State v. Budd

Wiggins, J.

¶1 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:

*570[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 [Wn.]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

*571the 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 Wn. 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. 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 Wn.2d 405, 419, 269 P.3d 207 (2012). When a *572trial court denies a motion to suppress, we also review that court’s conclusions of law de novo. State v. Winterstein, 167 Wn.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 Wn.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 Wn.2d 862, 868, 319 P.3d 9 (2014) (quoting Myrick, 102 Wn.2d at 511). “The expectation of privacy in the home is clearly ‘one which a citizen of this state should be entitled to hold.’ ” Ferrier, 136 Wn.2d at 118 (quoting City of Seattle v. McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994)); see also State v. Ruem, 179 Wn.2d 195, 200, 313 P.3d 1156 (2013) (plurality opinion) (“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 Wn.2d at 868-69. The State bears the *573burden of proof if it relies on an exception to the warrant requirement to justify a particular search. See State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006).

¶12 One recognized exception to the warrant requirement is voluntary consent. State v. Khounvichai, 149 Wn.2d 557, 562, 69 P.3d 862 (2003) (citing State v. Hendrickson, 129 Wn.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. 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 Wn.2d at 206; State v. Bustamante-Davila, 138 Wn.2d 964, 980, 983 P.2d 590 (1999).

¶13 Specifically, officers must give the resident the “Ferrier warnings.” Ruem, 179 Wn.2d at 205. 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 Wn.2d at 118. 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 (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.

¶14 Since Ferrier, we have consistently limited the Ferrier warnings to knock and talk procedures. See, e.g., Ruem, 179 Wn.2d at 206; Khounvichai, 149 Wn.2d at 562-64. In this case, the officers conducted a knock and talk because they sought Budd’s consent to enter his home to *574search for and seize suspected contraband. Therefore, the officers were required to give Budd the Ferrier warnings before entering his home.

B. We agree with the Court of Appeals and reaffirm that the Ferrier warnings must be given before entry of the home in knock and talk investigations

¶15 The State makes two arguments, inviting us either not to apply the Ferrier warnings to Budd’s case or to limit the requirements oí Ferrier. First, the State argues that the officers did not conduct a knock and talk because they entered the home only to seize an item, not to conduct a search. Second, the State argues that even if the officers did conduct a knock and talk, Ferrier should be read as to allow officers to enter the home first, give the warnings, and then begin their search. We reject both arguments because they are contrary to our reasoning in Ferrier.

¶16 In Ferrier, officers received a tip that Ferrier was illegally growing marijuana in her home. 136 Wn.2d at 106. This tip came from Ferrier’s son, whom the officers did not want to disclose as their informant. Id. at 107. Believing that they could not obtain a search warrant without disclosing the informant’s identity, the officers decided to conduct a knock and talk to gain warrantless entry into Ferrier’s home for the purpose of discovering the marijuana grow operation. Id.

¶ 17 Carrying out the knock and talk, the officers went to Ferrier’s home, and Ferrier opened the door in response to their knock. Id. The officers immediately identified themselves, and Ferrier invited them inside her home. Id. After the officers entered, they told Ferrier that they had information about a marijuana grow operation and asked for her consent to search her home. Id. at 108. Although the officers went over a “consent to search” form with Ferrier, which she signed, the officers did not tell her that she had the right to refuse consent. Id. After signing the consent form, Ferrier led the officers through a locked door in her home, exposing *575her illegal marijuana grow operation. Id. at 108-09. The trial court denied Ferrier’s motion to suppress the marijuana and found Ferrier guilty of manufacturing a controlled substance, and the Court of Appeals affirmed. See id. at 109.

¶18 We reversed Ferrier’s conviction, ruling that when officers conduct a knock and talk, they must inform residents of their right to refuse consent, revoke consent, and limit the scope of the search before entering the home. Id. at 118-19. We adopted this rule in recognition of the strong privacy interests that article I, section 7 of the Washington Constitution provides to the home. Id. at 118.

¶19 “Central to our holding is our belief that any knock and talk is inherently coercive to some degree”:

[W]e believe that 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.

Id. at 115.

¶20 We specifically highlighted the fact that when confronted with a surprise show of government force and authority, most residents believe they have no choice but to consent to the search. See id. at 115-16 (noting that we were not surprised by an officer’s testimony that virtually everyone confronted by a knock and talk accedes to the request to permit a search of their home). Therefore, we concluded that the constitutional privacy interests residents have in their homes and the coercive nature of knock and talks demand that officers give residents a specific set of warnings (the Ferrier warnings) before entering their homes. Id. at 118-19. In creating the Ferrier warnings for use in knock and talk methods of investigation, we recognized that with*576out the Ferrier warnings, the State would never be able to prove voluntary consent:

If we were to reach any other conclusion, we would not be satisfied that a home dweller who consents to a warrantless search possessed the knowledge necessary to make an informed decision. That being the case, the State would be unable to meet its burden of proving that a knowing and voluntary waiver occurred. As the United States Supreme Court has noted in another context: “For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise” Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). After all, “[assessments of the knowledge that the defendant possessed . . . can never be more than speculation; a warning is a clearcut fact.” Miranda, 384 U.S. at 468-69 (footnote omitted).

