State of Washington v. Michael Allen Budd ( 2015 )

FILED
MAR 3, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31638-6-III
Respondent, )
)
v. )
)
MICHAEL ALLEN BUDD, ) PUBLISHED OPINION
)
Appellant. )
FEARING, J. -
Talmadge: Do you remember studying in law school the principle
that no matter how humble a man's cottage is, that even the king of
England cannot enter without his consent?
Ehrlichman: I am afraid that has been considerably eroded over the
years, has it not?
Talmadge: Down in my country, we still think it is a pretty
legitimate principle oflaw.
Exchange between Georgia's United States Senator Herman Talmadge and
former White House Counsel John Ehrlichman, United States Senate Watergate
Committee hearings, July 25, 1973.
No.31638-6-II1
State v. Budd
The Washington high court, in State v. Ferrier, 136 Wn.2d 103,960 P.2d 927(1998), held that, before entering a citizen's home without a warrant, a law enforcement
officer must ask the citizen for consent, inform the citizen that he can revoke consent at
any time, and notifY the citizen that he can limit the scope of the entry into the home. We
are asked today to decide whether the Ferrier holding applies when the law enforcement
officer fails to give all Ferrier warnings before entering the home, but delivers all
warnings before searching the home.
Appellant Michael Allen Budd was convicted of possession of depictions of
minors engaged in sexually explicit conduct. He contends that the trial court erred in its
denial of his erR 3.6 motion to suppress evidence obtained in a warrantless search of his
residence by the officers investigating the case. He argues (l) the Ferrier warnings
provided by the detective prior to entering his home were insufficient, and (2) the
detective's statement that she "could and would obtain a warrant" if Budd refused to
consent to the search, vitiated his consent. The first issue requires us to examine whether
the officer uttered all Ferrier warnings before entering the home, and, if not, whether
providing all admonitions inside the house before searching the house complies with
Ferrier and the prohibition against unreasonable searches and seizures. Based on the trial
court's findings, we rule that the detective did not voice all Ferrier warnings before
entering the home. We also hold, based on the language of Ferrier and other decisions,
and based on the purposes behind the Ferrier warnings, that a law enforcement officer
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No. 31638-6-111
State v. Budd
must deliver all cautions before entering the residence. Therefore, we do not address
Budd's second argument. We reverse the denial of the CrR 3.6 motion and dismiss the
charge against Budd.
FACTS
Washington State Patrol's Missing and Exploited Children Task Force received an
anonymous "cybertip" from the National Center for Missing and Exploited Children.
Clerk's Papers (CP) at 4. The anonymous source declared that Michael Allen Budd
communicated with young girls on Yahoo! Messenger and Windows Live Messenger,
both free online chat services. The informant stated that, in these chats, Budd talked
about molesting his nine-and-a-half-year-old daughter and about engaging in sex with his
communicants. The source volunteered that Budd's daughter did not live with him. The
anonymous source stated that he or she had seen child pornography on Budd's computer
and estimated the amount of pornography to be more than 15 Gb. The informant also
provided Michael Budd's Gmail and Yahoo! email addresses, the addresses' respective
passwords, and the usernames and passwords for two other profiles associated with the
same username as Budd's e-mail addresses.guinness2012.
The Washington State Patrol's Missing and Exploited Children Task Force
assigned, for investigation, the Michael Budd inquiry to Lakewood Police Department
Detective Kim Holmes. Detective Holmes served a search warrant on Yahoo! and
Google and determined that, based on Budd's internet protocol address, he resided in
3
No. 31638-6-111
State v. Budd
Ephrata.
On March 11,2009, Detective Kim Holmes travelled to Ephrata to perform a
"knock and talk" and assuage her concerns that Michael Allen Budd's daughter might be
in danger. In law enforcement, a "knock and talk" is an investigative technique where
one or more police officers approaches a private residence, knocks on the door, and
requests consent from the owner to search the residence. Law enforcement performs the
"knock and talk" when criminal activity is suspected, but officers lack probable cause to
obtain a search warrant. State Patrol Officers Tony Doughty and Jesse Rigalotto
accompanied Holmes to Budd's residence. When the three officers arrived, Budd's
girlfriend informed them that Budd remained at work. The officers waited in a car for
Budd to arrive.
Michael Allen Budd returned home 15 minutes later, and the officers greeted him
halfway down his driveway. Kim Holmes identified herself and the other officers, told
Budd that they received a tip that he kept child pornography on his computer, and
expressed concern for his daughter. Budd insisted that he was not touching or harming
his daughter. Budd stated, nevertheless, that he was not surprised that the officers had
come. He added: "if you do it long enough, you get caught." Report of Proceedings (RP)
at l3. Detective Holmes interpreted Budd's comment to concede he viewed child
pornography.
The outcome of this appeal turns on what happened next. In her police report,
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No. 31638-6-111
State v. Budd
Detective Kim Holmes wrote that, after Michael Allen Budd admitted to possessing child
pornography, she:
explained to him knowing this, he could give us consent to [preview]
his computer or 1 could and would obtain a search warrant. Budd gave us
consent to seize his computer as he explained he did not want us
previewing it in front of his girlfriend. Budd signed a WSP consent form
and his rights were explained to him.
CP at 4-5. (emphasis added). The report lacked any mention of Holmes' informing
Budd that he had a right to decline consent to enter the home, limit the scope of the
search, and revoke consent at any time. The report implied that Holmes misrepresented
that a court would authorize a search warrant.
