State v. Budd

Yu, J.

¶33 (dissenting) As Judge Korsmo wryly observed in his dissent below, “No good deed goes unpunished.” State v. Budd, 186 Wn. App. 184, 208, 347 P.3d 49 (2015). Here, Detective Kim Holmes made the mistake of accepting respondent Michael Budd’s invitation to enter his home for the purpose of reaffirming in writing the consent he had already given verbally in his driveway.

¶34 This was not the kind of coercive and improper fishing expedition that we repudiated in State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), yet the majority insists that warnings were required and finds that they were not adequately provided here. This conclusion misinterprets the trial court’s ruling, is contrary to Ferrier itself and its progeny, and is not supported by the evidence. I respectfully dissent.

Analysis

¶35 In Ferrier, we adopted a narrow rule requiring adequate warnings “when police officers conduct a knock and talk for the purpose of obtaining consent to search a home.” Id. at 118 (emphasis added). We began articulating the boundaries of this rule almost as soon as it was adopted. See State v. Bustamante-Davila, 138 Wn.2d 964, 980, 983 P.2d 590 (1999). Subsequent cases have “clarified that the Ferrier requirement is limited to situations where police *583request entry into a home for the purpose of obtaining consent to conduct a warrantless search.” State v. Khounvichai, 149 Wn.2d 557, 563, 69 P.3d 862 (2003) (citing State v. Williams, 142 Wn.2d 17, 28, 11 P.3d 714 (2000)); see also State v. Ruem, 179 Wn.2d 195, 205, 313 P3d 1156 (2013) (plurality opinion); State v. Vy Thang, 145 Wn.2d 630, 637, 41 P.3d 1159 (2002).

¶36 We have declined to adopt a bright-line rule requiring Ferrier warnings in every instance when the police enter someone’s home. See Ruem, 179 Wn.2d at 206; Williams, 142 Wn.2d at 27. These decisions demonstrate that under Ferrier, “[i]t is not mere entry into the home that is prohibited, absent informed consent, but entry for the specific purpose of obtaining consent to search the home.” Budd, 186 Wn. App. at 211 (Korsmo, J., dissenting).

A. Ferrier warnings were not required

¶37 While I do not question the wisdom of Ferrier, I disagree that the rule applies in this case. We have stated that “when police seek to conduct a warrantless search of the home, the Ferrier warnings achieve their purpose.” Khounvichai, 149 Wn.2d at 564. Because the authorities did not seek to conduct a search of Budd’s home, requiring warnings in these circumstances unnecessarily broadens Ferrier’s reach without furthering its underlying policies.

¶38 Detective Holmes’ interaction with Budd does not resemble the “knock and talk” procedure that was at issue in Ferrier. In Ferrier, the police lacked probable cause and admitted to conducting the knock and talk procedure to circumvent the warrant requirement. Ferrier, 136 Wn.2d at 115. Well-armed police arrived at Debra Ferrier’s house in black raid uniforms and surrounded her home in a “great... show of force.” Id. at 107, 115. We found it “significant to our analysis . . . that Ferrier was in her home when the police initiated contact with her.” Id. at 115. The police did not explain why they were there or ask for consent to search until after gaining entry into Ferrier’s home, nor did they advise Ferrier of her rights prior to entering the house. Id. at 107-09.

*584¶39 Characterizing this case as analogous to Ferrier, the majority glosses over material factual differences. Here, Detective Holmes received an anonymous cybertip from the National Center for Missing and Exploited Children, Clerk’s Papers (CP) at 137-51, indicating that Budd was communicating with underaged girls online, possessed child pornography on his computer, and had bragged about molesting his nine-year-old daughter. Id. at 134, 231-33. Detective Holmes decided to contact Budd in person out of concern for the welfare and safety of his young daughter. Id. at 134, 237. There is no evidence that this was merely a pretext for conducting a warrantless search. Accompanied by two plainclothes state troopers, Detective Holmes initiated contact with Budd outside of his home in the driveway. Id. at 245. While still in the driveway, Detective Holmes informed Budd of why she and the troopers were there. Id. at 134, 245. Budd expressed that he was not surprised because “ ‘[y]ou do it long enough, you eventually get caught’ ” and, without prompting, admitted to possessing hundreds of images of child pornography. Id. at 134. It was only after Budd’s confession that Detective Holmes requested consent to enter the home to seize Budd’s computer.

