State Of Washington, V Christine K. Westvang ( 2013 )

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tt OF APPEALS
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IN THE COURT OF APPEALS OF,THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Respondent, No. 42777 0 II
- -
V.
PUBLISHED OPINION
CHRISTINE KAY WESTVANG,
Appellant.
VAN DEREN, J. —Christine Westvang appeals her conviction on one count of unlawful
possession of a controlled substance with intent to deliver. She argues that the trial court should
have suppressed the evidence found in her home because officers failed to provide Ferrier
warnings_
before_
obtaining her consent to enter her home to search for an individual with an
outstanding arrest warrant. We give meaning to our Supreme Court's discussion in State v.
Williams and adopt the rule in State v. Dancer, which'equires that officers give Ferrier
r
warnings before obtaining a resident's consent to search a home for a person unless the search is
supported by a reasonable suspicion that the person may be found in the home. This result
1
State v. Ferrier, 136 Wn. d 103, 118 19,960 P. d 927 (1998)requiring that before officers
2 - 2 (
seek consent to search a home, the officers must inform the occupant of their right to refuse,
limit, or revoke their consent).
2 State v. Williams, 142 Wn. d 17, 11 P. d 714 (2000).
2 3
3
State v. 9- WL 1831454, at * Wash. Ct. App. Apr. 30, 2013).
Dancer, No. 42397-
11, 2013 5 (
No. 42777 0 II
- -
harmonizes our Supreme Court's existing cases dealing with searches for people in a home and
those cases dealing with other evidence; thus, we hold that, here, because the officers did not
have sufficient corroborating evidence to support a reasonable suspicion that the person for
whom they were searching was in Westvang's home, the officers needed to give Westvang
Ferrier warnings to avoid an arbitrary search for a person. Williams, 142 Wn. d at 27. Because
2
the officers had no independent evidence to corroborate or to support the reliability of an
unidentified informant's tip that the individual sought under a search warrant was at Westvang's
house and because she was not advised of her right to limit or terminate the officers' search, we
reverse the trial court's denial of Westvang's suppression motion and vacate her conviction
based on the suppressed evidence.
FACTS
On March 31, 2011, Detective Kevin Sawyer and Officer Spencer Harris were part of a
team conducting a "fugitive sweep"seeking to apprehend Scott Miller,who had an active
warrant for his arrest. Report of Proceedings (RP)at 3. They received uncorroborated
information that Miller frequentedaresidence of Baltimore Streef iri
1345_ origview,
Washington, and that he might be located there. That evening, Sawyer and Harris went to the
Baltimore Street address, and Harris knocked on the door while Sawyer stood by the corner of
the house. Westvang, the owner of the residence, opened the door, and Sawyer joined Harris at
the door.
The officers informed Westvang that they were searching for Miller, and she responded
that he was not there. The officers again explained that they had information that Miller was at
her home. Because the officers noticed that Westvang was nervous and thought that she might
be hiding Miller, Sawyer asked if he and Harris could enter her residence to look for Miller.
2
No. 42777 0 II
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Sawyer informed Westvang that she did not have to consent to their entry, but neither officer told
her that she could end the search at any time or that she could limit the search to particular
4
areas. . After telling the officers again that Miller was not there, Westvang agreed to let them
enter.
Westvang led the officers through her living room, kitchen, and bedroom, but they did
not find Miller. When the officers returned to the living room, Harris noticed a desk large
enough that someone could hide behind it and he looked under it.
After determining that no one was hiding under the desk, Harris noticed a digital scale, a
white crystal substance, a small metal container that contained numerous plastic bags, a small
plastic bag with a green leafy substance, and $ 05 cash on top of the desk. Upon recognizing the
1
white crystal substance as methamphetamine and the green substance as marijuana, Sawyer read
Westvang her Miranda rights. Westvang indicated that she understood her rights and told the
officers that the methamphetamine belonged to her. The State charged Westvang with one count
of unlawful possession of methamphetamine with intent to deliver.
Westvang moved to suppress the methamphetamine..
and of er items
-
home, arguing that she did not consent to the officers' search. The State argued that because the
4
The trial court's unchallenged findings state that Sawyer informed Westvang that she did not
have to consent to the officers' entry, but are silent as to whether either officer informed her that
she could limit the scope of their search or that she could withdraw her consent at any time. 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 this issue."State v.Armenta, 134 Wn. d 1,
2
14, 948 P. d 1280 (1997)).