Detective Kim Holmes testified during the suppression hearing. Under direct
examination, Holmes testified that she gave Michael Allen Budd a proper Ferrier
warning:
So 1 explained to him that we wanted to do a preview, basically a
search of his computer, and explained to him that if we got consent-he
could give us consent and we would just seize the computer. We wouldn't
do a search of the house. We would just seize the computer and related
media items and that would be it. We'd keep it very low-key. 1 told him
that 1 would apply for a warrant ifhe did not want to give consent.
Q. Okay. And what did the defendant say?
A. He agreed. He didn't want us to search his house-house in
front of his girlfriend, and he did not want us previewing his computer in
front of his girlfriend. So that was kind of his stipulations, and we agreed
to that.
Q. SO you told him you wanted to search the computer. And he said
that was okay, but he didn't want you to do it on certain situations, one of it
being at his house with his girlfriend there?
A. Correct.
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No. 31638~6-II1
State v. Budd
Q. And you agreed to that?
A. I did.
Q. Okay. Now, are you aware of Ferrier warnings?
A. Yes.
Q. All right. Now, did you advise the defendant in this case of any
Ferrier warnings prior to going into the house?
[DEFENSE COUNSEL]: Objection to the phrasing of that. Ifit
could be asked more specifically.
[PROSECUTING ATTORNEY]: I could try to help him out, I
guess.
THE COURT: All right.
BY [PROSECUTING ATTORNEY]:
Q. Before going into the house, did you advise the defendant of
anything before going into the house to search?
A. I did.
Q. And what's that?
A. When he agreed to give consent, I explained to him that I had 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.
Q. Right.
A. And after that, I went and got the warnings, the Ferrier form, out
of my car and brought it. And that's when we went into the house and sat
at the table where we could go over it more thoroughly.
Q. Now, after you advised him of the rights with this Ferrier
warning set, you know, the right that he can stop the search at any time, the
right that you can, you know, allow him to do that, was this advised to him
before you went into the house?
A. Yes.
Q. 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?
A. He did. He invited us into the house specifically so that we
could sit down at a table and go over the warnings.
Q. All right. But before you did that, you went and picked up
something, correct?
A. Right. The form. The preprinted form with the Ferrier warnings
written on it.
Q. Okay. And then when you went into the house, who all went in
the house?
6
No. 31638-6-111
State v. Budd
A. I believe we all three went into the house. I know we all three
did.
Q. All three meaning the officers?
A. Yes.
RPat15-17.
Kim Holmes, during the suppression hearing, testified that Michael Budd invited
the officers into his home. Despite her initial testimony, Holmes later, in answer to a
question from the trial court, stated she is unsure as to whether Budd invited the three
into the home for the purpose of reviewing the written form.
In cross-examination during the hearing, Kim Holmes conceded that she would
place in her police report everything that has evidentiary value. Upon looking at the
report, she further testified that she placed into the report all necessary evidence and she
would not wish to change the report.
During cross-examination at the suppression hearing, Kim Holmes' testimony
grew vague as to what warnings she gave before entering the house.
BY [DEFENSE COUNSEL]:
Q. Prior to the time that you entered the house, how is it
communicated to Mr. Budd that he had the right to call off the search at any
time?
A. Verbatim, I don't recall. In general, 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.
RP at 39 (emphasis added). Then during redirect, Holmes conceded she may not have
expressly advised, before entering the home, of the right to stop the search.
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No. 31638-6-II1
State v. Budd
BY [STATE'S COUNSEL]
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 him that he could deny your entrance into the house?
A. Yes.
Q. And you advised him that he could stop you or stop the search at
any time?
A. Maybe not in those words.
Q. Right.
A. But, you know, once we went over the Ferrier, it was exactly
those words, yes.
Q. Okay. But I'm talking now before you go into the house what
you were talking about in the driveway. Did you advise him about
parameters?
A. Yes.
Q. And did the defendant set up parameters before you went into the
house?
A. He did.
Q. Okay. And those are the parameters that you testified to earlier?
A. Yes.
Q. About not to search it in front of his girlfriend?
A. That's correct.
Q. And any other parameters that I missed besides that one?
A. Other than he didn't want us going through his entire house­
Q. That's correct. Didn't want-
A. -and her things or whatever.
RP at 40-41 (emphasis added).
Once inside, the law enforcement officers reviewed the Ferrier waiver form with
Michael Allen Budd at his kitchen table. Budd signed and consented to the seizure of his
computer and hard drive. The officers confiscated the computer. The state patrol's
review of the computer revealed many images of child pornography.
8
No. 31638-6-111
State v. Budd
PROCEDURE
The State of Washington charged Michael Allen Budd with one count of
possession of depictions of a minor engaged in sexually explicit conduct in violation of
RCW 9.68A.070. Budd filed a CrR 3.6 motion to suppress evidence. Budd argued that
the evidence obtained via the search of his computer and hard drive should be suppressed
because (1) Detective Holmes improperly obtained Budd's consent when she stated that
she "could and would" obtain a warrant if Budd did not voluntarily consent to a "pre­
view" of his computer, and (2) the officers did not give Budd the warnings required under
Ferrier prior to entering his home to review the Ferrier consent form.
The trial court held a suppression hearing. Detective Holmes and Grant County
Reserve Deputy Ryan Lavergne testified. Michael Budd did not. The trial court denied
Budd's motion to suppress, holding that (1) Budd consented to the search voluntarily, (2)
the officers did not violate Ferrier by entering Budd's home to review his rights before
commencing the search, and (3) Detective Holmes' statement that she would "apply for a
search warrant" if Budd did not consent was not an assertion of authority sufficient to
vitiate Budd's consent. CP at 126-27.
