State v. Budd ( 2016 )

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Petitioner, ) No. 91529-6
)
v. ) En Bane
)
MICHAELALLEN BUDD, )
) Filed MAY 19 2016
Respondent. )
)
WIGGINS, J.-The issue before us is whether police officers must give a
resident the Ferrierwarnings 1 before making a warrantless, consent-based entry into
the resident's home in order to seize an item containing suspected contraband. We
hold that the Ferrier warnings are required under such circumstances. In this case,
the trial court found that the officers did not give Michael Budd the Ferrier warnings
before making a warrantless, consent-based entry into Budd's home to seize his
computer. Based on this finding, the Court of Appeals correctly ruled that Budd's
consent was invalid. We therefore affirm the Court of Appeals.
1 As described later in this opinion, the rights contained within the Ferrier warnings are the
rights to refuse consent to search the home without a warrant, withdraw consent, and limit
the scope of the search. State v. Ferrier, 136 Wash. 2d 103, 118, 960 P.2d 927 (1998).
State v. a·udd (Michael Allen), No. 91529-6
FACTS
On January 15, 2009, the Washington State Patrol received an anonymous
cybertip from the National Center for Missing and Exploited Children. The tip alleged
that Budd possessed child pornography on his computer, used Internet messaging
services to communicate with minors, and bragged about molesting his nine-and-a-
half-year-old daughter. This tip also contained Budd's e-mail addresses and a copy
of two sexually explicit chat conversations.
With the information from the cybertip, Detective Kim Holmes obtained search
warrants for information from Yahoo! Inc. and Google Inc. regarding Budd's online
activities. However, these warrants did not lead to any relevant information regarding
what was alleged in the cybertip. Detective Holmes did not obtain any other search
warrants.
Without a search warrant, Detective Holmes, accompanied by two ·other
officers, went to Budd's home to ask for his permission to search his computer. The
officers met Budd in his driveway, and the trial court found that the following series
of events took place:
[Detective Holmes] explained why she was there and [Budd] approached
and admitted possessing hundreds of images depicting minors involved
in "sexually explicit conduct." Detective Holmes asked [Budd] for consent
to enter his home and search his computer. [Budd] asked if the detective
had a warrant. The detective replied that she would apply for a warrant
if he did not consent. [Budd] told the detective he did not want his
computer previewed in front of his girlfriend. The troopers agreed not to
view the computer's contents in view of [Budd's] gidfriend. The
Defendant then gave consent to entry of his home for the purpose of
searching his computer. Upon entering [Budd's] home and before
searching the computer, the troopers went over a written consent form
with [Budd,] which contained all the warnings associated with State v.
Ferrier, 136 [Wn.]2d 103, 960 P.2d 927 (1998). [Budd] signed the
2
State v. Budd (Michael Allen), No. 91529-6
document acknowledging. he understood and reaffirming his consent.
The troopers seized [Budd's] computer but did not arrest [Budd]. The
computer was later forensically analyzed and found to contain images of
child pornography. · ·
Clerk's Papers (CP) at 405.
Referencing the child pornography that the officers found on Budd's computer,
the officers applied for, and received, a warrant to return to Budd's home and seize
any additional computers and associated paraphernalia. When the officers executed
this warrant, they seized several additional computers, some of which also contained
child pornography. With this evidence, the State charged Budd with one count of
possession of depictions of a minor engaged in sexually explicit conduct in violation
of RCW 9.6SA.070. Budd filed a motion to suppress the evidence from his computer,
arguing in part that the search was illegal because the officers did not give him the
Ferrier warnings before entering his home.
After a hearing on the motion to suppress, which included testimony by
Detective Holmes, the trial court denied Budd's motion. Focusing exclusively on the
events that took place inside of Budd's home, the court concluded that
the troopers did not violate Ferrier by entering the home initially to go
over [Budd's] rights before commencing the search. There appears to be
no controlling authority on this question. But, the purpose of the Ferrier
·warnings is to prevent a search before advisement of rights. Here, no
search was conducted before [Budd] was advised of his Ferrier rights,
and the purpose of the Ferrier warnings was accomplished.
CP at 407;
Thereafter, the trial coUii found Budd guilty· in a bench trial based on stipulated
materials, including Detective Holmes's police report and testimony from the
suppression hearing. Budd appealed his conviction on the ground that the evidence
3
State v. Budd (Michael Allen), No ..91529-6.
from his computer should have been suppressed because the officers did not give
him the Ferrier warnings before entering his home. The Court of Appeals, Division
Three, reversed in a split decision. State v. Budd, 186 Wash. App. 184, 207, 347 P.3d
49 (2015). The Court of Appeals reasoned that the trial court necessarily found that
Budd was not given the Ferrier warnings before entering the home, and Ferrier
mandates that Budd should have received the warnings before the officers entered
his home. /d. at 199, 205-07. We granted the State's petition for review.
ANALYSIS
We hold that Budd's consentwas invalid because the officers did not give him
the Ferrier warnings before entering his home. In Section II of this opinion, we
reaffirm our Ferrier rule and hold that it applies to this case. In Section Ill, we hold
Budd's consent was invalid based on the trial court's finding that the officers did not
give Budd the Ferrier warnings before entering his horne.
I. Standard of review
We review constitutional issues de novo. State v. Gresham, 173 Wash. 2d 405,
419, 269 P.3d 207 (2012). When a trial court denies a motion to suppress, we also
review that court's conclusions of law de novo. State v. Winterstein, 167 Wash. 2d 620,
628, 220 P.3d 1226 (2009).
