WA: Second SW for records already produced was independent source; exclusionary rule won’t be applied

Verizon produced phone records under a court order, that later was determined to be invalid. A second order was issued for the same records. Verizon didn’t produce those records the second time because the first had been produced and they were still in the hands of the police. This is a corollary of the independent source doctrine and it does not create a good faith exception to the warrant requirement. Applying the exclusionary rule here would serve no purpose. State v. Betancourth, 2018 Wash. LEXIS 211 (Mar. 22, 2018):

¶28 Applying the exclusionary rule in this case simply does not advance the objectives underlying the rule. To always require the physical reseizure of evidence initially seized unlawfully but later authorized would go beyond protecting the privacy interests of individuals in this state and would not serve the ends of justice. Toppenish police had a valid warrant for Betancourth’s records, and he was in no worse position at trial than had the initial warrant not issued. “‘The exclusionary rule is a sanction, and sanctions are supposed to be proportioned to the wrong-doing that they punish.’” United States v. May, 214 F.3d 900, 906-07 (7th Cir. 2000) (internal quotation marks omitted) (quoting United State v. Markling, 7 F.3d 1309, 1315 (7th Cir. 1993)).

¶29 While we affirm the Court of Appeals, we do not see this case as necessitating any “corollary” to the well-established independent source doctrine. The facts of this case simply represent a new application of the existing doctrine that does not diminish the constitutional protections guaranteed by article I, section 7. While it is appropriate to recognize the admissibility of the phone records under the independent source doctrine in this case, the result might be different if we were faced with a different set of facts.

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