State v. Muhammad ( 2019 )

F I L E\
IN CLERKS OFFICE X.
This opinion was
filed fof rocord
date WOV 6 7 2811 i &-J—
~"itUAhMA^ Susan L. Carlson
GHIEFMSTKE / Supfeme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 96090-9
Respondent, En Banc
V.
BISIR B. MUHAMMAD, Filed mjum
Petitioner.
WIGGINS, J.—Bisir Bilal Muhammad was convicted of first degree rape and
felony murder. Principally at issue is whether the trial court erred in denying
Muhammad's motion to suppress the physical evidence collected from his vehicle
after police located it via a warrantless cell phone "ping." Muhammad contends
the location information provided by a cell phone ping is protected from a
warrantless search under article I, section 7 of the Washington Constitution and
the Fourth Amendment to the United States Constitution.
We agree. Seven members of the court agree that a ping is a search under
article I, section 7 and the Fourth Amendment. See lead opinion of Wiggins, J.;
opinion of Gordon McCIoud, J.
state of Washington v. Muhammad (Bisir B.), No. 96090-9
Although the ping was a search conclucted without a warrant, the ping was
not impermissible. Rather, as six members of the court agree, the ping was
permissible. See lead opinion of Wiggins, J. (concluding that the . exigent
circumstances exception justified the search); concurrence/dissent (Madsen, J.)
(concluding that the ping was not a search and therefore was permissible).
Finally, five members of the court, in agreement with Muhammad, hold that
imposing convictions for both felony murder predicated on rape and first degree
rape violates double jeopardy. See concurrence/dissent (Madsen, J.); opinion of
Gordon McCloud, J.
In light of the above, we therefore affirm the Court of Appeals in part and
reverse in part. By a vote of six to three we agree the ping was permissible. See
lead opinion of Wiggins, J.; concurrence/dissent (Madsen, J.). By a vote of five to
four, this court holds that the felony murder and rape convictions violate double
jeopardy and remands to the trial court to dismiss the lesser-included offense. See
concurrence/dissent (Madsen, J.); opinion of Gordon McCloud, J.
FACTS AND PROCEDURAL HISTORY
On a cold November morning, 69-year-old Ina Claire Richardson was found
raped and strangled on a deserted road in Clarkston, Washington. Richardson's
face, neck, and wrists displayed contusions and cuts; there were marks on her
neck consistent with strangulation and debris on her hands, indicating she
struggled with her attacker. Her genital area was bloodied and bruised. An autopsy
state of Washington v. Muhammad (BisirB.), No. 96090-9
later revealed that Richardson's vaginal canal had been lacerated and torn by the
forcible insertion of a blunt object.
The night she was kiiled, November 6, 2014, Richardson had shopped at a
local grocery store. After Richardson had unsuccessfully asked multiple people
for a ride home, external security cameras recorded her walking through the
parking iot toward a distinctive maroon sedan. Minutes later, the vehicle's
headlights switched on, and the vehicle exited the parking lot, drove onto an
access road behind a nearby hotel, and parked near the service entrance. Two
individuals appeared in the car, which remained parked for approximately one hour
outside the service entrance. Police officers later discovered a condom wrapper
at this location.
On November 10, 2014, a law enforcement officer recognized the unique
features of the maroon sedan from the security footage and conducted a traffic
stop. The driver was Bisir Muhammad. During the stop, the officer asked
Muhammad about his vehicle, asked him whether he had gone to the grocery store
or had been in the area on the night of the murder, and obtained Muhammad's cell
phone number before letting him go. The police also learned that Muhammad's
criminal history included a rape outside the state.
After this encounter, law enforcement sought and obtained a search warrant
for Muhammad's car. While processing the warrant request, an officer was
dispatched to surveil Muhammad. The officer observed Muhammad assist a
woman, later determined to be his wife, into his car, drive to a local store, go inside.
state of Washington \/. Muhammad (BisirB.), No. 96090-9
and then return home. For reasons unknown, this officer suspended surveillance
and left Muhammad's apartment complex. When the officer returned,
Muhammad's vehicle was gone.
In response, the police "pinged"^ Muhammad's cell phone without a warrant.
The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and
Idaho police arrived, seized Muhammad's cell phone, and impounded his car.
During his subsequent interview with police, Muhammad repeatedly
changed his statements about the night of Richardson's murder. First, Muhammad
said that he worked his usual dishwashing shift and drove straight home. When
confronted with security camera footage contradicting this story, Muhammad
eventually told the officer that he may have driven to a nearby store to cash a
check but the store refused to cash it. The story again changed when Muhammad
was told security footage showed he neither left his car nor entered the store. He
then said he may have visited a friend at a nearby motel to smoke. The police
confirmed with Muhammad's friend that the two did not meet that night.
Muhammad similarly denied seeing Richardson or that he had any contact
with her on the night she died. While he admitted knowing of Richardson, having
briefly worked at the grocery store where she shopped, Muhammad said he spoke
^ "Pinging" is the "sending of a signal to identify the current location of a cell phone. The phone
carrier can discern the location through cell-site locations [(CSL)] . . . . The carrier detects a
general, not specified, area of the phone by CSL when the cell phone connects with a cell tower
in order to initiate or receive a call. GPS [(global positioning system)] data reveals the exact
location of the phone by revealing the phone's latitude and longitude coordinates." State v.
Muhammad,4 \Nn. App. 2d 31, 42, 419 P.Sd 419 (2018).
state of Washington v. Muhammad (BisirB.), No. 96090-9
to her only once while in a group of other people. Video surveillance contradicted
this statement. The footage shows that he exited the grocery store with
Richardson, proceeded to speak with her alone, and leaned in and attempted to
kiss her—an action that Richardson rebuffed.
Muhammad denied any involvement in the rape and murder and eventually
asked for legal counsel.
Police later searched Muhammad's car. They discovered blood on the
passenger seat; in the trunk, they found latex gloves, personal lubricant, and
pornography. One witness testified at trial that Muhammad informed her that he
and his disabled wife did not have sex.^ The police also discovered condoms in
the trunk of the sedan. These condoms matched the condom wrapper found by
the hotel service entrance. The blood was matched to that of Ina Richardson.
Autopsy swabs of Richardson's vagina and fingernails revealed a limited amount
of DNA (deoxyribonucleic acid) matching Muhammad's profile.
The police obtained a search warrant for Muhammad's cell phone records.
The records showed multiple calls to Muhammad's wife on the night Richardson
was murdered. These calls connected to multiple cell towers, indicating that
Muhammad was moving. One such cell tower placed Muhammad in the location
where Richardson's body was found. Muhammad was arrested and charged with
rape and felony murder.
^ At trial, Muhammad challenged this testimony as hearsay. The court issued a written memo
denying the motion to exclude these statements. He did not raise this issue here.
state of Washington v. Muhammad (Bisir B.), No. 96090-9
At trial, Muhammad moved to suppress all physical evidence collected as a
result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial
court issued a written order denying the motion based in part on exigent
circumstances. A jury convicted Muhammad of first degree felony murder and first
degree rape. The jury also found that Muhammad knew or should have known
Richardson was particularly vulnerable. The court imposed an exceptional
sentence of two terms totaling 866 months, to be served consecutively.
Muhammad appealed his convictions. State v. Muhammad,4 Wash. App. 2d
31,419 P.3d 419 (2018). Among other things, he argued that cell phone location
data is a privacy interest protected by article I, section 7 and the Fourth
Amendment and that the warrantless cell phone ping was improper. He also
argued that exigent circumstances did not exist and that his convictions violated
double jeopardy. The Court of Appeals declined to review the constitutional
question, concluding that exigent circumstances justified the warrantless search.
The court affirmed both convictions in a published decision.
Muhammad sought review here, which the State opposed. The State also
urged us to consider whether the attenuation doctrine applies and whether any
error in evidence collection was harmless. We granted review without limitation.
ANALYSIS
1. The trial court did not err by denying Muhammad's motion to suppress
Individuals have a constitutional privacy right to their cell phone location
data. Wash. Const, art. I, § 7. The warrantless ping of Muhammad's cell phone
state of Washington v. Muhammad (BisirB.), No. 96090-9
would have been improper. However, six members of the court agree that the ping
was permissible. The trial court therefore properly denied Muhammad's motion to
suppress, and we decline to review the attenuation and harmless error arguments.
A. Both the state and federal constitutions protect cell phone location data
from warrantless searches
The ubiquity of cellular devices in modern life has presented and continues
to present unique issues of constitutional privacy. E.g., State v. Hinton, 179 Wash. 2d
862, 867-77, 319 P.3d 9 (2014)(reviewing an individual's privacy expectations in
text messages under article I, section 7). Of particular concern is a phone's ability
to operate as a "24-hour" surveillance tool, collecting and transmitting information
about the location of the phone and its user. See In re Order Authorizing Release
of Historical Ceii-Site info., 809 F. Supp. 2d 113, 115 (E.D.N.Y. 2011)("For many
Americans, there is no time in the day when they are more than a few feet away
from their cell phones.").
The United States Supreme Court recently summarized this cell phone
location technology in Carpenter v. United States, U.S. , 138 S. Ct. 2206,
201 L. Ed. 2d 507 (2018). The Court explained:
Cell phones continuously scan their environment looking for the
best signal, which generally comes from the closest cell site. Most
modern devices, such as smartphones, tap into the wireless network
several times a minute whenever their signal is on, even if the owner
is not using one of the phone's features. Each time the phone
connects to a cell site, it generates a time-stamped record known as
cell-site location information (CSLI). The precision of this information
depends on the size of the geographic area covered by the cell site.
The greater the concentration of cell sites, the smaller the coverage
area. . . . That has led to increasingly compact coverage areas,
especially in urban areas.
state of Washington v. Muhammad (Bisir B.), No. 96090-9
Wireless carriers collect and store CSLI for their own business
purposes . . . . While carriers have long retained CSLI for the start and
end of incoming calls, in recent years phone companies have also
collected location information from the transmission of text messages
and routine data connections. Accordingly, modern cell phones
generate increasingly vast amounts of increasingly precise CSLI.
Id. at 2211-12.
Here, law enforcement contacted Muhammad's cell phone service provider
to ping his phone, revealing real-time CSLI, which, as stated previously, is
protected by the state and federal constitutions.
i. Washington State Constitution
Article I, section 7 provides that "[n]o person shall be disturbed in his [or her]
private affairs, or his [or her] home invaded, without authority of law." It is well
established that this provision is qualitatively different from the Fourth Amendment
and provides greater protections. State v. Mayfield, 192 Wash. 2d 871, 878,434 P.3d
58(2019)(citing State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986)). Article I,
section 7 "is grounded in a broad right to privacy" and protects citizens from
governmental intrusion into their private affairs without the authority of law. State
V. Chacon Arreola, 176 Wash. 2d 284, 291, 290 P.3d 983 (2012).
Under article I, section 7, a search occurs when the government disturbs
"those privacy interests which citizens of this state have held, and should be
entitled to hold, safe from governmental trespass absent a warrant." State v.
Myrick, 102 Wash. 2d 506, 511, 688 P.2d 151 (1984). The "authority of law" required
by article I, section 7 is a valid warrant, unless the State shows that a search or
8
state of Washington v. Muhammad (Bisir B.), No. 96090-9
seizure falls within one of the jealously guarded and carefully drawn exceptions to
the warrant requirement. State v. Miles, 160 Wash. 2d 236, 244, 156 P.3d 864
(2007); State v. Rife, 133 Wash. 2d 140, 150-51, 943 P.2d 266 (1997).
To determine whether governmental conduct intrudes on a private affair, we
look at the "nature and extent of the information which may be obtained as a result
of the governmental conduct" and at the historical treatment of the interest
asserted. Miles, 160 Wash. 2d at 244.
This court's prior precedent demonstrates that CSLI is a "private affair." Two
lines of cases support this outcome: (1) those concerning the method by which
police obtain information, e.g.. State v. Jackson, 150 Wash. 2d 251, 262, 76 P.3d 217
(2003) (stating that certain technology "does not merely augment [a law
enforcement officer's] senses, but rather provides a technoiogicai substitute for
traditional visual tracking" (emphasis added)); State v. Young, 123 Wash. 2d 173,
182-84, 867 P.2d 593 (1994)(recognizing that police use of an infrared thermal
device to detect heat distribution patterns within a home undetectable by human
senses is particularly intrusive and exceeded article I, section 7 privacy protection),
and (2)those recognizing the vast stores of personal details contained in electronic
devices, e.g., Hinton, 179 Wash. 2d at 869-70 (holding text messages are "private
affairs").
In the first line of cases, concerning the methods used by the police to obtain
the information, we may look to Jackson and Young for guidance. 150 Wash. 2d at
263; 123 Wn.2d at 183. In Jackson, we disagreed with the State that the use of a
9
state of Washington v. Muhammad (BisirB.), No. 96090-9
GPS (global positioning system) device to track a suspected individual on his
travels was tantamount to following him on public roads. Id. at 261. Generally, we
noted, when law enforcement may detect something by using one or more of his
or her senses, even if lightly augmented, the detection does not constitute a
search. State v. Seagull, 95 Wash. 2d 898, 901, 632 P.2d 44 (1981). It is lawful to
use binoculars to better view a suspect or to brandish a flashlight to illuminate what
could plainly be seen by day. But unlike binoculars or flashlights, a GPS device
does more than merely "augment[an officer's] senses," it provides a "technological
substitute for traditional visual tracking." Jackson, 150 Wash. 2d at 262. In Young,
we explained that infrared thermal imaging surveillance enabled law enforcement
to '"see through the walls'" of a home and to go well beyond the enhancement of
natural senses. 123 Wash. 2d at 183. Such a device is a "particularly intrusive means
of observation." Id.
Similar to the GPS device in Jackson and the thermal imaging surveillance
in Young, a cell phone ping provides a "technological substitute for traditional
visual tracking." Jackson, 150 Wash. 2d at 262. When law enforcement loses sight
of a suspected individual, officers need merely ask a cellular service carrier to ping
that individual's phone and almost instantaneously police acquire data on the
suspect's past and present location. This location tracking technique does
substantially more than binoculars or flashlights; it enables officers to see farther
than even the walls of a home—it pierces through space and time to pinpoint a cell
phone's location and, with it, the phone's owner.
