In State v. McKee, the WA Supreme Court held that when an appellate court vacates a conviction that is obtained with illegally seized evidence, the remedy is remand to the trial court with an order to suppress evidence and not out-rightly dismiss the case in its entirety.
A jury convicted Mr. McKee of four counts of possessing Depictions of Minors Engaged in Sexually Explicit Conduct. The Court of Appeals reversed those convictions on the ground that police had used an overbroad search warrant to obtain the underlying cell phone photos and videos.
The Court of Appeals reversed the conviction. Although the Court of Appeals provided no reasoning to justify that remedy, it appears to have thought dismissal was warranted because once the cell phone evidence was suppressed, there would be insufficient evidence to sustain the convictions at a second trial.
The State appealed on arguments that the Court of Appeals mistakenly reversed the conviction. It argued that dismissal was inappropriate because that testimony—i.e., the evidence that was not tainted by the invalid search warrant— would be sufficient to sustain the Possessing Depictions convictions on retrial.
Whether the Court of Appeals erred when it dismissed the convictions after suppressing the cell phone evidence, thus barring any possibility of a retrial.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court held that the typical remedy for a Fourth Amendment violation is suppression, not dismissal. Furthermore, the remedy of dismissal typically applies only when a conviction is reversed for insufficient evidence or the government’s misconduct has prejudiced the defendant and materially affected the possibility of a fair trial.
“The logic underlying this rule is that a reversal for insufficiency is tantamount to an acquittal, but a reversal for any other trial court error is not,” reasoned the WA Supreme Court. “A reversal for insufficiency indicates the government had its chance and failed to prove its case, while a reversal for another trial error indicates only that the defendant was convicted through a flawed process.”
This rule applies whenever the erroneous admission of evidence requires reversal, including when error stems from an illegal search or seizure.
“Thus, in a case like this one, an appellate court does not evaluate the sufficiency of the untainted evidence remaining after suppression. Provided the total evidence (tainted and untainted) was sufficient to sustain the verdict, the remedy is limited to reversal and suppression.”
With that, the WA Supreme Court reversed the Court of Appeals and remanded to the trial court for further proceedings consistent with the order to suppress evidence seized as a result of the faulty warrant.
Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges involving a questionable search and seizure. Briefing and arguing a well-supported 3.6 Motion to Suppress Evidence could ultimately result in the charges getting dismissed.