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State v. Muhammad

Supreme Court of Washington, En Banc

November 7, 2019

THE STATE OF WASHINGTON, Respondent,
v.
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 McCloud, J.

         Although 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).

         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 later revealed that Richardson's vaginal canal had been lacerated and torn by the forcible insertion of a blunt object.

         The 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.

         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, 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"[1] 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 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.[2] 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 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 murder.

         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, 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 published decision.

         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. 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.

         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, 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 cell phones.").

         The 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 Court explained:

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.

         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, 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).

         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, 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).

         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, 160 Wn.2d at 244.

         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, 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 affairs").

         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. 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 observation." Id.

         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, 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.

         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-Ill (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, 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).

         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, 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."

         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, 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 citizen supports").

         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 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, 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 freedoms.")).

         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 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." 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 it."

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).

         A 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 privacy test).

         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, 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.

         Nevertheless, 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.[3]

         "[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, 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)).

         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, 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").

         Arguments against Carpenter's application to real-time CSLI focus on the limited nature of the information provided CSLI and the third-party doctrine.[4]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, 152 So.3d at 520 (quoting United States v. Wilford, 961 F.Supp.2d 740, 771 (D. Md. 2013)).

         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, 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.

         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, 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).

         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, 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).

         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." Id.[5] 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.

         Overall, similar to our discussion of the Washington State Constitution, [6]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).[7] 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.

         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,129 Wn.2d 61, 71, 917 P.2d 563 (1996); Carpenter, 138 S.Ct. at 2222-23 (noting that when exigent circumstances arise, ...


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