.74 The officers were

invited into the house by Welker's mother and wife but denied entrance to the

basement." They went down anyway and found Welker, cowering naked under

the stairs." They arrested him.77

       The court held that exigent circumstances justified the warrantless entry

into the basement because officers had a reasonable belief Welker was hiding

there and was likely to quickly destroy any evidence of the rape that remained on

his body." The rape had been reported at 1:47 a.m., and an officer testified that



       71   McNeely, 569 U.S. at 152.
       72   37 Wn. App. 628,683 P.2d 1110 (1984).
       73   Id. at 630.
       74   1d.
       75   Id. at 631.
       76   id.

       77   Id.
       75   Id. at 633-34.

                                             24
No. 75072-1-1/25

trace evidence usually present in rape cases such as hair, fibers, bodily

secretions and scratches is transient and short lived.79 The court noted that

"keeping the house under surveillance while a warrant was obtained at 3:30 a.m.

.. . was not a practical alternative."80 Specifically, because Welker had easy

access to facilities inside the house "[m]erely preventing [his] escape would not

preserve or prevent the loss of evidence which he carried on his person."81

       Here, there was no such exigency, on this record. How Morgan,

hospitalized for smoke inhalation while almost constantly in the presence of

police officers interviewing him, could destroy the clothing evidence in his room is

left unexplained. And the record shows that detectives were in telephonic

contact with a deputy prosecutor, through whom they presumably could have

applied for a warrant to seize the clothing. In short, this case is of no assistance

to the State.

       The State has failed to meet its burden to show that applying for a warrant

would have resulted in lost evidence.82 And the State failed to prove by clear and

convincing evidence that exigent circumstances existed.

       The State does not argue that this error was harmless. On this record, it

could not so argue.




       79   Id. at 634.
       8°   Id.
       81   Id.
       82   See Pearson, 192 Wn. App. at 816.

                                                25
No. 75072-1-1/26

                                        Plain View

       The State asserts in its cross-appeal that even if the warrantless seizure

was not justified by exigent circumstances, it was justified under the "plain view"

doctrine. It argues that the trial court erred in believing that this doctrine did not

apply because the seizure was not inadvertent. We again disagree.

       Under the plain view exception, if an officer is conducting a lawful search

and comes across an item "the incriminating character of[which] is immediately

recognizable, that item may be seized."53 The plain view exception to the

warrant requirement imposed by article 1, section 7 requires "prior justification for

intrusion," "inadvertent discovery of incriminating evidence," and immediate

knowledge of the incriminating nature of the evidence.84

       Here, Officer Breault did not decide to seize the clothing bag when he

entered Morgan's room or at any time during the next few hours. Instead, 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 factual pattern.

       In addition, the plain view exception requires that the officer immediately

know that the evidence is incriminating.85 The exception only applies if police


       83   State v. Hudson, 124 Wn.2d 107, 114, 874 P.2d 160(1994).
       84   State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307(2005).
       85   Id.

                                               26
No. 75072-1-1/27

officers have probable cause to believe the object or evidence is contraband

"without conducting some further search, that is, the incriminating character must

be immediately apparent."86

       Here, the record shows that Morgan's clothing was inside apparently

opaque hospital bags. And there was no testimony that Officer Breault detected

the scent of gasoline or any other type of accelerant before he seized the bag.

Therefore, as found by the trial court, the incriminating character of the evidence

was not in plain view because neither blood nor other relevant crime information

could be seen through the plastic bag. Officer Breault was not justified in seizing

Morgan's bag of clothes as an item immediately recognized as incriminating

evidence.

       Accordingly, we reject the State's argument that the seizure of Morgan's

clothing was justified under the plain view exception to the warrant requirement.

There simply is no basis in this record to affirm on this basis.

                             Bloodstain Pattern Analysis

       After the trial court suppressed the bloodstain pattern analysis results, the

State obtained a warrant and Kim Duddy performed a second bloodstain pattern

analysis. These results were admitted at trial. Morgan argues that the trial court

erred in admitting these results because the initial seizure of his clothing was

unlawful. He argues that "the results of the pattern analysis were not obtained

independently of the unlawful seizure." We agree.




       86   Hudson, 124 Wn.2d at 118.

                                             27
No. 75072-1-1/28

       It is well-established that when an unconstitutional seizure occurs, "all

subsequently uncovered evidence becomes fruit of the poisonous tree and must

be suppressed."87 Here, the search warrant was based on the affidavit of

Detective Jorgensen. Detective Jorgensen stated that he "conducted a visual

examination of Morgan's clothing" when it was sealed in the evidence bags.

Based on that visual examination, Detective Jorgensen sought the warrant so

that a bloodstain pattern analysis could be performed. Because the seizure was

unlawful, the results of the bloodstain pattern analysis should have been

suppressed.

