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.
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
the ping was a search conducted 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).
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.
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.
AND PROCEDURAL HISTORY
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 later revealed that Richardson's
vaginal canal had been lacerated and torn by the forcible
insertion of a blunt object.
night she was killed, 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 lot 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.
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.
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,
and then return home. For reasons unknown, this officer
suspended surveillance and left Muhammad's apartment
complex. When the officer returned, Muhammad's vehicle
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
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.
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 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
denied any involvement in the rape and murder and eventually
asked for legal counsel.
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.
police obtained a search warrant for Muhammad's cell
phone records. The records showed multiple calls to
Muhammad's wife on the night Richardson was murdered.
These calls connected to multiple cell towers, indicating
that Muhammad was moving. One such cell tower placed Muhammad
in the location where Richardson's body was found.
Muhammad was arrested and charged with rape and felony
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
appealed his convictions. State v. Muhammad, 4
Wn.App. 2d 31, 419 P.3d 419 (2018). Among other things, he
argued that cell phone location data is a privacy interest
protected by article I, section 7 and the Fourth Amendment
and that the warrantless cell phone ping was improper. He
also argued that exigent circumstances did not exist and that
his convictions violated double jeopardy. The Court of
Appeals declined to review the constitutional question,
concluding that exigent circumstances justified the
warrantless search. The court affirmed both convictions in a
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.
trial court did not err by denying Muhammad's motion to
have a constitutional privacy right to their cell phone
location data. Wash. Const, art. I, § 7. The warrantless
ping of Muhammad's cell phone 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.
the state and federal constitutions protect cell phone
location data from warrantless searches
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, 319
P.3d 9 (2014) (reviewing an individual's privacy
expectations in text messages under article I, section 7). Of
particular concern is a phone's ability to operate as a
"24-hour" surveillance tool, collecting and
transmitting information about the location of the phone and
its user. See In re Order Authorizing Release of
Historical Cell-Site Info., 809 F.Supp.2d 113, 115
(E.D.N.Y. 2011) ("For many Americans, there is no time
in the day when they are more than a few feet away from their
United States Supreme Court recently summarized this cell
phone location technology in Carpenter v. United States,
__U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). The
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.
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.
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
Washington State Constitution
I, section 7 provides that "[n]o person shall be
disturbed in his [or her] private affairs, or his [or her]
home invaded, without authority of law." It is well
established that this provision is qualitatively different
from the Fourth Amendment and provides greater protections.
State v. Mayfield, 192 Wn.2d 871, 878, 434 P.3d 58
(2019) (citing State v. Gunwall, 106 Wn.2d 54, 720
P.2d 808 (1986)). Article I, section 7 "is grounded in a
broad right to privacy" and protects citizens from
governmental intrusion into their private affairs without the
authority of law. State v. Chacon Arreola, 176 Wn.2d
284, 291, 290 P.3d 983 (2012).
article I, section 7, a search occurs when the government
disturbs "those privacy interests which citizens of this
state have held, and should be entitled to hold, safe from
governmental trespass absent a warrant." State v.
Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). The
"authority of law" required by article I, section 7
is a valid warrant, unless the State shows that a search or
seizure falls within one of the jealously guarded and
carefully drawn exceptions to the warrant requirement.
State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864
(2007); State v. Rife, 133 Wn.2d 140, 150-51, 943
P.2d 266 (1997).
determine whether governmental conduct intrudes on a private
affair, we look at the "nature and extent of the
information which may be obtained as a result of the
governmental conduct" and at the historical treatment of
the interest asserted. Miles, 160 Wn.2d at 244.
court's prior precedent demonstrates that CSLI is a
"private affair." Two lines of cases support this
outcome: (1) those concerning the method by which police
obtain information, e.g., State v. Jackson, 150
Wn.2d 251, 262, 76 P.3d 217 (2003) (stating that certain
technology "does not merely augment [a law enforcement
officer's] senses, but rather provides a
technological substitute for traditional visual
tracking" (emphasis added)); State v.