II. Ferrier applies to this case
A. Officers conducting a knock and talk must give the resident the Ferrier
warnings before entering the home
Washington's Constitution states that "[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority of law." WASH. CONST. art. I, §
4
State v. Budd (Michael Allen), No. 91529-6
7. Article I, section 7 encompasses the privacy expectations protected by the Fourth
Amendment to the United States Constitution and in some cases may provide
greater protection than the Fourth Amendment because the section 7 protections are
not confined to the subjective privacy expectations of citizens. State v. Myrick, 102
Wash. 2d 506, 510-11, 688 P.2d 151 (1984). A search under article I, section 7 "occurs
when the government disturbs 'those privacy interests which citizens of this state
have held, and should be entitled to hold, safe from governmental trespass absent
a warrant."' State v. Hinton, 179 Wash. 2d 862, 868, 319 P.3d 9 (2014) (quoting Myrick,
102 Wash. 2d at 511 ). "The expectation of privacy in the home is clearly 'one which a
citizen of this state should be entitled to hold."' Ferrier, 136 Wash. 2d at 118 (quoting
City of Seattle v. McCready, 123 Wash. 2d 260, 270, 868 P.2d 134 (1994 )); see also
•
State v. F?uem, 179 Wash. 2d 195, 200, 313 P.3d 1156 (2013) ("Constitutional
protections of privacy are strongest in the home."). Therefore, a government search
of a home is a search under article I, section 7 and must be supported by "authority
of law." CONST. art. I, § 7.
When article I, section 7 attaches to a particular search, the "'authority of law"'
required is a valid warrant or a recognized exception to the warrant requirement.
Hinton, 179 Wash. 2d at 868-69. The State bears the burden of proof if it relies on an
exception to the warrant requirement to justify a particular search. See State v.
Potter, 156 Wash. 2d 835, 840, 132 P.3d 1089 (2006).
One recognized exception to the warrant requirement is voluntary consent.
State v. Khounvichai, 149 Wash. 2d 557, 562, 69 P.3d 862 (2003) (citing State v.
Hendrickson, 129 Wash. 2d 61, 71, 917 P.2d 563 (1996)). As it is an exception to the
5
State v. Budd (Michael Allen), No. 91529-6
warrant requirement, the State bears the burden of proving voluntary consent when
it obtains consent through a procedure known as a knock and talk. /d. at 561. During
a knock and talk, officers go to a home without a warrant and ask for the resident's
consent to search the premises. See id. When officers conduct a knock and talk,
they must give the resident a prescribed set of warnings, informing the resident of
his or her constitutional rights. See Ruem, 179 Wash. 2d at 206; State v. Bustamante-
Davila, 138 Wash. 2d 964, 980, 983 P.2d 590 (1999).
Specifically, officers must give the resident the "Ferrier warnings." Ruem, 179
Wash. 2d at 205. Ferrier requires that police officers "must, prior to entering the home,
inform the person from whom consent is sought that he or she may lawfully refuse
to consent to the search and that they can revoke, at any time, the consent that they
give, and can limit the scope of the consent to certain areas of the home." 136 Wash. 2d
at 118. Officers must give these warnings before entering the home because the
resident's knowledge of the privilege is a "threshold requirement for an intelligent
decision as to its exercise." /d. at 117 (quoting Miranda v. Arizona, 384 U.S 436, 468,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). "The failure to provide these warnings, prior
to entering the home, vitiates any consent given thereafter." /d. at 118-19.
Since Ferrier, we have consistently limited the Ferrier warnings to knock and
talk procedures. See, e.g., Ruem, 179 Wash. 2d at 206; Khounvichai, 149 Wash. 2d at
562-64. In this case, the officers conducted a knock and talk because they sought
Budd's consent to enter his home to search for and seize suspected contraband.
Therefore, the officers were required to give Budd the Ferrier warnings before
entering his home.
6
State v. Budd (Michael Allen), No. 91529-6
B. We agree with the Court of Appeals and reaffirm that the Ferrier warnings
must be given before entry of the home in knock and talk investigations
The State makes two arguments, inviting us either. not to· apply the Ferrier
warnings to Budd's case or to limit the requirements of Ferrier. First, the State argues
that the officers did not conduct a knock and talk because they entered the home
only to seize an item, not to conduct a search. Second, the State argues that even if
the officers did conduct a knock and talk, Ferrier should be read as to allow officers
to enter the home first, give the warnings, and then begin their search. We reject
both arguments because they are contrary to our reasoning in Ferrier.
In Ferrier, officers received a tip that Ferrier was illegally growing marijuana in
her home. 136 Wash. 2d at 106. This tip came from Ferrier's son, whom the officers did
not want to disclose as their informant. /d. at 107. Believing that they could not obtain
a search warrant without disclosing the informant's identity, the officers decided to
conduct a knock and talk to gain warrantless entry into Ferrier's home for the purpose
of discovering the marijuana grow operation. /d.
Carrying out the knock and talk, the officers went to Ferrier's home, and
Ferrier opened the door in response to their knock. /d. The officers immediately
identified themselves, and Ferrier invited them inside her home. /d. After the officers
entered, they told Ferrier that they had information about a marijuana grow operation
and asked for her consent to search her home. !d. at 108. Although the officers went
over a "consent to search" form with Ferrier, which she signed, the officers did not
tell her that she had the right to refuse consent. /d. After signing the consent form,
Ferrier led the. officers through a locked door in her home, exposing her illegal
7
State v. Budd (Michael Allen), No. 91529-6
marijuana grow operation. /d. at 108-09. The trial court denied Ferrier's motion to
suppress the marijuana and found Ferrier guilty of manufacturing· a controlled
substance, and the Court of Appeals affirmed. See id. at 109.
