State Of Washington, V Cheryl E. Dancer

• Court: Court of Appeals of Washington
• Decided: April 30, 2013
• Docket: 42397-9
• Status: Published

Opinion

FILED COURT OFAPPEALS ' R. S il 2013 APR 30 1 0 14 :. IN THE COURT OF APPEALS OF THE STATE OF W

DIVISION II

STATE OF WASHINGTON, No. 423

Respondent,

u

CHERYL E.DANCER, PUBLISHED OPINION

PENOYAR J. — At a bench trial on stipulated facts, the trial court found Cheryl Dancer

guilty of one count of unlawful possession of methamphetamine. Dancer appeals, arguing that her consent allowing an officer to enter and search her home was not voluntary and that the officer should have given her Ferrier warnings before asking to search her home. Because

Ferrier warnings are not required when officers advise an occupant that they wish to obtain consent to search for a person reasonably suspected to be on the premises and because

substantial evidence supports the trial court's finding that Dancer voluntarily consented to police

entry and search for an identified person, the trial court properly considered the evidence seized.

during the search. We affirm.

FACTS

On June 20, 2010, at 12: 5 A. ., 1 M Bremerton Police Officer Aaron Elton arrived at a 7-

Eleven in response to a domestic violence report. The victim reported that her boyfriend, Sean Johnson, had assaulted her. The victim also reported that the couple's children were either at

their shared residence or possibly at their next door neighbor, Dancer's, home.

1 State v. Ferrier, 136 Wn. d 103, 960 P. d 927 ( 998). 2 2 1 42397 9 II - -

Elton searched for Johnson at the couple's residence but did not locate him there. The .

police then used a K 9 unit to track Johnson. The dog led officers to the back of Dancer's home. - Elton knocked on Dancer's front door, and Dancer answered. As the two spoke, Elton

was on the porch and Dancer remained in her doorway. Dancer confirmed that the children were in her home, but she denied Johnson's presence. Dancer also said she had observed Johnson

leaving and indicated the direction he went.

Elton asked Dancer if he could enter her home to search for Johnson. Elton testified that

Dancer was not a suspect in any crime but that he was unsure of Dancer and Johnson's

relationship and wanted to search for Johnson inside Dancer's home. According to Elton, he did not provide Miranda or Ferrier warnings because he was not searching for evidence or

attempting to avoid obtaining a search warrant.

Dancer gave Elton permission to enter her home. Elton did not open any drawers or

cabinets and confined his search to areas of the home where a person might hide, including

rooms and closets. Elton discovered a bedroom.ocked from the outside. He asked permission to l

enter the room, and Dancer unlocked the door. In the bedroom, Elton saw a glass

methamphetamine pipe and baggies of methamphetamine in plain sight, which he collected. Dancer admitted owning the items. Elton did not arrest Dancer at that time; he continued to .

actively investigate the domestic violence incident and search for Johnson. Johnson was not in Dancer's home

Based on the methamphetamine Elton found, the State charged Dancer with one count of

unlawful possession of methamphetamine. Before trial, Dancer moved to suppress all evidence, arguing that the evidence was the product of an unlawful warrantless search of her home in 2 Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966). S 2 42397 9 II - -

violation of state and federal constitutional protections. The trial court denied Dancer's motion,

concluding that "[ he lack of Ferrier warnings is not fatal to the consent that was given by the t]

Defendant."Clerk's Papers (CP)at 60 61. -

The case went to trial on stipulated facts. The trial court found Dancer guilty and

sentenced her to 240 hours of community service. Dancer appeals.

ANALYSIS

Dancer argues that officers violated her state and federal constitutional protections by

entering and searching her home without a warrant. Specifically, Dancer argues that warrantless entry was unlawful because (1)police failed to provide Ferrier warnings when they asked to . enter and search her home, vitiating her consent, and (2) evidence does not support a finding the

that Dancer voluntarily consented to a warrantless search. Because the Ferrier rule does not

apply where police seek consent to conduct a warrantless search for a person whom the police have reasonable suspicion to believe is on the premises and because substantial evidence

supports the trial court's finding that Dancer voluntarily consented to a warrantless search of her home, we affirm.