                                    Harmless Error

       This court applies a harmless error analysis when the trial court

erroneously admits evidence that is the product of a warrantless search.88 A

constitutional error is harmless if the untainted evidence is so overwhelming as to

necessarily lead to a finding of guilt.88

       Morgan argues that the error here was not harmless because there were

no witnesses to the crime, and the bloodstain pattern analysis was the only

evidence indicating that he was in close proximity to Welch when she suffered

her head injuries.

       The State does not argue otherwise.



       87 State   v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833(1999).

       88State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182(1985), cert. denied,
475 U.S. 1020, 106 S. Ct. 1208, 89 L. Ed. 2d 321 (1986).

       89   Id. at 426.

                                              28
No. 75072-1-1/29

       The denial of the suppression motion constitutes reversible error.

          Because we reverse on the bases explained, we only address those

remaining issues that may recur at trial on remand. It is unnecessary to address

the other issues raised in this appeal.

                                        MIRANDA

          Morgan argues that his statements to the detectives who interviewed him

in his hospital room should have been suppressed because they failed to advise

him of his Miranda rights.° We disagree.

       "Miranda warnings were designed to protect a defendant's right not to

make incriminating statements while in police custody."91 They are required

"when an interrogation or interview is (a) custodial (b) interrogation (c) by a state

agent."92

       Whether an interrogation is "custodial" depends on whether the suspect's

movement was restricted at the time of questioning.93 The test is "whether a

reanable person in the individual's position would believe he or she was in

police custody to a degree associated with formal arrest."94

       We review a trial court's findings of fact following a CrR 3.5 hearing for

substantial evidence and review de novo whether the findings support the


       99   See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
       91   State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133(2004).
       92   Id.
       93   Id.; see State v. Sargent, 111 Wn.2d 641, 649, 762 P.2d 1127(1988).
       94   Lorenz, 152 Wn.2d at 37.

                                                29
No. 75072-1-1/30

conclusions of law.95 Unchallenged findings of fact are verities on appea1.96 We

review de novo whether an interrogation was custodia1.97

       Morgan only challenges the statements he made to the detectives, not to

Officer Breault. The following testimony was introduced at the CrR 3.5 hearing.

       Around 10:40 p.m., two detectives arrived at Swedish Edmonds to

question Morgan. They were wearing civilian clothes, but they had badges.

Officer Breault went into the hallway to give them privacy.

      The detectives questioned Morgan until 11:30. They then left the room

while a nurse provided medical treatment and assisted Morgan with the

bathroom. The detectives resumed their questioning at 12:05 a.m. and

questioned Morgan until around 12:45 a.m.

       Morgan told the detective that he had come home from work and fallen

asleep. He awakened by being struck on the head. He heard a voice that he

thought might belong to Welch. He went downstairs through thick smoke and

found the house on fire with Welch against the back wall. She was on fire so he

ripped off her burning sweater and tried to pat out the flames. He ran outside

and only then realized that Welch was not with him. At some point, he realized

she was in the garage.




      95 State v. Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250(2008); Lorenz, 152
Wn.2d at 30.
      66   Lorenz, 152 Wn.2d at 30, 36.
      97   Id.

                                            30
No. 75072-1-1/31

       One detective testified that he did not immediately suspect Morgan but

this quickly changed once Morgan began answering the detectives' questions

because his story did not match up with the physical evidence. For example,

despite saying that he tried to put out the flames on Welch's burning sweater,

Morgan's hands were not burnt. When the detectives returned to Morgan's room

at 12:05 a.m., the conversation became "a little more confrontational." The

detectives told Morgan that they believed he had assaulted Welch and started

the fire. Morgan was arrested the next evening when he left the hospital.

       Morgan challenges the trial court's statement in its oral ruling that the

conversation between Morgan and the detectives did not rise to the level of an

"interrogation" or "custodial interrogation." This statement is not part of the trial

court's written findings and conclusions. Moreover, it is irrelevant unless the trial

court also determined that Morgan was in custody when the detectives were

interviewing him.98 It did not.

       Morgan challenges the trial court's factual findings that he was not under

guard, not restrained, and was not under arrest. He also challenges the trial

court's conclusions that he was not in custody to the degree associated with an

arrest and thus Miranda warnings were not required.

       Morgan argues that he was under guard and in police custody because

the room was small, two armed officers were inside, and another uniformed

officer was just outside the door. He further argues that the trial court erred in

finding that he was "unrestrained" given that he was wearing an oxygen mask


       98   Id. at 36.

                                              31
No. 75072-1-1/32

and "tethered to medical equipment," making it difficult for him to get out of bed

and to need assistance to use the bathroom. Moreover, he was alone and

without family, friends, or any other persons during the interrogation.