We reversed Ferrier's conviction, ruling that when officers conduct a knock
and talk, they must inform residents of their right to refuse consent, revoke consent,
and limit the scope of the search before entering the home. /d. at 118-19. We adopted
this rule in recognition of the strong privacy interests that article I, section 7 of the
Washington Constitution provides to the home. /d. at 118.
"Central to our holding is our belief that any knock and talk is inherently
coercive to some degree":
[W]e believe that the great majority of home dwellers confronted by
police officers on their doorstep or in their home would not question the
absence of a search warrant because they either (1) would not know that
a warrant is required; (2) would feel inhibited from requesting its
production, even if they knew of the warrant requirement; or (3) would
simply be too stunned by the circumstances to make a reasoned
decision about whether or not to consent to a warrantless search.
/d. at 115.
We specifically highlighted the fact that when confronted with a surprise show
of government force and authority, most residents believe they have no choice but
to consent to the search. See id. at 115-16 (noting that we were not surprised by an
officer's testimony that virtually everyone confronted by a knock and talk accedes to
the request to permit a search of their home). Therefore, we concluded that the
constitutional privacy interests residents have in their homes and the coercive nature
of knock and talks demand that officers give residents a specific set of warnings (the
Ferrier warnings) before entering their homes. /d. at 118-19. In creating the Ferrier
8
State v. Budd (Michael Allen), No. 91529-6
warnings for use in knock and talk methods of investigation, we recognized that
without the Ferrier warnings, the State would never be able to prove voluntary
consent:
If we were to reach any other conclusion, we would not be satisfied that
a home dweller who consents to a warrantless search possessed the
knowledge necessary to make an informed decision. That being the
case, the State would be unable to meet its burden of proving that a
knowing and voluntary waiver occurred. As the United States Supreme
Court has noted in another context: "For those unaware of the privilege,
the warning is needed simply to make them aware of it-the threshold
requirement for an intelligent decision as to its exercise." Miranda v.
Arizona, 384 U.S. 436,468,86 S. Ct.1602, 16 L. Ed. 2d 694, 10A.L.R.3D
97 4 (1966). After all, "[a]ssessments of tt1e knowledge that the defendant
possessed ... can never be more than speculation; a warning is a
clearcut fact." Miranda, 384 U.S. at 468-69, 86 S. Ct. 1602 (footnote
omitted).
/d. at 116-17 (alterations in original).
Our reasoning in Ferrier applies equally in Budd's case. Therefore, we reject
both of the State's arguments.
First, the State's distinction between a search and a seizure in the context of
a knock and talk is a distinction without a difference. Officers do not seize an item
from inside a home without first entering and searching the home for that item. This
principle was clear in Ferrier, where Ferrier led the officers directly to the marijuana.
136 Wash. 2d at 108. That was a search even though the officers did not independently
look around Ferrier's residence for contraband. See id. at 108, 119. In Budd's case,
it makes no difference that the officers knew that Budd owned a computer-their
intent to "seize" Budd's computer still placed them inside his home with the intent of
finding incriminating evidence.
9
State v. Budd (Michael Allen), No. 91529-6
Second, the State contends that our concerns about the inherently coercive
nature of knock and talks should be ameliorated when, as in this case, a resident
gives some form of consent outside of the home and then invites the officers into the
home to sit together and review the Ferrier warnings before starting the search. We
reject this argument, as it presents the precise scenario that we rejected in Ferrier
and ignores article I, section 7 protections of the home. We recognized in Ferrier that
"virtually everyone confronted by a knock and talk accedes to the request to permit
a search of their home." /d. at 116. The Ferrier warnings are intended to ensure that
residents have a fair chance to reject the officers' requests and protect their privacy
interests in their homes in the face of the inherently coercive nature of knock and
talks. /d. at 115-16. Officers must give the Ferrierwarnings before entering the home
because once they are inside the home, the resident is much less likely to withdraw
consent, even if the officers do subsequently give the Ferrier warnings. Further, once
the officers are inside the home, the officers may seize any contraband within their
plain view and may be able to use information gathered from inside the home to
support a search warrant that they would not otherwise be able to obtain.
Indeed, the officers' conduct in this case paralleled the conduct of the officers
in Ferrier. In both cases, the officers arrived without announcement, surprising the
resident. In both cases, the resident was not given time to reflect on the officers'
presence before being asked to give his or her consent for the officers to enter the
home and search for evidence of a crime. In both cases, the resident reacted to the
knock and talk procedure as expected by being polite and cooperative, and allowing
the officers inside the residence.
10
State v. Budd (Michael Allen), No. 91529-6
Therefore, we hold that the officers were required to give Budd the Ferrier
warnings before entering his home. We next consider the State's argument that
remand to the trial court is necessary for further fact-finding on whether Budd actually
received the Ferrier warnings before the officers entered his home.
Ill. We affirm the trial court's finding that the officers did not give Budd the
Ferrier warnings before entering his home and hold that Budd's consent was
therefore involuntary
The trial court found that the officers did not give Budd the Ferrier warnings
before entering his home. Because the officers did not give Budd the Ferrier
warning.s before entering his home, Budd's consent was involuntary. 'Nhen a court
enters written findings of fact and conclusions of law, those findings and conclusions
"must be sufficiently specific to permit meaningful review." In re Det. of LaBelle, 107
Wash. 2d 196, 218, 728 P.2d 138 (1986). "While the degree of particularity required in
findings of fact depends on the circumstances of the particular case, they should at
least be sufficient to indicate the factual bases for the ultimate conclusions." /d.