10
state of Washington v. Muhammad (BisirB.), No. 96090-9
This is exactly what happened to Bisir Muhammad. The police could not
locate Muhammad: they knew only that he had likely left the area after officers
returned to his apartment complex and found the maroon sedan had disappeared.
As Muhammad pointed out, the officers' senses alone could not locate him unless
they "converted [his] phone" into a tracking device. Br. of Appellant at 24(Wash.
Ct. App. No. 34233-6-III (2017)).
Instructive in the second line of cases is Hinton, in which we held that
viewing the contents of text messages exposes a '"wealth of detail about [a
person's] familial, political, professional, religious, and sexual associations.'" 179
Wash. 2d at 869 (alteration in original)(quoting United States v. Jones, 565 U.S. 400,
415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)(Sotomayor, J., concurring)). While
pinging reveals only a cell phone owner's location, it is simiiar to text messages
because it can reveal the same intimate details as phone calls, letters, and other
forms of communication strongly protected under state law. Id. at 869-70; see also
State V. Roden, 179 Wash. 2d 893, 321 P.3d 1183 (2014) (holding that a text
message conversation is a private affair).
Similarly, In State v. Samalia, we noted that a governmental search of a cell
phone has the "potential to reveal a vast amount of personal information." 186
Wash. 2d 262, 270, 375 P.3d 1082 (2016). We observed that many modern cell
phones are in fact '"minicomputers that also happen to have the capacity to be
used as a telephone. They could just as easily be called cameras, video players,
rolodexes, calendars, tape recorders,[etc.]."' Id. at 271 (quoting Rileyv. California,
11
state of Washington v. Muhammad (Bisir B.), No. 96090-9
573 U.S. 373, 393, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014)). Easily added to
this list is a "24-hour GPS tracking device."
Historical and real-time CSLI, like text messages, reveal an intensely
intimate picture into our personal lives. Our cell phones accompany us on trips
taken to places we would rather keep private, such as '"the psychiatrist, the plastic
surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal
defense attorney, the by-the-hour motel, the union meeting, the mosque,
synagogue or church, the gay bar and on and on.'" Jones, 565 U.S. at
415 (Sotomayor, J., concurring)(quoting People v. Weaver, 12 N.Y.3d 433, 441-
42, 909 N.E.2d 1195, 882 N.Y.S.2d 357(2009)). This type of information, revealed
by our public movements, can expose personal details about family, politics,
religion, and sexual associations. See Hinton, 179 Wash. 2d at 869; Samalia, 186
Wash. 2d at 270; see also Miles, 160 Wash. 2d at 246 (holding that banking records are
protected by article I, section 7 because they "may disclose what the citizen buys
. . . [and] what political, recreational, and religious organizations a citizen
supports").
The limited nature of the information provided by a one-time ping is not
dispositive of whether cell phone location data is a private affair. Such an
argument is essentially result driven and seizes solely on the extent of a privacy
intrusion rather than the nature of the information at issue. Here, the cell phone
ping placed Muhammad in an open field. Had the warrantless ping placed
Muhammad not in a field fixing a fence but at a relative's home or found him
12
state of Washington v. Muhammad (Bisir B.), No. 96090-9
seeking solace in a house of worship, the limited information argument collapses.
This one-time ping reveals only limited information, but the nature of the
information has changed—exposing a cell phone user's attendance at a location
a person would reasonably expect to be private. Jones, 565 U.S. at
414 (Sotomayor, J., concurring).
The ability of law enforcement to pinpoint any cell phone user's location at
any moment would intrude on privacy in the same way as allowing police to listen
in on an ongoing phone call or to peruse a text message conversation. Just
because a given phone call may not contain private information does not mean
that the phone call can be monitored by the police without a warrant. The same is
true for a person's location identified via cell phone.
Our state constitution '"clearly recognizes an individual's right to privacy with
no express limitations'." Young, 123 Wash. 2d at 180 (quoting State v. Simpson, 95
Wash. 2d 170,178,622 P.2d 1199(1980)(plurality opinion)). Protecting the sensitive
information gleaned from our location from unfettered state scrutiny "is essential
for freedom of association and expression." Hinton, 179 Wash. 2d at 877
(citing Jones, 565 U.S. at 416 (Sotomayor, J., concurring) ("Awareness that the
government may be watching chills associational and expressive freedoms.")),
ii. United States Constitution
Muhammad also argues that his cell phone location data is protected by the
Fourth Amendment pursuant to the recent United States Supreme Court decision
13
state of Washington v. Muhammad (BisirB.), No. 96090-9
in Carpenter. Although Carpenter expressly covers only historical, i.e., prior, CSLI,
its reasoning applies to real-time CSLI.
The Fourth Amendment protects "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const, amend. IV. The United States Supreme Court has stated
that
"searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions." The exceptions are "jealously and
carefully drawn," and there must be "a showing by those who seek
exemption . . . that the exigencies of the situation made that course
imperative." "[Tjhe burden is on those seeking the exemption to show
the need for it."
Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 8. Ct. 2022, 29 L. Ed. 2d
564(1971)(plurality opinion)(alterations in original)(footnotes omitted). Under the
exclusionary rule, evidence obtained in violation of the Fourth Amendment is
ordinarily excluded from the criminal trial of a defendant whose rights were violated
by an illegal search or seizure. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.
Ed. 2d 1081 (1961)(extending exclusionary rule to state courts).
A Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as reasonable. Kyllo v.
United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); Katz v.
United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)(Harlan,
J., concurring)(establishing the two-pronged privacy test).
14
state of Washington v. Muhammad (BisirB.), No. 96090-9
The Supreme Court has recently applied this in a context remarkably similar
to the case before us. In Carpenter, the Court reviewed whether a warrantless cell
phone ping and the resulting historical CSLI data violated the Fourth Amendment.
Writing for the majority, Chief Justice John Roberts explained that allowing
government access to CSLI "contravenes" society's expectation that law
enforcement will not secretly monitor and catalog an individual's movements. 138
S. Ct. at 2217 (citing Jones, 565 U.S. at 430 (Alito, J., concurring in judgment)).
The Court held that the data constitutes private information for the purposes of the
Fourth Amendment. Id. at 2217-19. As such, acquiring an individual's historical
CSLI requires a warrant based on probable cause. Id. at 2221. The Court
cautioned, however, that its decision was narrow and did not express a view on
matters not directly before it, namely the constitutionality of acquiring real-time
CSLI without a warrant—such as the cell phone location data at issue here. Id. at
2220.
Nevertheless, Carpentei's reasoning applies to real-time CSLI. Comparing
historical CSLI to GPS monitoring, the Carpenter Court noted that "time-stamped
data provides an intimate window into a person's life, revealing not only his [or her]
particular movements, but through them . . . 'familial, political, professional,
religious, and sexual associations.'" Id. at 2217 (quoting Jones, 565 U.S. at 415
(Sotomayor, J., concurring)). This data presents greater privacy concerns even
15
state of Washington v. Muhammad (Bisir B.), No. 96090-9
than GPS as it provides "near perfect surveillance" that is "remarkably easy,cheap,
and efficient compared to traditional investigative tools." Id. at 2217-18.^
"[E]ven short-term monitoring" can generate a "comprehensive record of a
person's public movements that reflects a wealth of detail about her familial,
political, professional, religious, and sexual associations" that can be stored and
mined for the future. Jones, 565 U.S. at 415 (Sotomayor, J., concurring). More
concerning is the State's ability to utilize technology's substantial monitoring and
tracking features at low cost, which may '"alter the relationship between citizen and
government in a way that is inimical to democratic society.'" Id. at 416 (quoting
United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011)(Flaum, J.,
concurring)).
Courts should take into account the substantial monitoring and tracking
capabilities of technology in considering the existence of a reasonable expectation
of privacy in public movement. Jones,565 U.S. at 416(Sotomayor, J., concurring).
In so doing, "[a]ll of these concerns and conclusions about GPS tracking [as set
out in Jones] also apply to tracking and monitoring by use of real time cell site
^ A cell phone user's location data is not just collected by wireless service carriers. Technology
companies compile information on users' whereabouts through "location history" services that
gather data on devices even when applications are not open on a cell phone. Editorial, Google
Can See Where You've Been. So Can Law Enforcement, Wash. Post, Apr. 15, 2019,
https://www.washinqtonpost.com/opinions/qooqle-can-see-where-vouve-been-so-can-law-
enforcement/2019/04/15/90542fa6-5fbe-11 e9-bfad-36a7eb36cb60 storv.html
[https://perma.cc/QS2A-EYMV]. Turning off multiple location tracking services built into our cell
phones can be a complicated process, and disabling these services render many apps "less
usable. Or in some cases, completely unusable." Barbara Krasnoff, Android 101: How to Stop
Location Tracking, The Verge (Apr. 12, 2019 9:00 am),
https://www.theverqe.com/2019/4/12/18302306/android-101-location-trackinq-stop-how-to
[https://perma.cc/B74Z-CNKK].
16
state of Washington v. Muhammad (Bisir B.), No. 96090-9
location information." Tracey v. State, 152 So. 3d 504, 519 (Fla. 2014).
Accordingly, a cell phone user has a reasonable expectation of privacy in real-time
CSLI, and the collection of location data implicates the Fourth Amendment. Id. at
516, 526; see also In re Order Authorizing Disclosure of Location Info, of Specified
Wireless Tel., 849 F. Supp. 2d 526, 539(D. Md. 2011)(finding that a suspect"has
a reasonable expectation of privacy . . . in his location as revealed by real-time
location data").
Arguments against Carpenter's application to real-time CSLI focus on the
limited nature of the information provided CSLI and the third-party doctrine.'^
Neither argument is persuasive.
First, the argument that an isolated cell phone ping offers limited information
and therefore does not implicate the Fourth Amendment appears to advance what
federal courts have deemed the "mosaic" theory. Under this theory, discrete acts
of law enforcement surveillance may be lawful in isolation but may otherwise
intrude on reasonable expectations of privacy in the aggregate because they
'"paint an "intimate picture" of a defendant's life.'" Tracey, 152 So. 3d at 520
(quoting United States v. Wilford, 961 F. Supp. 2d 740, 771 (D. Md. 2013)).
The third-party doctrine "provides that if information is possessed or known by third parties, then,
for purposes of the Fourth Amendment, an individual lacks a reasonable expectation of privacy in
the information." Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 526 (2006);
see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 563(2009)
("By disclosing to a third party, the subject gives up all of his Fourth Amendment rights in the
information revealed."). The United States Supreme Court has stated that "the Fourth Amendment
does not prohibit the obtaining of information revealed to a third party and conveyed by him to
Government authorities, even if the information is revealed on the assumption that it will be used
only for a limited purpose and the confidence placed in the third party will not be betrayed." United
States V. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).
17
state of Washington v. Muhammad (Bisir B.), No. 96090-9
At first glance, the mosaic theory presents an attractive answer to whether
a singular cell phone ping constitutes a Fourth Amendment search. But federal
courts have recognized the practical problems inherent in this theory when
traditional surveillance becomes a search only after some specific period of time
elapses. Wilford, 961 F. Supp. 2d at 772 (citing United States v. Graham, 846 F.
Supp. 2d 384, 401-03 (D. Md. 2012)). As Graham noted, "discrete acts of law
enforcement are either constitutional or they are not." 846 F. Supp. 2d at 401. For
instance, to conclude that one cell phone ping is not a search, provided it lasts less
than six hours, yet hold multiple or longer pings do qualify as search is not a
workable analysis. See Commonwealth v. Estabrook, 472 Mass. 852, 858, 38
N.E.3d 231 (2015) (concluding no warrant is required to obtain historical CSLI
relating to a period of six hours or less). There is no rational point to draw the line;
it is arbitrary and unrelated to a reasonable expectation of privacy.
Rather than offering analysis based on a reasonable expectation of privacy,
the mosaic theory instead requires a case-by-case, ad hoc determination of
whether the length of time of a cell phone ping violated the Fourth Amendment. It
offers little guidance to courts or law enforcement and presents the "danger that
constitutional rights will be arbitrarily and inequitably enforced." Oliver v. United
States, 466 U.S. 170, 181-82, 104 8. Ct. 1735, 80 L. Ed. 2d 214(1984). "'[l]fpolice
are to have workable rules, the balancing of the competing interests . . . must in
large part be done on a categorical basis—not in an ad hoc, case-by-case fashion
18
state of Washington v. Muhammad (BisirB.), No. 96090-9
by individual police officers.'" Tracey, 152 So. 3d at 521 (alterations in original)
(internal quotation marks omitted)(quoting Riley, 573 U.S. at 398).
Second, the third-party doctrine does not permit a warrantless search of
CSLI after the Court's opinion in Carpenter. Before Carpenter, some federal courts
had concluded there was no reasonable expectation of privacy in cell phone
location data in possession of third-party service providers. E.g., United States v.
Graham, 824 F.3d 421, 427 (4th Cir. 2016). The Carpenter Court explained that
the third-party doctrine has failed to keep pace with the "seismic shifts in digital
technology." 138 S. Ct. at 2219. An individual may have a "diminished" privacy
interest in location data revealed to third parties, but that alone does not mean '"the
Fourth Amendment falls out of the picture entirely.'" Id.(quoting Riley, 573 U.S. at
392).
Moreover, voluntary exposure of CSLI "is not truly 'shared'" as the term is
normally understood. Id. at 2220. Cell phones log cell site records "without any
affirmative act on the part of the user beyond powering up. Virtually any activity on
the phone generates CSLI." Id. Apart from turning off a cell phone, "there is no
way to avoid leaving behind a trail of location data." /d.® Carpenter therefore
® Justice Madsen's opinion wishes to ease our fears regarding the government's use of CSLI data
by noting that this data is not as precise as GPS tracking data. Concurrence/dissent(Madsen,
J.) at 4. But even the siightly lesser precision of CSLI compared to GPS nevertheless augments
a police officer's senses and provides a "technoiogical substitute for traditional visual tracking."