       None of these arguments is persuasive in light of the evidence in the

record that supports the trial court's findings and conclusions. First, there was

testimony that law enforcement placed no restrictions on Morgan's movements,

and he could have left the room at any time. Officer Breault testified that he was

outside the door because the room was small and he wanted to give the

detectives privacy, not because he was guarding Morgan.

       In addition, to whatever extent Morgan was unable to leave the room

without assistance, his lack of mobility was caused by his injuries, not any

actions on the part of the detectives. In these circumstances, an accused is not

"in custody" for purposes of Miranda because in order to constitute custody, the

restriction on the suspect's freedom of movement must be police-created.99

Although Morgan may have felt alone or that he was restricted by his medical

condition or the presence of law enforcement, his psychological state is not

relevant to the objective determination of whether law enforcement restricted his

freedom of movement.199

       Morgan relies on the Ninth Circuit Court of Appeals decision in United

States v. Craighead, as support for his argument that he was in custody because




       99   See, e.g., State v. Butler, 165 Wn. App. 820, 827-28, 269 P.3d 315(2012).
       100 Sargent, 111 Wn.2d at 649.

                                                32
No. 75072-1-1/33

he did not feel free to leave.101 His reliance is misplaced because Craighead

concerned an interrogation by law enforcement in Ernest Craighead's own

home.102 The court recognized that, "[t]he home occupies a special place in the

pantheon of constitutional rights" and its "the most constitutionally protected

place on earth."103 Also, in Craighead there were eight law enforcement officers

from three different law enforcement agencies present, and the agents put

Craighead in a storage room at the back of his house to interrogate him.'"

       Finally, although Morgan cites to the four factors listed in Craighead,

including whether the suspect is isolated from others and whether officers told

the suspect that he was free to leave, and claims that these factors must be

considered under a "totality of circumstances" analysis, he is wrong. The court

specified that those factors apply in determining whether an in-home

interrogation was custodia1.105 In Morgan's case, the test is whether a

reasonable person would feel that they are in custody to the degree associated

with a formal arrest.106 Under that test, Morgan was not in custody. Thus,

Miranda warnings were not required during the interrogation.




      101 539 F.3d 1073(9th Cir. 2008).
      102 Id. at 1077.
       1°3 Id. at 1077, 1083.
      104 Id. at 1078.
       135 Id. at 1084.
      106 Lorenz, 152 Wn.2d at 37.

                                            33
No. 75072-1-1/34

                               JURY INSTRUCTIONS

       Morgan argues that the trial court committed reversible error when it

refused to instruct the jury that it must presume the fire was the result of accident

or natural causes. We hold there was no abuse of discretion in declining to give

this proposed instruction.

       "Jury instructions are sufficient if they are supported by substantial

evidence, allow the parties to argue their theories of the case, and when read as

a whole properly inform the jury of the applicable law."107 This court reviews a

trial court's decision to reject a party's jury instruction for an abuse of

discretion.108

       Morgan requested a jury instruction that:

       Where a building is burned, the presumption is that the fire was
       caused by accident or natural causes rather than by the deliberate
       act of the accused.[1091

       The jury was properly instructed on the elements of arson, that Morgan

was presumed innocent, and that the State had the burden of proving those

elements beyond a reasonable doubt. In light of these instructions, the trial court

did not abuse its discretion in excluding Morgan's requested instruction.11°




       107 State v. Clausina, 147 Wn.2d 620, 626, 56 P.3d 550(2002).

       108 State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998).

       109 Clerk's Papers at 108.
       110 Picard, 90 Wn. App. at 903; see State v. Kindred, 16 Wn. App. 138, 141, 553
P.2d 121 (1976).

                                              34
No. 75072-1-1/35

       Morgan relies on State v. Smith, as support for his contention that the

court's refusal to give the requested instruction is reversible error.111 But his

reliance is misplaced because in Smith, the court did not address what other

instructions were given to the jury or whether those instructions would cure any

error.112 As recognized by the court in State v. Picard, the Smith opinion is

"dubious authority for the proposition that failure to give an instruction that a fire

is presumed to be accidental is reversible error."113

       In addition, Morgan has cited to no evidence in the record that would

support the presumption that the fire was of accidental or natural causes. The

trial court did not abuse its discretion in refusing to give an instruction that is not

supported by the evidence.114

       We reverse the judgment and sentence and remand for a new trial.




WE CONCUR:




       111 142 Wash. 57, 252 P. 530(1927).
       112   Picard, 90 Wn. App. at 903; see generally, Smith 142 Wash. at 58.
       113   90 Wn. App. 890, 903, 954 P.2d 336(1998).
       114 State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994); Kindred, 16 Wn.
App. at 141.

                                                35
