State Of Washington, V. Mary Margaret Mercedes

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON, No. 84469-5-I

Appellant,

v. UNPUBLISHED OPINION

MERCEDES, MARY MARGARET,

Respondent.

BOWMAN, J. — The State appeals the trial court’s order suppressing

evidence obtained from consensual warrantless searches of a fenced horse

pasture belonging to Mary Mercedes. It argues the trial court erred by

concluding that the Ferrier 1 rule applies to fenced pastures. Because the Ferrier

rule applies to consent to search only homes, we reverse and remand for the trial

court to consider whether Mercedes’ consent was voluntary under the totality of

the circumstances.

FACTS

The Mercedes property is a rural 2.89 acres in Stanwood. It has a long

gravel driveway that leads to Mercedes’ two-story single-family home. The

property has “a large fenced area” for animals and “smaller pens near the

house.” The pens have gates that open to the larger fenced pasture. And some

1
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
No. 84469-5-I/2

portion of the pasture is a steep “ravine area” not visible from the driveway. 2

On January 4, 2018, Snohomish County Animal Services received a

complaint that Mercedes had two “starved and neglected” horses on her

property. 3 Snohomish County Animal Control Officer Angela Rench responded

to the Mercedes property later that day to check on the condition of the animals.

As Officer Rench drove down the driveway, she could see the two horses

standing near the fence line in the larger fenced pasture. They were eating from

small piles of hay. She also saw a water trough in the pasture. The only shelter

was a “small tarp in the corner of the field.”4 The weather was wet, cold, and

“snowy,” but neither horse was blanketed. Their “shaggy” coats were dull with

evidence of rain rot. From her vehicle, Officer Rench could “clearly see” the

horses’ spines, hip bones, and ribs sticking out even with their long winter coats.

And they both had long, untrimmed hooves.

Mercedes came out of her house, and Officer Rench “explained the

complaint.” Mercedes said that she owned the horses. Mercedes told Officer

Rench that the larger horse, a bay thoroughbred mare named Moria, was about

30 years old. And the smaller pony, a quarter horse mare named Buttons, was in

her late 20s. From visual observation, Officer Rench concluded that Moria had a

body condition scale (BCS) of 1.5 out of 9 and that Buttons had a BCS score of

2
There is also a creek somewhere on the property. The record suggests the
creek is near the ravine, but the precise layout of the property is unclear from the record.
3
The complaint also reported several starved and neglected sheep and a near-
death lamb. This case involves only the horses.
4
The record does not describe which corner of the property this refers to.
Mercedes told Officer Rench that her barn burnt down “about a month ago” and “all of
her feed had been destroyed.”

2
No. 84469-5-I/3

2. 5 On the BCS scale for horses, 1 means the horse has “no fat covering over

certain parts of its body,” 5 means “a healthy horse, on average,” and 9 is “a very

obese horse.” Officer Rench explained to Mercedes that the horses were “in

very bad shape.” She determined that based on the horses’ BCS scores, they

were emaciated, which was “a dire situation” because they “could potentially die.”

Mercedes told Officer Rench that she fed the horses orchard grass hay

once a day. Officer Rench instructed Mercedes to increase the quantity and

frequency she fed the horses and to include “senior grain, beet pulp, rice bran,

and vegetable oil” with the orchard hay. Officer Rench also suggested that

Mercedes blanket the horses and put up a shelter for them. Officer Rench

instructed Mercedes to have a veterinarian out to examine Moria and Buttons by

January 8, 2018.

The next day, January 5, 2018, Officer Rench returned to Mercedes’

property. From the driveway, she could see a vet examining Buttons and

“floating,” or smoothing down, her teeth. 6 Officer Rench also saw that there were

two new bales of hay on the property and that the horses had been fed. Later

that day, Officer Rench called the vet who examined the horses. He told her that

Moria had a BCS score of 1 and Buttons a 2, but “otherwise they seemed

relatively healthy.” He said he gave Mercedes a “feed plan.”