Jackson, 150 Wash. 2d at 262. Such technology is particuiarly intrusive and exceeds article I, section
7. Young, 123 Wash. 2d at 182-84. To the extent Justice Madsen's opinion echoes concerns raised
in Carpenter that CSLI data places a cell phone user within a generalized location area from which
poiice must triangulate and infer a user's location, we agree with the federal Supreme Court that
inference does not insulate a search. Carpenter, 138 S. Ct. at 2218 (quoting Kyllo, 533 U.S. at
36).
19
state of Washington v. Muhammad (Bisir B.), No. 96090-9
declined to extend third-party doctrine to the collection of CSLI. Id. Thus, the third-
party rationale no longer controls cases concerning historical CSLI data, and its
persuasive authority is significantly undercut regarding real-time CSLI data
because, as Carpenfer stated, individuals maintain an expectation of privacy in the
record of their physical movements obtained from CSLI data. 138 S. Ct. at 2217.
Overall, similar to our discussion of the Washington State Constitution,®
Fourth Amendment case law indicates that individuals have a subjective
expectation of privacy in the location data transmitted by their cell phone. Riley,
573 U.S. at 385 (cell phones are "a pervasive and insistent part of daily life"). This
is an expectation that society recognizes as reasonable. See Katz, 389 U.S. at 361
(Harlan, J., concurring).^ For these reasons, seven members of the court agree
that the ping is a search under both article I, section 7 and the Fourth Amendment.
See lead opinion of Wiggins, J.; opinion of Gordon McCloud, J.
® Justice Madsen's opinion asserts that our reliance on Jackson, Young, and Hinton is misplaced
because of the third-party doctrine. See concurrence/dissent(Madsen, J.) at 4(unlike historical
CSLI,"what is at stake [here] is freely transmitted data that a person voluntarily gives in exchange
for" cell phone use). But Washington has never ascribed to the third-party doctrine. Gunwall,
106 Wash. 2d at 63-64 (rejecting the third-party doctrine applied by federal courts to telephone pen
registers); see also Hinton, 179 Wash. 2d at 875 (stating article I, section 7 does not "require
individuals to veil their affairs in secrecy and avoid sharing information in ways that have become
an ordinary part of life"). Moreover, cell phone users have very little control over the choice to
"freely" transmit cell phone location data to service providers. See concurrence/dissent(Madsen,
J.) at 4. As the Supreme Court expressly noted in Carpenter, cell phone location data is not truly
"shared" because a user's phone records and transmits this data to service providers by virtue of
its operation. 138 8. Ct. at 2220. Consequently,"in no meaningful sense does the user voluntarily
'assume[]the risk' of turning over" CSLI data. id. (alteration in original).
^ Justice Madsen's opinion generally discusses its reasoning in terms of an individual's
"reasonable expectation of privacy in real-time CSLI" data. Concurrence/dissent (Madsen, J.).
But this court's article I, section 7 jurisprudence does not discuss privacy in terms of
reasonableness.
20
state of Washington v. Muhammad (BisirB.), No. 96090-9
B. Exigent circumstances exist to justify the warrantless cell phone search
Because the State failed to procure a warrant prior to pinging Muhammad's
cell phone, the evidence obtained pursuant to the improper search is subject to
suppression unless the State proves that an exception to the warrant requirement
applies. State v. Hendrickson, 129 Wash. 2d 61, 71, 917 P.2d 563(1996); Carpenter,
138 S. Ct. at 2222-23 (noting that when exigent circumstances arise, the needs of
law enforcement may be so compelling that the warrantless collection of CSLI is
justified).
We begin with the presumption that warrantless searches are per se
unreasonable under our state constitution. Hendrickson, 129 Wash. 2d at 70. Even
where probable cause to search exists, a warrant must be obtained unless
excused under one of a narrow set of exceptions to the warrant requirement. Id.
We have recognized exceptions for, among other things, exigent circumstances.
Id. at 71. The State bears the burden to show an exception applies. Id.
The warrant requirements must yield when exigent circumstances demand
that police act immediately. State v. Cuevas Cardenas, 146 Wash. 2d 400, 405, 47
P.3d 127, 57 P.3d 1156 (2002). Exigency exists when obtaining a warrant is
impractical because delay inherent in securing a warrant would compromise officer
safety, facilitate escape, or permit destruction of evidence. State v. Smith, 165
Wash. 2d 511, 517, 199 P.3d 386 (2009).
We have identified five circumstances that could be termed exigent: hot
pursuit, fleeing suspect, danger to arresting officer or the public, mobility of a
21
state of Washington v. Muhammad (Bisir B.), No. 96090-9
vehicle to be searched, and mobility or destruction of evidence. State v. Tibbies,
169 Wash. 2d 364, 370, 236 P.3d 885 (2010). The presence of one or more of these
factors does not necessarily establish exigent circumstances, and a court looks to
the totality of the circumstances. Id.] Smith, 165 Wash. 2d at 518.
Six factors further guide our analysis of whether exigent circumstances exist;
(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) a strong
reason to believe the suspect is on the premises,(5) a likelihood that the suspect
will escape if not quickly apprehended, and (6) entry is made peaceably.
Cardenas, 146 Wash. 2d at 406. Every factor need not be present, but they must
show that officers needed to act quickly. Id.
To prove exigent circumstances, the State must '"point to specific,
articulable facts and the reasonable inferences therefrom which justify the
intrusion.'" State v. Coyle, 95 Wash. 2d 1, 9, 621 P.2d 1256 (1980)(quoting State v.
Diana, 24 Wash. App. 908, 911,604 P.2d 1312 (1979)).® The mere suspicion of flight
or destruction of evidence does not satisfy this particularity requirement. Id.
® Justice Gordon McCloud's opinion notes that to prove exigency, the State must point to
articulable facts and reasonable inferences drawn therefrom. Opinion of Gordon McCloud, J., at
26. To do so, Justice Gordon McCloud asserts that the State must "show either that the police
had 'specific prior information' that the suspect had planned to flee or destroy evidence, or that
the police were 'confronted with some sort of contemporaneous sound or activity alerting them to
the possible presence of an exigent circumstance.'" Id. at 25 (internal quotation marks omitted)
(quoting Coyle. 95 Wash. 2d at 10). Because the police had no "prior information that Muhammad
planned to destroy evidence or flee," nor "were they confronted with any contemporaneous activity
alerting them that Muhammad was carrying out plans to destroy evidence or flee," Id. at 26-27,
22
state of Washington v. Muhammad (Bisir B.), No. 96090-9
Under the facts of this case, the State has proved exigent
circumstances—specifically that Muhammad was in flight, that he might have been
in the process of destroying evidence, that the evidence sought was in a mobile
vehicle, and that the suspected crimes (murder and rape) were grave and violent
charges. Tibbies, 169 Wash. 2d at 370-71.
Muhammad contends that the State fails to prove exigency for three
reasons. First, the facts do not indicate any need for police to act quickly: if
Muhammad actually intended to flee, he would have done so immediately and not
lingered in the area for three days. Second, police created the exigency by alerting
him to their interest in his car. Third, the particularity requirement is not satisfied
because police merely suspected Muhammad fled his apartment. An officer had
earlier observed Muhammad leave his home, travel to a local store, and return.
Considering this behavior, the reasonable inference was not that Muhammad
absconded but, rather, that he had gone to the local shops.
These arguments do not show that the police's reasonable inferences were
mistaken. First, it does not follow that the individual who killed Richardson would
necessarily and immediately leave the area. Until alerted otherwise, a perpetrator
may believe he or she successfully committed a crime and may feel no pressure
exigency did not exist. But Coyle concerns the "knock and announce" rule: the police must knock,
announce their presence, and wait prior to entering a home. Coyle's considerations about prior
information that a suspect had planned to flee or police confronted with a contemporaneous sound
are inappropriate here. That is not to say we disagree that the State must still show articulable
facts and reasonable inferences drawn therefrom—indeed, this is still the requirement. However,
considerations applicable to knock and announce are not appropriate in the context of this case.
23
state of Washington v. Muhammad (Bisir B.), No. 96090-9
to escape police scrutiny. Here, Muhammad learned of the police's interest in his
car after the November 10,2014 traffic stop. Muhammad left the area when police
focused their investigation on a vehicle like his. That this knowledge was a point
of interest for the police also supports the concern that Muhammad might destroy
any evidence contained in the sedan.
Nor did law enforcement purposely create exigent circumstances. Nothing
in the record indicates police purposely asked Muhammad about his car to
manufacture urgency. An officer noticed the sedan's distinctive features from the
security camera footage and stopped Muhammad to inquire further. In fact,
officers later obtained a search warrant for the car partially based on evidence
collected from the traffic stop. Little incentive existed for officers to encourage
Muhammad to flee and frustrate execution of that warrant.
Finally, It was reasonable to conclude Muhammad had fled. Muhammad's
claim that his prior behavior indicated that he merely went shopping must be
evaluated against the critical fact that Muhammad's vehicle disappeared only after
police discontinued surveillance. Thus, officers reasonably inferred that
Muhammad knew he was a suspect and had fled the area. As the preceding
factors demonstrate, circumstances were exigent. Law enforcement reasonably
believed that they needed to act quickly to apprehend Muhammad and prevent
destruction of evidence contained in a mobile vehicle. Smith, 165 Wash. 2d at 517.
The State provided articulable facts and reasonable inferences drawn therefrom
supporting these concerns. Six members of the court therefore agree that the
24
state of Washington v. Muhammad (BisirB.), No. 96090-9
ping was permissible. See lead opinion of Wiggins, J. (exigency):
concurrence/dissent(Madsen, J.)(ping not a search and therefore no exception to
the warrant requirement necessary).
2. Five members of the court hold that convictions for rape and felony murder
predicated on rape violate double jeopardy
Muhammad contends that his convictions for first degree rape and felony
murder constitute the same criminal conduct under double jeopardy and should
have merged. Justices Madsen and Gordon McCloud agree, holding that these
convictions violated double jeopardy. This holding of our court reverses the Court
of Appeals and remands the case to the trial court for the dismissal of the lesser-
included offense.
We, however, disagree. Double jeopardy is uitimately a matter of legislative
intent. Here, because the legislature indicated its intent to punish both felony
murder and rape separately, we would hold that the convictions do not violate
double jeopardy.
Double jeopardy presents questions of law that are reviewed de novo. State
V. Hughes, 166 Wash. 2d 675, 681, 212 P.3d 558 (2009). The double jeopardy
clauses of the state and federal constitutions protect a defendant from multiple
prosecutions and multiple punishments for the same offense. Whalen v. United
States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980); State v.
Vladovic, 99 Wash. 2d 413, 423, 662 P.2d 853 (1983). "Where a defendant's act
supports charges under two criminal statutes, a court weighing a double jeopardy
25
state of Washington v. Muhammad (Bisir B.), No. 96090-9
challenge must determine whether, in light of legislative intent, the charged crimes
constitute the same offense." In re Pers. Restraint of Orange, 152 Wash. 2d 795,
815, 100 P.3d 291 (2004). Crimes constitute the same criminal conduct when they
"require the same criminal intent, are committed at the same time and place, and
involve the same victim." ROW 9.94A.589(1)(a). Unless all elements are present,
the offenses must be counted separately. State v. Porter, 133 Wash. 2d 177, 181,
942 P.2d 974 (1997). The legislature has the power to define offenses and set
punishments. See State v. Ca//e, 125 Wash. 2d 769, 111-IS, 888 P.2d 155
(1995)(holding that rape and incest are separate offenses).
Federal double jeopardy is largely guided by the Blockburger test.
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932). The Court employed this test as a tool of statutory interpretation, which
provides:
The applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does
not.
Id. Washington's "same evidence" test is similar: '"where the same act . . .
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of a fact that the other does not.'" Calle, 125 Wash. 2d at 111-IS
(quoting Blockburger, 284 U.S. at 304).
26
state of Washington v. Muhammad (Bisir B.), No. 96090-9
If one of two charged crimes requires proof of a fact not required by the
other, the crimes will not constitute the same offense and cumulative punishment
is presumptively allowed. See Missouri v. Hunter, 459 U.S. 359, 367, 103 S. Ct.
673, 74 L. Ed. 2d 535(1983). If the charged crimes fail this test, then the charged
crimes constitute one offense and cumulative punishment is presumptively
precluded. See Whalen, 445 U.S. at 691-92. However, the presumption against
separate punishments is rebuttable. We do not mechanically apply double
jeopardy principles; nor do we consider them in a vacuum. State v. Brown,64 Wn.
App. 606, 615, 825 P.2d 350 (1992); see State v. Gocken, 127 Wash. 2d 95, 113,
121, 896 P.2d 1267 (1995)(Johnson, J., dissenting)(cautioning against reliance
"on a rigid and mechanical examination of the elements" of charged offenses).
Thus Blockburger "is not dispositive of the question whether two offenses are the
same.... [I]t is not controlling where there is clear evidence of contrary legislative
intent." In re Pers. Restraint ofPercer, 150 Wash. 2d 41, 50-51, 75 P.3d 488(2003).
Where the legislature specifically authorizes cumulative punishment under two
statutes, regardless of whether they proscribe the same conduct under
Blockburger, a court's task of statutory construction is at an end, and the trial court
may impose cumulative punishments under such statutes in a single trial. Hunter,
459 U.S. at 368-69.
We review double jeopardy in the following manner. We begin with the
language of the statutes themselves to determine whether the legislature intended
to authorize multiple punishments for violations of the rape and murder
27
state of Washington v. Muhammad (BisirB.), No. 96090-9
statutes. See Calle, 125 Wash. 2d at 776 (citing Albernaz v. United States, 450 U.S.
333, 336, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981)).