The trial court authored a written ruling and entered findings of fact. The written
ruling quoted from Detective Kim Holmes' police report. The trial court's formal
findings adopted his memorandum ruling. The following is a portion of the ruling:
On March 11,2009, Detective Holmes, and two other troopers
9
No. 31638-6-III
State v. Budd
contacted the Defendant outside a residence in Ephrata. Detective Holmes
spoke with the Defendant. She explained why she was there and the
Defendant approached and admitted possessing hundreds of images
depicting minors involved in "sexually explicit conduct." Detective
Holmes asked the Defendant for consent to enter his home and search his
computer. The Defendant asked if the detective had a warrant. The
detective replied that she would apply for a warrant if he did not consent.
The Defendant 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 the Defendant's girlfriend. The Defendant then gave
consent to entry of his home for the purpose of searching his computer.
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 [Wn.] 2d
103,960 P 2d, 927 (1998). The Defendant signed the document
acknowledging he understood and reaffirming his consent. The troopers
seized the Defendant's computer but did not arrest the Defendant.
CP at 405. In his written ruling, the trial court made no mention of any Ferrier warnings
before entry of the home. In his written memorandum, the trial court ruled:
I further conclude that the troopers did not violate Ferrier by entering
the home initially to go over the Defendant'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 the defendant was advised
of his Ferrier rights, and the purpose of the Ferrier warnings was
accomplished.
CP at 407.
Michael Allen Budd and the State of Washington agreed to a stipulated facts
bench trial. The trial court found Budd guilty of possession of depictions of a minor
engaged in sexually explicit conduct in violation ofRCW 9.68A.070. The court
sentenced Budd to 13 months in prison, and 36 months community custody.
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No. 31638-6-II1
State v. Budd
LAW AND ANALYSIS
Findings ofFact
We must first identify the facts upon which to base our decision. In doing so, we
must initially determine what evidence the trial court reviewed when addressing Michael
Budd's motion to suppress. Our dissenting brother faults us for relying, in part, on
Detective Kim Holmes' police report in our statement of facts. Our dissenting brother
writes that the trial court only listened to the testimony of two officers, Kim Holmes and
Ryan Lavergne. The dissent is wrong. In his memorandum opinion later incorporated
into the findings of fact, the trial court references and quotes from Holmes' police report.
Therefore, the trial court necessarily considered the report. Neither party, on appeal,
objects to the trial court's reliance on the report when issuing the decision denying the
motion to suppress.
We now must identify the facts found by the trial court on its review ofthe police
report and hearing of live testimony. If the trial court found that Detective Kim Holmes
gave Michael Allen Budd the Ferrier warnings before Holmes entered the Budd
residence, we would affirm the denial of Budd's motion to suppress the photographs
found on his computer. The trial court found otherwise.
The resolution by a trial court, of differing accounts of the circumstances
surrounding the encounter, are factual findings entitled to great deference. State v.
Harrington, 167 Wn.2d 656,662,222 P.3d 92 (2009). It is the trial court's role to
11
No. 31638-6-III
State v. Budd
resolve issues of credibility and to weigh evidence. State v. Crane, 105 Wn. App. 301,
306,19 P.3d 1100 (2001), overruled on other grounds by, State v. O'Neill, 148 Wn.2d
564,62 PJd 489 (2003). But the ultimate determination of whether those facts constitute
a violation of the constitution is one of law and is reviewed de novo. Harrington, 167
Wn.2d at 662; State v. Gatewood, 163 Wn.2d 534, 539, 182 PJd 426 (2008). Therefore,
we accept the trial court's findings of the bare facts uninfected by any inferences and
unencumbered by legal significance. We accept the trial court's findings as to the actions
taken by law enforcement officers or not taken by the officers.
A trial court's written memorandum of opinion may be considered in interpreting
the court's findings of fact and conclusions of law. In re Marriage ofTahat, 182 Wn.
App. 655, 672, 334 P.3d 1131 (2014). Our trial court went further and incorporated the
memorandum opinion into the findings of fact.
Deferring to the trial court is critical in this appeal, because of the varying
testimony of Detective Kim Holmes concerning the time at which she gave all Ferrier
warnings to Michael Budd. Detective Holmes, according to her police report, told Budd
that he could give consent to preview his computer or "I could and would obtain a search
warrant." CP at 4 (emphasis added). The report further mentioned that, after entry into
the home, Budd signed a Washington State Police consent form and his rights were
explained to him. Nothing in the police report suggested that Ferrier warnings were
given before entry. Holmes testified she included in the report all necessary evidence.
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No. 31638-6-111
State v. Budd
The police report strongly implies that all Ferrier warnings were not given before the
officers entered Budd's house.
During the suppression hearing, Holmes testified:
[BY MR. OWENS State's counsel]:
Q. Now, after you advised him of the rights with this Ferrier
warning set, ... the right that he can stop the search at any time, ... was
this advised to him before you went into the house?
A. Yes.
RP at 17. But her later testimony was equivocal:
BY MR. DE YOUNG [defense counsel]:
Q. Prior to the time that you entered the house, how is it
communicated to Mr. Budd that he had the right to call off the search at any
time?
A. Verbatim, I don't recall. In general, 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.
RP at 39.