Findings may be sufficient even if they are implicit in the trial court's formal written
findings of fact. See State v. Sisouvanh, 175 Wash. 2d 607, 618, 290 P.3d 942 (2012);
Woehlerv. George, 65 Wash. 2d 519, 523, 398 P.2d 167 (1965); Squires v. McLaughlin,
44 Wash. 2d 43, 50, 265 P.2d 265 (1953) ..
The State asserts that the trial court failed to make any findings of fact on
whether the officers proyided Budd the Ferrier warnings b.efore entering his home
and that remand is ne~essary for the trial court to make that finding. Reviewing the
trial court's findings in the context of this hearing makes ~lear that a remand is
unnecessary. The prosecutor and defense counsel both acknowledged at the outset
11
State v. Budd (Michael Allen), No. 91529-6
of the hearing that the key issue was whether Budd was given the Ferrier warnings
before or after the officers entered the home. The prosecutor stated, "[W]e [are]
arguing that the Defendant was advised of his Ferrier warnings prior to the officer
going in there. And that he also --- the Defendant waived his rights verbally before
he went in and also [signed a] written waiver of rights once he was in the house." CP
at 223. Detective Holmes testified that she could not recall "[v]erbatim" how Budd
was told he could stop the search at any time, id. at 300, and when asked on redirect
if she "advised him that he could stop you or stop the search at any time," Holmes
answered, "[m]aybe not in those words," id. at 302. She immediately added, "But
once we went over the Ferrier it was exactly those words, yes." /d. at 304.
The trial court then heard argument of counsel, which included this colloquy
with defense counsel:
JUDGE: The Ferrier case itself and I think the language is, before
entering the house the warnings have to be given.
[DEFENSE COUNSEL] DEYOUNG: Right.
JUDGE: Mr. Owens [Deputy Prosecutor] thinks though that that doesn't
really mean that. He thinks if there's --- that if the officers go in for limited
purposes of sitting down at the kitchen table and going over the written form
prior to the search that that satisfies Ferrier.
DEYOUNG: Well, we'd have to leave out the part about Ferrier about
before entering the house and I think Article I § 7, I think that's what Ferrier
relied on. That's what [it] hung its hat on so to speak.
JUDGE: So, are you aware of any case where that specific issue has
been brought up, where the officers went in and went over the warnings inside
the house [inaudible]?
DEYOUNG: If I had, we wouldn't be having this hearing or we would
have tried to work out some kind of plea deal. No, I'm not aware of any---
12
State v. Budd (Michael Allen), No. 91529-6
JUDGE: Okay.
DEYOUNG: Type of case and I think that that's what makes this case
so important and that's I think, if I'm not mistaken, the parties kind of concede
that we're not really concentrating on the signed warrant, we're concentrating
on what happ.ened before the entry into the house was accomplished because
all of that has to be in order.
/d. at 339.
The trial court heard Detective Holmes's testimony and considered the
arguments of counsel, and the trial court's findings can be reasonably interpreted
only as finding that the officers did not give Budd the Ferrierwarnings before entering
his home:
[T]he troopers did not violate Ferrier by entering the home initially to go
over [Budd's] rights before commencing the search. There appears to be
no controlling authority on this question. But, the purpose of the Ferrier
warnings is to prevent a search before advisement of the rights. Here,
no search was conducted before [Budd] was advised ·of his Ferrier rights,
and the purpose of the Ferrier warnings was accomplished. ·
CP at 407.
This experienced trial judge focused on the policy of Ferrier, and whether
Ferrier allows officers to provide the warnings after entering the home but before
beginning the search. The trial judge never found that the officers gave Budd the
Ferrier warnings while outside. If the trial judge· had believed that Budd actually
received the Ferrier warnings outside, before the officers entered his home, Ferrier
would have been satisfied at that point and the court would not have considered the
adequacy of warnings that the officers provided inside Budd's home. Therefore, by
failing to state that Budd actually received the Feriier warnings while outside and
focusing on the adequacy of the warnings inside of the home, the trial court implicitly
13
State v. Budd (Michael Allen), No. 91529-6
found that Budd did not receive the Ferrier warnings before the officers entered his
home. 2
The State, rather than arguing to this court that the trial court's ruling was
unsupported by substantial evidence, 3 argues that the Court of Appeals improperly
weighed Detective Holmes's testimony to support its decision that Budd's consent
was involuntary. We reject this argument because the Court of Appeals correctly read
the trial court's findings of fact to mean that the Ferrier warnings were not given until
Budd admitted the officers into his home. Budd, 186 Wash. App. at 199. 4 Moreover, the
2 Even if we were to accept that the trial court did not make this finding, its absence would
require us to hold that the State failed to meet its burden of proof. See State v. Armenta,
134 Wash. 2d 1, 14, 948 P.2d 1280 (1997) ("In the absence of a finding on a factual issue we
must indulge the presumption that the party with the burden of proof failed to sustain their
burden on [that] issue.").
3 Given Detective Holmes's testimony, the trial court could have decided either way whether
the officers gave Budd the Ferrier warnings before entering his home. Regardless, we would
affirm the trial court's finding as being supported by substantial evidence. See State v.