2
5
Miranda v. Arizona, 384 U. .436, 444, 86 S. t. 1602, 16 L .Ed. 2d 694 (1966).
S C
6
RCW 69. 0.
401( 1 provides, I] is unlawful for any person to manufacture, deliver, or
5 ) "[ t
possess with intent to manufacture or deliver, a controlled substance."Methamphetamine is a
controlled substance. RCW 69. 0.
101(
d RCW 206(
5 );69. 0.
2).d)(
5
3
No. 42777 0 II
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officers did not seek to enter Westvang's home to search for contraband or evidence of a crime,
but,rather, they sought to enter for a legitimate investigative purposeto arrest Miller on a valid
—
warrant they were not required to advise her of her right to refuse, revoke, or limit her consent
—
to the search.
The trial court denied Westvang's motion to suppress the evidence, concluding that "[ he
t]
officers were at [Westvang's]
residence for a legitimate investigatory purpose"and that
Westvang gave valid consent for the officers to enter her residence. Clerks Papers (CP)at 67. A
jury found Westvang guilty of unlawful possession of methamphetamine with intent to deliver,
and the trial court imposed a standard range sentence of 12 months and one day.
-
Westvang appeals.
ANALYSIS
Westvang argues that the trial court erred when it denied her motion to suppress the
evidence found in her home because the officers sought to arbitrarily search her home for a guest
and, thus, the officers were required to provide her Ferrier warnings before obtaining her
consent to search: The State responds that under our SupremeCourt'
- slimitations tot e Ferriei - -- - - - - -
-
rule,the officers were not required to provide Ferrier warnings because they did not seek
consent to search her house for contraband or evidence of a crime; rather, they had a legitimate
4
investigatory purpose to search for Miller. We clarify that officers are required to provide
—
Ferrier Warnings before obtaining consent to search a home for a person when, as here, the
officers had no reasonable suspicion that the person could be found in the defendant's home.
I. STANDARD OF REVIEW
Because Westvang does not challenge any of the trial court's findings of fact, they are
verities on appeal. State v. Bustamante-
Davila, 138 Wn. d 964, 976, 983 P. d 590 (1999).We
2 2
4
No. 42777 0 II
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review de novo the trial court's conclusion that the warrantless search of Westvang's home was
valid. State v. Moore, 161 Wn. d 880, 885, 169 P. d 469 (
2 3 2007).
II. The FERNER WARNING REQUIREMENT AND ITS LIMITATIONS
The Fourth Amendment to the United States Constitution, applicable to states through the
Fourteenth Amendment, prohibits unreasonable searches and seizures. State v. Setterstrom, 163
Wn. d 621, 625 26,183 P. d 1075 (2008).The Washington State Constitution provides greater
2 - 3
protection, and "[ nder
u] article I,section 7,warrantless searches are per se unreasonable. State
v. Kull, 155 Wn. d 80, 85, 118 P. d 307 (
2 3 2005).
Article I,section 7 of the Washington State Constitution provides, No person shall be
"
disturbed in his private affairs, or his home invaded, without authority of law."
Under the
Washington State Constitution, the home receives heightened constitutional protection."Kull,
"
155 Wn. d at 84. " he heightened protection afforded state citizens against unlawful intrusion
2 T
into private dwellings places an onerous burden upon the government to show a compelling need
to act outside of our warrant requirement."State v. Chrisman, 100 Wn. d 814, 822, 676 P. d
2 2
419 (
1984). ---- - - - - --
Exceptions to the warrant requirement are "``jealously and carefully drawn. "' State v.
Reichenbach, 153 Wn. d 126, 131, 101 P. d 80 internal quotations marks omitted)
2 3 (
quoting State v. Hendrickson, 129 Wn. d 61, 70, 917 P. d 563 (1996)).
2 2 Thus, the State bears
the burden of proving an exception to the warrant requirement. Ferrier, 136 Wn. d at 111. If
2
the State fails to meet its burden that an exception to the warrant requirement applies, all .
"
subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed."
State v. Ladson, 138 Wn. d 343, 359, 979 P. d 833 (1999).
2 2
5
No. 42777 0 II
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Officers may conduct a warrantless search of a home if they obtain the resident's consent.