The State argues any ambiguity in what Holmes communicated to Budd regarding
his Ferrier rights was clarified on the State's redirect of her:
[BY MR. OWENS:]
Q. And you advised him that he could stop you or stop the search at
any time?
A. Maybe not in those words.
Q. Right.
A. But, you know, once we went over the Ferrier, it was exactly
those words, yes.
Q. Okay. But I'm talking now before you go into the house what
you were talking about in the driveway. Did you advise him about
parameters?
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No. 31638-6-III
State v. Budd
A. Yes.
RP at 41 (emphasis added). To the contrary, the testimony suggests Holmes did not
advise of the right to stop the search until entry of the home. The changing testimony of
Kim Holmes illustrates the observation of one trial court that an interrogatee can be led
down any path and opposite paths depending on the interrogator. State v. Cross, 156
Wn.2d 580,597, 132 P.3d 80 (2006).
In response to questioning by defense counsel, Holmes did not recall if she gave
every Ferrier warning before entering the home. Some of her testimony, in response to
the prosecution's questioning, infers that she did not give all of the warnings until she
reviewed the written form with Michael Budd inside the house.
This reviewing court does not resolve any ambiguity in the testimony. The trial
court justifiably found that the Ferrier warnings were not given until the officers were
inside the home. The trial court wrote in its memorandum: "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 Wn.2d 103, 960 P.2d 927 (1998)." CP at 405. The trial court made no
mention of any Ferrier warnings before entry of the home.
The State had the burden of showing all Ferrier warnings were given before entry
into the residence. State v. Ferrier, 136 Wn.2d 103, 116,960 P.2d 927 (1998). An
absence of a finding that all warnings were given before entry is tantamount to a finding
14
No. 31638-6-111
State v. Budd
they were not given. The absence of a finding on a material issue is presumptively a
negative finding entered against the party with the burden of proof. Golberg v. Sanglier,
96 Wn.2d 874,880,639 P.2d 1347 (1982); Pilling v. E. & Pac. Enters. Trust, 41 Wn.
App. 158, 165, 702 P.2d 1232 (1985).
Later in the memorandum, the trial court ruled 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. The trial court would not have ruled as it did unless
it found the full warnings were not given until inside the home.
Despite the trial court's ruling, our dissenting brother insists that the trial court
found that the law enforcement officers gave all Ferrier warnings before entry into the
home. We wish such were true. Unfortunately, our brother does not cite to any portion
of the record supporting the claimed finding. Perhaps conceding that the trial court did
not find that all warnings preceded the home entry, our brother claims that the giving of
the full warnings before entry of the home was an uncontested fact. To the contrary, as
shown by the extensive brief filed by Michael Budd in support of his motion to suppress,
Budd contended he was given no Ferrier warnings before the home entry. In fact, Budd
claimed his computer was seized and disassembled before he was given the warnings.
Budd devoted pages of argument in his motion memorandum based on his factual
position that "all of the required Ferrier warnings were not given until the detectives were
already inside the house and the seizure had commenced." CP at 16. Our dissenting
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No. 31638-6-111
State v. Budd
brother contends that, by our citing to Budd's memorandum, we use the memorandum to
establish facts. To the contrary, we cite Budd's memorandum to confirm his contentions
below, not facts.
Before moving to the substance of the appeal, we mention in passing our
dissenting brother's assertion that Michael Allen Budd exploited the officers by inviting
them inside his home to conduct the written waiver. We doubt that Michael Budd and for
that matter most accused are sophisticated enough to trick law enforcement officers into
entering the home before giving Ferrier warnings, so that any charges must later be
dismissed. The trial court made no finding of Budd engaging in trickery. Anyway, Kim
Holmes testified that Michael Allen Budd invited the officers inside, but not necessarily
for the purpose of reviewing and signing the warnings form.
Our dissenting brother refers to the police encounter as occurring "on a late
winter's afternoon," as if the law enforcement officers were tricked into entering the
home, before delivering all warnings, because of the ambient temperature. Dissent at 1.
Nevertheless, there is no evidence as to any chill in the air. The date was March 11.
Ferrier Warnings
Like Ernesto Miranda, the subject of Miranda v. State ofArizona, and John Terry,
the subject of Terry v. Ohio, Debra Ferrier, the accused in State v. Ferrier, sacrificed her
name to a legal doctrine about police practices. Michael Allen Budd argues that law
enforcement officers seized his computer and hard drive without sufficiently advising
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No. 31638-6-II1
State v. Budd
him of the Ferrier warnings before entering his home. Budd maintains that the warnings
must be explicit, that Detective Holmes could not merely tell Budd he had a right to
refuse the search, and that Holmes could not wait to apprise him of his other Ferrier
rights until inside his house. We agree.
Warrantless searches, such as the "knock and talk" entry at issue in this case, are
"unreasonable per se" under article I, section 7 of the Washington Constitution. State v.
Ferrier, 136 Wn.2d at 111; State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563(1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649,
166 1. Ed. 2d 482 (2006). Exceptions to the requirement that law enforcement obtain a
warrant are jealously and carefully drawn and are limited to those cases where the
societal costs of obtaining a warrant, such as danger to law enforcement or the risk of loss
or destruction of evidence, outweigh the reasons for prior recourse to a neutral
magistrate. Ark. v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 1. Ed. 2d 235 (1979),
abrogated by California v. Acevedo, 500 U.S. 565, IllS. Ct. 1982, 114 L. Ed. 2d 619(1991); State v. Houser, 95 Wn.2d 143, 149,622 P.2d 1218 (1980). Courts do not look
kindly on law enforcement's failure to obtain a search warrant when police have ample
opportunity to perform the task. State v. Ferrier, 136 Wn.2d at 115; State v. Leach, 113
Wn.2d 735, 744, 782 P.2d 1035 (1989).