Next, if the legislative intent is not clear from the statutory text, we may turn
to statutory construction and the "same evidence" test. Calle, 125 Wash. 2d at 777-
78; Blockburger, 284 U.S. at 304. Under the same evidence test, a defendant's
double jeopardy rights are violated if he or she is convicted of offenses that are
identical both in fact and in law. Calle, 125 Wash. 2d at 777. If each crime contains
an element that the other does not, we presume that the crimes are not the same
offense. Id. The Blockburger test and the same evidence test are rules of
statutory construction, and both serve as a means of discerning legislative
purpose. They should not be controlling where there is a clear indication of contrary
legislative intent. See Calle, 125 Wash. 2d at 778 (citing Albernaz, 450 U.S. at 340).
Finally, if applicable, we consider the merger doctrine to determine
legislative intent, even when two crimes have formally different elements. Under
the merger doctrine, when the degree of one offense is raised by
conduct separately criminalized by the legislature, we presume the legislature
intended to punish both offenses through a greater sentence for the greater
crime. Vladovic, 99 Wash. 2d at 419.
However, even if two convictions appear to be for the same offense or for
charges that would merge, an exception may apply. Two convictions may be
punished separately if the defendant's conduct forming one crime demonstrates
an independent purpose or effect from the second crime. State v. Kler, 164 Wash. 2d
28
state of Washington v. Muhammad (BisirB.), No. 96090-9
798, 804, 194 P.3d 212(2008)(citing State v. Freeman, 153 Wash. 2d 765, 773, 108
P.3d 753 (2005); State v. Johnson, 92 Wash. 2d 671, 680, 600 P.2d 1249 (1979));
State V. Harris, 167 Wash. App. 340, 355, 272 P.3d ,299 (2012)(citing Vladovic, 99
Wash. 2d at 421); In re Pers. Restraint of Francis, 170 Wash. 2d 517, 533-34, 242 P.3d
866 (2010)(Madsen, C.J., concurring).
Turning to the case at hand, we look first to the statutory language to
determine the legislative intent underlying the rape and felony murder provisions.
Freeman, 153 Wash. 2d at 773; Caiie, 125 Wash. 2d at 776. Evidence of legislative
intent may be clear on the face of the statute or found in the legislative history, the
structure of the statutes, the fact the two statutes are directed at eliminating
different evils, or any other source of legislative intent. Freeman, 153 Wash. 2d at
773 (citing Bail v. United States, 470 U.S. 856, 864, 105 8. Ct. 1668, 84 L. Ed. 2d
740 (1985)).
The felony murder provision, RCW 9A.32.030, states in relevant part,
(1) A person is guilty of murder in the first degree when:
(c) He or she commits or attempts to commit the crime of. . . (2)
rape in the first or second degree . . . and in the course of or in
furtherance of such crime or in immediate flight therefrom, he or she,
or another participant, causes the death of a person other than one of
the participants.
RCW 9A.44.040 states that a person is guilty of first degree rape "when such
person engages in sexual intercourse with another person by forcible compulsion."
29
state of Washington v. Muhammad (Bisir B.), No. 96090-9
Neither statute addresses explicitly the issue of whether multiple convictions for
the act of intercourse and murder have been authorized.
We next examine the statutes under Blockburger and the same evidence
test. As previously stated, double jeopardy is violated if a defendant is convicted
of offenses that are identical in both fact and law. Calle, 125 Wash. 2d at 777. If each
offense, as charged, includes elements not included in the other, the offenses are
different and multiple convictions can stand. Id.
Here, the State charged Muhammad with first degree rape and felony
murder. To convict Muhammad of rape, the State had to prove that he "engaged
in sexual intercourse" with Richardson "by forcible compulsion" and that he
kidnapped or inflicted serious physical injury on her. Clerk's Papers (CP) at 384
(jury instruction 15); RCW 9A.44.040. To convict on felony murder, the State had
to prove that Muhammad committed or attempted to commit rape in the first or
second degree and that he killed Richardson in the course of or furtherance of the
rape, or in immediate flight from that crime. CP at 383 (jury instruction 14); RCW
9A.32.030.
Muhammad contends that the felony murder statute incorporates all the
elements of the first degree rape statute and that the State proved facts sufficient
to convict Muhammad on that charge. Simply put, the State charged and factually
proved first degree rape, and it was sufficient factually to prove first degree felony
murder. Therefore, the offenses are the same under Blockburger. Calle, 125
Wash. 2d at 777; Harris v. Oklahoma, 433 U.S. 682, 682-83, 97 S. Ct. 2912, 53 Lans. Ch.
30
state of Washington v. Muhammad (Bisir B.), No. 96090-9
Ed. 2d 1054(1977)(per curiam decision stating that where felony murder required
conviction of lesser crime, double jeopardy barred second trial on lesser crime after
conviction on the greater crime).
But Blockburger is not the beginning and end of our double jeopardy
analysis. See Calle, 125 Wash. 2d at 780.
The fundamental issue is whether the legislature intended to authorize
multiple punishments for criminal conduct that violates more than one
statute. Calle, 125 Wash. 2d at 776. Here, we may return to other evidence of
legislative intent,'"including the statutes' historical development, legislative history,
location in the criminal code, or the differing purposes for which they were
enacted.'" Freeman, 153 Wash. 2d at 777 (quoting Percer, 150 Wash. 2d at 51). The
process is recursive, returning to the legislature's intent again and again. Id.
We find this evidence by examining the legislative history of the rape and
felony murder statutes. First, rape and felony murder are located in different
sections of the criminal code. Compare RCW 9A.44.040 (first degree rape), with
RCW 9A.32.030(murder in the first degree). While felony murder does incorporate
first degree rape, it is not defined in that provision. The crime and degrees of rape
are established in chapter 9A.32 RCW. Muhammad is correct that the statutory
location of offenses in different sections of the criminal code is not by itself
conclusive evidence of legislative intent. But when considered with other indicia
31
state of Washington v. Muhammad (Bisir B.), No. 96090-9
of legislative intent described below, this information is persuasive. See Calle, 125
Wash. 2d at 780.^
Second, provisions criminalizing rape and homicide serve discrete goals.
Chapter 9A.36 ROW, which criminalizes homicide, serves the public purpose of
protecting human life. Danny v. Laidlaw Transit Servs., Inc., 165 Wash. 2d 200, 218-
19,193 P.3d 128(2008)(plurality opinion)(citing Gardner v. Loomis Armored, Inc.,
128 Wash. 2d 931, 944, 913 P.2d 377(1996)("Society places the highest priority on
the protection of human life.")). The legislature's intent underlying the felony
murder statutes is to punish those who commit a homicide in the course of a felony
under the applicable murder statute. State v. Gamble, 154 Wash. 2d 457, 468, 114
P.3d 646(2005).
The criminalization of rape serves a different, independent goal. Rape has
been a statutory offense in Washington since before statehood. See Calle, 125
® Justice Gordon McCloud's opinion asserts that Calle is distinguishable from the current case
because the Calle court held the statutes at issue were not the same under Blockburger. Opinion
of Gordon McCloud, J., at 14-15. That opinion is correct on this point; however, as Calle
demonstrates, a reviewing court's principal concern in double jeopardy is to discover legislative
intent. Therefore, as in Calle, we continue our analysis despite the outcome of the Blockburger
test. See 125 Wash. 2d at 778-81. Justice Gordon McCloud argues Calle is further distinguished
from this case because the felony murder statute, ROW 9A.32.030, "explicitly cross-references"
rape in the first or second degree and so unlike the rape and incest statutes in Calle,felony murder
and rape are not "truly located somewhere else" in the criminal code. Opinion of Gordon McCloud,
J., at 14. Cross-referencing statutes are of two types: specific or general. 2B Norman J. Singer,
Sutherland Statutes and Statutory Construction § 51:07 (6th ed. 2000). Specific cross-
references refer to the particular statute by its title or section number, while a general reference
refers to the law on the subject generally. Id. A general reference is, for example, contracts made
under the statute are to be made "in the manner now provided by law." Id. RCW 9A.32.030's
reference to "rape" is not a specific reference, nor does it appear to be a general cross-reference
as the statute merely refers to first degree rape. Cf. State v. Weatherwax, 188 Wash. 2d 139, 149,
392 P.3d 1054(2017)(noting cross-referencing statutory provisions that use specific chapter and
title); see a/so State v. Eckblad, 152 Wash. 2d 515, 519, 98 P.3d 1184 (2004)(regarding RCW
46.61.688's cross-reference to the federal motor vehicle safety standard 208). Mentioning rape
is not sufficient evidence that felony murder "explicitly cross-references" RCW 9A.44.040.
32
state of Washington v. Muhammad (BisirB.), No. 96090-9
Wn.2d at 780; Code of 1881 § 812; see also Laws of 1909, ch. 249, § 183
(defining "rape" as an act of sexual intercourse with a female who is not the
perpetrator's wife and without her consent). Chapter 9A.44 RCW prohibits acts of
unlawful sexual intercourse. Calle, 125 Wash. 2d at 780. The focus of rape is "not
simply sexual violation, but also the fear, degradation and physical injury
accompanying that act." Id. at 781 (quoting Helen G. Tutt, Comment, Washington's
Attempt To View Sexual Assault as More Than a "Violation"of the Moral Woman—
The Revision of the Rape Laws, 11 Gonz. L. Rev. 145, 155 (1975)). Rape and
homicide are "'directed to separate evils'" and therefore constitute separate
offenses. Id. at 781 (quoting Albernaz, 450 U.S. at 343). In other words, the
legislature meant to allow multiple punishments for felony murder and the
predicate offense of rape because the statutes seek to prevent separate harms.
Based in part on these factors, other states have resolved whether their
legislatures intended to punish a defendant for both felony murder and the
underlying felony. "Of these courts, the great majority uphold separate punishment
for felony murder and the underlying felony." Todd v. State, 884 P.2d 668, 678-79
(Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996); see, e.g.. State v.
Blackburn, 694 S.W.2d 934, 936-37 (Tenn. 1985)(holding a defendant can be
punished for assault with intent to commit rape and resulting felony murder);
Fitzgerald v. Commonwealth, 223 Va. 615, 634-35, 292 S.E.2d 798 (1982)
(concluding legislature permitted conviction for robbery, rape, and resulting felony
murder); State v. Greco, 216 Conn. 282, 579 A.2d 84 (1990)(same); Todd, 884
33
state of Washington v. Muhammad (Bisir B.), No. 96090-9
P.2d at 680 (citing additional cases in support): cf. Cook v. State, 841 P.2d 1345
(Wyo. 1992)(holding legislature intended felony murder to be the most aggravated
form of robbery, thus, only one punishment for felony murder and underlying
felony); Harris, 433 U.S. at 682 ("When, as here, conviction of a greater crime,
murder, cannot be had without conviction of the lesser crime, robbery with
firearms, the Double Jeopardy Clause bars prosecution for the lesser crime, after
conviction of the greater one."); Whalen, 445 U.S. at 691-92 (holding that felony
murder and rape are the same offense).
Similar to the rape and incest charges in Calle, the legislature intended to
punish felony murder and rape separately, acknowledging the "widespread public
perception that serious crimes, such as robbery, rape, and burglary, that result in
death, are not simply a more serious version of the underlying felony. Rather it is
a different crime altogether." In re Pers. Restraint of Bowman, 162 Wash. 2d 325,
333-34, 172 P.3d 681 (2007) (citing David Crump & Susan Waite Crump, in
We are not compelled to the same results set out in Harris or Whalen. The Supreme Court
describes its opinion in Harris as a "terse per curiam," United States v. Dixon, 509 U.S. 688, 698,
113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), that did not mention Blockburger and precluded a
subsequent prosecution for robbery with a firearm after the defendant had already been convicted
of felony murder based on that robbery. The current case does not concern subsequent
prosecutions. In Whaien, the Court held that convicting and sentencing a defendant to both felony
murder and the predicate felony of rape violated the "multiple punishments" strand of double
jeopardy because proof of rape is a necessary element of proof of the felony murder. 445 U.S.
at 688, 694. But Whaien is distinguishable. First, that opinion reviews the laws of the District of
Columbia, a federal enclave. Thus, its laws are inherently federal. See also State v. Garza, 2014
SD 67, U 16, 854 N.W.2d 833, 839-40 (explaining that Whaien does not bind state courts'
interpretations of state statutes). Thus, the Court's application of Blockburger to determine the
statutory construction dealt not with state but federal law. Id. And as Hunter noted and we have
repeatedly affirmed, questions of state legislative intent are left to state courts. 459 U.S. at 368;
e.g., Freeman, 153 Wash. 2d at 771; Calie, 125 Wash. 2d at 778. We are not bound to interpret our
state statutes as the Whalen Court interpreted federal law.
34
state of Washington v. Muhammad (Bisir B.), No. 96090-9
Defense of the Felony Murder Doctrine, 8 Harv. J.L. & Pub. Pol'y 359, 396
(1985)).^'' Based on the above considerations, the legislature has expressed its
intent to punish felony murder and rape as separate offenses.''^
Furthermore, even if these convictions appear to merge, the independent
purposes exception to the merger doctrine applies. Vladovic, 99 Wash. 2d at 421
(quoting and citing Johnson, 92 Wash. 2d at 680). To establish an independent
purpose or effect, there must be a showing that the element crime caused "some
injury to the person or property of the victim or others, which is separate and
distinct from and not merely incidental to the crime of which it forms an
element." Jo/7nson, 92 Wash. 2d at 680; Harris, 167 Wash. App. at 355; State v.
Saunders, 120 Wash. App. 800, 807-08, 821, 86 P.3d 232 (2004) (holding
convictions for felony murder and first degree rape did not merge when murder
was distinct from and not incidental to the rape).
Saunders is particularly instructive. In Saunders, defendants Williams and
Saunders restrained the victim, attempted to force her to perform oral sex, anally
Justice Gordon McCloud's opinion discusses the antimerger statute for burglary, stating that
lawmakers did not authorize separate punishments for felony murder or rape as they did for
offenses occurring in the course of a burglary, the implication being that because lawmakers
enacted an antimerger statute for burglary and did not for rape and felony murder, the legislature
intended for those crimes to merge. Opinion of Gordon McCloud, J., at 9-10. But this is not how
we construe statutes or decipher legislative intent. That the legislature expressly authorized
multiple punishments for a different crime altogether says nothing about the specific crimes at
issue here. Without some indication lawmakers were aware felony murder and rape can and
should merge, which somehow surfaced in the course of enacting the burglary antimerger statute,
the provision is irrelevant.