Ferrier, 136 Wn. d at 111. Under certain circumstances, when officers conduct what our
2
Supreme Court has characterized a knock and talk, " police officers must give particular
as ' "
warnings before valid consent can be obtained
when 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 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. The failure to provide these warnings, prior
to entering the home, vitiates any consent given thereafter.
Ferrier, 136 Wn. d at 118 19.
2 -
In Ferrier, Ferrier's son informed police officers that Ferrier was growing marijuana in
her home. 136 Wn. d at 106. Because seeking a search warrant would have required disclosing
2
the son's identity,the officers decided to perform a knock and talk instead..
Ferrier, 136 Wn. d
2
at 107. After the officers knocked on Ferrier's door and identified themselves, Ferrier invited
them into her home. Ferrier, 136 Wn. d at 107. The officers informed her that they believed
2
thata marijuanagrowoperation wasbeingconductedinhouseand that theywant d to searc — - - - -
- -
her home and seize the marijuana. Ferrier, 136 Wn. d at 108. Ferrier signed a " onsent to
2 c
search"form that did not indicate that she had the right to refuse consent to the search and the
officers did not inform her of that right. Ferrier, 136 Wn. d at 108. She then led the officers
2
upstairs to a room containing marijuana plants. Ferrier, 136 Wn. d at 108 09. The officers
2 -
7 In a " nock and talk," law enforcement officer knocks on the door of a residence, makes
k a
contact with the resident, and asks permission to enter the residence to discuss the officer's
investigation. Ferrier 136 Wn. d at 107. Once inside the residence, the officer informs the
2
resident why the officer is there and asks permission to search the premises. Ferrier, 136 Wn. d
2
at 107.
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No. 42777 0 II
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seized the plants and Ferrier was convicted of manufacturing a controlled substance after the trial
court denied her suppression motion. Ferrier, 136 Wn. d at 109.
2
Our Supreme Court reversed the denial of her suppression motion,holding that Ferrier's
consent was " itiate[
v d]" officers' failure to inform her of her right to refuse, limit, or
by the
revoke her consent. Ferrier, 136 Wn. d at 118 19. The court reasoned that the warnings were
2 -
required because "any knock and talk is inherently coercive to some degree"because
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..
Ferrier, 136 Wn. d at 115.
2
After Ferrier, our Supreme Court's decisions have been read to curtail its application in
all but formal " nock and talk"situations. Our Supreme Court has made it clear that Ferrier
k
warnings are not required every time an officer seeks to enter an individual's home.
Khounvichai, 149 Wn. d at 566. Noting that " olice often e homes for investigative
2 p
purposes, such as inspecting break ins,vandalism, and other routine responses," Supreme
- our
Court has held that Ferrier warnings are required only where " olice seek entry to a home to
p
conduct a warrantless search for contraband or evidence of a crime"and not when they request
consent to enter a home for other legitimate investigatory purposes."Khounvichai, 149 Wn. d
2
at 563, 566, 564; see also Williams, 142 Wn. d at 27 28;Bustamante-
2 - Davila, 138 Wn. d at 980.
2
In Bustamante-
Davila, a United States Immigration and Naturalization Service (INS)
agent, accompanied by four police officers, went to Bustamante -Davila's home to arrest him on a
presumptively valid deportation order. 138 Wn. d at 967 68. When Bustamante-
2 - Davila opened
7
No. 42777 0 II
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his door in response to the INS agent's knock,the INS agent asked if he'could enter.
Bustamante-
Davila, 138 Wn. d at 968 69. Bustamante -Davila did not object, and after the
2 -
officers and the INS agent entered the home, the INS agent told Bustamante-
Davila that he was
under arrest for an immigration violation and told him to gather his belongings because he would
not be returning to his home. Bustamante-
Davila, 138 Wn. d at 969. The INS agent followed
2
Bustamante-
Davila to the back of his home and one of the officers observed.an illegally
possessed rifle standing against the living room wall in plain view. Bustamante-
Davila, 138
Wn. d at 969. The officer knew that Bustamante -Davila was a convicted felon and seized the
2
firearm. Bustamante-
Davila, 138 Wn. d at 970.
2
Our Supreme Court affirmed the trial court's denial of Bustamante -Davila's suppression
motion, holding that " he police officers did not employ a ``knock and talk' procedure in this
t
case "; thus, no Ferrier warnings were required. Bustamante-
Davila, 138 Wn. d at 981, 984.