Young, 123 Wn.2d 173, 182-84, 867 P.2d 593 (1994)
(recognizing that police use of an infrared thermal device to
detect heat distribution patterns within a home undetectable
by human senses is particularly intrusive and exceeded
article I, section 7 privacy protection), and (2) those
recognizing the vast stores of personal details contained in
electronic devices, e.g., Hinton, 179 Wn.2d at
869-70 (holding text messages are "private
first line of cases, concerning the methods used by the
police to obtain the information, we may look to
Jackson and Young for guidance. 150 Wn.2d
at 263; 123 Wn.2d at 183. In Jackson, we disagreed
with the State that the use of a GPS (global positioning
system) device to track a suspected individual on his travels
was tantamount to following him on public roads. Id.
at 261. Generally, we noted, when law enforcement may detect
something by using one or more of his or her senses, even if
lightly augmented, the detection does not constitute a
search. State v. Seagull, 95 Wn.2d 898, 901, 632
P.2d 44 (1981). It is lawful to use binoculars to better view
a suspect or to brandish a flashlight to illuminate what
could plainly be seen by day. But unlike binoculars or
flashlights, a GPS device does more than merely "augment
[an officer's] senses," it provides a
"technological substitute for traditional visual
tracking." Jackson, 150 Wn.2d at 262. In
Young, we explained that infrared thermal imaging
surveillance enabled law enforcement to "'see
through the walls'" of a home and to go well beyond
the enhancement of natural senses. 123 Wn.2d at 183. Such a
device is a "particularly intrusive means of
to the GPS device in Jackson and the thermal imaging
surveillance in Young, a cell phone ping provides a
"technological substitute for traditional visual
tracking." Jackson, 150 Wn.2d at 262. When law
enforcement loses sight of a suspected individual, officers
need merely ask a cellular service carrier to ping that
individual's phone and almost instantaneously police
acquire data on the suspect's past and present location.
This location tracking technique does substantially more than
binoculars or flashlights; it enables officers to see farther
than even the walls of a home-it pierces through space and
time to pinpoint a cell phone's location and, with it,
the phone's owner.
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-Ill
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, 565 U.S.
400, 415, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Sotomayor,
J., concurring)). While pinging reveals only a cell phone
owner's location, it is similar to text messages because
it can reveal the same intimate details as phone calls,
letters, and other forms of communication strongly protected
under state law. Id. at 869-70; see also State
v. Roden, 179 Wn.2d 893, 321 P.3d 1183 (2014) (holding
that a text message conversation is a private affair).
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, 375 P.3d 1082 (2016). We observed that many modern cell
phones are in fact "'minicomputers that also happen
to have the capacity to be used as a telephone. They could
just as easily be called cameras, video players, rolodexes,
calendars, tape recorders, [etc.].'" Id. at
271 (quoting Riley v. California, 573 U.S. 373, 393,
134 S.Ct. 2473, 189 L.Ed.2d 430 (2014)). Easily added to this
list is a "24-hour GPS tracking device."
and real-time CSLI, like text messages, reveal an intensely
intimate picture into our personal lives. Our cell phones
accompany us on trips taken to places we would rather keep
private, such as "'the psychiatrist, the plastic
surgeon, the abortion clinic, the AIDS treatment center, the
strip club, the criminal defense attorney, the by-the-hour
motel, the union meeting, the mosque, synagogue or church,
the gay bar and on and on.'" Jones, 565
U.S. at 415 (Sotomayor, J., concurring) (quoting People
v. Weaver, 12 N.Y.3d 433, 441-42, 909 N.E.2d 1195, 882
N.Y.S.2d 357 (2009)). This type of information, revealed by
our public movements, can expose personal details about
family, politics, religion, and sexual associations. See
Hinton, 179 Wn.2d at 869; Samalia, 186 Wn.2d at
270; see also Miles, 160 Wn.2d at 246 (holding that
banking records are protected by article I, section 7 because
they "may disclose what the citizen buys . . . [and]
what political, recreational, and religious organizations a
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 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).
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.
state constitution "'clearly recognizes an
individual's right to privacy with no express
limitations'." Young, 123 Wn.2d at 180
(quoting State v. Simpson, 95 Wn.2d 170');">95 Wn.2d 170, 178, 622
P.2d 1199(1980) (plurality opinion)). Protecting the
sensitive information gleaned from our location from
unfettered state scrutiny "is essential for freedom of
association and expression." Hinton, 179 Wn.2d
at 877 (citing Jones, 565 U.S. at 416 (Sotomayor,
J., concurring) ("Awareness that the government may be
watching chills associational and expressive
United States Constitution
also argues that his cell phone location data is protected by
the Fourth Amendment pursuant to the recent United States
Supreme Court decision in Carpenter. Although
Carpenter expressly covers only historical, i.e.,
prior, CSLI, its reasoning applies to real-time CSLI.