¶40 We have stated that “Ferrier warnings target searches and not merely contacts between the police and individuals,” and have repeatedly “declined to broaden the rule to apply outside the context of a request to search.” Khounvichai, 149 Wn.2d at 564, 563. Not only were the circumstances of the interaction here fundamentally different from Ferrier, the purpose of the troopers’ actual entry into Budd’s residence was different as well. In Ferrier, the police entered in order to request consent to search for contraband and/or evidence of a crime. 136 Wn.2d at 108. Here, having already obtained Budd’s consent, the state troopers entered for the limited purpose of having Budd sign the Ferrier form and to seize his computer.

*585¶41 The majority’s assertion that the “distinction between a search and a seizure in the context of a knock and talk is a distinction without a difference,” majority at 576, is contradicted by our case law. In fact, we rejected this very argument in Khounvichai, 149 Wn.2d at 564-66. The defendant in that case argued that Ferrier warnings were required when the police entered a home to question a resident “because a police officer’s request to enter a home to talk to an occupant about an alleged offense has the same result as a request to enter to search—a warrantless ‘search’ for anything in plain view.” Id. at 564. Observing that “[i]t is well established that a discovery made in plain view is not a search,” we dismissed the argument that “every entry potentially involves a plain view ‘search’ ” as unavailing. Id. at 565-66 (relying on State v. Miller, 121 Wash. 153, 154, 209 P. 9 (1922)). The argument should be equally unavailing here, where it is undisputed that the troopers entered in order to seize Budd’s computer, not to conduct a search of his home. If the mere fact of entry constituted a search, then Ferrier warnings would be required whenever police enter a home. But, as discussed above, we have explicitly declined to adopt such a rule, see Ruem, 179 Wn.2d at 206; Williams, 142 Wn.2d at 27-28, and we have acknowledged that there are circumstances in which Ferrier warnings are not required prior to entry.

¶42 What further distinguishes this case is the fact that unlike Ferrier, who was stunned into acquiescing to the unlawful search of her home, see Ferrier, 136 Wn.2d at 108-09, Budd actively negotiated the scope of his consent. Detective Holmes initially requested consent to preview Budd’s computer but, at Budd’s request, agreed to seize the computer instead. When confronted by the troopers outside in his driveway, Budd asked if they had a warrant. CP at 211-12, 405. In response to Detective Holmes’ statement that she would obtain a warrant if he did not consent, Budd indicated that he did not want the troopers to search his house or his computer in front of his girlfriend. Id. at *586251-53, 292. Apparently determining that a “low-key” seizure of his computer would be preferable to a full-blown search of his home pursuant to a warrant, Budd gave his consent for the troopers to enter his home for the limited purpose of seizing his computer. Id. at 197. This exchange indicates that Budd was not only aware of and understood his rights but, in fact, exercised them.

¶43 Moreover, we have stated that “[w]hen 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 police seek consensual entry to question a resident.” Khounvichai, 149 Wn.2d at 564. Similarly, we concluded in Williams that “ [considering the limited purpose of the police entry [to execute an arrest warrant,] . . . this case does not resemble a ‘knock and talk’ warrantless search that Ferrier intended to prevent.” 142 Wn.2d at 27. The same is true where the purpose of entry is limited—by the homeowner himself—to the seizure of a specific piece of evidence. At Budd’s direction, Detective Holmes and the troopers agreed “not to open — you know, go through his entire house opening up his drawers and you know, going through his girlfriend’s stuff or whatever else that may be there. Not to ransack the house, so to speak. We just did go in, take the computer and other related media and leave.” CP at 294.

¶44 The facts in this case simply do not constitute the same unduly coercive circumstances that we were concerned with in Ferrier. Consequently, requiring warnings in this case “does not further the constitutional reason for the warnings.” Khounvichai, 149 Wn.2d at 566. We observed in Ferrier that the inherent coerciveness of knock and talk procedures can “be mitigated by requiring officers who conduct the procedure to warn home dwellers of their right to refuse consent to a warrantless search.” Ferrier, 136 Wn.2d at 116. Thus, requiring warnings prior to entry into a defendant’s home would protect the expectation of privacy *587in the home “ ‘which a citizen of this state should be entitled to hold.’ ” Id. at 118 (quoting City of Seattle v. McCready, 123 Wn.2d 260, 270, 868 P.3d 134 (1994)). Here, Budd was not in his home when he was contacted by the authorities and his actions demonstrate that he was informed of and exercised his rights.