5
Officer Rench testified that at some point, she felt the horses to determine their
BCS. She could not recall which visit that occurred, but she testified that she never left
the area between the driveway and the fence during her initial assessment of the horses
on January 4.
6
The record does not show whether this examination took place in the fenced
pasture. The trial court found that “common sense would indicate that the examination of
horses would have taken place in a fenced off area not open to the public.”

3
No. 84469-5-I/4

On January 9, 2018, Officer Rench visited Mercedes’ property again. As

she drove down the driveway, she saw Mercedes feeding the horses beet pulp.

Officer Rench did not see any hay with the animals but saw a bale of orchard hay

outside the pasture. There was still no shelter for the animals. Officer Rench

parked her car in the driveway and walked to the fence line to speak with

Mercedes. Mercedes said she had ordered blankets and the grain

recommended by the vet. Mercedes also said she was following the vet’s feed

plan and feeding the horses several times a day.

On January 12, 2018, Officer Rench went to the property again after

receiving another complaint about the horses’ condition. As she drove down the

driveway, she could see that the horses did not have hay. A man came out of

the house and told her Mercedes was not home. Officer Rench left but asked the

man to have Mercedes call her. Later that day, Mercedes called. Officer Rench

told Mercedes that animal control received another complaint. “She became

upset that more people had filed a complaint and she stated that she was just

going to put the animals down.” Officer Rench explained that was “her choice

but she did not have to.” Mercedes then told Officer Rench that she had just

bought four bales of hay and received the blankets, which she planned to put on

the horses. Mercedes also said that she was following the feed plan and “has

always been feeding her animals.”

On January 19, 2018, Officer Rench again visited Mercedes’ property. As

she drove in, “there was a gate that was closed” across “the top of the driveway.”

She stopped, and “Mercedes came walking up to the gate.” They talked about

4
No. 84469-5-I/5

how the animals were doing. Officer Rench asked Mercedes if she could see the

animals, and Mercedes agreed. Mercedes opened the gate and they walked

down the driveway. From the driveway, Officer Rench could see that “the horses

had been fed and were eating hay.” She could also see a half-bale of hay and

bags of grain and beet pulp. Officer Rench told Mercedes to continue following

the vet’s feed plan and to blanket the horses “when it’s cold and wet.” 7

Over a month later on February 21, 2018, Officer Rench visited Mercedes’

property. The gate at the top of the driveway was open, so she drove to the

house. She could see the horses from the car, which “had improved only slightly

in body condition.” They still had no blankets or shelter and she saw no hay in

the field or nearby. Officer Rench believed she could see a bag of grain or beet

pulp. It appeared that no one was at the property, so she drove away, having

never left the car.

On the morning of February 23, 2018, Snohomish County Animal Control

Officer Rich Wiersma went to Mercedes’ property. He drove down the driveway,

and Mercedes was outside. He identified himself and told her he “was following

up for Officer Rench to see if [Mercedes] had hay on [the] property for her

horses.” Officer Wiersma saw “there was no hay on the property and there was

no evidence of any hay or feed having been fed out,” and the water “was

completely frozen.” The horses were “still very emaciated” and “still [did] not

have any blankets or access to shelter.”

7
Mercedes told Officer Rench that “the neighbors keep feeding her horses and
[that] she thinks someone took the blankets off them because the blankets were found
down by the creek.”

5
No. 84469-5-I/6

Mercedes showed Officer Wiersma an unopened bag of alfalfa pellets.

Mercedes told him she had bought two hay bales since Officer Rench’s last visit

but had run out the night before. She said she planned to get more that day.

Officer Wiersma then asked to see receipts for the hay. Mercedes “went inside

and came back out and said she didn’t have receipts.” Officer Wiersma asked

where she got the hay from, and Mercedes said that she bought it from “Debbie

Bell at Skagit Farmers.” But when Officer Wiersma said he would call Skagit

Farmers to confirm she bought their hay, Mercedes said her son sometimes

picked up the hay and sometimes she bought hay from Tractor Supply in

Arlington instead. Officer Wiersma reported his observations to Officer Rench.

Later that morning, Officer Rench called an employee of a horse farm next

to Mercedes’ property. The employee told Officer Rench that she had been

feeding Mercedes’ horses hay and grain through the fence because she was

concerned about their condition. She said that she saw no hay or grain out for

the horses, that they were emaciated, and that she was worried they would die if

she did not feed them. She also said she “broke the ice in the creek” to ensure

the horses had access to water.