2
Our Supreme Court distinguished the case from Ferrier,noting that
t] police officers in this case did not proceed to [ Bustamante -Davila]'
he s
residence with the intent to find contraband without obtaining a search warrant.
They merely accompanied the INS agenf as -backup,a standard iri INS -- -
arrest and deportation matters. [Bustamante-
Davila] did not consent to a search,
but consented to entry into his home.
Bustamante-
Davila, 138 Wn. d at 980.
2
In Williams, a citizen informed a police officer that Williams had a warrant out for his
arrest and that he could be found at a local apartment. 142 Wn. d at 19. The citizen also
2
provided the officer with a description of Williams's clothing and vehicle. Williams, 142 Wn. d
2
at 19. After confirming that Williams had an outstanding arrest warrant, the officer drove to the
apartment and observed his vehicle in the parking lot. Williams, 142 Wn. d at 19. The officer
2
called for backup and, after another officer arrived, the two officers approached the open door of
No. 42777 0 II
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the residence and called for Williams. Williams, 142 Wn. d at 19 20. When the person who
2 -
rented the apartment appeared at the door, one of the officers informed that person that the
officers were looking for Williams and that he had a warrant for Williams's arrest. Williams,
142 Wn. d at 20. The renter told the officer that he did not know Williams but that there was a
2
guest in his home that he knew by another name. Williams, 142 Wn. d at 27. The officer
2
requested the renter's consent to enter the apartment to identify the guest. Williams, 142 Wn. d
2
at 27. The renter agreed, and when the officers entered the apartment, they immediately
identified Williams and arrested him. Williams, 142 Wn. d at 20. The officers discovered
2
heroin in Williams's pocket in a search incident to his arrest. Williams, 142 Wn. d at 20.
2
Our Supreme Court affirmed the trial court's denial of Williams's suppression motion,
noting that Bustamante-
Davila "imited Ferrier to the kind of coercive searches the police
l
employed there [and] rejected the contention that Ferrier was a ``bright line' rule required in,
-
every case where police obtain search authority by consent." Williams, 142 Wn. d at 26. The
2
Court observed that "[ olice officers are oftentimes invited into homes for investigative
p]
purposes;including inspection of break ins;
= vandalismand otherroutine responses and,thus; _ -- -- -
t] apply the Ferrier rule in these situations would unnecessarily hamper a police officer's
o
ability to investigate complaints and assist the citizenry."
Williams, 142 Wn. d at 27 28. The
2 -
court limited the necessity of Ferrier warnings " o situations where police seek to conduct a
t
search for contraband or evidence of a crime without obtaining a search warrant."Williams, 142
Wn. d at 27 28.
2 -
Thus,the Williams court explained that Ferrier warnings were not required because
the police officers did not seek to enter [the] apartment to lookfor contraband or
to arbitrarily search a for a hidden guest. The officers in this case first
home
verified the accuracy of an informant's statement and identified the defendant's
0
No. 42777 0 II
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vehicle in front of [the] apartment, which allowed the officers to reasonably
conclude that Williams was inside. Subsequently, when the officers spoke with
the renter],the officers did not request permission to search the premises but
asked only whether the defendant was inside. [The renter] told the officers that
there was a guest in his home and that he knew the guest by another name. He
agreed to allow the police officers to come inside and confirm the identities of the
persons inside. Considering the limited purpose of the police entry and that [the
renter] acknowledged that he had guests inside, this case does not resemble a
knock and talk"warrantless search that Ferrier intended to prevent.
Williams, 142 Wn. d at 27 (emphasis added).
2
Finally, in State v. Khounvichai,two officers responded to a report of malicious mischief
at an address the complainant provided. 149 Wn. d 557, 559, 69 P. d 862 (2003).When a
2 3
woman answered the officers' knock, they asked her whether the suspect was home.
Khounvichai, 149 Wn. d at 559. The woman told the officers.that the suspect was her grandson
2
and that he was at home, and the officers asked if they could enter to talk to him. Khounvichai,
149 Wn. d at 559. She allowed the officers into her home and one officer followed her to a
2
room that smelled of.
marijuana. Khounvichai, 149 Wn. d at 559 60. The suspect stepped out
2 -
of the room and, when he saw the officer, turned and whispered to two other individuals in the
One of those individuals;-
room. Khounvichai, 149Wn. - af 560. -
2d - uickl Ymoved - - -- - -- - -
Kh6unnvichai ,q-- -
across the room and out of the officer's sight. Khounvichai, 149 Wn. d at 560. Concerned that
2
Kounvichai was reaching for a weapon, the officer grabbed him and a baggie of cocaine fell out
of his hand. Khounvichai, 149 Wn. d at 560.
