State Of Washington v. Jeffrey Johnson

Filed
Washington State
Court of Appeals
Division Two
July 26, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47425-5-II
Respondent,
v. UNPUBLISHED OPINION
JEFFREY JEROME JOHNSON,
Appellant.
MAXA, J. – Jeffrey Johnson appeals his conviction of unlawful possession of
methamphetamine with intent to deliver. He argues that the trial court erred in denying his
motion to suppress evidence officers discovered after he consented to their search of his home.
We hold that substantial evidence supports the trial court’s finding of fact that the police
officers gave proper Ferrier1 warnings to Johnson before entering his barn to speak with him and
that Johnson voluntarily consented to the search of his trailer inside the barn. We also reject
Johnson’s assertions made in his statement of additional grounds (SAG). Therefore, we affirm
Johnson’s convictions.
1
State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998).
No. 47425-5-II
FACTS
On January 22, 2014, City of Centralia police officers Adam Haggerty and Chad
Withrow and Lewis County Sheriff’s Deputy Bruce Kimsey went to Johnson’s home in Vader to
conduct a “knock and talk”2 with Johnson based on information they had received that Johnson
was selling methamphetamine from his home. Johnson lived in a trailer parked inside a barn,
adjacent to a house. When Haggerty and Withrow arrived at Johnson’s residence, they parked
their unmarked vehicle outside the barn in front of a security camera and turned their music up
loud hoping to alert Johnson. Kimsey arrived in his own patrol vehicle.
When Johnson did not come out, Haggerty and Withrow “approached the garage and
were able to summon Johnson from within.” Clerk’s Papers (CP) at 29. Johnson then came
outside and the officers explained why they were there. Haggerty told Johnson that he wanted to
know Johnson’s source for the methamphetamine he had sold and that if he cooperated, Johnson
would sleep in his own bed that night. Johnson agreed to cooperate. After Kimsey left to
investigate another matter, Haggerty asked Johnson about his methamphetamine and Johnson
replied that he had about two ounces, a digital scale, and some packaging materials.
Haggerty then presented Johnson with a consent to search form that contained Ferrier
warnings. Haggerty verbally summarized the warnings rather than read them verbatim and had
Johnson read the form himself. Johnson read the form without comment and verbally consented.
2
During a knock and talk, officers go to a home without a warrant and ask for the resident's
consent to search the premises. State v. Budd, No. 91529-6, 2016 WL 2910207, at *3 (Wash.
May 19, 2016).
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No. 47425-5-II
He then signed the form before the officers entered the barn and trailer. Kimsey returned to the
scene at about the same time.
Haggerty seized methamphetamine, a digital scale, and packaging materials from inside
the trailer. The State later charged Johnson with unlawful possession of methamphetamine with
intent to manufacture or deliver.
Johnson filed a motion under CrR 3.6 to suppress the evidence that officers discovered in
the search of his trailer, arguing that the advisement of the Ferrier warnings was insufficient.
The trial court conducted a suppression hearing and heard testimony from the three officers,
Johnson, Melissa Alderman, who lived in a residence adjacent to the barn, and Alderman’s
daughter Jessica Hamilton. The trial court entered findings of fact and conclusions of law,
finding that the officers talked with Johnson outside the barn and gave Ferrier warnings to
Johnson and that Johnson’s consent was knowing, intelligent, and voluntary. Therefore, the trial
court denied Johnson’s CrR 3.6 motion to suppress.
Johnson waived his right to a jury trial, and the trial court found Johnson guilty of
unlawful possession of methamphetamine with intent to deliver based on a stipulation to the facts
in the police report. Johnson appeals his conviction.
ANALYSIS
A. MOTION TO SUPPRESS – FERRIER WARNINGS
1. Legal Principles
Both the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington Constitution prohibit warrantless searches unless an exception applies. State v.
Weller, 185 Wn. App. 913, 922, 344 P.3d 695, review denied, 183 Wn.2d 1010 (2015). The
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No. 47425-5-II
State has the burden of showing that an exception to the warrant requirement applies by clear and
convincing evidence. State v. Green, 177 Wn. App. 332, 340, 312 P.3d 669 (2013).
One exception to the warrant requirement is when the police obtain voluntary consent
while conducting a knock and talk. State v. Khounvichai, 149 Wn.2d 557, 562, 69 P.3d 862(2003). When the police use this procedure, they must inform the resident of his constitutional
rights by giving what are commonly referred to as Ferrier warnings: that he may lawfully refuse
to give consent, revoke that consent at any time, and limit the scope of that consent to particular
areas of the residence. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998).
Significantly, the officers must give these warnings before entering the home. State v. Budd, No.