This intent is not unclear; thus the rule of lenity does not apply. State v. Jackman, 156 Wash. 2d
736, 751, 132 P.3d 136(2006)("[Ujnderthe rule of lenity, convictions under both statutes violate
double jeopardy if the legislature's intent is unclear."(emphasis added)).
35
state of Washington v. Muhammad (BisirB.), No. 96090-9
raped her, and then stabbed and asphyxiated her, causing her death. 120 Wn.
App. at 807-08. A jury convicted Saunders of felony murder, first degree robbery,
first degree kidnapping, and first degree rape. Id. at 808. On appeal, Saunders
argued in part that the first degree rape and felony murder convictions merged. Id.
at 820. The court reviewed whether an exception to merger applied when the
predicate and charged crimes are not "intertwined." Id. at 821-22 (citing Johnson,
92 Wash. 2d at 681). The Saunders court then reviewed three factors it deemed
central to Johnson: time and location of the charged crimes(rape and kidnapping
occurred "almost contemporaneously in time and place"), the sole purpose of one
crime was to further the other, and that no independent and greater injury occurred.
Id. at 822 (quoting Johnson, 92 Wash. 2d at 681). Whether merger applies is
reviewed on a case-by-case basis. Id. at 821.
Applying these three factors, we would conclude that the rape and murder
were separate injuries and that the independent purposes and effects exception to
the merger doctrine applies. First, the record indicates that Richardson got a ride
Justice Gordon McCloud points to Francis tor support for its assertion that felony murder must
merge with the underlying felony. Opinion of Gordon McCloud, J., at 11 (quoting 170 Wash. 2d at
527). That opinion correctly restates that if the defendant in Francis had pleaded guilty to the
attempted robbery of one victim and felony murder of that same victim, double jeopardy would
preclude conviction on the attempted murder count. Id. The decision went on to explain that this
would be the outcome because the felony murder '"had no purpose or intent outside of
accomplishing the robbery.'" Francis, 170 Wn.2d at 527(quoting State v. Williams, 131 Wash. App.
488, 499, 128 P.Sd 98(2006)). In other words, the exception to the merger doctrine did not apply
In Francis. Justice Gordon McCloud's opinion focuses exclusively on the independent purposes
aspect and ignores the independent effects resulting from the commission of rape and felony
murder. See opinion of Gordon McCloud, J., at 12, 16-17. Here, the rape resulted In independent
and severe injuries from the murder. Muhammad manually strangled Richardson after raping her.
Evidence was presented at trial that the rape and vaginal penetration caused internal bleeding.
36
state of Washington v. Muhammad (Bisir B.), No. 96090-9
from Muhammad and over the course of a few hours, she was raped and
murdered. This does not support that the rape and murder occurred
contemporaneously.""^ Second, even assuming the offenses occurred close in
time, nothing in the record indicates that Muhammad raped Richardson in order to
strangle her. Cf. Saunders, 120 Wash. App. at 822 ('"the sole purpose of the
kidna[p]ping . . . and assault was to compel the victims' submission to acts of
sexual intercourse'" (internal quotation marks omitted) (quoting Johnson, 92
Wash. 2d at 681)). As to the third factor, the record provides that Richardson suffered
injuries separate and distinct from the murder. Id. at 824. The rape caused a
laceration in Richardson's vaginal canal. Strangulation caused her death and
resulted in injuries to her neck and eyes. These are separate and distinct injuries.
Muhammad urges us not to follow Saunders. He asserts that its application
would "create a categorical exception" for a rape serving as a predicate for felony
murder. Suppl. Br. of Pet'r at 23. Rape, Muhammad claims, is rarely fatal and will
typically create a separate injury to killing. However, nothing in the above analysis
requires creation of a "categorical exception" for rape and felony murder. The
which could not have occurred after strangulation as It was an "antemortem" Injury. See 2
Verbatim Tr. of Proceedings(VTP)at 326-27; 3 VTP at 485.
Muhammad contends the merger exception articulated by Freeman does not apply when, as
here, the "defendant simply used more force than necessary to effectuate the crime." Suppl. Br.
of Pet'r at 19(citing 153 Wash. 2d at 779). He argues that first degree rape required proof of forcible
compulsion and that the force used "was greater than necessary to achieve the rape" and thus
does not support the conclusion that the crimes may be separately punished. Id. at 20. This
argument Is unconvincing. Where a defendant struck a victim after completing a robbery, there
was a separate Injury and Intent, justifying a separate assault conviction. State v. Prater, 30 Wn.
App. 512, 516, 635 P.2d 1104 (1981). Similarly, Muhammad strangled Richardson after raping
her, causing "antemortem" Injuries, such as Internal bleeding. See 2 VTP at 326-27; 3 VTP at
485.
37
state of Washington v. Muhammad (Bisir B.), No. 96090-9
analysis. The Saunders factors must be analyzed together, as part of a heavily
fact-dependent analysis. A different factual scenario may lead to merger. E.g.,
Johnson, 92 Wash. 2d at 676; see State v. Fagundes, 26 Wash. App. 477, 485, 614
P.2d 198 (1980)(quoting Johnson, 92 Wash. 2d at 676); of. State v. Peyton, 29 Wn.
App. 701, 720, 630 P.2d 1362(1981) (declining to follow Fagundes when
underlying felony was "separate and distinct" from "felony-murder").
The statutory language and legislative history considered above are
indicative of legislative intent and support the conciusion that the legisiature
intended to punish rape and felony murder separately. Accordingly, we would hold
that Muhammad's rape and felony murder convictions do not violate double
jeopardy.
CONCLUSION
Seven members of this court agree that a cell phone ping constitutes a
search under the state and federal constitutions. However, six members of this
court agree that the ping was permissibie, thus affirming the Court of Appeals in
part. Five members of the court hold that Muhammad's first degree rape and felony
murder convictions violate double jeopardy. Therefore, five members of this court
reverse the Court of Appeals in part and remand to triai court for the dismissal of
the lesser-included offense and for other proceedings consistent with our opinions.
38
state of Washington v. Muhammad (Bisir Bilal), No. 96090-9
/ 7-/
6
WE CONCUR.
. CZ'
"39
State V. Muhammad (Bisir Bilal), No. 96090-9
No. 96090-9
GORDON McCLOUD, J.—This case presents two issues. First, we must
determine whether a warrantless "ping" of Bisir Bilal Muhammad's cell phone
violated his constitutional rights to be free from umeasonable searches and
unwarranted invasions ofhis private affairs. U.S. Const, amend. IV; Wash.Const.
art. I, § 7. Second, we must determine whether Muhammad's convictions for both
felony murder based on rape and the underlying rape violate double jeopardy. U.S.
Const, amend. V; Wash. Const, art. I, § 9.
As to the second issue, we hold that the trial court unconstitutionally subjected
Muhammad to double jeopardy by punishing him twice for the same offense. We
therefore reverse the Court of Appeals' decision on this point and remand to the trial
court with instructions to dismiss the lesser included offense.
As to the first issue, a majority of this court agrees that the police generally
must obtain a warrant before they ping someone's cell phone. This majority is
reflected in the lead opinion, authored by Justice Wiggins, and in this opinion, which
State V. Muhammad (Bisir Bilal), No. 96090-9
concurs with the lead opinion on this point. However, the lead opinion argues that
the warrant requirement was excused in this case by exigent circumstances. And the
opinion authored by Justice Madsen argues that no warrant was required, regardless
of whether exigent circumstances existed. Thus, a majority of this court agrees that
the ping was justified for one reason or another. I respectfully dissent on this point
because I do not believe that the State proved by clear and convincing evidence that
exigent circumstances made it impractical to obtain a warrant in this case. I would
reverse the Court of Appeals' decision on this point and remand to that court to
determine what evidence should have been suppressed and whether any error in
failing to suppress was harmless beyond a reasonable doubt.
Factual and Procedural Background
In November 2014, a couple out for an early morning walk discovered a naked
corpse lying by the side of the road and called the police. 2 Verbatim Tr. of
Proceedings(VTP)at 287-89; Clerk's Papers(CP)at 71. An inspection ofthe corpse
at the scene revealed numerous injuries suggesting foul play. CP at 93. The police
eventually identified the victim as 69-year-old Ina Richardson. Id.
A friend of Richardson's informed the police that he had seen her at
Albertsons the night before her body was discovered. 2 VTP at 269-70, 277. The
police learned from an Albertsons surveillance video that a "very distinctive" vehicle
was in the parking lot at the same time Richardson left the store. CP at 74,220. The
2
State V. Muhammad (Bisir Bilal), No. 96090-9
video shows Richardson walking away from the store and toward the vehicle, but it
then skips ahead approximately 25 seconds. 3 VTP at 545-46; CP at 74, 101, 220.
By the time the video picks back up, Richardson can no longer be seen. 3 VTP at
546; CP at 81. The video shows the distinctive vehicle leaving the parking lot shortly
afterward. CP at 101.
A few days later. Officer Boyd, who had watched the Albertsons surveillance
video, spotted the "very distinctive" vehicle. 1 VTP at 71-73; CP at 101-02, 220-
21. Boyd pulled the vehicle over and questioned the driver, Muhammad. 1 VTP at
74; CP at 102,220-21. Boyd informed Muhammad that he was investigating a crime
that had recently occurred in the Albertsons parking lot and that a vehicle matching
Muhammad's had been seen in the vicinity. CP at 102, 220-21. Boyd did not tell
Muhammad what crime he was investigating. See id. at 102. Muhammad denied
being in the Albertsons parking lot on the night of the crime. 4 VTP at 743; CP at
102. Muhammad told Boyd that "as far as he knew," he had gone straight home
after his shift at the Quality Inn. CP at 102; see also 4 VTP at 745. The trial court,
after watching a video that is not part of the appellate record, described the stop as
"very limited in nature, nonthreatening, [and] objectively congenial throughout."
CP at 221.
After reporting his encounter to other officers, Boyd was asked to watch
Muhammad's vehicle. CP at 102, 104-05. At one point, Boyd watched as
3
State V. Muhammad (Bisir Bilal), No. 96090-9
Muhammad and his wife made a trip from their home to Walmart and back. Id. at
102.
Meanwhile, back at the station, the investigation was gathering momentum.
Officer Daniel learned from additional surveillance video that the distinctive vehicle
seen in the Albertsons parking lot had come from the Quality Inn parking lot. Id. at
74. Officer Muszynski learned that Muhammad had "an extensive criminal history
including rape." Id. at 105. And the medical examiner concluded that Richardson
had been sexually assaulted and strangled to death. 3 VTP at 471-72; CP at 74. If
he had not been a suspect before, Muhammad was a suspect now.
Based on this growing body of evidence, the police sought and obtained a
warrant to seize and search Muhammad's vehicle. CP at 105; see also id. at 76
(warrant). However, for some unknown reason, Boyd had left his surveillance post
and lost track of Muhammad's vehicle before the police could seize it. Id. at 102.
To figure out where Muhammad had gone, Boyd had Muhammad's phone
company "ping" his cell phone. Id. at 102-03. The ping led the police to a nearby
city in Idaho, where they found both Muhammad, who was working on a fence, and
his vehicle. Id. at 95. The police seized the vehicle and gave Muhammad a ride
back to the station, where they questioned him. Id. at 95-96. At this point, despite
the investigation's growing momentum, the police opted not to place Muhammad
under arrest. 1 VTP at 83, 94. Instead, the police gave Muhammad a ride home
4
State V. Muhammad (Bisir Bilal), No. 96090-9
after he asked for an attorney, and Muhammad remained free to go about his
business. Id. at 82-83.
After taking Muhammad home, the police continued their investigation and
uncovered sufficient additional evidence to arrest Muhammad, which they did. CP
at 96-97. The police also searched the seized vehicle and found incriminating
evidence in the trunk. 3 VTP at 491-96, 508; 4 VTP 658-59; CP at 95.
The State charged Muhammad with both first degree felony murder
predicated on rape, in violation of RCW 9A.32.030(l)(c), and first degree rape, in
violation of RCW 9A.44.040. CP at 22-23. A person is guilty of first degree felony
murder when
[h]e or she commits or attempts to commit the crime of. . . rape in the
first or second degree,... and in the course of or in furtherance of such
crime or in immediate flight therefrom, he or she, or another participant,
causes the death of a person other than one ofthe participants ... .lb
RCW 9A.32.030(1)(c). The statute does not provide the elements of first degree
rape; one must look to the cross-referenced "rape in the first or second degree"
statute actually charged, RCW 9A.44.040,.050, for those.
Prior to trial, Muhammad moved to suppress the "results" of the ping. CP at
51; see also 1 VTP at 48-50. The State argued that exigent circumstances permitted
the ping because the police were concerned that Muhammad might destroy evidence
'The statute goes on to describe a potential defense not at issue here.
5
State V. Muhammad (Bisir Bilal), No. 96090-9
or flee. 1 VTP at 58. The State also claimed that Muhammad presented a "threat to
public safety." Id. at 59. The trial court agreed with the State. CP at 225.
Specifically, the trial court ruled that the "officers could reasonably infer that the
window for collection of evidence would be closing rapidly" because Muhammad
"had reason to believe" that the police suspected him of"a violent crime." Id. at
223. The Court of Appeals affirmed on exigency grounds. State v. Muhammad,4
Wash. App. 2d 31, 50, 419 P.3d 419, review granted, 191 Wash. 2d 1019 (2018).
The jury found Muhammad guilty of both counts, CP at 395, and the trial court
sentenced him separately for each offense, id. at 572. The Court of Appeals rejected
Muhammad's claim that the double punishment violates double jeopardy.
Muhammad,4 Wash. App. 2d at 53.
Analysis
I. Double Jeopardy
The double jeopardy clause ofthe United States Constitution provides that no
person shall "be subject for the same offence to be twice put in jeopardy of life or
limb." U.S. Const, amend. V. The Washington Constitution similarly provides that
"[n]o person shall... be twice put in jeopardy for the same offense." WASH.CONST.
art. I, § 9. We have stated that these two provisions "provide the same protections."