That afternoon, Officer Rench applied for a search warrant to look for

evidence of animal cruelty. The affidavit for probable cause detailed her and

Officer Wiersma’s observations from their visits. The court approved the search

warrant, and animal control officers served it on Mercedes on February 24, 2018.

They searched the property for evidence of food and water, and a veterinarian

examined the horses. The examination showed that the horses were still

6
No. 84469-5-I/7

emaciated, so the officers seized them and took them to a boarding facility for

feeding and care.

The State charged Mercedes with two counts of first degree cruelty to

animals. Mercedes moved to suppress all the evidence gathered from Officer

Rench and Officer Wiersma’s visits to her property under CrR 3.6. She argued

that the officers’ actions violated the Fourth Amendment to the United States

Constitution and article I, section 7 of the Washington Constitution because the

officers did not give her Ferrier warnings to explain that she could deny their

requests for consent to search. Alternatively, Mercedes asked for a hearing

under Franks. 8

The trial court held a CrR 3.6 hearing on May 19, 2022. The court heard

testimony from Officer Rench and Officer Wiersma. On July 29, 2022, the court

entered findings of fact and conclusions of law. It concluded that despite

Mercedes’ consent, Officer Rench and Officer Wiersma unlawfully searched

Mercedes’ “privately owned fenced farmland” each time they entered Mercedes’

pasture because they did not first give her Ferrier warnings. 9 The court redacted

the search warrant to suppress any information the officers obtained while in the

fenced pasture but allowed Officer Rench’s observations from her car while in

8
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). At
a Franks hearing, a defendant may challenge the truthfulness of factual statements
made in an affidavit supporting a search warrant. State v. Atchley, 142 Wn. App. 147,
157, 173 P.3d 323 (2007).
9
We note that the court found the officers’ testimony “vague” as to the specific
dates and times they crossed the fence line and entered the pasture to check on the
horses, so it concluded that in those instances, it “must presume” the officers made their
observations “while inside fenced private farmland.”

7
No. 84469-5-I/8

Mercedes’ driveway on February 21, 2018. 10 The court also concluded that

Officer Rench omitted a material fact from the search warrant affidavit because it

stated that the veterinarian said the horses were “severely emaciated,” but it did

not state that the veterinarian also said they were “otherwise healthy.” The court

added that fact to the affidavit.

The court concluded that the affidavit, as altered, did not show probable

cause to support the search warrant. It then excluded “all evidence gathered as

a result of the previously authorized search.” On August 26, 2022, the court

entered an order terminating the State’s case, stating, “The court finds that the

practical effect of the prior July 29, 2022, order is to terminate the State’s case.”

The State appeals.

ANALYSIS

The State argues that the trial court erred by holding that Ferrier warnings

were required to obtain valid consent for the warrantless searches of Mercedes’

fenced pastures. Mercedes contends the trial court “correctly ruled animal

control officers invaded [her] private affairs” in violation of her constitutional rights

because “they entered part of her home to investigate potential crimes.” We

agree with the State.

The State does not challenge the court’s findings of fact, so they are

verities on appeal. State v. Freepons, 147 Wn. App. 689, 693, 197 P.3d 682

(2008). We review conclusions of law in a suppression order de novo. State v.

10
The court also excluded all of Officer Rench’s observations from the January
19, 2018 visit when the gate was closed at the top of the driveway because the closed
gate was “a clear indication that anything beyond the gate is the property owner’s
‘private affairs.’ ”

8
No. 84469-5-I/9

Evans, 159 Wn.2d 402, 406, 150 P.3d 105 (2007); State v. Tagas, 121 Wn. App.

872, 876, 90 P.3d 1088 (2004).

Under article I, section 7 of the Washington Constitution, no person shall

have their “home invaded, without authority of law.” 11 The term “authority of law”

generally refers to a valid warrant. State v. Cornwell, 190 Wn.2d 296, 301, 412

P.3d 1265 (2018). But police may search without a warrant under one of the

“ ‘few jealously and carefully drawn exceptions to the warrant requirement.’ ”

State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000) (quoting State v. Houser,

95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). One such exception is consent.

