State v. MuhammadState v. Muhammad
Case Information
*1 F I L E\ This opinion was IN CLERKS OFFICE X. 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 No. 96090-9 THE STATE OF WASHINGTON, Respondent, En Banc V. Filed mjum
BISIR B. MUHAMMAD, 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 *3 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. *4 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 multiplе 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 Wn. App. 2d
31,
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.
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 Wn.2d
862, 867-77,
The United States Supreme Court recently summarized this cell phone
location technology in Carpenter v. United States,
U.S. ,
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,
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,
seizure falls within one of the jealously guarded and carefully drawn exceptions to
the warrant requirement. State v. Miles,
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,
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,
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.
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,
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,
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
Wn.2d at 869 (alteration in original) (quoting United States v. Jones,
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
Wn.2d 262, 270,
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,
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 *13 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,
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 *14 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."
"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,
A Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as reasonable. Kyllo v.
United States,
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,
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,
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,
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,
state of Washington v. Muhammad (Bisir B.), No. 96090-9
location information." Tracey v. State,
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,
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,
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,
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,
by individual police officers.'" Tracey,
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,
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,
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.
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,
® 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,
^ 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.
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,
We begin with the presumption that warrantless searches are per se
unreasonable under our state constitution. Hendrickson,
The warrant requirements must yield when exigent circumstances demand
that police act immediately. State v. Cuevas Cardenas,
We have identified five circumstances that could be termed exigent: hot pursuit, fleeing suspect, danger to arresting officer or the public, mobility of a state of Washington v. Muhammad (Bisir B.), No. 96090-9
vehicle to be searched, and mobility or destruction of evidence. State v. Tibbies,
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,
To prove exigent circumstances, the State must '"point to specific,
articulable facts and the reasonable inferences therefrom which justify the
intrusion.'" State v. Coyle,
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,
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. 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,
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,
challenge must determine whether, in light of legislative intent, the charged crimes
constitute the same offense." In re Pers. Restraint of Orange,
Federal double jeopardy is largely guided by the Blockburger test.
Blockburger v. United States,
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 dеtermine 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,
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,
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 state of Washington v. Muhammad (BisirB.), No. 96090-9
statutes. See Calle,
Next, if the legislative intent is not clear from the statutory text, we may turn
to statutory construction and the "same evidence" test. Calle,
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,
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 Wn.2d state of Washington v. Muhammad (BisirB.), No. 96090-9
798, 804,
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,
The felony murder provision,
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,
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);
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
Wn.2d at 777; Harris v. Oklahoma,
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,
The fundamental issue is whether the legislature intended to authorize
multiple punishments for criminal conduct that violates more than one
statute. Calle,
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
of legislative intent described below, this information is persuasive. See Calle, 125 Wn.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.,
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
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,
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,
P.2d at 680 (citing additional cases in support): cf. Cook v. State,
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,
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,
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,
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 Wn.2d
736, 751,
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,
Applying these three factors, we would conclude thаt 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
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,
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
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,
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-/
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 of his private affairs.
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 *41 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 of the 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 рolice 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 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 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 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
[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 of the participants ... .lb
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.
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
Wn. App. 2d 31, 50,
The jury found Muhammad guilty of both сounts, 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,
Analysis
I. Double Jeopardy
The double jeopardy clause of the United States Constitution provides that no
person shall "be subject for the same offence to be twice put in jeopardy of life or
limb."
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,
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,
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,
^ Blockburger v. United States,
State V. Muhammad (Bisir Bilal), No. 96090-9
offense. State v. Jackman,
We begin our analysis with the plain language of the statutes—where we look
to see if the legislature expressly told us that both punishments are permissible.
Calle,
We turn next to the Blockburger test. Jackman,
but not all, of the 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,
[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 of crime (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,
First degree rape is unquestionably a lesser included offense of felony murder
based on first degree rape. First degree rape is composed of some, but not all, of the
elements of felony murder—in fact, the felony murder statute incorporates the
elements of first degree rape by reference.
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,
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.
murder conviction but only beсause 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 of felony murder without committing a completed
first degree rape.
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,
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,
^ 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 affectеd two federal officers.
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
*54
cross-referenced material in full. Cf. State v. Eckblad,
P.3d 1184 (2004) (denying vagueness challenge to statute that cross-referenced federal regulations). The legislaturе 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,
courts may impose separate punishment." State v. Berg,
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,
We subsequently explained that our analysis in Johnson squared perfectly *56 with the United States Supreme Court's analysis in Whalen. Vladovic, 99 Wn.2d at State V. Muhammad (Bisir Bilal), No. 96090-9
419 (citing Whalen,
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,
More recently, and also unanimously. Division Three of the Court of Appeals
held that attempted first degree robbery merges with first degree felony murder
*57
based on that attempted robbery. State v. Williams,
P.3d 98 (2006), adhered to on remand,
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,
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
In the latter of those two opinions, Saunders, a divided panel provided a more
thorough analysis than the one found in Peyton. See
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
Wn.2d at 680-81; see also Berg,
of," or "in immediate flight []from" the underlying felony.
The majority in Saunders avoided this result by reasoning that all three
underlying felonies had a purpose other than facilitating murder.
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 of the 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,
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 *61 "distinguishable from the subsequent murder." Id. at 823. But when it comes to 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,
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 *62 Wn. 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 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.
868-69,
One jealously guarded and carefully drawn exception is for exigent
circumstances. State v. Cuevas Cardenas,
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,
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 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 of the 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,
^ 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,
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 еxigent 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
Wn.2d 620, 636,
® Relatedly, the court must focus its analysis on the facts as they existed at the time of the violation.
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 of failing 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,
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 *68 remands to the trial court to dismiss the lesser included offense.
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.
State V. Muhammad (Bisir Bilal), No. 96090-9
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 jeоpardy. As charged, all *71 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,
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
*72
' Blockburger v. United States,
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."
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 *73 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."
Here, rather than prolonged government surveillance, or historical cataloging of an unsuspecting private citizen's movements over a period of time, 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 рersonal 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.
,
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 of the 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 of the
individual. This is precisely what occurred here. See 1 Verbatim Tr. of Proceedings at
57. The lead opinion's fears of Orwellian government surveillance resulting from real
time CSLI use is unwarranted at this stage of the 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,
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 of time. 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,
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