In rePers. Restraint ofFrancis, 170 Wash. 2d 517,522 n.l,242 P.3d 866(2010)(citing
In re Pers. Restraint ofDavis, 142 Wash. 2d 165, 171, 12 P.3d 603 (2000)). The two
6
State V. Muhammad (Bisir Bilal), No. 96090-9
constitutional provisions "protect[] not only against a second trial for the same
offense, but also 'against multiple punishments for the same offense.'" Whalen v.
United States, 445 U.S. 684,688, 100 S. Ct. 1432, 63 L. Ed. 2d 715(1980)(quoting
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 798, 109
S. Ct. 2201, 104 L. Ed. 2d 865 (1989)).
Here, Muhammad does not allege that the State subjected him to multiple
trials for the same offense but, instead, that it punished him twice for the same
offense after a single trial. Specifically, Muhammad claims that he is being punished
twice for a single rape: once for the independent crime of first degree rape and once
for felony murder predicated on that same rape. In this context, "the Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended." Missouri v. Hunter,459 U.S. 359,
366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). Thus, we must determine whether the
legislature intended for the sentencing court to punish Muhammad for both felony
murder based on first degree rape and the underlying rape. "Our review is de novo,
and legislative intent is the touchstone." State v. Kier, 164 Wash. 2d 798, 804, 194
P.3d 212 (2008) (citing State v. Freeman, 153 Wash. 2d 765, 771, 108 P.3d 753
(2005)).
7
State V. Muhammad (Bisir Bilal), No. 96090-9
We hold that the legislature did not intend for the trial court to punish
Muhammad for both felony murder based on first degree rape and the underlying
rape. Thus, the two offenses merge. We also hold that the exception to the merger
doctrine does not apply here. We therefore remand this case to the trial court with
instructions to vacate the lesser offense of first degree rape.
A. The offenses at issue must merge so that Muhammad is not subject
to double jeopardy
In discerning legislative intent, we first "look to the language of the pertinent
statutes to determine if they expressly authorize multiple punishments for conduct
that violates more than one statute." State v. Louis, 155 Wash. 2d 563, 569, 120 P.3d
936 (2005). Absent express authorization, we apply a rule of statutory construction
known alternatively as the "same evidence" test, the "same elements" test, or the
Blockburger^ test. Id. The merger doctrine may also "help determine legislative
intent, where the degree ofone offense is elevated by conduct constituting a separate
offense." Kier, 164 Wash. 2d at 804 (citing State v. Vladovic, 99 Wash. 2d 413,419,662
P.2d 853 (1983)). We end our analysis with one more look at legislative intent.
State V. Calle, 125 Wash. 2d 769, 780, 888 P.2d 155 (1995). If that intent remains
unclear, then we apply the rule of lenity and vacate the conviction on the lesser
^ Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
8
State V. Muhammad (Bisir Bilal), No. 96090-9
offense. State v. Jackman, 156 Wash. 2d 736, 751, 132 P.3d 136 (2006)(citing State
V. Adel, 136 Wash. 2d 629, 635, 965 P.2d 1072(1998)).
We begin our analysis with the plain language ofthe statutes—where we look
to see if the legislature expressly told us that both punishments are permissible.
Calle, 125 Wash. 2d at 116-11. For example, our legislature has expressly authorized
multiple punishments for crimes committed during a burglary: "Every person who,
in the commission of a burglary shall commit any other crime, may be punished
therefor as well as for the burglary, and may be prosecuted for each crime
separately." RCW 9A.52.050. Our legislature has not, however, similarly
authorized multiple punishments under either the felony murder statute or the rape
statute at issue here. See RCW 9A.32.030(l)(c)(felony murder); RCW 9A.44.040
(rape).
We turn next to the Blockburger test. Jackman, 156 Wash. 2d at 746-47. Under
this test, we compare the elements of the two offenses at issue to determine whether
they are the same—^the assumption being that the legislature "ordinarily does not
intend to punish the same offense under two different statutes." Whalen, 445 U.S.
at 691-92. "For double jeopardy purposes, a lesser included offense is the 'same
offense' as the greater offense." State v. Fuller, 185 Wash. 2d 30, 37-38, 367 P.3d
1057(2016)(citing Brown v. Ohio, 432 U.S. 161, 168-69, 97 S. Ct. 2221, 53 L. Ed.
2d 187(1977)). A "lesser included offense" is "[a] crime that is composed ofsome,
9
State V. Muhammad (Bisir Bilal), No. 96090-9
but not all, ofthe elements of a more serious crime and that is necessarily committed
in carrying out the greater crime." Black's Law Dictionary 1301(11th ed. 2019).
The merger doctrine is closely related. Under that doctrine, a lesser included
offense merges "into a more serious offense when a person is charged with both
crimes, so that the person is not subject to double jeopardy." Black's Law
Dictionary at 1184; see also Freeman, 153 Wash. 2d at 773 ("[W]e presume the
legislature intended to punish both offenses through a greater sentence for the greater
crime."(citing Vladovic, 99 Wash. 2d at 419)).
[T]he merger doctrine is a rule of statutory construction which only
applies where the Legislature has clearly indicated that in order to prove
a particular degree ofcrime (e.g., first degree rape)the State must prove
not only that a defendant committed that crime (e.g., rape) but that the
crime was accompanied by an act which is defined as a crime elsewhere
in the criminal statutes (e.g., assault or kidnapping).
Vladovic, 99 Wash. 2d at 420-21.
First degree rape is unquestionably a lesser included offense offelony murder
based on first degree rape. First degree rape is composed ofsome, but not all, ofthe
elements of felony murder—in fact, the felony murder statute incorporates the
elements of first degree rape by reference. RCW 9A.32.030(l)(c). In other words,
the legislature has clearly indicated that in order to prove first degree felony murder,
the State must prove not only that the defendant caused someone's death but also
that the killing was accompanied by rape, which is defined as a crime elsewhere in
10
State V. Muhammad (Bisir Bilal), No. 96090-9
the criminal statutes. Thus, the two offenses are the same offense under
Blockburger, and they must merge to avoid subjecting Muhammad to double
jeopardy. Cf. Whalen, 445 U.S. at 693-94 (construing analogous statutes and
concluding that felony murder based on rape and the underlying rape were the same
offense under Blockburger).
Indeed, we have previously treated felony murder and the felony on which it
is based as greater and lesser offenses that must merge. In Francis, the defendant
attacked two people, Lucas and Jacobson, with a baseball bat, intending to steal
$2,000. 170 Wash. 2d at 521. Lucas died in the course of the robbery. Id. The
defendant pleaded guilty to first degree felony murder of Lucas and attempted first
degree robbery of Jacobson. Id. We held that these two offenses did not merge—
but only because there were two victims. Id. at 527-28. We explained that the
outcome would have been different with only one victim: "If Francis had pleaded to
the attempted robbery ofLucas and felony murder ofLucas, double jeopardy would
preclude conviction of the attempted robbery count." Id. at 527; see also id. at 530
("[T]he prosecutor dropped the attempted robbery count against Lucas from the
second amended complaint because it would have merged into the felony murder
upon conviction."). Just last year, a unanimous court cited this portion of Francis
approvingly. In re Pers. Restraint ofSchorr, 191 Wash. 2d 315, 325, 422 P.3d 451
(2018)(holding that first degree robbery conviction did not merge with first degree
11
State V. Muhammad (Bisir Bilal), No. 96090-9
murder conviction but only because defendant pleaded guilty to premeditated
murder in addition to felony murder).
The State argues that the two offenses are not the same under Blockburger,
noting that the felony murder statute, unlike the first degree rape statute, does not
require a completed rape. Suppl. Br. of Resp't at 20. We recognize that because
felony murder may be predicated on a felony other than rape, or on an attempted
rape, a person could be convicted offelony murder without committing a completed
first degree rape. RCW 9A.32.030(l)(c). But "[w]e consider the elements of the
crimes as charged and proved, not merely as the level of an abstract articulation of
the elements." Freeman, 153 Wash. 2d at 777(emphasis added); see also Whalen, 445
U.S. at 694 ("In the present case, however, proof of rape is a necessary element of
proof of the felony murder, and we are unpersuaded that this case should be treated
differently from other cases in which one criminal offense requires proof of every
element of another offense.");In re Pers. Restraint ofOrange, 152 Wash. 2d 795, 817-
19, 100 P.3d 291 (2004). Here, although the State charged Muhammad with felony
murder based on either attempted or completed rape, CP at 22, the jury convicted
Muhammad of completed rape, id. at 395. In fact, the State never even requested a
jury instruction on attempt. See id. at 287-311. Because we consider the elements
as charged and proved. Freeman, 153 Wash. 2d at 111, we reject the State's abstract
argument.
12
State V. Muhammad (Bisir Bilal), No. 96090-9
Although our analysis does not end here, the result of the Blockhurger test
"creates a strong presumption of the legislature's intent," and "[t]his presumption
can 'be overcome only by clear evidence of contrary [legislative] intent.'" Louis,
155 Wn.2d at 570(second alteration in original)(quoting Calle, 125 Wash. 2d at 780).
Requiring clear evidence of legislative intent is in accord with the rule of lenity,
which we apply in double jeopardy cases. Jackman, 156 Wash. 2d at 751; Adel, 136
Wash. 2d at 634-35; see also Whalen, 445 U.S. at 695 n.lO.^ In this case, the Court of
Appeals relied on our decision in Calle to overcome the Blockhurger presumption.
Muhammad,4 Wash. App. 2d at 60-61 (discussing Calle, 125 Wash. 2d 769). But Calle
is distinguishable.
In Calle, a case involving the rape and incest statutes, we said that "clear
evidence of contrary [legislative] intent" may overcome the Blockhurger
presumption. Calle, 125 Wash. 2d at 780. Unlike the offenses at issue in the case at
^ In Ladner v. United States, the United States Supreme Court considered whether
a federal statute permitted two convictions rather than one a for single shotgun discharge
that affected two federal officers. 358 U.S. 169, 171, 79 S. Ct. 209,3 L. Ed. 2d 199(1958).
The Court held that the rule of lenity "means that the Court will not interpret a federal
criminal statute so as to increase the penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to what Congress intended." Id. at
177-78. In Bell v. United States, the United States Supreme Court considered whether the
Mann Act(former 18 U.S.C. § 2421 (1949)) permitted two convictions rather than one for
a single trip transporting two women across state lines. 349 U.S. 81, 82, 75 S. Ct. 620, 99
L. Ed. 905 (1955). The Court held that "if Congress does not fix the punishment for a
federal offense clearly and without ambiguity, doubt will be resolved against turning a
single transaction into multiple offenses." Id. at 84.
13
State V. Muhammad (Bisir Bilal), No. 96090-9
bar, the offenses at issue in Calle were not the same under Blockburger. Id. at 778.
Thus, the presumption in Calle was that the two offenses did not merge and that the
defendant could be punished for both. We then turned to other indicators of
legislative intent to determine whether any "clear evidence" could overcome the
Blockburger presumption and bar the courts from imposing separate punishments.
Id. at 780. We found none. Instead, we found "only support for our conclusion that
the Legislature intended to punish incest and rape as separate offenses." Id. We
reasoned that "the differing purposes served by the incest and rape statutes, as well
as their location in different chapters of the criminal code, are evidence of the
Legislature's intent to punish them as separate offenses." Id.
Here, we are looking for clear evidence that the two offenses are not the same,
despite the Blockburger presumption to the contrary. As in Calle, we find no clear
evidence sufficient to overcome the Blockburger presumption. Although the felony
murder and rape statutes are located in different chapters of the criminal code, the
felony murder statute explicitly cross-references the rape statutes. In contrast, the
rape statute at issue in Calle did not cross-reference the incest statute, nor did the
incest statute cross-reference the rape statute. Id. at 776 n.l (quoting relevant
statutes). When the legislature uses cross-references in statutes, the cross-referenced
material is not truly located somewhere else; it is as if the legislature set out the
cross-referenced material in full. Cf. State v. Eckblad, 152 Wash. 2d 515, 519-22, 98
14
State V. Muhammad (Bisir Bilal), No. 96090-9
P.3d 1184 (2004) (denying vagueness challenge to statute that cross-referenced
federal regulations). The legislature is merely saving trees, not revealing a clear
intent to punish the same offense twice. And although the felony murder and rape
statutes may serve different purposes when examined in isolation, this fact alone
falls well short of the clear evidence of contrary legislative intent necessary to
overcome the strong presumption that the two offenses at issue here are the same
and must merge.
In sum, we hold that the legislature did not intend for the sentencing court to
punish Muhammad for both felony murder based on first degree rape and the
underlying first degree rape. At best, the legislative intent is unclear, and we apply
the rule of lenity. The two offenses must merge (absent an exception to the merger
doctrine) so that Muhammad is not subject to double jeopardy.
B. The exception to the merger doctrine does not apply here
The State argues that an exception to the merger doctrine applies and therefore
the offenses should not merge. Suppl. Br. of Resp't at 21-24. Under this exception,
a lesser conviction will not merge with the greater if"it involves some injury to the
person or property of the victim or others, which is separate and distinct from and
not merely incidental to the crime of which it forms an element." State v. Johnson,
92 Wash. 2d 671, 680, 600 P.2d 1249 (1979). If the lesser crime "was not incidental
but rather had an independent purpose, it falls within the described exception and
15
State V. Muhammad (Bisir Bilal), No. 96090-9
courts may impose separate punishment." State v. Berg, 181 Wash. 2d 857, 866, 337
P.3d 310 (2014). For example, the felony murder and attempted robbery that did
not merge in Francis, discussed above, could be said to have caused separate and
distinct injuries: one victim was killed, and the other, separate victim was nearly
robbed. If the same victim had been killed and robbed, however, the injuries would
not have been separate and distinct, and the two offenses would have merged into
one. Francis, 170 Wn.2d. at 527.