The "knock and talk" technique involves entering a private home. Constitutional
privacy protections are strongest in the home. Payton v. New York, 445 U.S. 573, 590,
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No. 31638-6-III
State v. Budd
100 S. Ct. 1371,63 L. Ed. 2d 639 (1980); State v. Ruem, 179 Wn.2d 195,200,313 PJd
1156 (2013); State v. Young, 123 Wn.2d 173,185,867 P.2d 593 (1994). The Fourth
Amendment draws a firm line at the entrance to the home. Payton v. New York, 445 U.S.
at 590. "[A]ll invasions on the part of the government and its employees of the sanctity
ofa man's home and the privacies of life" are subject to constitutional protection. Boyd
v. United States, 116 U.S. 616, 630, 6 S. Ct. 524,29 L. Ed. 746 (1886). The home, as a
highly private place, receives heightened constitutional protection. State v. Young, 123
Wn.2d at 185. Because of the surprise element of law enforcement officers ringing the
doorbell, and the intimidation of officers inviting themselves indoors, any "knock and
talk" is inherently coercive to some degree. Ferrier, 136 Wn.2d at 115. The fact that
most individuals consent to a search when the search destroys their penal interests
illustrates the coercive nature of the "knock and talk." Ferrier, 136 Wn.2d at 116.
In Ferrier, police conducted a warrantless search of Debra Ferrier's home based
on a tip from her son that she grew marijuana in her house. 136 Wn.2d at 106. The
police decided to "knock and talk" in order to avoid disclosing their informant and
because they lacked probable cause. Four officers entered Ferrier's house, informed her
they had a tip she was growing marijuana, told her they wanted to search her house and
seize the plants, and then reviewed a "consent to search" form with her before she signed.
The officers found the plants in a locked room and seized them, along with a large
amount of cash from Ferrier's purse.
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No. 31638-6-III
State v. Budd
In Ferrier, the high court noted that a law enforcement officer's failure to inform a
homeowner of the right to decline a search does not automatically invalidate the search
under federal law. 136 Wn.2d at 110. Instead, the omission of this information is a
factor in determining the voluntariness of the search. United States v. Heimforth, 493
F.2d 970 (9th Cir. 1974). Thus, our eminent court addressed whether the Washington
Constitution afforded greater protection to the accused.
Article I, section 7 of our state's constitution provides that "no person shall be
disturbed in his private affairs, or his home invaded, without authority of law."
(Emphasis added.) The United States Constitution's Fourth Amendment also mentions
security in "houses." The Ferrier court held that the Washington Constitution provides
added safeguards, in part, because the wording of the state document expresses no
limitations to an individual's right to privacy.
In reversing the trial court's denial of Ferrier's CrR 3.6 motion, the Supreme
Court imparted explicit instructions to law enforcement officers who seek to execute a
"knock and talk" in Washington State:
[W]hen police officers conduct a knock and talk for the purpose of
obtaining consent to search a home, and thereby avoid the necessity of
obtaining a warrant, they must, prior to entering the home, inform the
person from whom consent is sought that he or she may lawfuI1y 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. The failure to provide these warnings, prior to entering the home,
vitiates any consent given thereafter.
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No. 31638-6-II1
State v. Budd
Ferrier, 136 Wn.2d at 118-19 (emphasis added).
The Ferrier court based its ruling on numerous observations. The home receives
heightened constitutional protection. 136 Wn.2d at 118. In no area is a citizen more
entitled to his or her privacy than in the home. 136 Wn.2d at 112. The closer officers
come to intrusion into a dwelling, the greater the constitutional protection. 136 Wn.2d at
112. RCW 10.79.040 creates the misdemeanor ofa law enforcement officer entering and
searching a private dwelling without the authority of a search warrant. Law enforcement
officers should obtain a search warrant except in emergency situations. The great
majority of home dwellers confronted by police on their doorstep or in their home would
not question the absence of a search warrant and will feel inhibited from asking for a
warrant. 136 Wn.2d at 115. Home dwellers will be too stunned by the circumstances to
render a reasonable decision about whether to consent to a home search. 136 Wn.2d at
115. One wonders, however, if giving the Ferrier warnings will settle the nerves of the
homeowner and lessen the inhibition to deny consent.
Since its 1998 ruling, our Supreme Court has reiterated that the warnings must be
given if the officer seeks to enter the home to conduct a warrantless search for evidence
ofa crime or contraband. State v. Khounvichai, 149 Wn.2d 557,566,69 P.3d 862(200~); State v. Ruem, 179 Wn.2d 195,206,313 P.3d 1156 (2013). Washington courts,
however, have clarified that Ferrier warnings are not always required when a law
enforcement officer enters a private residence without a warrant. State v. Ruem, 179
20
No. 31638-6-111
State v. Budd
Wn.2d at 206; State v. Khounvichai, 149 Wn.2d at 563; State v. Williams, 142 Wn.2d 17,
26, 11 P.3d 714 (2000); State v. Bustamante-Davila, 138 Wn.2d 964, 976, 983 P.2d 590(1999); State v. Leupp, 96 Wn. App. 324, 333,980 P.2d 765 (1999). For example, the
admonitions need not be given when an officer enters a home in response to a distress
call. State v. Leupp, 96 Wn. App. at 333-34 (1999). Ferrier warnings are not needed if a
law enforcement officer accompanies an immigration agent inside a home to deport an
individual, State v. Bustamante-Davila, 138 Wn.2d at 976; nor are the warnings
demanded if the officer enters the home to arrest an occupant pursuant to an arrest
warrant. State v. Ruem, 179 Wn.2d at 197; State v. Williams, 142 Wn.2d at 27. The
Ferrier admonitions are not prudent when the homeowner invites the officer inside to
investigate a crime. State v. Khounvichai, 149 Wn.2d at 564; State v. Williams, 142
Wn.2d at 27.
