158 P.3d 27 (Wash. 2007), 75312-1, State v. Athan

Docket Nº:75312-1.
Citation:158 P.3d 27, 160 Wn.2d 354
Opinion Judge:Charles W. Johnson, Justice. C. JOHNSON, J.
Party Name:STATE of Washington, Respondent, v. John Nicholas ATHAN, Appellant.
Attorney:John Rolfing Muenster, Muenster & Koenig, Seattle, WA, for Appellant., Catherine Marie Mcdowall, King County Prosecutor's Office, Seattle, WA, for Respondent., Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, John Wesley Hall, Little Rock, AR, for Amicus Curiae on behalf ...
Case Date:May 10, 2007
Court:Supreme Court of Washington

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158 P.3d 27 (Wash. 2007)

160 Wn.2d 354

STATE of Washington, Respondent,


John Nicholas ATHAN, Appellant.

No. 75312-1.

Supreme Court of Washington, En Banc.

May 10, 2007

Argued Jan. 26, 2006.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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John Rolfing Muenster, Muenster & Koenig, Seattle, WA, for Appellant.

Catherine Marie McDowall, King County Prosecutor's Office, Seattle, WA, for Respondent.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, John Wesley Hall, Little Rock, AR, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers and National Association of Criminal Defense Lawyers.

Fredric Tausend, Theodore J. Angelis, Kirkpatrick & Lockhart Preston Gates Ellis, Seattle, WA, Stanley Brooke Taylor, Port

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Angeles, WA, for Amicus Curiae on behalf of Washington State Bar Association.

Douglas B. Klunder, Seattle, WA, for Amicus Curiae on behalf of American Civil Liberties Union of Washington.

Charles W. Johnson, Justice.

[160 Wn.2d 361] ¶ 1 John Nicholas Athan, appeals his conviction for second degree murder, arguing the case presents unique and fundamental issues of broad public import. Athan first argues his DNA (deoxyribonucleic acid) was collected in violation of both the United States and Washington State Constitutions when Seattle Police Department [160 Wn.2d 362] detectives, posing as a fictitious law firm, induced Athan to mail a letter to the firm, from which Athan's DNA sample was extracted. Second, Athan argues the actions of the police detectives were illegal and unfairly prejudiced his right to a fair trial, requiring dismissal of the case under CrR 8.3(b). Athan asks this court to reverse his conviction and remand the case with instructions to dismiss with prejudice. In the alternative, Athan argues the trial court erred in several evidentiary rulings and asks this court to remand for a new trial with instructions to exclude certain evidence. We find the collection of Athan's DNA did not violate the state or federal constitution, the actions of the police did not require dismissal under CrR 8.3(b), and the trial court did not err in its evidentiary rulings. The conviction of the appellant is affirmed.


¶ 2 On November 12, 1982, Seattle police officers found the body of 13-year-old Kristen Sumstad inside a cardboard box in the Magnolia neighborhood of Seattle. Except for a pair of socks, Sumstad's body was nude from the waist down and a ligature was found around her neck. Although no DNA was found under her fingernails, semen was found in Sumstad's vagina and on her leg. An autopsy also revealed microscopic hemorrhaging or bruising in Sumstad's anus, bruising and contusions on Sumstad's face, neck, and legs, and a possible abrasion on her labia. The medical examiner estimated that Sumstad had died between 8 to 24 hours Before her body was discovered. Verbatim Report of Proceedings (VRP) (January 12, 2004) at 76.

¶ 3 The area where Sumstad's body was found, an alley behind a television store, was a hangout of local neighborhood teenagers, including Sumstad and the appellant, John Nicholas Athan. Police claim Athan's brother reported seeing Athan transporting a "large box" on a "grocery cart" near the area where Sumstad was found. VRP (January 13, 2004) at 126. Athan told police that he had been in the neighborhood stealing firewood the night Before Sumstad's [160 Wn.2d 363] body was found. VRP (January 13, 2004) at 125-26. Although the police investigated leads related to Athan, he was not charged, and the crime remained unsolved.

¶ 4 Twenty years later, the Seattle Police Department's (SPD) cold case detectives unit reexamined the case and sent preserved biological evidence from the crime scene to the Washington State Patrol Crime Lab. Advances in DNA analysis allowed the lab to isolate a male DNA profile. The profile was tested against state and federal databases, but no match was found. Because Athan had been a suspect at the time of the original investigation, detectives decided to locate his whereabouts and collect a DNA sample for comparison.