We detailed this exception to the merger doctrine in Johnson. There, the
defendant was convicted of first degree rape, first degree kidnapping, and first
degree assault. Johnson,92 Wn.2d at 672. To convict the defendant of first degree
rape,the State had to "prove not only that the defendant committed rape, but that the
rape was accompanied by an act which is defined as a separate crime elsewhere in
the criminal statutes"—such as kidnapping or assault. Id. at 675. This court
explained that the kidnapping and assault "were intertwined with the rape," rather
than separate and distinct from it. Id. at 680-81. We therefore held that the assault
and kidna[p]ping convictions merged into the rape conviction, id., explaining that
the legislature intended to treat the underlying crimes as aggravating factors,
elevating a lesser degree of rape to first degree rape. Id. at 676, 678.
We subsequently explained that our analysis in Johnson squared perfectly
with the United States Supreme Court's analysis in Whalen. Vladovic, 99 Wash. 2d at
16
State V. Muhammad (Bisir Bilal), No. 96090-9
419 (citing Whalen, 445 U.S. 684). The defendant in Whalen was convicted of the
same crimes that Muhammad was convicted of here: "rape and of murdering the
same victim in the perpetration of the rape." Id. We explained the United States
Supreme Court's Whalen holding as follows: "[t]he Court held that since proof of
rape was necessary to prove first degree murder under the statutory seheme,
Congress had not authorized cumulative punishment for the rape and the killing
committed in the course ofthe rape." Id.
Then, in State v. Fagundes, Division One of the Court of Appeals applied
Johnson to an array of convictions similar to those pending before us: first degree
felony murder predicated on first degree rape and first degree kidnapping. 26 Wn.
App. 477, 485-86, 614 P.2d 198, 625 P.2d 179 (1980). The court noted that the
underlying offenses, like those in Johnson,"operate[d] to enhance the degree ofthe
murder." Id. at 485. The court also explained that "proofofthe underlying felonies
makes unnecessary the proof of premeditation otherwise required to support a first-
degree murder conviction." Id. at 485-86. In accord with Johnson, a unanimous
court held that "the underlying felonies of first-degree rape and first-degree
kidnap[p]ing merged into the murder." Id. at 486.
More recently, and also unanimously. Division Three ofthe Court of Appeals
held that attempted first degree robbery merges with first degree felony murder
based on that attempted robbery. State v. Williams, 131 Wash. App. 488,497-99, 128
17
State V. Muhammad (Bisir Bilal), No. 96090-9
P.3d 98 (2006), adhered to on remand, 147 Wash. App. 479, 195 P.3d 578 (2008).
The court explained that "[t]he shooting had no purpose or intent outside of
accomplishing the robbery or facilitating [the defendant's] departure from the
scene." Id. at 499. The court noted felony murder's unique dependence on its
predicate offense: if the predicate offense (e.g., attempted first degree robbery) is
truly independent from the killing for purposes of the exception to the merger
doctrine, then the fact finder cannot find that the killing was "in furtherance of or in
flight from" that predicate offense. Id. And without that finding, a first degree
felony murder conviction cannot stand. Id.\ see also RCW 9A.32.030(l)(c)(felony
murder statute).
Although Johnson, Vladovic, Fagundes, and Williams clearly and
persuasively point us in one direction—the two convictions before us must merge—
Division Two of the Court of Appeals has twice come out the other way. See State
V. Saunders, 120 Wash. App. 800, 86 P.3d 232(2004); State v. Peyton, 29 Wash. App.
701, 630 P.2d 1362 (1981). In the earlier of those two opinions, Peyton, the court
held that the defendant's convictions for first degree robbery and first degree felony
murder based on that robbery did not merge. Peyton, 29 Wn. App at 720. In that
case, the State alleged that the defendant had robbed a bank and, while fleeing the
scene, had shot and killed a pursuing officer. Id. at 704-05. With limited
explanation, the court stated that the robbery was "a separate and distinct act
18
State V. Muhammad (Bisir Bilal), No. 96090-9
independent of the killing" and thus did not merge with the felony murder
conviction. Id. at 720. The court did not explain how the killing could be "separate
and distinct" from the robbery while simultaneously occurring "in the course of and
in furtherance of [the robbery] or in immediate flight therefrom" the robbery, a
necessary finding under the felony murder statute. See id. at 715 n.2(quoting former
RCW 9A.32.030(l)(c)(1975)).
In the latter ofthose two opinions, Saunders, a divided panel provided a more
thorough analysis than the one found in Peyton. See 120 Wash. App. at 820-24. In
that case, the defendant was convicted of first degree felony murder based on first
degree rape, first degree robbery, and first degree kidnapping, along with all three
ofthose underlying felonies. M at 808. The majority held that "the predicate crimes
and the murder [were] not sufficiently intertwined for application of the merger
doctrine" but were "separate and distinct from the murder." Id. at 822-24.
But the majority failed to reconcile its analysis of the merger exception with
the felony murder statute. We have explained that the merger exception is reserved
for offenses that are truly "separate and distinct"; it does not apply when the lesser
offense is "merely incidental to" or "intertwined with" the greater. Johnson, 92
Wash. 2d at 680-81; see also Berg, 181 Wash. 2d at 866 (explaining that the lesser crime
must have had an "independent purpose"). Meanwhile, the felony murder statute
demands that a jury find that the death occurred "in the course of," "in furtherance
19
State V. Muhammad (Bisir Bilal), No. 96090-9
of," or "in immediate flight []from" the underlying felony. RCW 9A.32.030(l)(c).
The underlying felony '"must at least have intimate relation and close connection
with the killing, and must not be separate, distinct, and independentfrom it.'" State
V. Diebold, 152 Wash. 68, 73, 277 P. 394 (1929)(emphasis added) (quoting 63
L.R.A. 368 (1904) and citing Pliemling v. State, 46 Wis. 516, 1 N.W. 278, 281
(1879)). So the exception to the merger rule applies only to separate, distinct, and
independent offenses, while felony murder demands the exact opposite. The
exception to the merger rule and felony murder are irreconcilable and cannot coexist.
The majority in Saunders avoided this result by reasoning that all three
underlying felonies had a purpose other than facilitating murder. 120 Wash. App. at
820-24. For example,the majority explained that the purpose ofthe kidnapping was
"to humiliate [the victim] and to retaliate for her refusal to comply with [the
defendant's] sexual demands." Id. at 823. But when would the purpose of the
underlying offense to felony murder ever be to "facilitate murder"? Id. at 822-24.
"The purpose of the felony murder rule is to deter felons from killing negligently or
accidentally by holding them strictly responsible for killings they commit." State v.
Leech, 114 Wash. 2d 700, 708, 790 P.2d 160 (1990)(emphasis added)(citing People
V. Washington, 62 Cal. 2d 777, 781, 402 P.2d 130, 44 Cal. Rptr. 442 (1965); 2
Wayne R.LaFave & Austin W.Scott, Substantive Criminal Law § 7.5, at 210
(1986)). When a person negligently or accidentally kills somebody in the course of,
20
State V. Muhammad (Bisir Bilal), No. 96090-9
in furtherance of, or in flight from a robbery, rape, burglary, arson, or kidnapping,
that person by definition did not commit the underlying crime to facilitate murder.
It was an accident, albeit a criminal one. When it comes to felony murder, the lesser
offense does not—and cannot—^have a purpose independent from the greater; the
purpose ofthe entire criminal endeavor is to commit the underlying felony.
On a related note, if the State believes that the defendant also intended to kill,
then it may charge the defendant with a different form of murder. In fact, the State
did just this in Saunders. There, the State charged the defendant with "intentional
murder in the first degree or, in the alternative, felony murder based on rape,robbery,
and kidnapping." Saunders, 120 Wash. App. at 808. Felony murder is generally easier
to prove because "proof of the underlying felonies makes unnecessary the proof of
premeditation otherwise required to support a first-degree murder conviction."
Fagundes,26 Wn. App. at 485-86. The jury found Saunders guilty offelony murder,
not intentional murder. Saunders, 120 Wash. App. at 808. Based on this finding, the
State failed to prove that the killing had any purpose independent from the
underlying felonies, and the crimes should have merged.
The majority also reasoned that all three underlying felonies caused the victim
injuries independent from the murder. Id. at 822-24. For example, the majority
described injuries suffered by the victim during the course of the rape that were
"distinguishable from the subsequent murder." Id. at 823. But when it comes to
21
State V. Muhammad (Bisir Bilal), No. 96090-9
felony murder, the injuries stemming from the underlying felonies are not
distinguishable from the murder. Rather, the State must establish those injuries in
order to prove the underlying felonies and, in turn, the felony murder based on those
underlying felonies. The injuries are crucial to the entire prosecution; without them,
the State cannot prove anything.
The dissent in Saunders, meanwhile, explained that the Court of Appeals is
"bound" by Johnson, which is "directly on point" and requires that "one or more" of
the underlying convictions "merge with the felony murder conviction." Id. at 827
(Morgan, J., dissenting in part)(citing Johnson, 92 Wash. 2d 671).
We agree with the Saunders dissent. In the case before us, the degree of
killing was raised to first degree murder by conduct separately criminalized by the
legislature: rape. Thus, the legislature presumably intended to treat the underlying
felony as an element that elevated the killing to first degree murder, and the two
offenses must merge. And this presumption is not overcome by the exception to the
merger doctrine. The underlying rape was intertwined with the killing—^the jury
necessarily found that the killing occurred in the course of, in furtherance of, or in
immediate flight from that rape and all its horrible effects."^ And the rape did not
The Court of Appeals in this case claimed that the rape "was not integral" to the
murder and that "the murder did not effectuate or coincide with the rape." Muhammad,4
Wash. App. 2d at 66. This is entirely inconsistent with the jury's finding that Muhammad
caused Richardson's death "in the course of," "in furtherance of," or "in immediate flight
22
State V. Muhammad (Bisir Bilal), No. 96090-9
have a purpose independent from the killing—the jury convicted Muhammad of
felony murder, meaning it found no purpose other than that which was required to
prove the underlying felony. The exception to the merger doctrine does not apply,
and the superior court must vacate the first degree rape conviction.
C. Article I, Section 7
I concur with the lead opinion that under both the state and federal
constitutions, absent a carefully drawn and jealously guarded exception, an officer
needs a valid warrant to obtain both historical and real-time cell site location
information (CSLI). As the lead opinion explains in persuasive detail, "[hjistorical
and real-time CSLI. . . reveal an intensely intimate picture into our personal lives,"
lead opinion at 12, and thus the State generally must have a warrant to obtain it.
However,I write separately because I believe that the lead opinion applies much too
broad of an exception to the warrant requirement in the name of exigent
circumstances.
Our constitution demands that officers obtain a warrant before they disturb a
person's private affairs. Wash. Const, art. I, § 7; State v. Hinton, 179 Wash. 2d 862,
from"the rape. CP at 383,395;see State v. Hacheney, 160 Wn.2d 503,506, 158 P.3d 1152
(2007)("[F]or a death to have occurred in the course of a felony, there must be a causal
connection such that the death was a probable consequence of that felony."(citing State v.
Golladay, 78 Wash. 2d 121, 131, 470 P.2d 191 (1970), overruled on other grounds by State
V. Arndt, 87 Wash. 2d 374, 378, 553 P.2d 1328 (1976); Diebold, 152 Wash, at 72)).
23
State V. Muhammad (Bisir Bilal), No. 96090-9
868-69, 319 P.3d 9(2014). An officer may avoid this constitutional demand only if
the search "falls within one ofthe jealously guarded and carefully drawn exceptions
to the warrant requirement." Hinton, 179 Wash. 2d at 868-69. "The State bears a heavy
burden to show the search falls within one of the 'narrowly drawn' exceptions."
State V. Garvin, 166 Wash. 2d 242, 250, 207 P.3d 1266(2009)(quoting State v. Jones,
146 Wash. 2d 328, 335, 45 P.3d 1062(2002)).
One jealously guarded and carefully drawn exception is for exigent
circumstances. State v. Cuevas Cardenas, 146 Wash. 2d 400, 405, 47 P.3d 127, 57
P.3d 1156 (2002). Under this exception, the warrant requirement "must yield" if
"exigent circumstances demand that police act immediately." Id. (citing Warden,
Md. Penitentiary v. Hoyden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782
(1967); State v. Terrovona, 105 Wash. 2d 632, 644, 716 P.2d 295 (1986)). Exigent
circumstances arise when '"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.'" State v. Smith, 165 Wash. 2d 511,517, 199 P.2d
386(2009)(quoting v. Audley, 11 Wash. App. 897, 907, 894 P.2d 1359(1995)).
Courts should keep in mind that "law enforcement may promptly gain a search
warrant through telephone calls to a judge at nearly any time of day." Muhammad,
4 Wash. App. 2d at 52.
24
State V. Muhammad (Bisir Bilal), No. 96090-9
The lead opinion correctly recites five circumstances that could be deemed
exigent and the six factors that might be useful to determine whether an exigency
exists. Lead opinion at 22. But at the end of the day, we "look[] to the totality of
the circumstances." Id. (citing Smith, 165 Wash. 2d at 518). The State must prove by
clear and convincing evidence that the officers had no choice but to act immediately
and without a warrant. Garvin, 166 Wash. 2d at 250 (citing State v. Smith, 115 Wash. 2d
775, 789, 801 P.2d 975 (1990)). To satisfy its heavy burden, the State must'"point
to specific, articulable facts and the reasonable inferences therefrom which justify
the intrusion.'" State v. Coyle, 95 Wash. 2d 1, 9, 621 P.2d 1256(1980)(quoting State
V. Diana, 24 Wash. App. 908, 911, 604 P.2d 1312(1979)). Generally, this means that
the State must show either that the police had "specific prior infonnation" that the
suspect had planned to flee or destroy evidence, or that the police were '"confronted
with some sort of contemporaneous sound or activity alerting them' to the possible
presence of an exigent circumstance." Id. at 10 (quoting State v. Mueller, 15 Wn.
App. 667, 670, 552 P.2d 1089 (1976)). But the facts must be specific and the
inferences reasonable—^mere suspicion is insufficient. Id. at 9-10.