Freepons, 147 Wn. App. at 693 (“[a] warrantless search is constitutional when

valid consent is granted”).

The State bears the burden of proving that a warrantless search fits within

one of the closely guarded exceptions to the warrant requirement. Kinzy, 141

Wn.2d at 384. Generally, to satisfy the consent exception to the warrant

requirement, the State must show the “consent to search is voluntary, the

consenting party has authority to consent, and the search does not exceed the

scope of the consent.” State v. Bowman, 198 Wn.2d 609, 618-19, 498 P.3d 478

(2021). But when officers conduct a “knock and talk” 12 without a warrant, before

they can “enter the home,” they must also inform the person from whom they

11
Mercedes argued below that the officers also violated her Fourth Amendment
rights. Article I, section 7 is “more protective of the home than is the Fourth
Amendment.” State v. Groom, 133 Wn.2d 679, 685, 947 P.2d 240 (1997).
12
A “knock and talk” is an “ ‘inherently coercive’ ” situation when police officers
come to a suspect’s door without a warrant or other basis for entry, suspecting illegal
activity but lacking probable cause to search, and ask for consent to enter and search
the home. State v. Leupp, 96 Wn. App. 324, 333-34, 980 P.2d 765 (1999) (quoting
Ferrier, 136 Wn.2d at 115).

9
No. 84469-5-I/10

seek consent that the person may lawfully refuse to consent to the search, may

revoke consent at any time, and can limit the scope of consent to certain areas of

their home. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998).

In Ferrier, an informant told officers about a possible cannabis grow

operation at Ferrier’s home. 136 Wn.2d at 106. They went to the home with the

intention to search it. Id. at 106-07. Since the officers thought they would not be

able to obtain a search warrant without naming their informant, they conceived a

plan to do a “knock and talk” in an effort to persuade Ferrier to allow them in the

home without a warrant. Id.

Four police officers appeared at Ferrier’s home, armed and wearing

uniforms and raid jackets with “police” written on them. Ferrier, 136 Wn.2d at

107. Two of the officers went to the front of the home, and two went to the back.

Id. The officers in the front knocked on Ferrier’s door, and she invited them

inside her home. Id. They then radioed the two officers in the back, who joined

them in a “15- by 15-foot room” with Ferrier and her two infant grandchildren. Id.

at 108. Police told Ferrier they had information about a cannabis grow operation

in her house, and they wanted to search her home and seize the cannabis. Id.

Officers went over a “ ‘consent to search’ form” with Ferrier, but neither the

officers nor the form told her that she had the right to refuse to consent to a

search. Id. Ferrier gave officers her consent to search her home. Id.

Our Supreme Court concluded that the knock and talk, “as carried out

here,” violated Ferrier’s article I, section 7 right to privacy in her home and

invalidated her consent to the search. Ferrier, 136 Wn.2d at 114-15. It pointed

10
No. 84469-5-I/11

to the way the police conducted the “inherently coercive” procedure. Id. at 115.

Significant to the court’s analysis was the heightened constitutional protection

that a person’s home receives, and “Ferrier was in her home when the police

initiated contact with her.” Id. at 118, 115. The court was also concerned that

the police “conducted the knock and talk in order to avoid the necessity of

obtaining a search warrant authorizing a search of the home.” Id. at 115. In light

of those concerns, the court held that “public policy supports adoption of a rule

that article I, section 7 is violated whenever the authoritie[ ]s fail to inform home

dwellers of their right to refuse consent to a warrantless search.” Id. at 118.

Still, our Supreme Court guards against extending the Ferrier rule outside

the use of a knock and talk procedure. See State v. Khounvichai, 149 Wn.2d

557, 565-67, 69 P.3d 862 (2003) (Ferrier warnings are required only when police

seek entry into a home to conduct a consensual search for contraband or

evidence of a crime, not “merely to question or gain information from an

occupant”); State v. Williams, 142 Wn.2d 17, 27-28, 19-20, 11 P.3d 714 (2000)

(Ferrier warnings not required when police requested consent to enter a tenant’s

home to arrest the tenant’s visitor, who had a valid arrest warrant); State v.