¶ 5 The detectives located Athan in New Jersey and also determined, because Athan had family in Greece, he represented a flight risk. The detectives invented a ruse to obtain Athan's DNA without making Athan aware they had resumed investigating Sumstad's murder. Posing as a fictitious law firm, the detectives sent Athan a letter inviting him to join a fictitious class action lawsuit concerning parking tickets. The letterhead contained the names of the "attorneys," all of whom were employed by the SPD. Believing the ruse to be true, Athan signed, dated, and returned the enclosed class action authorization form and attached a hand-written note stating, "if I am billed for any of your services disregard my signature and my participation completely." Ex. 53.

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¶ 6 Athan's reply was received by Detective Diaz, one of the "attorneys" listed on the letterhead. Without opening it, Diaz gave the letter to another detective who forwarded it to the crime lab. A lab technician opened the letter, removed and photographed the contents, cut off part of the envelope flap, and obtained a DNA profile from saliva located on the flap. The DNA profile from the envelope matched the DNA profile from the semen found on Sumstad's body. Based primarily on the results of the DNA testing, the prosecuting attorney filed an information and probable cause statement to secure an arrest warrant for Athan.

[160 Wn.2d 364] ¶ 7 After obtaining the warrant, two detectives flew to New Jersey to arrest Athan. After reading Athan his Miranda1 rights, but Before arresting him or advising him they already had an arrest warrant for him, the detectives questioned Athan about Sumstad's murder. Athan denied ever having sex with Sumstad or using a grocery cart to carry a box on the night of the murder. VRP (January 13, 2004) at 125-26. Athan admitted to using a handcart to steal firewood from a neighbor in the area on the night Before the body was found. VRP (January 13, 2004) at 125. When detectives asked Athan for a DNA sample, he stated, "I don't like where this is going," and "maybe I should call my attorney." Clerk's Papers (CP) at 253; VRP (November 19, 2003) at 75. The interview ceased and the detectives arrested Athan pursuant to the arrest warrant. The detectives obtained a second DNA sample from Athan pursuant to a search warrant. The second DNA sample matched the sample from the envelope and from Sumstad's body.

¶ 8 The State filed first degree murder charges against Athan. Athan made several pretrial motions, including suppression of the DNA evidence and dismissal of the case under State v. Knapstad, 41 Wn. App. 781, 706 P.2d 238 (1985), aff'd, 107 Wn.2d 346, 729 P.2d 48 (1986), and dismissal under CrR 8.3(b) based on RCW 2.48.180 (unlawful practice of law), RCW 9.73.020 (opening sealed letter), due process, and public policy. The trial court denied all of the motions. Additionally, at the end of the State's case, Athan moved for dismissal which the trial court also denied. Athan was found guilty of second degree murder and sentenced to 10 to 20 years under pre-sentencing reform act guidelines. We granted direct review of Athan's appeal.


I. Did the detectives violate the state or federal constitution when they obtained a sample of Athan's DNA without a warrant?

[160 Wn.2d 365] II. Did the trial court err when it denied Athan's motion to dismiss under CrR 8.3(b)?

III. Did the trial court err when it denied Athan's other evidentiary motions?


I. Did Detectives Violate the State or Federal Constitution when they Obtained Athan's DNA without a Warrant?

¶ 9 When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). Under the Washington Constitution, it is well established that article I, section 7 qualitatively differs from the Fourth Amendment to the United States Constitution, and in some areas provides greater protections than does the federal constitution. State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 (2002). Accordingly, a Gunwall2 analysis is unnecessary to establish that this court should undertake an independent state constitutional analysis.3

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State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003); McKinney, 148 Wash.2d at 26, 60 P.3d 46.

¶ 10 The only relevant question is whether article I, section 7 affords enhanced protection in the particular context. McKinney, 148 Wash.2d at 26-27, 60 P.3d 46.

A. Article I, Section 7

¶ 11 Article I, section 7 reads "[n]o person shall be disturbed in his private affairs, or his home invaded, [160 Wn.2d 366] without authority of law" and requires a two-step analysis: was there a disturbance of one's private affairs and, if so, was the disturbance authorized by law. In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196 (1997). Athan argues this case involves three matters that are "private affairs" under Washington law: one's body and bodily functions; communications with a person one believes is an attorney; and sealed correspondence intended for one's attorney. We examine each of these claims separately to determine if any one of them constitutes a "private affair" under our state constitution.

¶ 12 The term "private affairs" generally means "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass." State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d...

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