DocketNumber： No. 31638-6-III
Judges： Berrey, Fearing, Korsmo, Lawkence
Filed Date： 3/3/2015
Status： Precedential
Modified Date： 11/16/2024
¶1
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 of law.
Presidential Campaign Activities of 1972: Hearings before the Select Comm, on Presidential Campaign Activities of the U.S. Senate, 93d Cong. 2601 (1973) (exchange between Georgia’s Senator Herman Talmadge and former White House Counsel John Ehrlichman, Watergate committee hearings, July 25, 1973).
¶2 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
¶3 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 CrR 3.6 motion to suppress evidence obtained in a warrantless search of his residence by the officers investigating the case. He argues (1) 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 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
¶4 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
¶5 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, based on Budd’s internet protocol address, that he resided in Ephrata.
¶6 On March 11, 2009, Detective Kim Holmes traveled 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.
¶7 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 had 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 harm
¶8 The outcome of this appeal turns on what happened next. In her police report, 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 I 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 [Washington State Patrol] 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.
¶9 Detective Kim Holmes testified during the suppression hearing. Under direct examination, Holmes testified that she gave Michael Allen Budd a proper Ferrier warning:
So I 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. I told him that I would apply for a warrant if he 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.
*191 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.
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. If it 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?
*192 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?
A. I believe we all three went into the house. I know we all three did.
Q. All three meaning the officers?
A. Yes.
RP at 15-17.
¶10 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 was unsure as to whether Budd invited the three into the home for the purpose of reviewing the written form.
¶11 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.
¶12 During cross-examination at the suppression hearing, Kim Holmes’ testimony grew vague as to what warnings she gave before entering the house.
*192 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.
*193 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).
¶13 Once inside, the law enforcement officers reviewed the Ferrier waiver form with Michael Allen Budd at his
PROCEDURE
¶14 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 “preview” 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.
¶15 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.
¶16 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 contacted the Defendant outside a residence in Ephrata. Detective Holmes spoke with the Defendant. She explained*195 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.
¶17 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 of RCW 9.68A.070. The court sentenced Budd to 13 months in prison and 36 months of community custody.
Findings of Fact
¶18 We must first identify the facts on 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.
¶19 We now must identify the facts found by the trial court on its review of the 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.
¶20 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 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 P.3d 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
¶21 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 of Tahat, 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.
¶22 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 Patrol 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. The police report strongly implies that all Ferrier warnings were not given before the officers entered Budd’s house.
¶23 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]:
*198 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.
¶24 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?
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).
¶25 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.
¶27 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 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).
¶28 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.
¶29 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
¶30 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 Adíen Budd invited the officers inside, but not necessarily for the purpose of reviewing and signing the warnings form.
¶31 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 208. Nevertheless, there is no evidence as to any chill in the air. The date was March 11.
Ferrier Warnings
¶32 Like Ernesto Miranda, the subject of Miranda v. Arizona, 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 com
¶33 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). 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. Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), abrogated by California v. Acevedo, 500 U.S. 565, 111 S. 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).
¶34 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, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Ruem, 179 Wn.2d 195, 200, 313 P.3d 1156 (2013); State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994). The Fourth Amendment to the United States Constitution 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
¶35 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.
¶36 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.
¶37 Article I, section 7 of our state’s constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” (Emphasis added.) The United States Constitution’s Fourth
¶38 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 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.2d at 118-19 (emphasis added).
¶39 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 of a 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 would 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
¶40 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 of a crime or contraband. State v. Khounvichai, 149 Wn.2d 557, 566, 69 P.3d 862 (2003); State v. Ruem, 179 Wn.2d at 206 (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 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.
¶41 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.
¶42 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 height
¶43 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.
¶44 Sound reason supports a demand that law enforcement 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.
¶45 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 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
¶46 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.
¶47 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 212. 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.
¶48 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 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.
¶49 Viewing child pornography is a hideous crime that robs children of innocence and scars them for life. Those who watch child pornography obsessively garner 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 mea
¶50 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).
¶51 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
¶52 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.