91529-6, 2016 WL 2910207, at *3 (Wash. May 19, 2016).
Even if officers properly provide Ferrier warnings before conducting a search, the State
still must show that the defendant’s consent to search was voluntary. State v. Monaghan, 165
Wn. App. 782, 789, 266 P.3d 222 (2012). For consent to be valid, a person with authority to
consent must do so freely and voluntarily. Id.
2. Standard of Review
When reviewing a trial court’s findings of fact and conclusions of law on a motion to
suppress evidence, we determine whether substantial evidence supports the findings of fact and
whether those findings of fact support the conclusions of law. State v. Russell, 180 Wn.2d 860,
866, 330 P.3d 151 (2014). Substantial evidence is evidence that is sufficient to persuade a fair-
minded person of the truth of the stated premise. Id. at 866-67. We treat unchallenged findings
of fact from a suppression hearing as verities on appeal. State v. Homan, 181 Wn.2d 102, 106,
330 P.3d 182 (2014). We review conclusions of law de novo. Id. at 867.
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No. 47425-5-II
3. Providing Ferrier Warnings Before Entering the Barn
Johnson claims that the State failed to prove with clear and convincing evidence that the
police gave him Ferrier warnings before they entered the barn. We disagree.
a. Failure to Enter Express Finding
Johnson argues that the trial court did not enter a finding of fact expressly stating that the
officers gave Johnson the Ferrier warnings before entering the barn. He claims that without
such an express finding, the State cannot satisfy its burden of proving that the officers gave the
Ferrier warnings before entering the barn.
The trial court entered the following findings of fact that relate to whether the officers
entered the barn before they gave the Ferrier warnings:
6. When nobody responded to their presence, Officers Haggerty and Withrow
approached the garage and were able to summon Johnson from within.
7. Johnson was asked to step outside, which he complied. While outside the barn,
Johnson was informed of why law enforcement was contacting him.
....
15. . . . . The Ferrier warnings were reviewed with Johnson, and consent was
granted while outside the trailer and barn area.
....
18. Once permission was granted, Officer Haggerty and Withrow, along with
Johnson entered the barn area.
CP at 29-30.
Finding of fact 6 states that the officers “approached” the garage. CP at 29. Approaching
the garage is different than entering it, and use of that word indicates that the officers did not go
into the barn. Finding of fact 6 also states that the officers summoned Johnson “from within,”
CP at 29, and finding of fact 7 states that Johnson was asked to step outside the barn. These
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No. 47425-5-II
findings indicate that Johnson was inside the barn and the officers drew him outside with them.
Finally, finding of fact 18 states that the officers entered the barn after permission was granted.
This finding implies that they had not entered the barn before speaking with Johnson.
The trial court’s findings could have been more explicit. But we hold that these findings
are sufficient to establish that the officers did not enter the barn until after they gave Johnson the
Ferrier warnings.
b. Substantial Evidence
Johnson assigns error to finding of fact 6 to the extent that it suggests that the officers did
not enter the barn until they had provided Ferrier warnings. He argues that there was conflicting
testimony at the suppression hearing about whether the officers entered the barn when they were
calling for Johnson to come out.
Johnson is correct that some witnesses testified that officers entered the barn before
providing Ferrier warnings. Johnson himself testified that the officers walked into and through
the barn before contacting him. Haggerty testified that the officers walked into the barn before
yelling for Johnson. Hamilton testified that she saw the officers get out of their vehicle and enter
the barn through the tack room.
However, the other two officers testified that nobody went inside the barn before Ferrier
warnings were given. Withrow testified that they contacted Johnson outside the barn. He said
they knocked on the door and asked him to come out. During cross examination, defense
counsel asked Withrow, “So if you didn’t go into the barn, how did you get Mr. Johnson out?”
Report of Proceedings (RP) (3/19/2015) at 38. Withrow responded, “Knocked on the outside
and asked and he just came out.” RP (3/19/2015) at 38. Kimsey explained that the officers
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No. 47425-5-II
called out to Johnson as they were approaching the barn and Johnson came out. Defense counsel
asked during cross-examination whether the officers went into the barn and Kimsey responded,
“No, not that I saw. . . . I remember him coming out to the doors of the barn.” RP (3/19/2015) at
52.
As noted above, we examine challenged findings of fact to determine if substantial
evidence in the record supports them. Russell, 180 Wn.2d at 866. Here, Withrow’s and
Kimsey’s testimony supported finding of fact 6. Although there was conflicting testimony, the
trial court considered all the testimony and entered finding of fact 6.3 We do not second guess
the trial court’s resolution of conflicts in the evidence. See Homan, 181 Wn.2d at 106.