Bustamante-Davila, 138 Wn.2d 964, 980-81, 983 P.2d 590 (1999) (Ferrier

warnings not required when police and an immigration agent gained consensual

entry into defendant’s home to serve a presumptively valid deportation order).

And this court and Division Three have declined to extend the rule outside

the home. See Tagas, 121 Wn. App. at 878 (police officer’s failure to give Ferrier

warnings before searching the defendant’s purse did not invalidate the

11
No. 84469-5-I/12

defendant’s consent); State v. Witherrite, 184 Wn. App. 859, 864, 339 P.3d 992

(2014) (“The cited history of Ferrier and our court’s treatment of the home as

most deserving of heightened protection under our constitution leads us to

conclude that Ferrier warnings need not be given prior to obtaining consent to

search a vehicle.”). Instead, “[w]hen the state is not employing the knock and

talk procedure, the court employs a totality of circumstances test to determine

whether consent to search is valid.” Tagas, 121 Wn. App. at 878.

Mercedes argues that the trial court correctly applied the Ferrier rule

because it determined her pasture was curtilage, a part of her home. 13

“Curtilage” is the area around a home “ ‘so intimately tied to the home itself’ ” that

it is constitutionally protected as though it were the home. State v. Ross, 141

Wn.2d 304, 312, 4 P.3d 130 (2000)14 (quoting State v. Ridgway, 57 Wn. App.

915, 918, 790 P.2d 1263 (1990)). The scope of curtilage is a question of fact,

considering the “ ‘proximity, use and expectation of privacy’ ” in the property at

issue. Ridgway, 57 Wn. App. at 918 (quoting State v. Niedergang, 43 Wn. App.

656, 660, 719 P.2d 576 (1986)).

No published decisions expand the application of Ferrier to a home’s

curtilage. Mercedes cites an unpublished decision in support of her argument.

See State v. Witkowski, No. 53412-6-II (Wash. Ct. App. Apr. 6, 2021)

(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2053412-6-

13
The State argues we need not engage in a Ferrier analysis because the police
did not use a knock and talk procedure to gain access to Mercedes’ pasture. Because
we conclude that the trial court erred by applying the Ferrier rule under these facts, we
need not reach that issue.
14
Internal quotation marks omitted.

12
No. 84469-5-I/13

II%20Unpublished%20Opinion.pdf. In that case, Division Two concluded that

“Ferrier warnings were required prior to entry onto the curtilage of [a] property

because the deputies’ purpose was to search for evidence of a crime.” Id. at 7-8.

Unpublished opinions are nonbinding authority. GR 14.1(a). In any event,

we need not reach the issue because the record here does not support

Mercedes’ argument that the trial court determined her fenced pasture was

curtilage. The trial court did not assess whether the proximity, use, and

expectation of privacy in the pasture warranted the same protections as

Mercedes’ home. Indeed, several of the court’s findings suggest the opposite.

For example, in finding of fact 6, the court determined that when Officer Rench

entered the fenced pasture on January 5, 2018, she was “no longer on any

‘curtilage’ of the property.” Instead, the trial court relied on the unpublished case

of State v. Thompson, No. 37375-4-III (Wash. Ct. App. Jan. 6, 2022),

https://www.courts.wa.gov/opinions/pdf/373754_unp.pdf, to broadly conclude that

the Ferrier rule “must apply to privately owned fenced farmland as is at issue in

this case.”

In Thompson, the defendant fled from officers on a snowmobile. No.

37375-4-III, slip op. at 2-3. Officers followed the snowmobile tracks and saw that

they led through a chain link gate into the backyard of a nearby home and then

disappeared under a blue tarp. Id. at 3. One officer contacted the homeowner

while others waited outside near the backyard. Id. The officer obtained consent

from the homeowner to enter her backyard and relayed that permission to the

other officers, who went into the yard, moved the tarp off the snowmobile, and

13
No. 84469-5-I/14

felt that the engine was still warm. Id. at 3-4. The officers then gained consent

from the homeowner to search the house and found the defendant standing in

the living room. Id. at 4.