I. STANDARD OF REVIEW

When reviewing a trial court's denial of a suppression motion, we review findings of fact for substantial evidence. State v. Hill, 123 Wn. d 641, 644, 870 P. d 313 (1994). Substantial 2 2 J

evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair -

minded, rational person of the truth of the finding. Hill, 123 Wn. d at 644. Any unchallenged 2

findings of fact are verities on appeal. Hill, 123 Wn.2d at 644. We review de novo whether a trial court's conclusions of law are properly derived from the findings of fact. State v. Pierce,

169 Wn. App. 533, 544, 280 P. d 1158, review denied, 175 Wn. d 1025 (2012): 3 2 3 42397 9 II - -

II. THE FERRIER REQUIREMENT

Dancer first argues that Elton's warrantless entry violated article I, section 7 of the

Washington Constitution because Elton did not provide Ferrier warnings before asking for her consent to enter and search for Johnson and, thus, her consent was not truly voluntary.

Essentially, Dancer argues that police are always required to provide Ferrier warnings before

obtaining consent to enter a home or conduct a warrantless search. We hold that (1)Elton

reasonably suspected that Johnson was in Dancer's home and (2)Elton obtained Dancer's

consent to enter her home and search for Johnson after informing Dancer that he wished to

search for a ( no Ferrier crime suspect, thus, 3) warnings were required. We affirm the trial

court's denial of Dancer's motion to suppress evidence seized from her home.

Article I,section 7 of the Washington Constitution provides that "[ o person shall be n] his home invaded, without authority of law."The right to disturbed in his private affairs, or

privacy under article I,section 7 includes the right to be free from warrantless searches, which unreasonable are "` per se. "' State v. Khounvichai, 149 Wn. d 557, 562, 69 P. d 862 (2003) 2 3

quoting State v. Hendrickson, 129 Wn. d 61, 70, 917 P. d 563 (1996)). exception to the 2 2 One search warrant requirement is consent, which the State bears the burden of establishing. Khounvichai, 149 Wn. d at 562. 2

M 11- 42397- 9

In Ferrier, police officers suspected a marijuana grow operation was located at a private residence. 136 Wn. d at 106. Recognizing that they lacked probable cause to obtain a search 2 3 warrant, the officers decided to conduct a procedure referred to knock as a " and talk. , Ferrier,

136 Wn. d at 106, 107. The officers obtained consent to enter the residence and, once inside, 2

revealed their suspicion and sought consent to search the home. Ferrier, 136 Wn. d at 107, 108. 2

The resident signed a written consent form, but the officers did not inform her that she had a

right to refuse to consent to allow their entry, restrict the scope of the entry, or terminate it at any

time. Ferrier, 136 Wn. d at 107, 108. 2

Our Supreme Court held that the consent given in Ferrier was not truly voluntary absent

warnings that the resident could refuse to consent to a search. The court recognized that any

police request for consent to conduct a warrantless search is inherently coercive to some degree: W] believe that the great majority of home dwellers confronted by police e 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.

Ferrier, 136 Wn. d at 115. The Ferrier court noted that, unlike a search warrant, a search 2 "

3 The Supreme Court defines "knock and talk"procedures as the following: In a "knock and talk"procedure, not having obtained a search warrant, police officers proceed to premises where they believe contraband will be- found. Once there they knock on the door and talk with the resident, asking if they may enter. After being allowed to enter, the officers then explain why they are there, that they have no search warrant, and ask permission to search the premises.

State v. Bustamante- Davila, 138 Wn. d 964, 976 77, 983 P. d 590 (1999) emphasis added) 2 - 2 ( footnotes omitted). 5 42397 9 II - -

resulting from a knock and talk need not be supported by probable cause, or even reasonable

suspicion." 136 Wn. d at 118. 2 Thus, the court held that "article I, section 7 is violated

whenever the authorities[ ] fail to inform home dwellers of their right to refuse consent to a

warrantless search." Ferrier, 136 Wn. d at 118. Standing alone, this broad language seems to 2

support Dancer's arguments. However, later cases have narrowed the circumstances in which

police are required to give Ferrier warnings when asking for consent to enter a home. For example, in Bustamante- Davila, 138 Wn. d at 967 68, local law enforcement 2 -

officers accompanied an Immigration and Naturalization Service (INS) agent to Bustamante - Davila's home based on a reasonable belief that he was subject to deportation under an

immigration judge's removal order." The INS agent asked Bustamante- " Davila for consent to enter the home and he allowed them to enter without objection. Bustamante-Davila, 138 Wn.2d at 981. When they entered Bustamante -Davila's home, the INS agent and a Longview police

officer saw an illegally possessed rifle in plain view. Bustamante-Davila, 138 Wn. d at 969. 2 After the trial court denied his motion to suppress the evidence seized from his home,