Id. at 116-17 (alterations in original).

¶21 Our reasoning in Ferrier applies equally in Budd’s case. Therefore, we reject both of the State’s arguments.

¶22 First, the State’s distinction between a search and a seizure in the context of a knock and talk is a distinction without a difference. Officers do not seize an item from inside a home without first entering and searching the home for that item. This principle was clear in Ferrier, where Ferrier led the officers directly to the marijuana. 136 Wn.2d at 108. That was a search even though the officers did not independently look around Ferrier’s residence for contraband. See id. at 108, 119. In Budd’s case, it makes no difference that the officers knew that Budd owned a computer—their intent to “seize” Budd’s computer still placed them inside his home with the intent of finding incriminating evidence.

¶23 Second, the State contends that our concerns about the inherently coercive nature of knock and talks should be ameliorated when, as in this case, a resident gives some form of consent outside of the home and then invites the officers into the home to sit together and review the Ferrier *577warnings before starting the search. We reject this argument, as it presents the precise scenario that we rejected in Ferrier and ignores article I, section 7 protections of the home. We recognized in Ferrier that “virtually everyone confronted by a knock and talk accedes to the request to permit a search of their home.” Id. at 116. The Ferrier warnings are intended to ensure that residents have a fair chance to reject the officers’ requests and protect their privacy interests in their homes in the face of the inherently coercive nature of knock and talks. Id. at 115-16. Officers must give the Ferrier warnings before entering the home because once they are inside the home, the resident is much less likely to withdraw consent, even if the officers do subsequently give the Ferrier warnings. Further, once the officers are inside the home, the officers may seize any contraband within their plain view and may be able to use information gathered from inside the home to support a search warrant that they would not otherwise be able to obtain.

¶24 Indeed, the officers’ conduct in this case paralleled the conduct of the officers in Ferrier. In both cases, the officers arrived without announcement, surprising the resident. In both cases, the resident was not given time to reflect on the officers’ presence before being asked to give his or her consent for the officers to enter the home and search for evidence of a crime. In both cases, the resident reacted to the knock and talk procedure as expected by being polite and cooperative, and allowing the officers inside the residence.

¶25 Therefore, we hold that the officers were required to give Budd the Ferrier warnings before entering his home. We next consider the State’s argument that remand to the trial court is necessary for further fact-finding on whether Budd actually received the Ferrier warnings before the officers entered his home.

*578III. We affirm the trial court’s finding that the officers did not give Budd the Ferrier warnings before entering his home and hold that Budd’s consent was therefore involuntary

¶26 The trial court found that the officers did not give Budd the Ferrier warnings before entering his home. Because the officers did not give Budd the Ferrier warnings before entering his home, Budd’s consent was involuntary. When a court enters written findings of fact and conclusions of law, those findings and conclusions “must be sufficiently specific to permit meaningful review.” In re Det. of LaBelle, 107 Wn.2d 196, 218, 728 P.2d 138 (1986). “While the degree of particularity required in findings of fact depends on the circumstances of the particular case, they should at least be sufficient to indicate the factual bases for the ultimate conclusions.” Id. Findings may be sufficient even if they are implicit in the trial court’s formal written findings of fact. See State v. Sisouvanh, 175 Wn.2d 607, 618, 290 P.3d 942 (2012); Woehler v. George, 65 Wn.2d 519, 523, 398 P.2d 167 (1965); Squires v. McLaughlin, 44 Wn.2d 43, 50, 265 P.2d 265 (1953).

¶27 The State asserts that the trial court failed to make any findings of fact on whether the officers provided Budd the Ferrier warnings before entering his home and that remand is necessary for the trial court to make that finding. Reviewing the trial court’s findings in the context of this hearing makes clear that a remand is unnecessary. The prosecutor and defense counsel both acknowledged at the outset of the hearing that the key issue was whether Budd was given the Ferrier warnings before or after the officers entered the home. The prosecutor stated, “[W]e [are] arguing that the Defendant was advised of his Ferrier warnings prior to the officer going in there. And that he also — the Defendant waived his rights verbally before he went in and also [signed a] written waiver of rights once he was in the *579house.” CP at 223. Detective Holmes testified that she could not recall “[v]erbatim” how Budd was told he could stop the search at any time, id. at 300, and when asked on redirect if she “advised him that he could stop you or stop the search at any time,” Holmes answered, “Maybe not in those words,” id. at 302. She immediately added, “But once we went over the Ferrier it was exactly those words, yes.” Id. at 304.