The facts in the cases limiting Ferrier are inapposite here. This appeal entails a
classic use of the "knock and talk" method of attempting to coerce consent to search
inside a house when law enforcement lacks probable cause.
The trial court ruled that it is permissible to give some of the warnings once an
officer has already entered the house. Nevertheless, no Washington decision permits this
practice. Ferrier does not stand for such a rule. Ferrier, 136 Wn.2d at 110 talks at
length about the heightened privacy protections afforded by Washington Constitution
article I, section 7, and the special protections available to an individual in their home.
21
No. 31638-6-III
State v. Budd
136 Wn.2d at 112, 114, 118. Finding that Ferrier only requires an advisement of its
warnings prior to a search, and not entry into the home itself, defeats the purpose of the
case's explicit directions to law enforcement personnel that the warnings be given before
entry.
Ferrier expressly demands that all warnings be given before entry of the home.
136 Wn.2d at 118-19. Later decisions refer to the rule as requiring warnings before entry
into the home. State v. Ruem, 179 Wn.2d at 201,205; State v. Khounvichai, 149 Wn.2d
at 559; State v. Williams, 142 Wn.2d at 25; State v. Bustamante-Davila, 138 Wn.2d at
978. Any erosion of the Ferrier rule should come from our Supreme Court.
Sound reason supports a demand that law enfo~cement give the Ferrier warnings
before entry into the house. A house is considered a castle and entitled to the greatest
protection from government entry and roaming. The intrusion into privacy begins at the
home's threshold. Once the police enter the home, seizure of contraband in plain view is
open season. Coercion increases once the officer is inside and in confined quarters with
the suspect. The camel's nose is inside the tent and its entire body will soon follow.
Once inside the house, the police may further manipulate the suspect into agreeing to an
unending search. Resistance to a voluntary search of recessed areas of the home is
lessened.
Michael Allen Budd was not inside when first approached by law enforcement.
Instead, police waited outside the home and approached him on his driveway when he
22
No. 31638-6-111
State v. Budd
arrived home. We see no reason to distinguish the facts on appeal, however, from the
facts in Ferrier. The arrival of the police was a surprise. Michael Budd lacked time to
reflect before being asked to consent to an inside search. Budd's questioning Kim
Holmes if she had a search warrant shows some skepticism and intelligence on his part.
Nevertheless, Holmes immediately stated she would seek a warrant. The officers then
played to Budd's fears of his girlfriend viewing the contents of his computer.
Unlike in other home entries, law enforcement here did not necessarily seek to
roam the entire house, but to grab a computer and hard drive. Our dissenting brother
suggests that warnings were not needed because the officers did not seek to search the
home. We see no important difference, however, for constitutional purposes. The
officers could not seize the computer without entering and searching the home. Budd's
computer was inside his house, in part, for privacy reasons. The officers entering
Michael Budd's home would have seized any contraband found in plain view.
Our dissenting brother writes that we announce in dicta that "written consent
obtained after entry into the house somehow vitiated the actual informed consent given
prior to entry." Dissent at 7. We do not announce such either by a holding or by dicta.
We instead hold that Michael Budd did not give informed consent for entry of his home,
since the officers failed to give all of the Ferrier warnings before entry.
Remember that law enforcement went to Michael Allen Budd's home out of
concern for his daughter. After speaking to Budd's girlfriend, the officers had no reason
23
I
I No. 3 I 638-6-III
State v. Budd
to believe the daughter was present. The officers did not end the operation, however.
The officers engaged in a knock and talk despite having an opportunity to seek a warrant.
They likely did not seek a warrant because they understood a judge would not issue a
warrant.
Viewing child pornography is a hideous crime that robs children of innocence and
scars them for life. Those who watch child pornography obsessively gamer gratification
through violent acts on defenseless children. Catching one at the crime takes diligence
since the viewer indulges in the privacy of his home, often by elaborate security measures
on his computer. Thus, we reluctantly reverse the trial court. Nevertheless, as judges, we
pledged to uphold the constitution and the endearing rights protected by the constitution.
Those engaged in hideous conduct are entitled to the protections afforded under our state
and federal constitution including the right to be free of unlawful searches and seizures.
We also will not manipulate the facts in order to facilitate a desired outcome. We
commend the trial court for its refusal to manipulate the facts in this difficult case.
We would remand the case for trial if evidence other than the content of the seized
computer was sufficient to convict. Nevertheless, Michael Budd's comment that he
would eventually get caught would be insufficient without evidence of videos or
photographs. Extrajudicial admissions and confessions are inadmissible unless the State
submits independent proof of the corpus delicti. State v. DuBois, 79 Wn. App. 605, 609,
904 P.2d 308 (1995); State v. Solomon, 73 Wn. App. 724, 727, 870 P.2d 1019 (1994).
24
No. 31638-6-111
State v. Budd
By our ruling, we do not criticize law enforcement officers who employ the
technique of "knock and talk." The technique remains lawful, within the strictures of
State v. Ferrier, and we recognize that diligent and honest officers will continue to use
this method of investigating crime. By our ruling, we follow our high court's precedent
of State v. Ferrier and confirm that all Ferrier warnings must be given before entry into
the home.