O'Neill, 148 Wn .2d 564, 571, 62 P.3d 489 (2003) (stating that challenged findings that are
supported by substantial evidence are binding on appeal). On cross-examination, after
Detective Holmes admitted that she did not state in her report that she gave Budd the Ferrier
warnings before entering his home, defense counsel asked if she advised Budd of his right
to call off the search at any time before entering his home. Detective Holmes responded,
"Verbatim I don't recall. In general, he --·· we told him that ... [we] were asking him for
consent and he certainly had the right to deny that consent. He did not have to let us into
the house, and he could stipulate his parameters, which he did." CP at 300. On redirect,
Detective Holmes affirmed that she perhaps did not tell Budd that he could stop the search
at any time "in those words." /d. at 302.
4 Of our various disagreements with the dissent, we highlight the dissent's assertion that
"nothing in the record supports the majority's implied finding that Ferrier warnings were not
provided." Dissent at 10. Arguing that Detective Holmes did provide Budd the Ferrier
warnings before entering his home, the dissent recites portions of Detective Holmes'
testimony and statements by the trial judge. /d. at 10-13. But Detective Holmes' testimony
was equivocal. The dissent glosses over the trial court's finding that the troopers did not
violate Ferrier by entering Budd's home to go over the warnings before commencing the
search, which necessarily means that the troopers did not give Budd the warnings before
entering his home. CP at 407. Rather, the dissent inappropriately substitutes its evaluation
14
State v. Budd (Michael Allen), No. 91529~6
State argues that the Court of Appeals looked at Budd's suppression motion brief for
extraneous evidence that Budd contested whether the officers gave him the Ferrier
warnings before entering his home. It is entirely appropriate to consider a party's
briefing in order to determine whether an argument was raised at the trial court.
Moreover, the excerpts of the record of the suppression hearing quoted above make
it quite clear that the major dispute between the parties was whether the officers
gave Budd the Ferrier warnings before or after entering the house.
CONCLUSION
We affirm the Court of Appeals for the reasons expressed in this opinion and
remand to the trial court with directions to dismiss the charge against Budd.
of Detective Holmes' testimony for that of the trial court and makes its own findings of fact
where the trial court made none. See, e.g., State v. Drum, 168 Wash. 2d 23, 35, 225 P.3d 237
(201 0) ("[W]e defer to the fact finder on issues of witness credibility."); Davis v. Oep't of Labor
& Indus., 94 Wash. 2d 119, 127-28, 615 P.2d 1279 (1980) ("[l]t is not the function of an appellate
court to second guess the trial court by reweighing evidence.").
15
State v. Budd (Michael Allen), No. 91529-6
WE CONCUR.
16
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
No. 91529-6
YU, J. (dissenting)-As Judge Korsmo wryly observed in his dissent below,
"No good deed goes unpunished." State v. Budd, 186 Wash. App. 184, 208, 347
P.3d 49 (2015). Here, Detective Kim Holmes made the mistake of accepting
respondent Michael Budd's invitation to enter his home for the purpose of
reaffirming in writing the consent he had already given verbally in his driveway.
This was not the kind of coercive and improper fishing expedition that we
repudiated in State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927 (1998), yet the
majority insists that warnings were required and finds that they were not
adequately provided here. This conclusion misinterprets the trial court's ruling, is
contrary to Ferrier itself and its progeny, and is not supported by the evidence. I
respectfully dissent.
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
ANALYSIS
In Ferrier, we adopted a narrow rule requiring adequate warnings "when
police officers conduct a knock and talk for the purpose of obtaining consent to
search a home." Id. at 118 (emphasis added). We began articulating the
boundaries of this rule almost as soon as it was adopted. See State v. Bustamante-
Davila, 138 Wash. 2d 964, 980, 983 P.2d 590 (1999). Subsequent cases have
"clarified that the Ferrier requirement is limited to situations where police request
entry into a home for the purpose of obtaining consent to conduct a warrantless
search." State v. Khounvichai, 149 Wash. 2d 557, 563, 69 P.3d 862 (2003) (citing
State v. Williams, 142 Wash. 2d 17, 28, 11 P.3d 714 (2000)); see also State v. Ruem,
179 Wash. 2d 195, 205, 313 P.3d 1156 (2013); State v. Vy Thang, 145 Wash. 2d 630,
637, 41 P.3d 1159 (2002).
We have declined to adopt a bright-line rule requiring Ferrier warnings in
every instance when the police enter someone's home. See Ruem, 179 Wash. 2d at
206; Williams, 142 Wash. 2d at 27. These decisions demonstrate that under Ferrier,
"[i]t is not mere entry into the home that is prohibited, absent informed consent,
but entry for the specific purpose of obtaining consent to search the home." Budd,
186 Wash. App. at 211 (Korsmo, J., dissenting).
2
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
A. Ferrier warnings were not required
While I do not question the wisdom of Ferrier, I disagree that the rule
applies in this case. We have stated that "when police seek to conduct a
warrantless search of the home, the Ferrier warnings achieve their purpose."
Khounvichai, 149 Wash. 2d at 564. Because the authorities did not seek to conduct a
search of Budd's home, requiring warnings in these circumstances unnecessarily
broadens Ferrier's reach without furthering its underlying policies.
Detective Holmes' interaction with Budd does not resemble the "knock and
talk" procedure that was at issue in Ferrier. In Ferrier, the police lacked probable
cause and admitted to conducting the knock and talk procedure to circumvent the
warrant requirement. Ferrier, 136 Wash. 2d at 115. Well-armed police arrived at
Debra Ferrier's house in black raid uniforms and surrounded her home in a "great
... show of force." Id. at 107, 115. We found it "significant to our analysis ...
that Ferrier was in her home when the police initiated contact with her." Id. at 115.
