Washington’s “silver platter doctrine” that evidence lawfully obtained in another jurisdiction will be admitted into evidence there, even if Washington law would have been violated by the search in Washington, is retained and followed. The search warrant for child pornography was particular because it referred to the statute and mentioned pornography. State v. Vance, 2019 Wash. App. LEXIS 1724 (July 2, 2019):
I. Silver Platter Doctrine
Vance argues that the trial court improperly applied the silver platter doctrine in denying his motion to suppress. We disagree.
In reviewing a trial court’s ruling on a motion to suppress, we determine whether substantial evidence supports the challenged findings of fact and whether the findings support the trial court’s conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). We review the trial court’s conclusions of law de novo. Id.
A. Scope of the Silver Platter Doctrine
The silver platter doctrine allows evidence that was lawfully obtained under the laws of another jurisdiction to be admitted in Washington courts, even if the discovery of that evidence would have violated Washington law. State v. Mezquia, 129 Wn. App. 118, 132, 118 P.3d 378 (2005). The doctrine has limitations, however, in order to prevent the government from using more lenient rules in other jurisdictions to circumvent the limitations of Washington law. See id. at 133. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully obtained evidence, and (2) the forum state’s officers did not act as agents or cooperate with or assist the foreign jurisdiction, or vice versa. Id. at 133 “‘[A]ntecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers may sufficiently establish agency and serve to bring the conduct of the federal agents under the color of state law.'” State v. Brown, 132 Wn.2d 529, 587, 940 P.2d 546 (1997) (quoting State v. Gwinner, 59 Wn. App. 119, 125, 796 P.2d 728 (1990)). “‘On the other hand, mere contact, awareness of ongoing investigations or the exchange of information may not transmute the relationship into one of agency.'” Id. (quoting Gwinner, 59 Wn. App. at 125).
For example, we have held that there existed an inappropriate level of cooperation where Washington officers accompanied DEA agents to the defendant’s property, took aerial photographs at the DEA’s request, and turned those photographs over to the DEA. State v. Johnson, 75 Wn. App. 692, 700-01, 879 P.2d 984 (1994). On the other hand, “[w]here the officials of the foreign jurisdiction gathered evidence independently and then contacted Washington police officers, our courts have concluded there [was] not an inappropriate level of cooperation.” Mezquia, 129 Wn. App. at 133. Even where Washington law enforcement alerted federal agents to possible illegal activity without directing federal agents on how to proceed, that was not enough to make the federal officers agents of the State. See Gwinner, 59 Wn. App. at 125-26.
B. Constitutionality of the Silver Platter Doctrine
Vance first asks us to reject the silver platter doctrine altogether, asserting that Washington’s continued application of the doctrine violates article I, section 7 of the Washington Constitution. Vance argues that we should follow the United States Supreme Court’s holding in Elkins v. United States, 364 U.S. 206, 223, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960) (“[E]vidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.”).
However, Washington courts, including our Supreme Court, have consistently applied the silver platter doctrine with respect to evidence obtained from foreign jurisdictions. See, e.g., Brown, 132 Wn.2d 529; Gwinner, 59 Wn. App. 119; Johnson, 75 Wn. App. 692. Washington courts have reasoned that under federalism principles, state constitutions do not dictate federal action and no legitimate state interests would be furthered by forbidding transfer of criminal evidence from federal to state authorities when the evidence was lawfully obtained by federal agents. Brown, 132 Wn.2d at 586-87. We follow our state’s precedent and apply the silver platter doctrine to the facts of this case.