B. The majority misinterprets the trial court’s ruling, and its implied finding is not supported by the evidence

¶45 The bare facts of this case show that Budd was not confronted with the coercive circumstances that prompted us to adopt the Ferrier rule. By shoehorning Ferrier into a situation where it does not belong, the majority misinterprets the trial court’s ruling as implicitly finding that Fenler warnings were not properly given. An appellate court should not make an implicit finding of an essential fact unless “the facts and circumstances clearly demonstrate that the finding was actually made by the trial court.” In re Welfare of A.B., 168 Wn.2d 908, 927, 232 P.3d 1104 (2010). Reading the trial court’s memorandum opinion in its entirety, and in conjunction with statements made at the suppression hearing, it is apparent that the trial court determined correctly that Ferrier did not apply.

¶46 The majority focuses on the trial court’s discussion of Ferrier—a scant four sentences—to the exclusion of the memorandum’s broader context. The trial court never categorized the interaction as a knock and talk procedure and devoted the bulk of its analysis to determining the voluntariness of Budd’s consent under the “totality of the circumstances” standard rather than under Ferrier. CP at 406-07. We have held that the totality of the circumstances standard is used outside the context of knock and talk procedures. See Ruem, 179 Wn.2d at 207; Thang, 145 Wn.2d at 637; Bustamante-Davila, 138 Wn.2d at 981. It is reasonable to expect that the “experienced trial judge,” majority at 580, who was certainly aware of Ferrier, see CP at 330-41, would have applied the Ferrier rule if it had determined *588that Ferrier was the proper standard. The trial judge’s observation at the hearing that “the Court itself has seemed to retreat from the plain language rather consistently since the — since Ferrier was published,” id. at 341, lends further credence to the argument that the trial court determined that Ferrier did not apply.5

¶47 That this was the court’s conclusion is further indicated by the court’s recitation of the facts:

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.

Id. at 405 (emphasis added). Characterizing the written consent form as “reaffirming” Budd’s consent comports with the trial court’s conclusion that valid consent was obtained prior to entering Budd’s home. Because Budd gave consent before the authorities entered his home, the Ferrier form was merely an additional assurance—a “standard procedure,” id. at 290, that simply memorialized Budd’s prior consent in writing.

¶48 Moreover, it cannot be said that “the facts and circumstances clearly demonstrate that the finding was actually made by the trial court,” A.B., 168 Wn.2d at 927, since nothing in the record supports the majority’s implied finding that Ferrier warnings were not provided. The majority itself concedes that “the trial court could have decided either way whether the officers gave Budd the Ferrier *589warnings before entering his home.” Majority at 581 n.3. Detective Holmes consistently testified throughout the hearing that she had advised Budd of his rights in accordance with Ferrier—that is, prior to entry into his home. No evidence to the contrary was presented.

¶49 When asked, “[D]id you advise [Budd] of anything before going into the house to search,” Detective Holmes testified that “[w]hen [Budd] agreed to give consent, I explained to him that I have 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.” CP at 253. Deputy Prosecutor Ed Owens then clarified:

OWENS: Now, after you advised him of the rights with this Ferrier warning said, you know, the right that he could stop the search at any time, the right that you can allow him to do that, was this advised to him before you went into the house?
HOLMES: Yes.
OWENS: 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?
HOLMES: He did. He invited us into the house.

Id. at 255.

¶50 Later, when the defense attorney objected to the form of a question, the judge clarified the testimony:

JUDGE: Would you state your question again for me please?
OWENS: Okay and I was gonna ask her when she advised him that he had that right to refuse, did he tell her no or he wanted to refuse.
JUDGE: Well, apparently, my understanding of the testimony, she did that twice. She did. it once outside and once inside
OWENS: Yes and now I’m outside. I just took a step back outside and going to the part of if he refused at any time. That he understood that it was taking place.
*590JUDGE: Okay, Detective, between the time that you told Mr. Budd outside the home that he had the right to refuse consent for entering the home and the time that you entered the home, during that time period at any time did Mr. Budd indicate [ ] that he wanted to exercise that right?
HOLMES: No.

Id. at 264-66 (emphasis added).

¶51 When asked during cross-examination how she communicated to Budd that he had the right to refuse, Detective Holmes testified, “Verbatim I don’t recall. In general, he — 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.” Id. at 300. And again, on redirect:

OWENS: Very well. 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 [Budd] that he could deny entrance into the house?
HOLMES: Yes.
OWENS: And you advised him that he could stop you or stop the search at any time?
HOLMES: Maybe not in those words—
OWENS: Right.
HOLMES: But once we went over the Ferrier it was exactly those words, yes.
OWENS: Okay, but I’m talking before you go into the house what you were talking about in the driveway. Did you advise him about parameters?
HOLMES: Yes.

Id. at 302-04.