Fourth Amendment protects "[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const,
amend. IV. The United States Supreme Court has stated that
"searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment-subject only to a few
specifically established and well-delineated
exceptions." The exceptions are "jealously and
carefully drawn," and there must be "a showing by
those who seek exemption . . . that the exigencies of the
situation made that course imperative." "[T]he
burden is on those seeking the exemption to show the need for
Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91
S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion)
(alterations in original) (footnotes omitted). Under the
exclusionary rule, evidence obtained in violation of the
Fourth Amendment is ordinarily excluded from the criminal
trial of a defendant whose rights were violated by an illegal
search or seizure. Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (extending exclusionary
rule to state courts).
Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as
reasonable. Kyllo v. United States, 533 U.S. 27, 33,
121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Katz v. United
States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967) (Harlan, J., concurring) (establishing the two-pronged
Supreme Court has recently applied this in a context
remarkably similar to the case before us. In
Carpenter, the Court reviewed whether a warrantless
cell phone ping and the resulting historical CSLI data
violated the Fourth Amendment. Writing for the majority,
Chief Justice John Roberts explained that allowing government
access to CSLI "contravenes" society's
expectation that law enforcement will not secretly monitor
and catalog an individual's movements. 138 S.Ct. at 2217
(citing Jones, 565 U.S. at 430 (Alito, J.,
concurring in judgment)). The Court held that the data
constitutes private information for the purposes of the
Fourth Amendment. Id. at 2217-19. As such, acquiring
an individual's historical CSLI requires a warrant based
on probable cause. Id. at 2221. The Court cautioned,
however, that its decision was narrow and did not express a
view on matters not directly before it, namely the
constitutionality of acquiring real-time CSLI without a
warrant-such as the cell phone location data at issue here.
Id. at 2220.
Carpenter's reasoning applies to real-time CSLI.
Comparing historical CSLI to GPS monitoring, the
Carpenter Court noted that "time-stamped data
provides an intimate window into a person's life,
revealing not only his [or her] particular movements, but
through them . . . 'familial, political, professional,
religious, and sexual associations."' Id.
at 2217 (quoting Jones, 565 U.S. at 415 (Sotomayor,
J., concurring)). This data presents greater privacy concerns
even than GPS as it provides "near perfect
surveillance" that is "remarkably easy, cheap, and
efficient compared to traditional investigative tools."
Id. at 2217-18.
short-term monitoring" can generate a
"comprehensive record of a person's public movements
that reflects a wealth of detail about her familial,
political, professional, religious, and sexual
associations" that can be stored and mined for the
future. Jones, 565 U.S. at 415 (Sotomayor, J.,
concurring). More concerning is the State's ability to
utilize technology's substantial monitoring and tracking
features at low cost, which may "'alter the
relationship between citizen and government in a way that is
inimical to democratic society.'" Id. at
416 (quoting United States v. Cuevas-Perez, 640 F.3d
272, 285 (7th Cir. 2011)(Flaum, J., concurring)).
should take into account the substantial monitoring and
tracking capabilities of technology in considering the
existence of a reasonable expectation of privacy in public
movement. Jones, 565 U.S. at 416 (Sotomayor, J.,
concurring). In so doing, "[a]ll of these concerns and
conclusions about GPS tracking [as set out in Jones]
also apply to tracking and monitoring by use of real time
cell site location information." Tracey v.
State, 152 So.3d 504, 519 (Fla. 2014). Accordingly, a
cell phone user has a reasonable expectation of privacy in
real-time CSLI, and the collection of location data
implicates the Fourth Amendment. Id. at 516, 526;
see also In re Order Authorizing Disclosure of Location
Info, of Specified Wireless Tel., 849 F.Supp.2d 526, 539
(D. Md. 2011) (finding that a suspect "has a reasonable
expectation of privacy ... in his location as revealed by
real-time location data").
