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Washington Supreme Court Rules Attenuation Doctrine Inapplicable Where Police Illegally Seize Person Followed by Ferrier Warnings and Consent to Search, Evidence Must Be Suppressed

by Douglas Ankney

The Supreme Court of Washington held that the federal attenuation doctrine is not incompatible with the exclusionary rule of article I, section 7 of the Washington State Constitution if the attenuation is narrowly applied only to instances “where unforeseeable circumstances genuinely sever the causal connection between official misconduct and the discovery of evidence.”

John Douglas Mayfield fled from his truck while it was parked in Derek Salte’s driveway. He left the engine running and windshield wipers operating. Salte called the police. Deputy Andy Nunes arrived and turned off the truck’s engine. He determined the truck belonged to Mayfield and was not reported as stolen. Nunes then spotted Mayfield across the street, attempting to pass by without making contact. Believing Mayfield’s behavior to be odd, Nunes crossed the street to speak with Mayfield. 

Mayfield said he parked in Salte’s driveway because he needed to use the restroom at a nearby church and because he was having vehicle problems. He fled because he feared Salte would shoot him. Nunes did not suspect Mayfield of committing any crime, of being under the influence of intoxicants, or of being armed. But after running Mayfield’s identification for warrants, Nunes learned Mayfield was a convicted felon and “had prior contacts in regards to controlled substances.” 

Nunes questioned Mayfield about his drug use and asked if he had anything illegal on his person. He then asked for consent to conduct a pat-down search, telling Mayfield he could refuse.

Mayfield consented, and Nunes found $464 bundled in a way that caused Nunes to suspect “the money was the result of drug transactions.” Nunes then asked for consent to search the truck, again informing Mayfield he could refuse or limit the search. Mayfield consented, and Nunes arrested Mayfield after finding methamphetamine in the truck. He was charged with possession of a controlled substance with intent to deliver.

Mayfield moved to suppress the money and the methamphetamine, arguing that Nunes unlawfully seized him and his consent was nullified by the illegal detention. The State argued that the attenuation doctrine applied in this case. The trial court found that Mayfield was unlawfully seized. But Nunes’ warnings to Mayfield that he could refuse consent (known as “Ferrier warnings” from State v. Ferrier, 960 P.2d 927 (Wash. 1998)) was an intervening circumstance that attenuated the evidence from the unlawful seizure. Mayfield was convicted, and he appealed – arguing that the doctrine of attenuation is incompatible with article I, section 7, or alternatively, the Ferrier warnings failed to satisfy the attenuation doctrine. After the Court of Appeals affirmed, the Supreme Court of Washington granted discretionary review.

To decide the constitutional claim, the Court distinguished the purpose of Washington’s exclusionary rule in article I, section 7 from that of the federal exclusionary rule. 

The purpose of Washington’s exclusionary rule is to protect the individual right to privacy. State v. White, 640 P.2d 1061 (Wash. 1982). The purpose of the federal exclusionary rule is to deter police from violating citizens’ Fourth Amendment rights. Weeks v. United States, 232 U.S. 383, (1914). Both require evidence to be suppressed in all federal and state prosecutions when it is obtained as a result of police misconduct.

Because the purpose of the federal rule is deterrence, there are numerous exceptions to allow the admission of illegally seized evidence if suppression would not have a deterrent effect. But Washington’s exclusionary rule does not allow any exception that “does not disregard illegally obtained evidence.” State v. Alfana, 233 P.3d 879 (Wash. 2010). If evidence is illegally obtained, then it must be suppressed to protect personal rights.

However, the Court ruled that if there was an unforeseeable intervening circumstance that severed the obtained evidence from police misconduct, then the evidence is admissible because, in effect, the evidence was not unlawfully obtained. For example, in Wong Sun v. United States, 371 U.S. 471 (1963), the defendant was arrested without probable cause. He was released after arraignment but voluntarily returned several days later to confess. The U.S. Supreme Court ruled his confession was admissible because it was not a result of his unlawful arrest but was a result of his own free will. Wong Sun’s voluntary return was an unforeseeable intervening circumstance that severed his confession from the initial police misconduct. The Washington Supreme Court ruled that the attenuation doctrine is compatible with article I, section 7 in these narrow types of circumstances. The Court went on to rule, however, that Nunes’ Ferrier warnings did not satisfy the attenuation doctrine because the warnings were not an unforeseeable intervening circumstance. To rule otherwise would permit the admission of unlawfully obtained evidence as long as police had remembered afterward to use the appropriate “magic words.”

Since there was not an unforeseeable intervening circumstance in Mayfield’s case, the state attenuation doctrine does not apply and the suppression motion should have been granted. Accordingly, the Court reversed and remanded for further proceedings consistent with its opinion. See: State v. Mayfield, 434 P.3d 58 (Wash. 2019). 


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