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.
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.
and his ex-wife, Brenda,  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
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.
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.
was charged with attempted first degree murder, first degree
arson, and first degree assault. He unsuccessfully moved to
suppress the seized clothing. 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
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
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
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
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
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 ...