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State v. Morgan

Supreme Court of Washington, En Banc

May 16, 2019


          Gonzalez, J.

         David Morgan was convicted by a jury of first degree assault, attempted murder, and arson. A bloodstain pattern analysis performed on his clothing suggested he was in close proximity to the victim when she suffered her injuries. We must decide if the warrantless seizure of his clothing, which officers reasonably concluded contained evidence, was justified by an exception to the warrant requirement.

         Based on our inconsistent articulation of the plain view doctrine, the Court of Appeals found that the State was required to establish inadvertence as a separate element and reversed Morgan's convictions. We hold inadvertence is not a separate element required under the plain view doctrine, reinstate Morgan's convictions, and remand to the Court of Appeals for further proceedings in that court.


         Morgan and his ex-wife, Brenda, [1] shared custody of their daughter. About the time Brenda came to pick up their daughter from Morgan's house, Morgan's house was in flames. Firefighters found Morgan kneeling in his driveway, hair singed and barely able to speak. A firefighter repeatedly asked Morgan if anyone was in the burning house. After a period of silence, Morgan directed firefighters to the garage, where Brenda was lying in a pool of blood. Brenda was nonresponsive and badly injured, with multiple lacerations on her head, fractures, and severe burns on her upper body. Morgan and Brenda's clothing smelled of gasoline. Medics transported them to separate hospitals, observing blood on Morgan's clothing.

         A supervising officer promptly told Officer Christopher Breault to "collect Morgan's clothing [from the hospital] and try to get an initial statement." Clerk's Papers (CP) at 208. A crime scene technician was also dispatched to collect Brenda's clothing.

         Officer Breault spoke with Morgan in his hospital room for hours. Morgan disclosed that his daughter was safe at Morgan's mother's home during the fire. Morgan said he woke up to find his house on fire. He said he then found Brenda in his house with her sweater burning and tried to help her remove it. At some point during their conversation, Officer Breault noticed that hospital staff had put Morgan's clothing in "several plastic shopping like bags" and left his clothing on the counter in Morgan's hospital room. 1 Verbatim Report of Proceedings (Feb. 4, 2016) at 151, 154-55. The officer later testified that it "was almost like [the clothing was] in like some sort of gift bag; it looked like it had a hospital logo on it. And they were just regular plastic bags that you could get at a store." Id. at 158. When the crime scene technician arrived with arson bags designed to preserve evidence, he and Officer Breault secured Morgan's clothing. Officer Breault also secured a utility knife with dried blood on the handle from a counter near the clothing. Hospital staff told Officer Breault they found the knife in Morgan's clothing.

         Morgan was charged with attempted first degree murder, first degree arson, and first degree assault. He unsuccessfully moved to suppress the seized clothing.[2] The trial court rejected the State's plain view argument because Officer Breault did not find it inadvertently and he could not examine the clothing without removing it from the plastic hospital bags. Nonetheless, the trial court found that the removal of Morgan's clothing was justified by exigent circumstances because "there are special bags that have been designed and are available to put clothing and other items into so as to preserve that particular evidence." Id. at 182.

         The Court of Appeals found the State had not met its burden of establishing exigent circumstances because it had not shown applying for a warrant would have resulted in a loss of evidence. It also rejected the State's claim that the plain view doctrine applied because Officer Breault did not smell gasoline or see blood through the plastic hospital bags or come across it inadvertently. The State sought, and we granted, review. State v. Morgan, 191 Wn.2d 1026 (2018).


         We are faced with a warrantless seizure of clothing associated with criminal activity. Under the robust privacy protections of our constitution, any state intrusion into private affairs must be done under "authority of law." Wash. Const, art. I, § 7. "Authority of law" generally means a warrant or a well-established exception to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) (citing City of Seattle v. McCready, 123 Wn.2d 260, 273, 868 P.2d 134 (1994)). The plain view doctrine and exigent circumstances are well-established exceptions. We hold the State failed to establish that exigent circumstances justified the intrusion, but it did justify the intrusion under the plain view doctrine.

         We agree with the Court of Appeals' conclusion that the State did not meet its burden to show that exigent circumstances existed when Officer Breault seized Morgan's clothing. The State "must establish the exception to the warrant requirement by clear and convincing evidence." State v. Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266 (2009) (citing State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990)). Critically, the exigent circumstance "exception requires a compelling need for officer action and circumstances that make the time necessary to secure a warrant impractical." State v. Baird, 187 Wn.2d 210, 221, 386 P.3d 239 (2016) (plurality opinion) (citing Missouri v. McNeely, 569 U.S. 141, 149-50, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013)). While the State had a legitimate concern that trace evidence on Morgan's clothing could be contaminated by Morgan or hospital staff, the officers exhibited no urgency in collecting the clothing, which sat undisturbed on the counter for hours, including when Morgan was alone with hospital staff.

         We disagree, however, with the Court of Appeals' application of the plain view doctrine. We have been inconsistent in articulating the elements the State must establish to justify a warrantless intrusion under the plain view doctrine. We have said the plain view doctrine applies "when the police (1) have a valid justification to be in an otherwise protected area and (2) are immediately able to realize the evidence they see is associated with criminal activity." State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007) (citing State v. Myers, 117 Wn.2d 332, 346, 815 P.2d 761 (1991)). But in some cases, we have also articulated a third element, inadvertence. See, e.g., State v. Kull, 155 Wn.2d 80, 85 & n.4, 118 P.3d 307 (2005).[3]

         We take this opportunity to clarify the law. Properly understood, there is no separate inadvertence requirement in the plain view doctrine. Officers are not restricted to seizing evidence solely when they come across the evidence unintentionally and inadvertently. As the United States Supreme Court held, "[I]nadvertence is a characteristic of most legitimate 'plain-view' seizures" but "it is not a ...

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