CONCLUSION
We reverse the trial court's denial of Michael Allen Budd's motion to suppress
evidence resulting from the seizure of his computer and hard drive. We remand with
directions to dismiss the charge against Budd.
I CONCUR:
Lawrence-Berrey,
25
No. 3l638-6-III
KORSMO, J. (dissenting) - No good deed goes unpunished. Or, in this case,
unexploited. Mr. Budd offered to conduct the written advice and written waiver of search
consent rights in his house after agreeing orally to the seizure of his computer and its
peripherals while outside the residence. Acting on his generous offer, while undoubtedly
wishing to keep Mr. Budd in a consenting mood, the officers followed him into the house
and processed their paperwork inside rather than trying to persuade him to stay outside on a
late winter's afternoon. That is all that took place here. Unfortunately, the majority fails to
defer to the trial court's actual finding that consent was given prior to entering the house in
favor of its own view of the evidence. Although there is an interesting legal issue
presented concerning one aspect of State v. Ferrier, 136 Wn.2d 103,960 P.2d 927 (1998),
that issue gets lost in the analysis.
While the majority errs in several respects, its reweighing of evidence and reliance
on extraneous evidence that was not considered at the suppression hearing is probably the
most serious concern here. The court's sparse findings of fact are clear on this point: the
only evidence considered at the CrR 3.6 hearing was the testimony of Detective Holmes
and Deputy Lavergne. Clerk's Papers (CP) at 402.1 Accordingly, the police reports cited
1 The majority, amazingly, confuses defense counsel's trial memorandum
argument with evidence. While that document contended the evidence would show Mr.
Budd did not consent to entry, it is not itself evidence of what took place. The sole
evidence of what occurred was the testimony of the two officers, uncontested by any
competing testimony from Mr. Budd or anyone else.
No. 3l638-6-Ill-Dissent
State v. Budd
by the majority were not a part of the substantive evidence considered at the suppression
hearing. They provide no basis for overturning the court's finding and, most certainly,
cannot be relied on for that purpose in this court.
It also was expressly noted that Mr. Budd did not testify. CP at 402. The only
testimony before the court was that the Ferrier warnings were given prior to entry into the
house. It was in this context that the court made its determination that consent was given
to enter the home to seize the computer. CP at 405. The existence of Ferrier warnings
was an uncontested fact. 2 Although the defense memorandum argued otherwise, there was
no evidence to support the argument. Instead, the only testimony was that full Ferrier
warnings were given prior to entry. The trial court was free to believe or disbelieve that
testimony; it chose to believe the officers. Accordingly, there is no basis for determining
that the trial court's ruling that consent was given was somehow unclear. As framed by the
defense, the issue at the CrR 3.6 hearing was whether or not the warnings were fully given.
The evidence and ruling were that they were. That should be the end of the story.
Appellate courts will review the evidentiary record when a party claims the
evidence does not support a particular finding. E.g., State v. Hill, 123 Wn.2d 641,644-45,
2 Prior to amendment effective January 2, 1997, CrR 3.6 used to require the findings
to reflect the uncontested facts as well as the court's resolution of the contested facts; the
uncontested facts were taken as a given. See 130 Wn.2d 1101. After amendment, the court
is required to enter findings of fact without reference to what was contested and what was
not. The uncontested facts now sometimes get overlooked in that process.
2
No. 31638-6-Ill-Dissent
State v. Budd
870 P.2d 313 (1994) (rejecting line of authority permitting appellate courts to undertake
independent review of the evidence). However, we do not weigh the evidence under any
circumstance. E.g., Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575,343 P.2d
183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266(2009). We similarly do not substitute our judgment for that of the trier of fact.
Hesperian, 54 Wn.2d at 575. Whether the facts are as the parties allege is for the trial
judge to determine, not this court. Id. Thus, much of the majority's opinion is a misplaced
exerCIse.
But, even if we were to reweigh the evidence, the testimony that the majority cites
does not support its argument. Immediately after citing to the detective's testimony on
direct examination that the Ferrier rights were given, the majority cites to the following
cross-examination question: "Prior to the time you entered the house, how is it
communicated to Mr. Budd that he had the right to call off the search at any time."
Majority at 13. The question accepts the truth of the detective's testimony that the
warnings were given prior to entry and focuses on the verbiage used to convey the concept
that Mr. Budd retained the right to change his mind and stop the search. The detective then
answered that question by stating that she did not recall the verbatim language and gave
some irrelevant examples of what might have been said on other aspects of search consent.
From that, the majority seems to infer that she failed to give any information to Mr. Budd,
3
No. 31638-6-III-Dissent
State v. Budd
prior to entering the house, about his right to stop the search at any time. That inference
simply does not follow from the answer, "I do not recall." Failure to recall specific
verbiage is not the same thing as failing to provide the information. However, even if that
were a possible interpretation of the answer, the remaining problem is that it is not our
interpretation to make. The trial judge heard that testimony and had no trouble squaring it
with the remaining evidence. We have no authority to reweigh evidence and reach a
different result.