2
Our Supreme Court affirmed the trial court's denial of Khounvichai's suppression
motion, reiterating its holding in Williams that "[ he Ferrier rule applies [only]to situations
t]
where police seek entry to a home to conduct a warrantless search for'ontraband or evidence of
c
a crime"and not when police seek consent to enter " or other legitimate investigatory purposes."
f
Khounvichai, 149 Wn. d at 566, 564. Because the police in Khounvichai sought to enter the
2
10
No. 42777 0 II
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home to question a suspect in a malicious mischief complaint and not to conduct a warrantless
search, our Supreme Court held that Ferrier warnings were not required. 149 Wn. d at 566 67.
2 -
In reaffirming its distinction between warrantless searches and other investigatory purposes, our
Supreme Court noted, When 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 the police seek consensual entry to question a resident."
Khounvichai, 149 Wn. d at 564 (emphasis added)
2
III. WARRANTLESS SEARCH
Westvang argues that the evidence seized from her home should be suppressed because
the officers failed to provide her Ferrier warnings before they obtained her consent to search her
home for Miller when they did not have corroborating evidence that Miller could be found in the
home. The State responds that the officers sought to enter Westvang's home for a legitimate
investigatory purpose—
searching for Millerand,thus,were not required to provide Ferrier
—
warnings to Westvang because they were not searching for contraband or evidence of a crime.
We agree with Westvang - -- -- -- -
Westvang contends that the trial court erred in denying her motion to suppress the
evidence because it improperly distinguished between a search for a person and a search for
other evidence. When it denied Westvang's suppression motion, the trial court concluded, The
"
8
See Williams, 142 Wn. d at 33,n. 8 (Sanders, J.,
2 dissenting) ( "`` [ he plain wording of the
T]
Fourth Amendment admits of no exemption from the warrant requirement when the search of a
home is for a person rather than for a thing. "'alteration in original)quoting Steagald v. U.S.,
( (
451 U. .204, 214 n. , 101 S. Ct. 1642, 68 L.Ed. 2d 38 (1981)));
S 7 Khounvichai, 149 Wn. d at
2
571 (Sanders, J.,
dissenting) (T] e `` fficers' request for permission to enter is,in effect, a
"[ h o
request for permission.to search for anything in plain view,'and I can think of no reason why the
home dweller should not be informed of his right to refuse consent to entry." (
internal quotation
marks omitted)quoting State v. Kennedy, 107 Wn. App. 972, 977, 29 P. d 746 (2001))).
( 3
11
No. 42777 0 II
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officers were at [Westvang]'
s residence for a legitimate investigatory purpose. They were not
there searching for drugs; rather, they were searching for ... Miller,who had an active
Department of Corrections] warrant."CP at 67.
But notwithstanding our Supreme Court's distinction between an officer's obtaining
consent to enter a home for a "egitimate investigatory purpose"and to search for contraband or
l
evidence of a crime, the facts in Westvang are distinguishable from those in our Supreme Court's
decisions limiting Ferrier and are more comparable to the arbitrary search for a hidden guest
considered in Williams. In situations like those in Bustamante-
Davila, Williams, and
Khounvichai, in which officers sought consent to enter an individual's home to search for a
person, an officer's failure to provide Ferrier warnings did not render consent invalid because
the officers had independent corroborating evidence that the person could actually be found in
the home. Williams, 142 Wn. d at 27. In all three cases, the officers had more than a mere
2
informant's tip that the person they sought might be found within the residence.
In Bustamante-
Davila,the officers contacted the defendant in his own home. 138 Wn. d
2
at967. In Williams;theofficers
not liad ailninformant'stip thatanindividual -
wit a warrant
out for his arrest could be found within the apartment, but the officers also identified the
individual's vehicle outside the residence and the renter indicated that he had guests and that it
was possible that the individual could be inside. 142 Wn. d at 19. And in Khounvichai, the
2
resident was the suspect's grandmother and she confirmed that the suspect was in her home. 149
Wn. d at 559. Thus, in Bustamante-
2 Davila, Williams, and Khounvichai, the officers seeking
entry to a home to determine whether a particular person was inside had corroboration that the
person sought was at the home, consistent with our Supreme Court's characterization of the
12
No. 42777 0 II
- -
activity not as a search, but rather as an investigation, thus moving the activity outside the scope
of Ferrier.
