State v. Muhammad

• Citation: 451 P.3d 1060
• Decision Date: 07 November 2019
• Docket Number: No. 96090-9,96090-9
• Parties: The STATE of Washington, Respondent, v. Bisir B. MUHAMMAD, Petitioner.
• Court: United States State Supreme Court of Washington

451 P.3d 1060

The STATE of Washington, Respondent,

v.Bisir B. MUHAMMAD, Petitioner.

No. 96090-9

Supreme Court of Washington.

Argued February 21, 2019

Filed NOVEMBER 07, 2019

Andrea Burkhart, Two Arrows, PLLC, 8220 W. Gage Blvd. #789, Kennewick, WA, 99336, for Petitioner.

Benjamin Curler Nichols, Asotin County Prosecutors Office, Po Box 220, Asotin, WA, 99402-0220, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

Rita Joan Griffith, Attorney at Law, 4616 25th Ave. Ne, Pmb 453, Seattle, WA, 98105-4523, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

WIGGINS, J.

¶1 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.

¶2 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.

¶3 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).

¶4 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.

¶5 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

¶6 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.

¶7 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.

¶8 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.

¶9 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.

¶10 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.

¶11 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.

¶12 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.

¶13 Muhammad denied any involvement in the rape and murder and eventually asked for legal counsel.

¶14 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.

¶15 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.

¶16 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.

¶17 Muhammad appealed his convictions. State v. Muhammad, 4 Wash. 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.

¶18 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

¶19 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

¶20 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 Wash.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.").

¶21 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 ...