State v. Budd

• Decision Date: 19 May 2016
• Docket Number: No. 91529–6.,91529–6.
• Citation: 185 Wash.2d 566,374 P.3d 137
• Parties: STATE of Washington, Petitioner, v. Michael Allen BUDD, Respondent.
• Court: Washington Supreme Court

185 Wash.2d 566

374 P.3d 137

STATE of Washington, Petitioner

v.Michael Allen BUDD, Respondent.

No. 91529–6.

Supreme Court of Washington, En Banc.

Argued Oct. 29, 2015.

Decided May 19, 2016.

Kevin James McCrae, Kiel Rigby Willmore, Grant County Prosecutor's Office, Ephrata, WA, for Petitioner.

Brent Adrian De Young, De Young Law Office, Moses Lake, WA, for Respondent.

Nancy Lynn Talner, Douglas B. Klunder, Attorney at Law, Seattle, WA, amicus counsel for ACLU.

WIGGINS

, J.

The issue before us is whether police officers must give a resident the Ferrier warnings¹ before making a warrantless, consent-based entry into the resident's home in order to seize an item containing suspected contraband. We hold that the Ferrier warnings are required under such circumstances. In this case, the trial court found that the officers did not give Michael Budd the Ferrier warnings before making a warrantless, consent-based entry into Budd's home to seize his computer. Based on this finding, the Court of Appeals correctly ruled that Budd's consent was invalid. We therefore affirm the Court of Appeals.

FACTS

¶ 2 On January 15, 2009, the Washington State Patrol received an anonymous cybertip from the National Center for Missing and Exploited Children. The tip alleged that Budd possessed child pornography on his computer, used Internet messaging services to communicate with minors, and bragged about molesting his nine-and-a-half-year-old daughter. This tip also contained Budd's e-mail addresses and a copy of two sexually explicit chat conversations.

¶ 3 With the information from the cybertip, Detective Kim Holmes obtained search warrants for information from Yahoo! Inc. and Google Inc. regarding Budd's online activities. However, these warrants did not lead to any relevant information regarding what was alleged in the cybertip. Detective Holmes did not obtain any other search warrants.

¶ 4 Without a search warrant, Detective Holmes, accompanied by two other officers, went to Budd's home to ask for his permission to search his computer. The officers met Budd in his driveway, and the trial court found that the following series of events took place:

[Detective Holmes] explained why she was there and [Budd] approached and admitted possessing hundreds of images depicting minors involved in “sexually explicit conduct.” Detective Holmes asked [Budd] for consent to enter his home and search his computer. [Budd] asked if the detective had a warrant. The detective replied that she would apply for a warrant if he did not consent. [Budd] told the detective he did not want his computer previewed in front of his girlfriend. The troopers agreed not to view the computer's contents in view of [Budd's] girlfriend. The Defendant then gave consent to entry of his home for the purpose of searching his computer. Upon entering [Budd's] home and before searching the computer, the troopers went over a written consent form with [Budd,] which contained all the warnings associated with State v. Ferrier, 136 [Wash.]2d 103, 960 P.2d 927 (1998)

. [Budd] signed the document acknowledging he understood and reaffirming his consent. The troopers seized [Budd's] computer but did not arrest [Budd]. The computer was later forensically analyzed and found to contain images of child pornography.

Clerk's Papers (CP) at 405.

¶ 5 Referencing the child pornography that the officers found on Budd's computer, the officers applied for, and received, a warrant to return to Budd's home and seize any additional computers and associated paraphernalia. When the officers executed this warrant, they seized several additional computers, some of which also contained child pornography. With this evidence, the State charged Budd with one count of possession of depictions of a minor engaged in sexually explicit conduct in violation of RCW 9.68A.070

. Budd filed a motion to suppress the evidence from his computer, arguing in part that the search was illegal because the officers did not give him the Ferrier warnings before entering his home.

¶ 6 After a hearing on the motion to suppress, which included testimony by Detective Holmes, the trial court denied Budd's motion. Focusing exclusively on the events that took place inside of Budd's home, the court concluded that

the troopers did not violate Ferrier by entering the home initially to go over [Budd's] rights before commencing the search. There appears to be no controlling authority on this question. But, the purpose of the Ferrier warnings is to prevent a search before advisement of rights. Here, no search was conducted before [Budd] was advised of his Ferrier rights, and the purpose of the Ferrier warnings was accomplished.

CP at 407.