We hold that substantial evidence supported the trial court’s finding of fact that the
officers did not enter the barn until after they had given Johnson the Ferrier warnings.
3. Voluntary Consent
Johnson argues that the trial court erred in finding that he voluntarily consented to the
search of his trailer. He argues that the surrounding circumstances were too coercive to support
such a finding. We disagree.
The trial court entered a conclusion of law that Johnson’s consent to search was
voluntary. We employ a totality of the circumstances test to determine whether a defendant
voluntarily consented. State v. Ruem, 179 Wn.2d 195, 207, 313 P.3d 1156 (2013). We consider
3
At the sentencing hearing, Johnson objected to finding of fact 6, stating: “We had mixed
testimony, one where they went in and got him, one where they said they stayed out and he came
to them.” RP (4/1/2015) at 6. The trial court responded, “Well, just because there was
conflicting testimony, that doesn’t mean that the Court can’t make a finding. That’s what the
Court does.” RP (4/1/2015) at 6.
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No. 47425-5-II
(1) the education and intelligence of the consenting person; (2) whether Miranda4 warnings, if
applicable, were given prior to consent; and (3) whether the consenting person was advised of his
right not to consent. Id. Although these three factors are essential to the consent analysis, no
single factor is determinative and we consider other relevant facts such as coercive tactics. State
v. Dancer, 174 Wn. App. 666, 676, 300 P.3d 475 (2013).
Here, the Ruem factors were met. First, Johnson had a 12th grade education and
Haggerty presumably assumed from this that Johnson could read and write. While it appeared to
Haggerty that it took Johnson longer than usual to read the consent form, Johnson gave no
indication that he could not read it or understand it. Second, Haggerty did not give Miranda
warnings because they were not applicable as Johnson was not under arrest. And third, Haggerty
informed Johnson both in writing and verbally that he had the right to refuse consent.
Johnson argues that the other circumstances were coercive. He notes that it was a dark
night, multiple officers approached the barn, and the officers were persistent even though he
indicated his preference to be left alone. He claims the officers made a thinly veiled threat to
arrest and jail him by stating that if he cooperated, he could sleep in his own bed that night. And
he argues that the threat involved deception because in actuality the officers were out of their
primary jurisdiction and lacked authority to arrest him.
We disagree that these facts undermine the voluntariness of Johnson’s consent. Although
Johnson was approached by three officers, the trial court found that Haggerty was the only
officer communicating directly with Johnson. Withrow remained in the background as did
Kimsey, who had left the scene during the time Johnson consented. Further, there was ample
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 47425-5-II
testimony that the situation was not coercive. Haggerty, Withrow, and Kimsey testified that the
conversations with Johnson were low-key, casual, cordial, and not threatening. Finally, given
the tone of the communications, we do not regard Haggerty’s statement about sleeping in his
own bed that night as a threat that could unlawfully coerce Johnson into consenting to a search.
See State v. Trout, 125 Wn. App. 403, 414-16, 105 P.3d 69 (2005) (implied promise of lenient
treatment did not render confession involuntary).
We hold that substantial evidence supports the trial court’s finding that Johnson freely,
intelligently, and voluntarily consented to the search of his trailer.
B. SAG ASSERTIONS
Johnson makes two assertions of error in his SAG. First, Johnson asserts that the two
Centralia officers had no jurisdiction in rural Cowlitz County to obtain his consent to search
because Kimsey had left the scene when he signed the consent form. We disagree.
Johnson did not challenge the police officers’ authority to obtain his consent below.
Therefore, the record is inadequate to determine whether the officers acted lawfully under Title
10.93 RCW or some other mutual agency agreement. Generally, a party’s failure to raise an
issue at trial waives the issue on appeal unless the party can show the presence of a manifest
error affecting a constitutional right. State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84(2011); RAP 2.5(a). Johnson neither preserved this claim nor makes an adequate showing of
manifest constitutional error. Therefore, we do not address this assertion.
Second, Johnson asserts that when an officer conducts a knock and talk, it is unlawful to
enter any areas of the property other than the residence. We disagree.
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No. 47425-5-II
An officer may approach a residence by entering the curtilage that is impliedly open to
the public. State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981); State v. Ague-Masters, 138
Wn. App. 86, 98, 156 P.3d 265 (2007). A curtilage area includes an access route to a house such
as a driveway or walkway leading to a residence, or the porch of the residence itself. State v.
Ferro, 64 Wn. App. 181, 183, 824 P.2d 500 (1992). Here, the officers knew that Johnson lived
in the barn, not in the adjacent residence, and therefore approached his home directly from the
driveway. We reject Johnson’s assertion.
CONCLUSION
We affirm Johnson’s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
JOHANSON, J.
BJORGEN, C.J.
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