451 P.3d 1060
Wash.2019Background
- Nov. 2014: 69‑year‑old Ina Richardson was found raped and strangled; surveillance video showed her walking toward a distinctive maroon sedan at a grocery store.
- Police later stopped that sedan and identified the driver as Bisir B. Muhammad; officers obtained his cell number and observed him thereafter while seeking a warrant to search the vehicle.
- Surveillance was lost after an officer left; police then obtained a warrantless carrier "ping" of Muhammad’s phone, located him and his vehicle in Idaho, seized the phone and impounded the car.
- Evidence from the car (blood, condoms matching a condom wrapper at the crime scene, lubricant, gloves) and limited DNA linked Muhammad to the victim; he was charged with first‑degree rape and felony murder predicated on rape.
- Muhammad moved to suppress evidence obtained as a result of the warrantless ping; the trial court denied the motion on exigent‑circumstances grounds, a jury convicted him, and he appealed.
- Washington Supreme Court: (1) held that a cell‑phone ping is a search under both Wash. Const. art. I, § 7 and the Fourth Amendment (7‑justice agreement); (2) a 6‑justice plurality upheld the particular warrantless ping here as justified by exigent circumstances; and (3) by a 5‑4 vote the court held the rape and felony‑murder convictions violate double jeopardy and remanded to dismiss the lesser‑included offense.
Issues
| Issue | Plaintiff's Argument (Muhammad) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1) Is a warrantless carrier "ping" of a cell phone a constitutionally protected search, and if so was the warrantless ping here permissible? | A ping reveals protected CSLI (real‑time location) under Wash. Const. art. I, § 7 and the Fourth Amendment; warrant required and evidence should be suppressed. | Police may obtain real‑time CSLI without a warrant when exigent circumstances exist (or, per a concurrence, a one‑time real‑time ping is not a protected search). | Court: A ping is a search under state and federal law. By a 6–3 vote the warrantless ping here was permissible because exigent circumstances justified bypassing a warrant (result: suppression denied). |
| 2) Do convictions for first‑degree rape and felony murder predicated on that same rape violate double jeopardy / must they merge? | Rape is an element of the felony‑murder charge as tried and proved, so conviction and punishment on both constitute multiple punishments for the same offense. | The legislature intended to punish rape and felony murder separately (different statutory chapters and distinct societal harms); Blockburger and statutory context allow cumulative punishment. | Court: By 5–4 vote the convictions violate double jeopardy; the rape conviction (the lesser‑included offense) must be dismissed and the case remanded. |
Key Cases Cited
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (historical CSLI implicates privacy; warrant required for historical CSLI; reasoning applies to real‑time CSLI privacy concerns)
- Riley v. California, 573 U.S. 373 (2014) (cell phones contain vast personal data; heightened privacy protection)
- Jackson v. State, 150 Wn.2d 251 (2003) (GPS tracking is a technological substitute for visual surveillance and implicates privacy)
- State v. Hinton, 179 Wn.2d 862 (2014) (text messages are private affairs under art. I, § 7)
- State v. Myrick, 102 Wn.2d 506 (1984) (defining "search" under Wash. Const. art. I, § 7 by intrusion into private affairs)
- State v. Miles, 160 Wn.2d 236 (2007) (analysis framework for whether government conduct intrudes on private affairs)
- State v. Coyle, 95 Wn.2d 1 (1980) (exigency requires specific, articulable facts and reasonable inferences)
- State v. Hendrickson, 129 Wn.2d 61 (1996) (warrantless searches presumptively unreasonable; burden on State to show an exception)
- State v. Tibbies, 169 Wn.2d 364 (2010) (factors relevant to exigent‑circumstances analysis involving vehicles and evidence mobility)
- Blockburger v. United States, 284 U.S. 299 (1932) (same‑elements test for double jeopardy/statutory construction)
- Whalen v. United States, 445 U.S. 684 (1980) (multiple punishments strand of double jeopardy and merger analysis)
- State v. Calle, 125 Wn.2d 769 (1995) (legislative‑intent inquiry can overcome Blockburger presumption)
- In re Pers. Restraint of Francis, 170 Wn.2d 517 (2010) (discussion of merger when felony murder and predicate felony involve same victim)
- State v. Smith, 165 Wn.2d 511 (2009) (exigency defined: delay would jeopardize officer safety, facilitate escape, or permit destruction of evidence)