¶ 7 Thereafter, the trial court found Budd guilty in a bench trial based on stipulated materials, including Detective Holmes's police report and testimony from the suppression hearing. Budd appealed his conviction on the ground that the evidence from his computer should have been suppressed because the officers did not give him the Ferrier warnings before entering his home. The Court of Appeals, Division Three, reversed in a split decision. State v. Budd, 186 Wash.App. 184, 207, 347 P.3d 49 (2015)

. The Court of Appeals reasoned that the trial court necessarily found that Budd was not given the Ferrier warnings before entering the home, and Ferrier mandates that Budd should have received the warnings before the officers entered his home. Id. at 199, 205–07, 347 P.3d 49. We granted the State's petition for review.

ANALYSIS

¶ 8 We hold that Budd's consent was invalid because the officers did not give him the Ferrier warnings before entering his home. In Section II of this opinion, we reaffirm our Ferrier rule and hold that it applies to this case. In Section III, we hold Budd's consent was invalid based on the trial court's finding that the officers did not give Budd the Ferrier warnings before entering his home.

I. Standard of review

¶ 9 We review constitutional issues de novo. State v. Gresham, 173 Wash.2d 405, 419, 269 P.3d 207 (2012)

. When a

trial court denies a motion to suppress, we also review that court's conclusions of law de novo. State v. Winterstein, 167 Wash.2d 620, 628, 220 P.3d 1226 (2009)

.

II. Ferrier applies to this case

A. Officers conducting a knock and talk must give the resident the Ferrier warnings before entering the home

¶ 10 Washington's Constitution states that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7. Article I, section 7

encompasses the privacy expectations protected by the Fourth Amendment to the United States Constitution and in some cases may provide greater protection than the Fourth Amendment because the section 7 protections are not confined to the subjective privacy expectations of citizens. State v. Myrick, 102 Wash.2d 506, 510–11, 688 P.2d 151 (1984). A search under article I, section 7 “occurs when the government disturbs ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.’ ” State v. Hinton, 179 Wash.2d 862, 868, 319 P.3d 9 (2014) (quoting Myrick, 102 Wash.2d at 511, 688 P.2d 151 ). “The expectation of privacy in the home is clearly ‘one which a citizen of this state should be entitled to hold.’ ” Ferrier, 136 Wash.2d at 118, 960 P.2d 927 (quoting City of Seattle v. McCready, 123 Wash.2d 260, 270, 868 P.2d 134 (1994) ); see also

State v. Ruem, 179 Wash.2d 195, 200, 313 P.3d 1156 (2013) ( “Constitutional protections of privacy are strongest in the home.”). Therefore, a government search of a home is a search under article I, section 7 and must be supported by “authority of law.” Const. art. I, § 7.

¶ 11 When article I, section 7

attaches to a particular search, the “ ‘authority of law’ ” required is a valid warrant or a recognized exception to the warrant requirement. Hinton, 179 Wash.2d at 868–69, 319 P.3d 9. The State bears the burden of proof if it relies on an exception to the warrant requirement to justify a particular search. See State v. Potter, 156 Wash.2d 835, 840, 132 P.3d 1089 (2006)

.

¶ 12 One recognized exception to the warrant requirement is voluntary consent.

State v. Khounvichai, 149 Wash.2d 557, 562, 69 P.3d 862 (2003)

(citing State v. Hendrickson, 129 Wash.2d 61, 71, 917 P.2d 563 (1996) ). As it is an exception to the warrant requirement, the State bears the burden of proving voluntary consent when it obtains consent through a procedure known as a knock and talk. Id. at 561, 69 P.3d 862. During a knock and talk, officers go to a home without a warrant and ask for the resident's consent to search the premises. See id. When officers conduct a knock and talk, they must give the resident a prescribed set of warnings, informing the resident of his or her constitutional rights. See

Ruem, 179 Wash.2d at 206, 313 P.3d 1156 ; State v. Bustamante–Davila, 138 Wash.2d 964, 980, 983 P.2d 590 (1999).

¶ 13 Specifically, officers must give the resident the “Ferrier warnings.” Ruem, 179 Wash.2d at 205, 313 P.3d 1156

. Ferrier requires that police officers “must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.” 136 Wash.2d at 118, 960 P.2d 927. Officers must give these warnings before entering the home because the resident's knowledge of the privilege is a “threshold requirement for an intelligent decision as to its exercise.” Id. at 117, 960 P.2d 927 (quoting Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). “The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.” Id. at 118–19, 960 P.2d 927.

¶ 14 Since Ferrier, we have consistently limited the Ferrier warnings to knock and talk procedures. See, e.g., Ruem, 179...