The Origin and Development of Washington's Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy

Underlying any court's analysis of the exclusionary rule are certain basic theoretical elements that determine whether a court takes a unitary or a bifurcated approach to exclusion. To determine what theoretical elements underlie the Washington rule, the court must familiarize itself with the state rule's long history of independent application, which has never been fully explored. The court must also recognize the historical relationship between the state exclusionary rule and certain provisions of the Declaration of Rights. 6 Analysis of the Washington exclusionary rule's development reveals that, at minimum, exclusion is constitutionally compelled as the most effective remedy available to vindicate the defendant's right to privacy.

Moreover, failing to exclude violates the framers' intention to incorporate the exclusionary rule in the state privilege against compelled self-incrimination contained in article 1, section 9. Finally, a failure to exclude eviscerates the defendant's article 1, section 7 rights in violation of the state due process guarantee contained in article 1, section 3.