WA: Where search of house was void, court of appeals erred in applying attenuation where the state didn’t raise it

Where the trial court found the search of the house illegal from its inception, the court of appeals erred in finding attenuation on its own where the state didn’t raise it. State v. Ibarra-Cisneros, 172 Wn.2d 880, 263 P.3d 591 (2011) (rev’g State v. Ibarra-Raya, 145 Wn. App. 516, 187 P.3d 301 (2008)) with two dissents:

¶9 Here, the Court of Appeals affirmed Ibarra-Cisneros’s conviction by sua sponte applying the attenuation doctrine as an exception to the exclusionary rule. It did not consider the joint treatment of Ibarra-Raya’s and Ibarra-Cisneros’s suppression motions below or the lack of a record at the CrR 3.6 hearing on the factors it articulated as supporting an attenuation analysis. Accordingly, the Court of Appeals erred in relying on the attenuation doctrine as the basis to allow the cocaine evidence against Ibarra-Cisneros.

¶10 This case does not require us to consider whether Ibarra-Cisneros has a protectable privacy interest at stake, as the State did not raise this issue below, and there is some indication that the State affirmatively waived this issue when it agreed that the brothers’ suppression motions should be treated similarly. For the same reason, there is no question here that Ibarra-Cisneros has standing to challenge the search of his brother’s home. In a different case, similar facts may raise issues of standing or the extent of the petitioner’s protectable privacy interest, but these issues were not raised below by the State, and we will not consider them for the first time on appeal, particularly in the absence of adequate briefing.

¶11 In light of the way this case has developed, the only fair resolution of Ibarra-Cisneros’s appeal is to treat it as the Court of Appeals treated Ibarra-Raya’s appeal. The State has not met its burden of purging the taint resulting from the unlawful home search. Rather than reaching for issues not raised below, we return this case to where it started with the acknowledgement that, because the warrantless home search was unlawful, all evidence seized as a result must be suppressed. We reverse the Court of Appeals.

Defendant’s search claim could not be raised for the first time on appeal because there was no development of the record. State v. Fenwick, 164 Wn. App. 392 (October 18, 2011).