Here, although the officers sought Westvang's consent to enter her home to search for
Miller,not to search for methamphetamine or other evidence of a crime,they had no reasonable
suspicion, other than an uncorroborated informant's tip for whom the record shows no prior
officer experience regarding the reliability of the informant, that Miller was in any way
connected with Westvang's home. Unlike in Bustamante-
Davila, Williams, or Khounvichai,
Westvang told the officers that Miller was not in her home. And unlike in Bustamante-
Davila or
Khounvichai, the officers were not looking for Miller at his own home or that of a family
member; rather, they searched for him in Westvang's home. Thus,the facts here fall within the
scope of police conduct for which Williams impliedly requires Ferrier warnings because the
officers' entry without warnings allowed them to search arbitrarily for a hidden guest.
We give meaning to Williams's arbitrary search"discussion and clarify that the
"
spreading belief that Ferrier warnings are required only when officers seek to enter a home to
searchfor coiltraband or evidence of a crime arid not for a personis
- - - uc - a rU e would
-
allow searches of homes contrary to the Fourth Amendment and article 1, section 7 of our state
constitution, giving officers unfettered discretion to seek unadvised consent to enter a home to
search fora person without a reasonable suspicion that the person sought could be found in the
home. This holding is consistent with our recent decision in Dancer, 2013 WL 1831454, at *5,
9
Both officers testified about the informant at the suppression hearing but they provided no
information supporting the informant's reliability. Harris stated that he received information that
Miller could be found at Westvang's residence " from a subject we contacted prior to going to the
Baltimore Street address."RP at 3. Harris said that the subject led him to believe that Miller
could be found there because "[ e was known to frequent that residence."RP at 4. Sawyer
h]
in the trailer park had stated that ... Miller frequents the 1345 Baltimore,
testified that someone "
1,address."RP at 16.
13
No. 42777 0 II
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in which we held that when seeking, onsent to enter a home to search for a person, the officers
c
must have a reasonable suspicion that the person can actually be found in the home.
In Dancer, a woman reported that her boyfriend, Sean Johnson, had assaulted her, and
that the couple's children could be found either at the couple's shared residence or at the home of
their next door neighbor, Dancer. 2013 WL 1831454, at * 1. The police used a canine unit to
track Johnson, and the dogs led the s house. Dancer, 2013
police to.
Dancer' WL 1831454, at * L
Dancer answered her door and confirmed that the children were in her home but denied
Johnson's presence, telling police that she had seen him leave and showing them the direction he
went. Dancer, 2013 WL 1831454, at * 1. The officer asked Dancer if he could enter her home to
search for Johnson but did not provide Ferrier warnings. Dancer, 2013 WL 1831454, at * 1.
Dancer consented to the officers' entry and they discovered methamphetamine in plain view
after Dancer agreed to open a locked bedroom door at the officer's request. Dancer, 2013 WL
1831454, at *
1.
We affirmed the trial court's denial of Dancer's suppression motion, holding that " here
w
police obtainconsent to enter search a homeforapersonafter informing the home's - -
occupant of the purpose of the.search and where the search is supported by a reasonable
suspicion that the person may be found in the home,the police need not advise the occupant that
she may refuse or limit entry or the subsequent search."Dancer, 2013 WL 1831454, at * We
5.
agree with Dancer's holding and apply it here.
Here, as in Dancer, the officers informed Westvang that their purpose was to search her
home for a person, Miller. But unlike in Dancer, the officers here had no reasonable suspicion
that Miller could be found in Westvang's home. Although both Dancer and Westvang denied
that the subject of the search was present, the officers in Dancer had a tip that Johnson could be
14
No. 42777 0 II
- -
found in Dancer's house and that information was corroborated by the dogs leading the police to
Dancer's door. 2013 WL 1831454, at 1. Here, in contrast, there was no independent evidence to
corroborate the informant's tip;nor does the record reflect that the officers had prior experience
with this informant such that they could reasonably rely on the accuracy of this tip. Thus, under
the rule set forth in Dancer and supported by our Supreme Court's discussion in Williams,the
officers here improperly failed to give Ferrier warnings to Westvang because they did not have a
reasonable suspicion that Miller could be found in her home, thus conducting an unlawful
arbitrary search for a hidden guest.