The police did not explain why they were there or ask for consent to search until
after gaining entry into Ferrier's home, nor did they advise Ferrier of her rights
prior to entering the house. Id. at 107-09.
Characterizing this case as analogous to Ferrier, the majority glosses over
material factual differences. Here, Detective Holmes received an anonymous
cybertip from the National Center for Missing and Exploited Children, Clerk's
3
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
Papers (CP) at 137-51, indicating that Budd was communicating with underaged
girls online, possessed child pornography on his computer, and had bragged about
molesting his nine-year-old daughter. Id. at 134,231-33. Detective Holmes
decided to contact Budd in person out of concern for the welfare and safety of his
young daughter. Id. at 134, 237. There is no evidence that this was merely a
pretext for conducting a warrantless search. Accompanied by two plainclothes
state troopers, Detective Holmes initiated contact with Budd outside of his home in
the driveway. Id. at 245. While still in the driveway, Detective Holmes informed
Budd of why she and the troopers were there. Id. at 134, 245. Budd expressed that
he was not surprised because '" [y] ou do it long enough, you eventually get
caught"' and, without prompting, admitted to possessing hundreds of images of
child pornography. Id. at 134. It was only after Budd's confession that Detective
Holmes requested consent to enter the home to seize Budd's computer.
We have stated that "Ferrier warnings target searches and not merely
contacts between the police and individuals," and have repeatedly "declined to
broaden the rule to apply outside the context of a request to search." Khounvichai,
149 Wash. 2d at 564, 563. Not only were the circumstances of the interaction here
fundamentally different from Ferrier, the purpose of the troopers' actual entry into
Budd's residence was different as well. In Ferrier, the police entered in order to
request consent to search for contraband and/or evidence of a crime. 136 Wash. 2d at
4
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
108. Here, having already obtained Budd's consent, the state troopers entered for
the limited purpose of having Budd sign the Ferrier form and to seize his
computer.
The majority's assertion that the "distinction between a search and a seizure
in the context of a 'knock and talk' is a distinction without a difference," majority
at 9, is contradicted by our case law. In fact, we rejected this very argument in
Khounvichai, 149 Wash. 2d at 564-66. The defendant in that case argued that Ferrier
warnings were required when the police entered a home to question a resident
"because a police officer's request to enter a home to talk to an occupant about an
alleged offense has the same result as a request to enter to search-a warrantless
'search' for anything in plain view." Id. at 564. Observing that "[i]t is well
established that a discovery made in plain view is not a search," we dismissed the
argument that "every entry potentially involves a plain view 'search"' as
unavailing. Id. at 565-66 (relying on State v. Miller, 121 Wash. 153, 154, 209 P. 9
(1922)). The argument should be equally unavailing here, where it is undisputed
that the troopers entered in order to seize Budd's computer, not to conduct a search
of his home. If the mere fact of entry constituted a search, then Ferrier warnings
would be required whenever police enter a home. But, as discussed above, we
have explicitly declined to adopt such a rule, see Ruem, 179 Wash. 2d at 206;
5
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
Williams, 142 Wash. 2d at 27-28, and we have acknowledged that there are
circumstances in which Ferrier warnings are not required prior to entry.
What further distinguishes this case is the fact that unlike Ferrier, who was
stunned into acquiescing to the unlawful search of her home, see Ferrier, 136
Wash. 2d at 108-09, Budd actively negotiated the scope of his consent. Detective
Holmes initially requested consent to preview Budd's computer but, at Budd's
request, agreed to seize the computer instead. When confronted by the troopers
outside in his driveway, Budd asked if they had a warrant. CP at 211-12, 405. In
response to Detective Holmes' statement that she would obtain a warrant if he did
not consent, Budd indicated that he did not want the troopers to search his house or
his computer in front of his girlfriend. I d. at 251-53, 292. Apparently determining
that a "low-key" seizure of his computer would be preferable to a full-blown
search of his home pursuant to a warrant, Budd gave his consent for the troopers to
enter his home for the limited purpose of seizing his computer. I d. at 197. This
exchange indicates that Budd was not only aware of and understood his rights but,
in fact, exercised them.
Moreover, we have stated that "[w]hen police obtain consent to search a
home pursuant to a 'knock and talk' they go through private belongings and affairs
without restriction. Such an intrusion into privacy is not present, however, when
police seek consensual entry to question a resident." Khounvichai, 149 Wash. 2d at
6
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
564. Similarly, we concluded in Williams that "[c]onsidering the limited purpose
of the police entry [to execute an arrest warrant] ... this case does not resemble a
'knock and talk' warrantless search that Ferrier intended to prevent." 142 Wash. 2d
at 27. The same is true where the purpose of entry is limited-by the homeowner
himself-to the seizure of a specific piece of evidence. At Budd's direction,
Detective Holmes and the troopers agreed "not to open--- you know, go through
his entire house opening up his drawers and you know, going through his
girlfriend's stuff or whatever else that may be there. Not to ransack the house, so
to speak. We just did go in, take the computer and other related media and leave."
CP at 294.
The facts in this case simply do not constitute the same unduly coercive
circumstances that we were concerned with in Ferrier. Consequently, requiring
warnings in this case "does not further the constitutional reason for the warnings."