Bustamante-Davila was convicted for second degree unlawful possession of a firearm.

Bustamante- Davila, 138 Wn. d at 971, 974. Our Supreme Court held that Bustamante -Davila's 2

consent to the officers' entry was valid without Ferrier warnings, reasoning that the INS agent

and local law enforcement officers did not employ the knock and talk procedure deemed

offensive in Ferrier, nor did the search exceed the scope of the consent. Bustamante- Davila, 138 Wn. d at 982 83. 2 - 11- 42397- 9

Our Supreme Court similarly upheld officers' warrantless entry into a home after

receiving an apartment holder's consent based on the officers informing the apartment holder

that they wished to enter to search for Harlan Williams, for whom they had an arrest warrant and

who they reasonably suspected was at the apartment. State v. Williams, 142 Wn. d 17, 27, 11 2 P. d 714 ( 2000). 3 The court held that Ferrier warnings were not required under these

circumstances. Williams, 142 Wn. d at 27. The court noted that, in Bustamante- 2 Davila, it had

recently limited Ferrier to the kind of coercive searches the police employed [in Ferrier.]" Williams, 142 Wn. d 2 at 26. The officers' suspicion that Williams was at the apartment was reasonable because the officers "first verified the accuracy of an informant's statement [that the

defendant was residing in a particular apartment] and identified the defendant's vehicle in front

of that] apartment." Williams, 142 Wn.2d at 27. Thus, the search in Williams did " ot resemble [ n a `knock and talk' warrantless search that Ferrier intended to prevent."142 Wn. d at 27. 2

Finally, in Khounvichai, our Supreme Court held that Ferrier warnings were not required where officers sought entry for the legitimate investigatory purpose of questioning an occupant about alleged offense. 149 Wn. d at 566. In that case, two officers responded to a malicious bout an 2 mischief report at an address the complainant provided. Khounvichai, 149 Wn. d at 559. The 2 officers knocked on the door, and when a woman answered, they asked her whether the suspect

was home. Khounvichai, 149 Wn. d at 559. 2 She told the officers that the suspect was her

grandson and that he was at home, and the officers asked if they could enter to question him. Khounvichai, 149 Wn. d at 559. She allowed the officers to enter, and one officer followed her 2 to a room that smelled of marijuana. Khounvichai, 149 Wn. d at 560. The suspect stepped out 2

of the room and, when he saw the officer, turned and whispered to two other individuals in the

room. Khounvichai, 149 Wn. d at 560. One of those individuals, Khounvichai, quickly moved 2 7 42397 9 II - -

across the room and out of the officer's sight. Khounvichai, 149 Wn. d at 560. Concerned that 2

Khounvichai was reaching for a weapon, the officer grabbed his hand and a baggie of cocaine

fell out. Khounvichai, 149 Wn. d at 560. In affirming the trial court's denial of Khounvichai's 2

suppression motion, our Supreme Court reiterated that Ferrier only applies where the police

employ coercive procedures to obtain consent to search a home and not where officers request

entry for a legitimate investigatory purpose. Khounvichai, 149 Wn. d at 566. 2

The State contends that these cases stand for the proposition that Ferrier warnings are

only required where police employ the specific knock and talk procedure deemed offensive in

Ferrier. In deciding this case, we need not determine the validity of this proposition and decide

only the question presented here, which is whether police must give Ferrier warnings when asking for entry to search for a person the police reasonably suspect is on the premises. We hold that where police obtain consent to enter and search a home for a person after

informing the home's occupant of the purpose of the search and where the search is supported by

a reasonable suspicion.that the person may be found in the home, the police need not advise the occupant that she may refuse or limit entry or the subsequent search. Here, police obtained consent to search Dancer's home for Johnson, a crime suspect, .