The last point to be addressed on this topic involves the quality of the findings.
The formal findings are nearly nonexistent, but at least incorporate the trial judge's
lengthy and thoughtful memorandum. It is unfortunate that the formal findings are not
more detailed and merely incorporate, instead of being supplemented by, the judge's
memorandum. While 1 think the judge's memorandum adequately answers the question
that troubles the majority, there is a remedy for findings that are insufficient. When the
findings are not clear or fail to address an important point, the remedy is to remand for
better findings. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998) (no findings
prepared); State v. Alvarez, 128 Wn.2d 1,904 P.2d 754 (1995) (bench trial findings
lacking ultimate facts); State v. Barber, 118 Wn.2d 335, 342, 823 P.2d 1068 (1992)
(insufficient findings from erR 3.6 hearing). If it does not understand the judge's finding,
4
No. 31638-6-Ill-Dissent
State v. Budd
the majority's answer is to ask for clarification rather than search for evidence of
ambiguity to impeach the trial court. [d.
For all of the noted reasons, we need not even consider the Ferrier problems
presented here. However, since the mqjority addressed Ferrier, I briefly will do the same.
Of course, the first issue is whether Ferrier actually applies here. The majority begins its
analysis by understating the Ferrier holding. It cites the rule of Ferrier as requiring
informed consent prior to law enforcement entering a home. Majority at p. 1-2. While
correct as far as that observation goes, it is incorrect in context. The actual rule of Ferrier
applies only "when police officers conduct a knock and talk for the purpose of obtaining
consent to search a home." 136 Wn.2d at 118. 3 It 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. This case does not involve that standard-the officers did not
enter the house to obtain consent, but, rather, to seize a specific, identified item. Further,
3 The majority also reads too much into Ferrier. At issue there was an unconfirmed
tip that Ms. Ferrier was growing marijuana in her home. The police hoped to enter and
then obtain her consent to search. Ferrier, 136 Wn.2d at 107. However, if they managed
to smell growing marijuana from inside the home, the officers would then have probable
cause to obtain a search warrant. E.g., State v. Cole, 128 Wn.2d 262,289, 906 P.2d 925(1995). That supplied a second reason, in addition to the coercive aspects of police seeking
consent after entry, which undoubtedly supplied the rationale for requiring informed
consent prior to entry. If the informed consent were not extended back prior to entry,
officers could easily evade Ferrier simply by stating that they sought entry to obtain
sensory evidence to support a search warrant rather than to obtain the homeowner's
consent to search.
5
No. 31638-6-III-Dissent
State v. Budd
their objective never was to search the house. Instead, they sought to obtain only the
defendant's computer. For both those reasons, the literal holding of Ferrier does not
apply here because the officers never sought to search the house. 4
Because the police used the enhanced consent standard of Ferrier, the parties and
the trial court necessarily considered this case in that light. 5 However, it is-far from clear
under Ferrier that the case had to be analyzed that way. The consent form actually limits
the search consent to one item-a "blue tower" "generic desk top computer" that was
"located in livingroom on desk." CP at 185. The form also advised Mr. Budd that he
could lawfully refuse to consent to the search, he could revoke his consent at any time, that
he could limit the scope of the search "to certain areas of the computer system(s) and/or
storage devices," and that any evidence found during the search could be used in court
against him or someone else. CP at 185. Given the very specific and limited nature of the
customized search consent sought by the officers, it is very difficult to understand why it
needed to be done outside the house. The Washington Supreme Court has declined to
apply the Ferrier warnings to police entry into homes to obtain information or seize
4 We recently declined to extend Ferrier to vehicle searches and in the process noted
that the Washington Supreme Court itself has not applied Ferrier outside of the house
search context. See State v. Witherrite, -- Wn. App. --,339 P.3d 992 (2014).
5 It is a "best practice" to use the enhanced Ferrier warnings when consent is sought.
State v. Witherrite, -- Wn. App. --, 339 P.3d 992 (2014).
6
No. 31638-6-III-Dissent
State v. Budd
individuals. E.g., State v. Khounvichai, 149 Wn.2d 557, 69 P.3d 862 (2003) (Ferrier
warnings not required where police request entry to a home merely to question or gain
information regarding an investigation); State v. Williams, 142 Wn.2d 17,27-28, 11 P.3d
714 (2000) (Ferrier warnings not required where police request consent to enter a home to
arrest a visitor under a valid warrant); State v. Bustamante-Davila, 138 Wn.2d 964,
983 P.2d 590 (1999) (same). The computer, which was seized only after a personalized
consent form was explained and approved by Mr. Budd, does not itself have greater
privacy rights inside the home than he did.
Finally, the majority in dicta resolves the actual issue addressed by the trial court,
which is whether written consent obtained after entry into the house somehow vitiated the
actual informed consent given prior to entry. I agree with the majority that oral advice of
rights prior to entry is sufficient. Written proof of waiver is preferred, but Ferrier does not
require it. That decision simply reiterates that the State bears the burden of proving the
informed consent and gives several examples of cases where that burden was met by use of
written advice. State v. Ferrier, 136 Wn.2d at 116-17. Thus, in cases where consent was
given prior to entry, the scrivener's act of reducing that consent to writing can occur inside
the house.
7
No. 31638-6-III-Dissent
State v. Budd
The majority errs in its reweighing of evidence (and consideration of nonevidence)
from the erR 3.6 hearing, and it errs in applying Ferrier to these facts. For both reasons,
I respectfully dissent.
8