Khounvichai, 149 Wash. 2d at 566. We observed in Ferrier that the inherent
coerciveness of knock and talk procedures can "be mitigated by requiring officers
who conduct the procedure to warn home dwellers of their right to refuse consent
to a warrantless search." Ferrier, 136 Wash. 2d at 116. Thus, requiring warnings
prior to entry into a defendant's home would protect the expectation of privacy in
the home "'which a citizen ofthis state should be entitled to hold."' Id. at 118
(quoting City of Seattle v. McCready, 123 Wash. 2d 260, 270, 868 P.3d 134 (1994)).
7
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
Here, Budd was not in his home when he was contacted by the authorities and his
actions demonstrate that he was informed of and exercised his rights.
B. The majority misinterprets the trial court's ruling, and its implied finding is not
supported by the evidence
The bare facts of this case show that Budd was not confronted with the
coercive circumstances that prompted us to adopt the Ferrier rule. By shoehorning
Ferrier into a situation where it does not belong, the majority misinterprets the trial
court's ruling as implicitly finding that Ferrier warnings were not properly given.
An appellate court should not make an implicit finding of an essential fact unless
"the facts and circumstances clearly demonstrate that the finding was actually
made by the trial court." In re Welfare ofA.B., 168 Wash. 2d 908, 927, 232 P.3d
1104 (2010). Reading the trial court's memorandum opinion in its entirety, and in
conjunction with statements made at the suppression hearing, it is apparent that the
trial court determined correctly that Ferrier did not apply.
The majority focuses on the trial court's discussion of Ferrier-a scant four
sentences-to the exclusion of the memorandum's broader context. The trial court
never categorized the interaction as a knock and talk procedure and devoted the
bulk of its analysis to determining the voluntariness of Budd's consent under the
"totality of the circumstances" standard rather than under Ferrier. CP at 406-07.
We have held that the totality of the circumstances standard is used outside the
8
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
context of knock and talk procedures. See Ruem, 179 Wash. 2d at 207; Thang, 145
Wash. 2d at 637; Bustamante-Davila, 138 Wash. 2d at 981. It is reasonable to expect
that the "experienced trial judge," majority at 13, who was certainly aware of
Ferrier, see CP at 330-41, would have applied the Ferrier rule if it had determined
that Ferrier was the proper standard. The trial judge's observation at the hearing
that "the Court itself has seemed to retreat from the plain language rather
consistently since the--- since Ferrier was published," id. at 341, lends further
credence to the argument that the trial court determined that Ferrier did not apply. 1
That this was the court's conclusion is further indicated by the court's
recitation of the facts:
Upon entering the Defendant's home and before searching the
computer, the troopers went over a written consent form with the
Defendant which contained all the warnings associated with State v.
Ferrier, 136 Wash. 2d 103,960 P.2d 927 (1998). The Defendant
signed the document acknowledging he understood and reaffirming
his consent.
!d. at 405 (emphasis added). Characterizing the written consent form as
"reaffirming" Budd's consent comports with the trial court's conclusion that valid
1
The trial court's conclusion that "the troopers did not violate Ferrier by entering the
home initially to go over the Defendant's rights before commencing the search," CP at 407, does
not necessitate a finding that proper Ferrier warnings were never given, as the majority
contends. Majority at 14 n.4. The assessment that the detectives entered Budd's home
"initially" to go over the consent form in no way precludes that proper warnings were given prior
to entry. Furthermore, even assuming that Ferrier warnings were not given-which is not
supported by the evidence-this statement is entirely consistent with the trial court's apparent
and correct belief that Ferrier did not apply.
9
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
consent was obtained prior to entering Budd's home. Because Budd gave consent
before the authorities entered his home, the Ferrier form was merely an additional
assurance-a "standard procedure," id. at 290, that simply memorialized Budd's
prior consent in writing.
Moreover, it cannot be said that "the facts and circumstances clearly
demonstrate that the finding was actually made by the trial court," A.B., 168 Wash. 2d
at 927, since nothing in the record supports the majority's implied finding that
Ferrier warnings were not provided. The majority itself concedes that "the trial
court could have decided either way whether the officers gave Budd the Ferrier
warnings before entering his home." Majority at 14 n.3. Detective Holmes
consistently testified throughout the hearing that she had advised Budd of his rights
in accordance with Ferrier-that is, prior to entry into his home. No evidence to
the contrary was presented.
When asked, "[D]id you advise [Budd] of anything before going into the
house to search," Detective Holmes testified that "[w]hen [Budd] agreed to give
consent, I explained to him that I have a waiver that he would need to sign and it
would give him rights as to how much we could search, that he could stop the
search. I didn't go into great detail." CP at 253. Deputy Prosecutor Ed Owens
then clarified:
10
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
OWENS: Now, after you advised him of the rights with this
Ferrier warning said, you know, the right that he could stop the search
at any time, the right that you can allow him to do that, was this
advised to him before you went into the house?
HOLMES: Yes.
OWENS: And then, did the Defendant still, after you advised
him of those things, what this warning was, did he still allow you to
go into the house?
HOLMES: He did. He invited us into the house.
Id. at 255.
Later, when the defense attorney objected to the form of a question, the
judge clarified the testimony:
JUDGE: Would you state your question again for me
please?
OWENS: Okay and I was gonna ask her when she advised
him that he had that right to refuse, did he tell her no or he wanted to
refuse.
JUDGE: Well, apparently, my understanding ofthe
testimony, she did that twice. She did it once outside and once inside
OWENS: Yes and now I'm outside. I just took a step back
outside and going to the part of if he refused at any time. That he
understood that it was taking place.