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
the argument that an isolated cell phone ping offers limited
information and therefore does not implicate the Fourth
Amendment appears to advance what federal courts have deemed
the "mosaic" theory. Under this theory, discrete
acts of law enforcement surveillance may be lawful in
isolation but may otherwise intrude on reasonable
expectations of privacy in the aggregate because they
"'paint an "intimate picture" of a
defendant's life.'" Tracey, 152 So.3d
at 520 (quoting United States v. Wilford, 961
F.Supp.2d 740, 771 (D. Md. 2013)).
first glance, the mosaic theory presents an attractive answer
to whether a singular cell phone ping constitutes a Fourth
Amendment search. But federal courts have recognized the
practical problems inherent in this theory when traditional
surveillance becomes a search only after some specific period
of time elapses. Wilford, 961 F.Supp.2d at 772
(citing United States v. Graham, 846 F.Supp.2d 384,
401-03 (D. Md. 2012)). As Graham noted,
"discrete acts of law enforcement are either
constitutional or they are not." 846 F.Supp.2d at 401.
For instance, to conclude that one cell phone ping is not a
search, provided it lasts less than six hours, yet hold
multiple or longer pings do qualify as search is not
a workable analysis. See Commonwealth v. Estabrook,
472 Mass. 852, 858, 38 N.E.3d 231 (2015) (concluding no
warrant is required to obtain historical CSLI relating to a
period of six hours or less). There is no rational point to
draw the line; it is arbitrary and unrelated to a reasonable
expectation of privacy.
than offering analysis based on a reasonable expectation of
privacy, the mosaic theory instead requires a case-by-case,
ad hoc determination of whether the length of time of a cell
phone ping violated the Fourth Amendment. It offers little
guidance to courts or law enforcement and presents the
"danger that constitutional rights will be arbitrarily
and inequitably enforced." Oliver v. United
States, 466 U.S. 170, 181-82, 104 S.Ct. 1735, 80 L.Ed.2d
214 (1984). "'[I]f police are to have workable
rules, the balancing of the competing interests . . . must in
large part be done on a categorical basis-not in an ad hoc,
case-by-case fashion by individual police
officers.'" Tracey, 152 So.3d at 521
(alterations in original) (internal quotation marks omitted)
(quoting Riley, 573 U.S. at 398).
the third-party doctrine does not permit a warrantless search
of CSLI after the Court's opinion in Carpenter.
Before Carpenter, some federal courts had concluded
there was no reasonable expectation of privacy in cell phone
location data in possession of third-party service providers.
E.g., United States v. Graham, 824 F.3d 421, 427
(4th Cir. 2016). The Carpenter Court explained that
the third-party doctrine has failed to keep pace with the
"seismic shifts in digital technology." 138 S.Ct.
at 2219. An individual may have a "diminished"
privacy interest in location data revealed to third parties,
but that alone does not mean "'the Fourth Amendment
falls out of the picture entirely.'" Id.
(quoting Riley, 573 U.S. at 392).
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." Id.
Carpenter therefore 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 Carpenter stated, individuals maintain an
expectation of privacy in the record of their physical
movements obtained from CSLI data. 138 S.Ct. at 2217.
similar to our discussion of the Washington State
Constitution, Fourth Amendment case law indicates that
individuals have a subjective expectation of privacy in the
location data transmitted by their cell phone.
Riley, 573 U.S. at 385 (cell phones are "a
pervasive and insistent part of daily life"). This is an
expectation that society recognizes as reasonable. See
Katz, 389 U.S. at 361 (Harlan, J.,
concurring). For these reasons, seven members of the
court agree that the ping is a search under both article I,
section 7 and the Fourth Amendment. See lead opinion
of Wiggins, J.; opinion of Gordon McCloud, J.
Exigent circumstances exist to justify the warrantless cell
the State failed to procure a warrant prior to pinging
Muhammad's cell phone, the evidence obtained pursuant to
the improper search is subject to suppression unless the
State proves that an exception to the warrant requirement
applies. State v. Hendrickson,129 Wn.2d 61, 71, 917
P.2d 563 (1996); Carpenter, 138 S.Ct. at 2222-23
(noting that when exigent circumstances arise, ...