Westvang also contends that her case is comparable to State v. Freepons, 147 Wn..
App.
689, 694, 197 P. d 682 ( 008), which Division Three of this court held that officers failed to
3 2 in
obtain valid consent to search a home for a suspect when they.failed to provide Ferrier warnings.
In Freepons, officers investigated a one car accident in which the driver had abandoned his
-
vehicle at the accident scene. 147 Wn. App. at 691. The vehicle's 19 year old owner, Adam
- -
Byrne, told the officers that he had been drinking at a party the night before and that he had last
seen car parked at thehouse Wherethe party took
- 147
placer Freepons, Wri App:at 691. - e-- -- - - - -
also informed the officers that his brother, Bryan Byrne, who was also at the party, might have
taken the car. Freepons, 147 Wn. App. at 691.
At the party's location, officers observed empty beer cans in the yard and concluded that
there had been underage drinking on the premises. Freepons, 147 Wn. App. at 691 - 2.
9
Freepons and another individual opened the door, and the officers told them that they were
investigating a car accident and were looking for Bryan. Freepons, 147 Wn. App. at 692. The
residents responded that the Byrne brothers had been at the house the night before but that they
were no longer there. Freepons, 147 Wn. App. at 692. The residents nevertheless allowed the
15
No. 42777 0 II
- -
officers to enter the home to look for Bryan, and the officers discovered marijuana plants in the
home. Freepons, 147 Wn. App. at 692.
Division Three held that the trial court should have suppressed the evidence, noting that
the deputies
although " were interested in finding Bryan ... the State did not show and the court
did not find that the desire to find [ ryan] was motivated by anything other than to look for
B
evidence of a crime associated with the rollover accident."Freepons, 147 Wn. App. at 694.
Thus, it held that Ferrier warnings were required because the officers were searching for
evidence of crimes related to the car accident when they asked for consent to enter the home to
look for the vehicle owner's brother. Freepons, 147 Wn. App. at 694. This outcome is
consistent with Williams. The officers had no evidence that Bryan was at the house searched,
other than Adam's statement that Bryan had been there the night before. Thus, Westvang's
reliance on Freepons is well taken, although the case was ultimately decided under a different
analysis of when Ferrier applies.
We reject the State's argument that officers need never give Ferrier warnings when
requesting consent entera hometosearchfor aperson, - such a ruleis not consistentwith the - - -- -- -
- as
constitutional protections against unwarranted searches of a home. To harmonize the existing
cases dealing with searches for people in a home and those dealing with other evidence, we hold
that here, without any corroborating or reliable evidence that Miller was in Westvang's home,
the officers lacked a reasonable suspicion that Miller could be found in Westvang's home and,
thus, the officers needed to give Westvang Ferrier warnings to avoid an arbitrary search for a
hidden person. See Williams, 142 Wn. d at 27. Our holding is consistent with Dancer and
2
explains the results in Ferrier,Bustamante-
Davila, Williams, and Khounvichai, i.., each
e in
instance the officers had a reasonable suspicion that the person for whom they were searching
16
No. 42777 0 II
- -
was at the home where they requested entry. This rule also enforces Williams's proscription
10
against arbitrary searches for a person without Ferrier warnings.
Because the circumstances here fall within the discussion in Williams, 142 Wn. d at 27,
2
requiring Ferrier warnings where officers " rbitrarily search a home for a hidden guest," are
a and
consistent with the rule in Dancer, we reverse the trial court's denial of Westvang's suppression
motion, suppress the methamphetamine evidence, vacate the unlawful possession 'of
n
methamphetamine conviction, and remand.
VAN DEREN, I
io
Westvang also argues that if the State raises a claim that she failed to preserve her Ferrier -
based objection for appeal, then her counsel was ineffective for failing to raise it at the trial court
in his motion to suppress the evidence. But the State does not contend that Westvang failed to
preserve the issue and even though her counsel did not raise Ferrier at the suppression hearing,
the State argued at the suppression hearing that the officers were not required to provide Ferrier
warnings because they were there for a legitimate investigatory purpose, not searching for
contraband or evidence of a crime, and the trial court agreed with the State. Because we hold
that the Ferrier warnings were required, we do not address Westvang's ineffective assistance of
counsel claim.
17