JUDGE: Okay, Detective, between the time that you told
Mr. Budd outside the home that he had the right to refuse consent for
entering the home and the time that you entered the home, during that
time period at any time did Mr. Budd indicate[] that he wanted to
exercise that right?
HOLMES: No.
!d. at 264-66 (emphasis added).
11
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
When asked during cross-examination how she communicated to Budd that
he had the right to refuse, Detective Holmes testified, "Verbatim I don't recall. In
general, he --- we told him that, you know, we were asking him for consent and he
certainly had the right to deny that consent. He did not have to let us into the
house and he could stipulate his parameters, which he did." Id. at 300. And again,
on redirect:
OWENS: Very well. Now, you just testified in regards to the
Ferrier warnings, the talking prior to going into the house with the
Defendant there. Now, you stated you advised [Budd] that he could
deny entrance into the house?
HOLMES: Yes.
OWENS: And you advised him that he could stop you or
stop the search at any time?
HOLMES: Maybe not in those words ---
OWENS: Right.
HOLMES: But once we went over the Ferrier it was exactly
those words, yes.
OWENS: Okay, but I'm talking before you go into the house
what you were talking about in the driveway. Did you advise him
about parameters?
HOLMES: Yes.
Id. at 302-04.
Nothing in the record contradicts Detective Holmes' testimony that she
adequately apprised Budd of his rights in accordance with Ferrier. The majority
suggests that Detective Holmes' inability to recall the verbatim language that she
used supports the conclusion that Ferrier warnings were not provided. Majority at
14 n.3. Judge Korsmo astutely observed that "[ f]ailure to recall specific verbiage
12
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
is not the same thing as failing to provide the information." Budd, 186 Wash. App.
at 210 (Korsmo, J., dissenting). I agree. 2 Ferrier warnings are not a shibboleth-it
is the extent of the warnings, not the exact language employed, that determines
whether the rule has been satisfied.
When considering the entirety of the record from the suppression hearing,
the majority's implied finding that Ferrier warnings were not provided has no
support in the facts or the circumstances. What the record does show is that even if
Ferrier did apply, Detective Holmes provided Budd with adequate warnings prior
to entering his home.
C. The proper remedy for insufficiently specific findings is remand
The trial court made no explicit findings as to whether or not Ferrier
warnings were provided prior to entry into Budd's home. The majority asserts that
if an implicit finding cannot be made, the appropriate remedy is not remand but to
hold that the State failed to meet its burden of proof. Majority at 14 n.2. This
might be true if the trial court had determined the validity of Budd's consent under
Ferrier rather than the totality of the circumstances standard. However, the
2
It appears that the trial judge would agree as well. When discussing Ferrier with the
State during arguments at the suppression hearing, the trial judge asked, "Well, isn't the
testimony from Detective Holmes fairly clear on that point? I mean, didn't she testify that she
advised, she didn't have the exact words, but had advised Mr. Budd of the substance of these
three--- three rights [inaudible] Ferrier before they went in the house?" CP at 337.
13
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
majority's proffered approach is incorrect because the State satisfied its burden of
proof under the applicable standard.
The State's burden at the suppression hearing was to prove that Budd's
consent was voluntary. See Bustamante-Davila, 138 Wash. 2d at 981 (citing State v.
Shoemaker, 85 Wash. 2d 207, 210, 533 P.2d 123 (1975)). The trial court correctly
concluded that Budd's consent was voluntary under the totality of the
circumstances standard, and the evidence is sufficient to support this conclusion.
Because the State met its burden under the applicable standard, the court did not
need to reach the Ferrier question.
While the court was not required to address Ferrier in order to arrive at its
conclusion that Budd's consent was valid, the State correctly observed that
"[m]any of the serious Ferrier and constitutional issues raised in this petition for
review might be rendered moot with clarified findings of fact from the trial court."
Pet. for Review at 15. " [A] trial court is not required to make findings of fact on
all matters about which there is evidence in the record; only those which establish
the existence or nonexistence of determinative factual matters need be made." In
re Det. of LaBelle, 107 Wash. 2d 196,219,728 P.2d 138 (1986). To the extent that
the question of whether or not Ferrier warnings were, in fact, provided constitutes
a "determinative factual matter[]," id., for which the trial court's findings were not
sufficiently specific, I agree with Judge Korsmo that "[w]hen the findings are not
14
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
clear or fail to address an important point, the remedy is to remand for better
findings," Budd, 186 Wash. App. at 210 (Korsmo, J., dissenting) (citing
State v. Head, 136 Wash. 2d 619, 624, 964 P.2d 1187 (1998); State v. Alvarez, 128
Wash. 2d 1, 19, 904 P.2d 754 (1995); State v. Barber, 118 Wash. 2d 335, 342, 823 P.2d
1068 (1992)). The more prudent course of action here would be to seek
clarification from the trial court rather than imply findings that are not supported
by the record.
CONCLUSION
By broadening the application of Ferrier beyond what common sense and
our cases allow, the majority's opinion leads to an "extraordinary" and troubling
result: the suppression of physical evidence obtained from a cooperative defendant
who freely offered a confession and gave voluntary and informed consent to enter
his home for the limited purpose of seizing the physical evidence. See Br. of
Resp't at 10. We have consistently limited Ferrier to its facts, and this case does
not warrant veering away from our case law. I would hold that Ferrier does not
apply and reinstate the trial court's decision to deny Budd's motion to suppress.
15
State v. Budd, No. 91529-6
(Yu, J., Dissenting)
16