based on a reasonable suspicion that Johnson was in Dancer's home: the victim stated that the

children might be there, Dancer confirmed that the children were there, and the K 9 unit led the - officers to Dancer's house. As in Khounvichai, the officers sought entry for a legitimate

investigatory purpose and did not employ deception or coercion akin to that deemed offensive in Ferrier. Accordingly, under these circumstances, officers were not required to provide Ferrier warnings, and we affirm the trial court's denial of Dancer's suppression motion. 11- 42397- 9

III. VOLUNTARY CONSENT TO WARRANTLESS SEARCH

Dancer next argues that even if Ferrier warnings were not required, the trial court erred

because the record does not demonstrate that she voluntarily consented to police entry. Because

there is substantial evidence that Dancer freely and voluntarily consented to police entry, we

affirm the trial court. Beyond Dancer's actual consent to allow Elton to enter her home, we also

hold that she voluntarily consented to allow the police to search her home for Johnson, including

her locked bedroom where the methamphetamine was found.

A warrantless search is unreasonable per se under the Fourth Amendment and article I,

section 7 unless an exception applies. State v. Ross, 141 Wn. d 304,' 2 312, 4 P. d 130 (2000). 3

Consent constitutes one exception to the warrant requirement. State v. Holmes, 108 Wn. App.

511, 516, 31 P. d 716 (2001).To be valid, consent must be freely and voluntarily given. State 3 v. O' eill, 148 Wn. d 564, 588, 62 P. d 489 (2003).Any search consented to may not exceed N 2 3

the scope of the consent. Bustamante- Davila, 138 Wn. d at 982. 2

Whether consent is free and voluntary is a question of fact determined by the totality of

the circumstances, including (1)whether police gave Miranda warnings before obtaining

consent; 2)the degree of education and intelligence of the consenting person; and (3) ( whether

the police advised the consenting person of his right to refuse consent. State v. Reichenbach, 153 Wn. d 126, 132, 101 P. d 80 (2004).No one factor is dispositive, State v. Smith, 115 Wn. d 2 3 2

775, 789, 801 -P. d 975 (1990), other factors may be considered, including whether the 2 and

person was cooperative or refused consent before granting consent, State v. Flowers, 57 Wn. App. 636, 645, 789 P. d 333 (1990), 2 whether law enforcement had to repeatedly request consent, O' eill, 148 Wn. d at 589, and whether the defendant was restrained, O' eill, 148 Wn. d at N 2 N 2 589.

E 42397 9 II - -

Here, Dancer freely and voluntarily consented to the search for Johnson, and Elton did

not exceed the scope of her consent. Elton asked permission to enter a locked bedroom after

Dancer gave him permission to enter her home and search for Johnson. Dancer consented and

unlocked the door. In.the bedroom, Elton saw a glass methamphetamine pipe and baggies of

methamphetamine in plain sight.

Police did not give Dancer Miranda warnings nor did they advise her of her right to

refuse consent to their entry, their search for Johnson, or their request to unlock the bedroom

door. But because Dancer was never in police custody or suspected of any crime, there was no

reason for police to issue Miranda warnings or advise Dancer of her right to refuse consent. See

O' eill, 148 Wn. d at 588 (knowledge of the right to refuse consent is not a prerequisite of N 2

voluntary consent when the subject is not in police custody).

Although police did not specifically ascertain the level of Dancer's education, Elton testified that he had numerous prior experiences with individuals unable to consent and that

nothing about this situation indicated to him that Dancer was unable to provide voluntary consent. Specifically, Elton testified that "nothing [was] out of the ordinary" and that the

contact was appropriate." Report of Proceeding at 37. He also testified that he did not coerce

or threaten Dancer. Additionally, the record establishes that Dancer was cooperative during the

entire interaction and nothing suggests that she ever refused consent or that Elton repeatedly

requested consent.

10 42397 9 II - -

Because the trial court reasonably concluded from the totality of the circumstances that

Dancer's consent was free and voluntary and that the scope of her consent extended to the search

of the locked bedroom, we affirm.

We concur:

Quinn -Brintnall, J. r

Van Deren, J. €