¶52 Nothing in the record contradicts Detective Holmes’ testimony that she adequately apprised Budd of his rights in accordance with Ferrier. The majority suggests that Detective Holmes’ inability to recall the verbatim language *591that she used supports the conclusion that Ferrier warnings were not provided. Majority at 581 n.3. Judge Korsmo astutely observed that “[f]ailure to recall specific verbiage is not the same thing as failing to provide the information.” Budd, 186 Wn. App. at 210 (Korsmo, J., dissenting). I agree.6 Ferrier warnings are not a shibboleth—it is the extent of the warnings, not the exact language employed, that determines whether the rule has been satisfied.

¶53 When considering the entirety of the record from the suppression hearing, the majority’s implied finding that Ferrier warnings were not provided has no support in the facts or the circumstances. What the record does show is that even if Ferrier did apply, Detective Holmes provided Budd with adequate warnings prior to entering his home.

C. The proper remedy for insufficiently specific findings is remand

¶54 The trial court made no explicit findings as to whether or not Ferrier warnings were provided prior to entry into Budd’s home. The majority asserts that if an implicit finding cannot be made, the appropriate remedy is not to remand but to hold that the State failed to meet its burden of proof. Majority at 580 n.2. This might be true if the trial court had determined the validity of Budd’s consent under Ferrier rather than the totality of the circumstances standard. However, the majority’s proffered approach is incorrect because the State satisfied its burden of proof under the applicable standard.

¶55 The State’s burden at the suppression hearing was to prove that Budd’s consent was voluntary. See Bustamante-Davila, 138 Wn.2d at 981 (citing State v. Shoemaker, 85 Wn.2d 207, 210, 533 P.2d 123 (1975)). The trial court *592correctly concluded that Budd’s consent was voluntary under the totality of the circumstances standard, and the evidence is sufficient to support this conclusion. Because the State met its burden under the applicable standard, the court did not need to reach the Ferrier question.

¶56 While the court was not required to address Ferrier in order to arrive at its conclusion that Budd’s consent was valid, the State correctly observed that “[m]any of the serious Ferrier and constitutional issues raised in this petition for review might be rendered moot with clarified findings of fact from the trial court.” Pet. for Review at 15. “[A] trial court is not required to make findings of fact on all matters about which there is evidence in the record; only those which establish the existence or nonexistence of determinative factual matters need be made.” In re Det. of LaBelle, 107 Wn.2d 196, 219, 728 P.2d 138 (1986). To the extent that the question of whether or not Ferrier warnings were, in fact, provided constitutes a “determinative factual matter! ],” id,., for which the trial court’s findings were not sufficiently specific, I agree with Judge Korsmo that “[w]hen the findings are not clear or fail to address an important point, the remedy is to remand for better findings,” Budd, 186 Wn. App. at 210 (Korsmo, J., dissenting) (citing State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998); State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995); State v. Barber, 118 Wn.2d 335, 342, 823 P.2d 1068 (1992)). The more prudent course of action here would be to seek clarification from the trial court rather than imply findings that are not supported by the record.

Conclusion

¶57 By broadening the application of Ferrier beyond what common sense and our cases allow, the majority’s opinion leads to an “extraordinary” and troubling result: the suppression of physical evidence obtained from a cooperative defendant who freely offered a confession and gave *593voluntary and informed consent to enter his home for the limited purpose of seizing the physical evidence. See Br. of Resp’t at 10. We have consistently limited Ferrier to its facts, and this case does not warrant veering away from our case law. I would hold that Ferrier does not apply and reinstate the trial court’s decision to deny Budd’s motion to suppress.

Madsen, C.J., and Fairhurst and González, JJ., concur with Yu, J.

The trial court’s conclusion that “the troopers did not violate Perrier by entering the home initially to go over the Defendant’s rights before commencing the search,’’ CP at 407, does not necessitate a finding that proper Ferrier warnings were never given, as the majority contends. Majority at 581 n.4. The assessment that the detectives entered Budd’s home “initially’’ to go over the consent form in no way precludes that proper warnings were given prior to entry. Furthermore, even assuming that Ferrier warnings were not given—which is not supported by the evidence—this statement is entirely consistent with the trial court’s apparent and correct belief that Ferrier did not apply.

It appears that the trial judge would agree as well. When discussing Ferrier with the State during arguments at the suppression hearing, the trial judge asked, “Well, isn’t the testimony from Detective Holmes fairly clear on that point? I mean, didn’t she testify that she advised, she didn’t have the exact words, but had advised Mr. Budd of the substance of these three — three rights [inaudible] Perrier before they went in the house?’’ CP at 337.