At a suppression hearing, the defendant argued that officers “entered the

backyard before they had consent from [the homeowner] for a search, as

reflected [by the time noted] in the [computer aided dispatch] report.” Thompson,

No. 37375-4-III, slip op. at 5. The trial court agreed that officers entered the

backyard before the homeowner gave “informed consent” to search her home

and yard. Id. at 5-6. So, it suppressed “the evidence gained as a result of the

warrantless search of the home’s backyard.” Id. at 6. But the court rejected the

defendant’s argument that evidence gathered in the house was also tainted

because “ ‘there was no causal connection between the initial search of the yard

and the [subsequent] search of the house.’ ” Id. at 7. 15 After trial, the jury

convicted the defendant of several crimes. Id. at 9. On appeal, the defendant

challenged the court’s ruling allowing evidence obtained from searching the

home. Id. at 10.

Thompson is inapt here. Whether Ferrier warnings were required before

searching the yard was not at issue in that appeal. Indeed, even if Division Two

had concluded that Ferrier warnings were required before searching the fenced

backyard of a home, it does not follow that the fenced pasture here enjoyed the

same proximity, use, and expectation of privacy.

15
Alteration in original.

14
No. 84469-5-I/15

Because the trial court erred by concluding that the Ferrier rule applied to

Mercedes’ consent to search her fenced pasture, we reverse and remand for the

trial court to consider whether her consent to enter the pasture was voluntary

under the totality of the circumstances.

WE CONCUR:

_____________________________

15
 State v. Mercedes, No. 84469-5-I

FELDMAN, J. (concurring in part/dissenting in part) — In State v. Ferrier,

our Supreme Court announced a rule for “knock and talk” procedures employed

by law enforcement officers when seeking a person’s consent to search their

home without a warrant. 136 Wn.2d 103, 106, 960 P.2d 927 (1998).

Specifically, before a law enforcement officer can conduct a warrantless search

of a home based on a resident’s consent, the officer must inform the resident that

they may lawfully refuse to consent to the search and may at any time revoke or

limit the consent that they gave. Id. at 118. Recognizing the importance of such

warnings, the court held that “[t]he failure to provide these warnings, prior to

entering the home, vitiates any consent given thereafter.” Id. at 118-19.

The Supreme Court has since “clarified that the Ferrier requirement is

limited to situations where police request 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). While the majority opinion here is

consistent with this stated limitation, there are compelling reasons to hold—as

the trial court did below—that Ferrier warnings were required before Officers

Rench and Weisma could enter Mercedes’ gated pasture and examine her

horses without a warrant or an applicable exception to the warrant requirement.

Because Ferrier warnings were required but never given, I respectfully dissent.

The constitutional underpinnings of the Supreme Court’s opinion in Ferrier

clearly extend outside the home. The court in Ferrier recognized that its holding

was not compelled by the Fourth Amendment to the United States Constitution.
No. 84469-5-I/2

136 Wn.2d at 109-10. Instead, the protection that the Court fashioned in Ferrier

was mandated by the greater protection provided by article I, section 7 of our

state’s constitution. The court explained that “[t]his provision differs from the

Fourth Amendment in that ‘[u]nlike the Fourth Amendment, Const. art. 1, § 7

clearly recognizes an individual’s right to privacy with no express limitations.’”

136 Wn.2d at 110 (internal quotation marks omitted) (quoting State v. Young,

123 Wn.2d 173, 180, 867 P.2d 593 (1994)).

Consistent with the Supreme Court’s observation in Ferrier that article I,

section 7 recognizes an individual’s right to privacy with “no express limitations,”

here is what article I, section 7 says:

§ 7. Invasion of Private Affairs or Home Prohibited

No person shall be disturbed in his private affairs, or his
home invaded, without authority of law.

As the plain language of article I, section 7 shows, the protection it provides is

not limited to the home; rather, it also applies, through the use of the disjunctive

“or,” to “private affairs. If Ferrier warnings are required to obtain valid consent

before intruding into a suspect’s home—as Ferrier squarely holds—then the

same warnings are necessarily required before intruding into a suspect’s private

affairs—as occurred here. We cannot, and should not, ignore the constitutional

protection of “private affairs.”

