by Douglas Ankney

The Supreme Court of Washington affirmed the warrantless search of Bisir Bilal Muhammad’s real-time cell-site location information (“CSLI”) based on exigent circumstances. However, the Court also held that Muhammad’s convictions for first-degree felony murder predicated on rape and for first-degree rape violated double jeopardy.

In November 2014, Ina Claire Richardson was last seen alive on surveillance video walking toward a “distinctive maroon sedan” in the parking lot of a local grocery store in Clarkston, Washington. Richardson’s naked body was later discovered lying by the side of a road. She had been raped and strangled.

Days later, a law enforcement officer spotted a vehicle with the same distinctive features and conducted a traffic stop. Muhammad was driving the vehicle. He denied being in the parking lot on the night of the crime, but the officer obtained his cellphone number before letting him go.

Based on information from the traffic stop, police dispatched an officer to surveil Muhammad while a warrant was obtained to search his vehicle. For unknown reasons, the officer failed to maintain surveillance, and when police arrived at Muhammad’s apartment, he was gone.

The police “pinged” Muhammad’s cellphone without a warrant. The ping placed him in Lewiston, Idaho. Washington and Idaho police located Muhammad in a field working on a fence.

Police seized his cellphone and impounded his vehicle. Based on evidence seized from Muhammad’s vehicle and his cellphone, he was charged with rape and felony murder.

He moved to suppress the evidence on the grounds that the warrantless pinging of his cellphone was an unreasonable search. The trial court denied his motion. A jury convicted Muhammad of first-degree felony murder and first-degree rape. He was sentenced to two consecutive terms totaling 866 months.

On appeal, he argued, inter alia, that the trial court erred in denying his suppression motion and that his convictions for both felony murder predicated on rape and for first-degree rape violated double jeopardy. The Court of Appeals affirmed, and the Supreme Court of Washington granted Muhammad’s petition for review.
The Court observed that Article I, § 7 of the Washington State Constitution provides “[n]o person shall be disturbed in his private affairs or his home invaded, without authority of law.” This provision is qualitatively different from the Fourth Amendment of the U.S. Constitution because Article I, § 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 Areola, 290 P.3d 983 (Wash. 2012). That is, the Washington Constitution “provides greater protections” than the U.S. Constitution, the Court explained.

According to the Court, prior precedent demonstrates that CSLI is a private affair. State v. Jackson, 76 P.3d 217 (2003); State v. Young, 867 P.2d 593 (1994). The preceding lines of cases established the principle that “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.” In contrast, use of technology that goes beyond merely augmenting a law enforcement officer’s senses and serves as a “technological substitute” for the officer’s senses constitutes a search.

CSLI tracks a cellphone and its owner by recording the phone’s transmissions to cell towers and is analogous to using a global positioning system (“GPS”) to track an individual’s movements. In Jackson, the court determined that use of GPS is a search because GPS provides a “technological substitute for visual tracking” and is not comparable to a flashlight or binoculars that merely enhance an officer’s visual perception to see in the dark or to follow a vehicle on the highway.

CSLI can be used to locate persons in other states, far from an officer’s ability to detect using only his “enhanced” natural sense perceptions. CSLI is stored by the phone-service provider and records all the places to where a person has traveled, exposing a “wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.” United States v. Jones, 565 U.S. 400 (2012). Thus, historical and real-time CSLI reveal things people would rather keep private, such as trips to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, ... and on and on.” Id. And in Carpenter v. United States, 138 S. Ct. 2206 (2018), the U.S. Supreme Court held that historical CSLI is protected by the Fourth Amendment.

The Washington Supreme Court opined that the reasoning of Carpenter applies to real-time CSLI as well because, just as with historical data, real-time CSLI provides “near perfect surveillance” that is “remarkably easy, cheap, and efficient compared to traditional investigative tools” that may “alter the relationship between citizen and government that is inimical to democratic society.” Carpenter.
Because the State failed to procure a warrant prior to pinging Muhammad’s cellphone, the evidence obtained must be suppressed unless the State could prove that an exception to the warrant requirement applied. State v. Hendrickson, 917 P.2d 563 (Wash. 1996). No warrant is required when exigent circumstances demand that police act immediately. State v. Cuevas Cardenas, 57 P.3d 1156 (Wash. 2002).