¶28 The trial court then heard argument of counsel, which included this colloquy with defense counsel:

JUDGE: The Ferrier case itself and I think the language is, before entering the house the warnings have to be given.
[DEFENSE COUNSEL] DEYOUNG: Right.
JUDGE: Mr. Owens [deputy prosecutor] thinks though that that doesn’t really mean that. He thinks if there’s — that if the officers go in for limited purposes of sitting down at the kitchen table and going over the written form prior to the search that that satisfies Ferrier.
DEYOUNG: Well, we’d have to leave out the part about Ferrier about before entering the house and I think Article I §7,1 think that’s what Ferrier relied on. That’s what [it] hung its hat on so to speak.
JUDGE: So, are you aware of any case where that specific issue has been brought up, where the officers went in and went over the warnings inside the house [inaudible]?
DEYOUNG: If I had, we wouldn’t be having this hearing or we would have tried to work out some kind of plea deal. No, I’m not aware of any —
JUDGE: Okay.
DEYOUNG: Type of case and I think that that’s what makes this case so important and that’s I think, if I’m not mistaken, the parties kind of concede that we’re not really concentrating on the signed warrant, we’re concentrating on what happened before the entry into the house was accomplished because all of that has to be in order.

Id. at 339.

*580¶29 The trial court heard Detective Holmes’s testimony and considered the arguments of counsel, and the trial court’s findings can be reasonably interpreted only as finding that the officers did not give Budd the Ferrier warnings before entering his home:

[T]he 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 the 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.

¶30 This experienced trial judge focused on the policy of Ferrier, and whether Ferrier allows officers to provide the warnings after entering the home but before beginning the search. The trial judge never found that the officers gave Budd the Ferrier warnings while outside. If the trial judge had believed that Budd actually received the Ferrier warnings outside, before the officers entered his home, Ferrier would have been satisfied at that point and the court would not have considered the adequacy of warnings that the officers provided inside Budd’s home. Therefore, by failing to state that Budd actually received the Ferrier warnings while outside and focusing on the adequacy of the warnings inside of the home, the trial court implicitly found that Budd did not receive the Ferrier warnings before the officers entered his home.2

¶31 The State, rather than arguing to this court that the trial court’s ruling was unsupported by substantial *581evidence,3 argues that the Court of Appeals improperly weighed Detective Holmes’s testimony to support its decision that Budd’s consent was involuntary. We reject this argument because the Court of Appeals correctly read the trial court’s findings of fact to mean that the Ferrier warnings were not given until Budd admitted the officers into his home. Budd, 186 Wn. App. at 199.4 Moreover, the State argues that the Court of Appeals looked at Budd’s suppression motion brief for extraneous evidence that Budd contested whether the officers gave him the Ferrier warnings before entering his home. It is entirely appropriate to consider a party’s briefing in order to determine whether an argument was raised at the trial court. Moreover, the excerpts of the record of the suppression hearing quoted above make it quite clear that the major dispute between *582the parties was whether the officers gave Budd the Ferrier warnings before or after entering the house.

CONCLUSION

¶32 We affirm the Court of Appeals for the reasons expressed in this opinion and remand to the trial court with directions to dismiss the charge against Budd.

Johnson, Owens, Stephens, and Gordon McCloud, JJ., concur.

As described later in this opinion, the rights contained within the Ferrier warnings are the rights to refuse consent to search the home without a warrant, withdraw consent, and limit the scope of the search. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998).

Even if we were to accept that the trial court did not make this finding, its absence would require us to hold that the State failed to meet its burden of proof. See State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997) (“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 [that] issue.’’).

Given Detective Holmes’s testimony, the trial court could have decided either way whether the officers gave Budd the Ferrier warnings before entering his home. Regardless, we would affirm the trial court’s finding as being supported by substantial evidence. See State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003) (stating that challenged findings that are supported by substantial evidence are binding on appeal). On cross-examination, after Detective Holmes admitted that she did not state in her report that she gave Budd the Ferrier warnings before entering his home, defense counsel asked if she advised Budd of his right to call off the search at any time before entering his home. Detective Holmes responded, “Verbatim I don’t recall. In general, he — we told him that . . . [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.’’ CP at 300. On redirect, Detective Holmes affirmed that she perhaps did not tell Budd that he could stop the search at any time “in those words.’’ Id. at 302.

Of our various disagreements with the dissent, we highlight the dissent’s assertion that “nothing in the record supports the majority’s implied finding that Ferrier warnings were not provided.’’ Dissent at 588. Arguing that Detective Holmes did provide Budd the Ferrier warnings before entering his home, the dissent recites portions of Detective Holmes’ testimony and statements by the trial judge. Id. at 588-90. But Detective Holmes’ testimony was equivocal. The dissent glosses over the trial court’s finding that the troopers did not violate Ferrier by entering Budd’s home to go over the warnings before commencing the search, which necessarily means that the troopers did not give Budd the warnings before entering his home. CP at 407. Rather, the dissent inappropriately substitutes its evaluation of Detective Holmes’ testimony for that of the trial court and makes its own findings of fact where the trial court made none. See, e.g., State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010) (“[W]e defer to the fact finder on issues of witness credibility.’’); Davis v. Dep’t of Labor & Indus., 94 Wn.2d 119, 127-28, 615 P.2d 1279 (1980) (“[I]t is not the function of an appellate court to second-guess the trial court by reweighing evidence.’’).