It is equally clear, both factually and legally, that Officers Rench and

Weisma intruded into Mercedes’ “private affairs.” In State v. Thorson, 98 Wn.

App. 528, 533, 990 P.2d 446 (1999), this court recognized that “[t]he usual way a

property owner attempts to preserve privacy in rural areas is by way of fences

-2-
No. 84469-5-I/3

and signs; the presence of such devices is generally of consequence in most

discussions as to whether a government agent unreasonably intruded into a

defendant’s private affairs on rural property.” The gated pasture here was on

private property, and the trial court found that the horses “were always within a

closed and fenced off area of the property, and never in any public area.”

Furthermore, while the upper gate to access the driveway was open when Officer

Rench initially visited the property, Mercedes began locking the access gate prior

to the January 19, 2018, visit and thereafter. These facts confirm that Officers

Rench and Wiersma intruded into Mercedes’ private affairs. No less than a

home, these private affairs are entitled to protection from warrantless searches

under article I, section 7 of our state’s constitution.

Equally important, Washington courts have recognized and emphasized

the importance of protecting unoccupied or undeveloped areas outside a

suspect’s home and curtilage. In Thorson, police officers observed marijuana

plants growing in a clearing on Thorson’s property. 98 Wn. App. at 530. Despite

the absence of boundary lines or markers, the court held that the “officers’

sojourn on Thorson’s property for the sole purpose of looking for marijuana

constituted an unreasonable intrusion into Thorson’s private affairs. The search

was therefore invalid under article 1, section 7 of the Washington Constitution.”

Id. at 540. The court also described “Thorson’s privacy interest in avoiding the

uninvited presence of law enforcement on his land” as “an interest which citizens

of this state have held, and should be entitled to hold, safe from governmental

trespass absent a warrant.” Id. In State v. Johnson, 75 Wn. App. 692, 708, 879

-3-
No. 84469-5-I/4

P.2d 984 (1994), the court described a similar intrusion onto a resident’s open

field as “not acceptable under our state constitution.” Thus, while Officers Rench

and Wiersma did not enter Mercedes’ home or curtilage (a point on which I agree

with the majority), they nonetheless intruded onto a portion of Mercedes’ property

that was entitled to protection under our state’s constitution.

Additionally, the same concerns about coerced consent that animated the

Supreme Court’s holding in Ferrier are also applicable here. Emphasizing this

concern in State v. Budd, 185 Wn.2d 566, 374 P.3d 137 (2016), the Supreme

Court noted 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.” Id. at 575. The court added that it was “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.” Id. Here, Officers Rench and

Wiersma confronted Mercedes on each visit wearing law enforcement uniforms,

displaying firearms, and driving law enforcement vehicles. Similar to the

circumstances in Ferrier, it is reasonable to conclude that, in the absence of

Ferrier warnings, Mercedes would believe she had no choice but to consent to

the search.

Also similar to the law enforcement officer in Ferrier, who wanted to

search Ferrier’s home for contraband, Officer Rench first visited Mercedes’

property to investigate complaints from her neighbors that there were starved

and neglected horses and sheep on her property. Officers Rench and Wiersma

both testified below that they were involved in an “animal cruelty investigation,”

-4-
No. 84469-5-I/5

“investigating the possibility of animal cruelty,” and other similar descriptions of

investigative activity. During these visits, Officer Rench, and later Officer

Wiersma, entered the gated pasture, manipulated the horses to determine their

body conditioning score, and took photos of the animals and the property without

a warrant (or an exception to the warrant requirement) authorizing them to do so.

This is precisely the sort of investigative activity that, under Ferrier, can occur

with a person’s consent only after they are told that they may lawfully refuse to

consent to the search and may at any time revoke or limit the consent that they

gave.

In sum, article I, section 7 of our state’s constitution requires that Ferrier

warnings be given where, as here, a law enforcement officer intrudes into a

suspect’s home or private affairs without a warrant or applicable exception to the

warrant requirement. Because Ferrier warnings were required but never given, I

respectfully dissent.

-5-