State v. Budd

374 P.3d 137, 185 Wash. 2d 566
Washington Supreme Court·Decided May 19, 2016·No. No. 91529-6·Published·Cited by 24 cases

Opinions

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

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

CP at 407.

¶7 Thereafter, the trial court found Budd guilty in a bench trial based on stipulated materials, including Detective Holmes’s police report and testimony from the suppression hearing. Budd appealed his conviction on the ground that the evidence from his computer should have been suppressed because the officers did not give him the Ferrier warnings before entering his home. The Court of Appeals, Division Three, reversed in a split decision. State v. Budd, 186 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 [572] trial 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

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State v. Budd, 374 P.3d 137, 185 Wash. 2d 566 (Wash. 2016).

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