I agree with the lead opinion that in general, the circumstance at issue here is
one that might be deemed exigent: Muhammad's vehicle was mobile and potentially
25
State V. Muhammad (Bisir Bilal), No. 96090-9
contained evidence of a serious crime.^ Lead opinion at 23. I also agree with the
lead opinion that the nature of the offense at issue was grave and violent, satisfying
one ofthe six factors. Id. But that is the extent of my agreement.
The State claims that Muhammad "would likely destroy evidence and escape
unless the officers acted quickly." Suppl. Br. of Resp't at 9. This claim is
unsupported by specific, articulable facts.
First of all, the police were clearly not concerned with Muhammad escaping.
Indeed, after finding Muhammad in the field, based on the ping, and then questioning
him at the station,the police did not arrest or even detain him: they drove Muhammad
home. 1 VTP at 82-83. That doesn't sound very exigent.
Second, the police had no prior information that Muhammad planned to
destroy evidence or flee. Coyle, 95 Wash. 2d at 10. Nor were they confronted with
any contemporaneous activity alerting them that Muhammad was carrying out plans
to destroy evidence or to flee. Id. Instead, the police lost sight of a suspect in the
midst of an ongoing investigation. A generalized fear that an out-of-sight suspect
^ The lead opinion also says that "Muhammad was in flight." Lead opinion at 23.
But he wasn't—^he was working on a fence in a neighboring community. CP at 95. And
although the police may have worried that he was in flight, mere suspicion is insufficient
to prove exigency. Coyle, 95 Wash. 2d at 9-10. The lead opinion also notes that
"Muhammad's vehicle disappeared only after police discontinued surveillance,"
suggesting that he was on the mn. Lead opinion at 24. But the fact that Muhammad did
not leave until after Officer Boyd had left his surveillance post means nothing absent
something in the record suggesting that Muhammad knew that he was being surveilled in
the first place.
26
State V. Muhammad (Bisir Bilal), No. 96090-9
might be on the run or out destroying evidence is insufficient to prove by clear and
convincing evidence that exigent circumstances made it impractical to obtain a
warrant. Our jealously guarded and carefully drawn exigency exception to the
warrant requirement demands more.
The State also claims that Muhammad "posed a danger to the public." Suppl.
Br. of Resp't at 9. Of course, public safety is always the paramount concern of the
police. But this concern carmot override constitutional protections of privacy,
effectively swallowing the warrant requirement. The police cannot ignore the
constitutional rights of a suspect, no matter how heinous the crime being
investigated, and rationalize away the constitutional violation as one that kept the
public safe. Instead, the State must provide specific, articulable facts that exigent
circumstances made obtaining a warrant impractical at the time of the privacy
violation.^ Generic references to public safety do not meet that standard.
Under our "nearly categorical" exclusionary rule. State v. Winterstein, 167
Wash. 2d 620, 636, 220 P.3d 1226 (2009), we require "the suppression of evidence
obtained in violation of article I, section 7, with no exceptions that rely on
speculation, the likelihood of deterrence, or the reasonableness of official
misconduct." State v. Mayfield, 192 Wash. 2d 871, 888,434 P.3d 58(2019). Thus,the
® Relatedly, the court must focus its analysis on the facts as they existed at the time
of the violation.
27
State V. Muhammad (Bisir Bilal), No. 96090-9
next questions are what evidence was obtained in violation of that constitutional
privacy protection, and whether the error offailing to suppress that evidence and its
fruits was harmless beyond a reasonable doubt.
Neither the trial court nor the Court of Appeals answered those questions
because they concluded that the warrantless ping was lawful. CP at 218-26;
Muhammad,4 Wash. App. 2d at 50. I would remand this case to the Court of Appeals
with instructions to determine what evidence should have been suppressed as a direct
result or fruit of the unconstitutional ping (i.e., the poisonous tree) and whether any
error in failing to suppress that evidence was harmless beyond a reasonable doubt.
See RAP 13.7(b)("If the Supreme Court reverses a decision ofthe Court of Appeals
that did not consider all of the issues raised which might support that decision, the
Supreme Court will either consider and decide those issues or remand the case to the
Court of Appeals to decide those issues."). I believe that this is the proper route,
particularly in light of Mayfield, 192 Wash. 2d 871, an opinion published after the
Court of Appeals ruled in this case.
Conclusion
The trial court punished Muhammad twice for the same offense in violation
of state and federal constitutional protections against double jeopardy. A majority
of this court therefore reverses the Court of Appeals' decision on this point and
remands to the trial court to dismiss the lesser included offense.
28
State V. Muhammad (Bisir Bilal), No. 96090-9
A majority of this court further agrees that a "ping" is a search that must be
supported by a warrant or by one of the few carefully crafted and jealously guarded
exceptions to the warrant requirement. The lead opinion argues that one of those
exceptions, for exigent circumstances, applies here. I respectfully disagree; I would
hold that the State failed to carry its burden of proving that exception, and I would
reverse the Court of Appeals on this point but remand to that court to address the
difficult remaining questions of what evidence should have been suppressed and
whether failure to suppress was harmless beyond a reasonable doubt. I therefore
respectfully dissent on that point only.
29
State V. Muhammad (Bisir Bilal), No. 96090-9
30
State V. Muhammad (Bisir Bilal)
No. 96090-9
MADSEN,J.(concurring/dissenting)—Seven members of this court agree that a
defendant has a privacy interest in his or her location in the public sphere, preventing law
enforcement from "pinging" a person's cell phone without a warrant unless it falls under
one of our narrowly drawn exceptions to the search warrant requirement. Since exigent
circumstances existed in the present case, the lead opinion argues the "ping" was
justified. While I agree that the "ping" was justified, I disagree that a warrant was
required here, regardless of exigency. In my view, real-time CSLI (cell-service location
information) is analogous to serendipitous encounters with any other person while
traversing public highways. At any point in time, a person's location may be generally
revealed while traveling in the public sphere. Because a person does not have a privacy
right to his or her real-time location, I would hold the "ping" was justified, regardless of
whether a search warrant was executed.
I disagree, however, with the lead opinion's conclusion that cumulative
punishments for felony murder and rape do not violate double jeopardy. As charged, all
the elements of first degree rape are included in felony murder predicated on the rape. As
No. 96090-9
Madsen, J, concurring/dissenting
such, the crimes constitute one offense under Blockburger} I therefore agree with Justice
Gordon McCloud that felony murder and first degree rape must merge to protect Bisir
Bilal Muhammad from multiple punishments for a single crime. Accordingly, I concur
with the lead opinion regarding exigent circumstances and Justice Gordon McCloud's
opinion on the issue of double jeopardy.
Discussion
Article I, section 7 of the Washington State Constitution provides that "[n]o
person shall be disturbed in his private affairs, or his home invaded, without authority of
law." It is well settled that article I, section 7 is more protective than the Fourth
Amendment to the United States Constitution. A search under article I, section 7 occurs
when "those privacy interests which citizens of this state have held, and should be
entitled to hold, safe from governmental trespass." State v. Myrick, 102 Wash. 2d 506, 511,
688 P.2d 151 (1984). The threshold question, thus, is whether the real-time CSLl is a
"private affair." To determine that, we look at the "nature and extent of the information
which may be obtained as a result of the governmental conduct." State v. Miles, 160
Wash. 2d 236, 244, 156 P.3d 864 (2007).
The lead opinion concludes that our "prior precedent demonstrates that CSLl is a
'private affair,'" arguing that CSLl goes beyond "'augment[ing][an officer's] senses,"'
and likens obtaining location information to searching through personal text messages on
'Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,16 L. Ed. 306(1932).
2
No. 96090-9
Madsen, J, concurring/dissenting
a cell phone. Lead opinion at 9, 10. But the cases cited by the lead opinion for support
are very different from the use of a "ping" to obtain real-time CSLI.
For example, the lead opinion cites to the line of cases that held technology that go
beyond lightly augmenting an offieer's senses constitutes a search. See id. But these
cases are inapt. In State v. Jackson, we were concerned with the use of precise location
technology that can record a person's movement through "uninterrupted, 24-hour a day
surveillance." 150 Wash. 2d 251, 262, 76 P.3d 217(2003). This type of surveillance is
particularly intrusive because it is "unlikely that the sheriffs department could have
successfully maintained uninterrupted 24-hour surveillance [for two and one-half
weeks]." Id. A person does not reasonably expect to be surveilled over the course of
several weeks with every movement tracked in his or her personal vehiele. Thus, we
rejected the use of GPS (global positioning system)teehnology to surveil the historical
movements of an individual. The same concern was raised in State v. Young, where we
rejected the use ofthermal imaging surveillance to detect heat patterns inside a home
without the exeeution of a warrant. 123 Wash. 2d 173, 182-84, 867 P.2d 593 (1994). We
rejeeted the use of sueh teehnology without a warrant because when a person resides in a
home,that person would not expect his or her walls to be transparent for any law
enforcement officer to observe what goes on behind closed doors.
This same rationale was applied to stored files on a personal cellular device where
a citizen does not reasonably expect that his or her personal device eould be aeeessed at
any time should the government wish to peruse the contents stored in a person's cell
No. 96090-9
Madsen, J, concurring/dissenting
phone. Thus, we required law enforcement to obtain a warrant to access personal text
messages in State v. Hinton, likening those conversations to "phone calls, sealed letters,
and other traditional forms of communication that have historically been strongly
protected under Washington law." 179 Wash. 2d 862, 869-70, 319 P.3d 9(2014).
Here, rather than prolonged government surveillance, or historical cataloging of an
unsuspecting private citizen's movements over a period oftime, what is at stake is freely
transmitted data that a person voluntarily gives in exchange for unfettered and
instantaneous use of a personal device. When a person chooses to carry a cell phone, he
or she knowingly exchanges the device's location information for on-demand use of the
phone's cellular activities. Thus, at any given time while one traverses the public sphere,
that person is able to use all cellular functions of the device as it communicates with
nearby cell towers. A private citizen is not unaware of this interaction because he or she
knows that in order for the cell phone to function, it must physically be in range of the
cell towers, thereby revealing generally the phone and its owner's current location in the
public sphere.
Moreover, CSLI is not so precise as to raise concerns of the technological
exactitude raised with GPS tracking devices on personal vehicles. Rather than
pinpointing an individual's exact location, CSLI provides a generalized location area. As
noted in Carpenter v. United States, CSLI is a combination of what cell site was used to
cormect to a phone and what antenna made that connection to create a record. U.S.
, 138 S. Ct. 2206, 2225, 201 L. Ed. 2d 507(2018)(Kermedy, J., dissenting). "By
No. 96090-9
Madsen, J, concurring/dissenting
linking an individual's cell phone to a particular 120- or 60-degree sector of a cell site's
coverage area at a particular time, cell-site records reveal the general location ofthe eell
phone user." Id. Importantly, the record is "imprecise, because an individual cell-site
sector usually covers a large geographic area," meaning that "in urban areas[,] eell-site
records often . . . reveal the location of a cell phone user within an area eovering between
around a dozen and several hundred city blocks." Id. "In rural areas[,] cell-site records
can be up to 40 times more impreeise. By eontrast, a[GPS] ean reveal an individual's
location within around 15 feet." Id.
It is important to note the imprecision of this technology. Real-time CSLI simply
provides a generalized location of where a cell phone may be. This does not come elose
to revealing the private details of a person's activities, as in Jackson or Young. The
police are still required to respond to that location to determine the actual location ofthe
individual. This is precisely what occurred here. See 1 Verbatim Tr. ofProceedings at
57. The lead opinion's fears of Orwellian government surveillance resulting from real
time CSLI use is unwarranted at this stage ofthe technology. Our job is to consider the
faets and cireumstances in this ease and evaluate whether a person has a protectable
privacy interest by considering "the nature and extent of the information which may be
obtained as a result of the governmental conduet." Miles, 160 Wash. 2d at 244. The only
information that is revealed with the "ping" here is the eurrent, general location of
defendant's vehicle.
No. 96090-9
Madsen, J, concurring/dissenting
Finally, reliance on Carpenter, related to real-time CSLI, is improper here as well.
At issue before that Court was a comprehensive collection of CSLI records over a period
oftime. There the Court found a privacy interest related to that collection of location
records that could paint a picture of a person's daily movements, similar to having 24-
hour surveillance on a private citizen. Important here is that the majority in Carpenter
explicitly declined to extend application of its holding outside of CSLI records. 138 S.
Ct. at 2220("Our decision today is a narrow one. We do not express a view on matters
not before us: real-time CSLI or 'tower dumps'(a download of information on all the
devices that connected to a particular cell site during a particular interval)."). Real-time
CSLI is not a historical record of a person's movements, nor is it precise in tracking and
cataloging a person's movements. The extension of Carpenter to the case before us is
unwarranted. For the reasons discussed above, I would hold that there is no privacy
interest in real-time CSLI under article I, section 7 or the Fourth Amendment.
Turning to double jeopardy, I agree with Justice Gordon McCloud. Because
felony murder encompasses all of the elements of first degree rape, they constitute one
crime. See Blockburger, 284 U.S. at 304. Murder is not felony murder without the
underlying felony. Therefore, rape must merge into the more serious offense offelony
murder so that Muhammad is not subject to multiple punishments for a single crime as
proscribed by the double jeopardy clause of our federal and state constitutions. Opinion
of Gordon McCloud, J., at 8-10; U.S. CONST, amend. V; WASH. CONST, art. I, § 9.
No. 96090-9
Madsen, J, concurring/dissenting
Conclusion
Real-time CSLI provides a generalized loeation of a person's cell phone location
but still requires police offieers to respond to the area and actually locate the individual.
Such technology does not provide pinpoint accuracy of a person's location akin to GPS
technology and does not reveal private information or a historical record of a person's
activities. Moreover, a person freely transmits data from his or her phone for unfettered
access to a phone's suite of capabilities, thereby voluntarily providing a general physical
location to a cell tower. I would hold a warrant was not required here because an
individual does not have a reasonable expectation of privacy in real-time CSLI. I would
also hold that because the offenses for felony murder and rape are one offense for the
purposes of double jeopardy, they must merge. Respectfully, I concur in part and dissent
in part.
No. 96090-9