Under the facts of this case, the Court determined the State had proved exigent circumstances existed because Muhammad was in flight, there was the possibility he was destroying evidence, the evidence was in a mobile vehicle, and his suspected crimes were grave and violent charges — all necessitating that police act quickly without obtaining a warrant. State v. Tibbles, 236 P.3d 885 (Wash. 2010).

The Court then turned its attention to Muhammad’s double jeopardy claim, observing that the “double jeopardy clause of the United States Constitution provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” U.S. Const. amend. V. Article I, § 9 of the Washington State Constitution provides the same protections.

Muhammad did not allege he was subjected to multiple trials for the same offense; rather, he argued he was punished twice for the same rape. In that context, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359 (1983).

To determine legislative intent, the court first looks “to the language of the pertinent statutes to determine if they expressly authorize multiple punishments for conduct that violates more than one statute.” State v. Louis, 120 P.3d 936 (Wash. 2005). Absent express authorization, the court applies a rule of statutory construction known alternatively as the “same evidence” test, the “same elements” test, or the “Blockburger [v. United States, 284 U.S. 299 (1932)]” test. Also, the “merger doctrine” helps to determine legislative intent “where the degree of one offense is elevated by conduct constituting a separate offense.” State v. Kier, 194 P.3d 212 (Wash. 2008). If the legislative intent remains unclear, the court applies the rule of lenity and vacates the conviction on the lesser offense. State v. Jackman, 132 P.3d 136 (Wash. 2006).

The Court began its analysis in the instant case by comparing the felony murder and rape statutes with Washington’s burglary statute: “Every person who, in the commission of a burglary shall commit any other crime, may be punished therefore as well as for the burglary, and may be prosecuted for each crime separately.” RCW 9A.52.050. But the statutes for felony murder and for rape do not similarly authorize multiple punishments. And under the Blockburger test, “[f]or double jeopardy purposes, a lesser included offense is the ‘same offense’ as the greater offense.” Brown v. Ohio, 432 U.S. 161 (1977). A “lesser included offense” is “[a] crime that is composed of some, but not all, of the elements of a more serious crime and that is necessarily committed in carrying out the greater crime.” Black’s Law Dictionary 1301 (11th ed. 2019).

Similarly, the merger doctrine requires that a lesser included offense merge “into a more serious offense when a person is charged with both crimes, so that the person is not subject to double jeopardy.” Id. However, if the underlying felony is separate and distinct from the killing, an exception to the merger doctrine applies. State v. Saunders, 86 P.3d 232 (Wash. App. 2004). The felony murder statute demands that a jury find that the death occurred “in the course of,” “in the furtherance of,” or “in immediate flight [ ]from” the underlying felony. RCW 9A.32.030(1)(c). Because “the underlying felony must have intimate relation and close connection with the killing and must not be separate, distinct, and independent from it,” the felony murder doctrine and the exception to the merger doctrine cannot coexist. State v. Diebold, 277 P. 394 (Wash. 1929).

The Court determined that “[f]irst degree rape is unquestionably a lesser included offense of felony murder based on first degree rape. First degree rape is composed of some, but not all, of the elements of felony murder—in fact, the felony murder statute incorporates the elements of first degree rape by reference.” Therefore, the legislature clearly indicated that in order to prove first degree felony murder, the State must prove the defendant caused someone’s death and that the killing was accompanied by rape as defined elsewhere in the criminal statutes.

The Court concluded that exigent circumstances existed to justify the pinging of Muhammad’s cellphone, and the trial court properly denied the suppression motion. However, the convictions for felony murder based upon rape and for first-degree rape violate the protections against double jeopardy.

Accordingly, the Court affirmed the judgment of the Court of Appeals that affirmed the denial of the motion to suppress but reversed the Court of Appeals on the double jeopardy claim and remanded to the trial court to dismiss the lesser included offense. See: State v. Muhammad, 451 P.3d 1060 (Wash. 2019).

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Writer’s note: The Court determined that State v. Saunders, 86 P.3d 232 (Wash. App. 2004), and State v. Peyton, 630 P.2d 1362 (Wash. App. 1981), were wrongly decided, but the Court neither expressly overruled nor disavowed those decisions. 

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