FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MARCH 6, 2025
IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON MARCH 6, 2025 SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) No. 102622-6 Respondent, ) ) v. ) En Banc ) MARY MARGARET MERCEDES, ) ) Petitioner. ) ) Filed: March 6, 2025
JOHNSON, J.—This case involves a challenge to a warrantless search of
property, which disclosed evidence of criminal animal neglect and cruelty. More
specifically, the issue raises a state constitutional argument that under article I,
section 7 of the Washington Constitution, consent to enter property is invalid
unless investigating officers advise the property owner of the right to refuse, limit,
and revoke consent, which we adopted as required to enter a person’s home to
search for evidence of a crime. State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927
(1998). State v. Mercedes, No. 102622-6
Two counts of animal cruelty were brought based on evidence obtained in a
search pursuant to a search warrant, which was issued based on observations
contained in a supporting affidavit gathered by officers during several visits to the
property. The trial court granted a motion to suppress, holding that the consent to
enter the property was invalid, and dismissed. The State appealed, and the Court of
Appeals reversed. State v. Mercedes, No. 84469-5-I (Wash. Ct. App. Nov. 6, 2023)
(unpublished), https://www.courts.wa.gov/opinions/pdf/844695.pdf, review
granted, 2 Wn.3d 1028 (2024). We conclude Ferrier warnings were not required.
We affirm the Court of Appeals and remand.
FACTS AND PROCEDURAL HISTORY
Between January 4 and February 23, 2018, Snohomish County Animal
Services received multiple complaints that animals on Mary Mercedes’s property
were being starved and neglected.
An employee from the adjoining horse ranch made the initial complaint after
that ranch’s veterinarian saw the animals on Ms. Mercedes’s property and stated
that the horses were emaciated and that a lamb was dying. Animal Control Officer
Rench went to Ms. Mercedes’s rural 2.89-acre property to investigate the
complaint and returned several more times over the following seven-week period.
Another employee at that ranch made the final complaint on February 23, claiming
2 State v. Mercedes, No. 102622-6
Ms. Mercedes was not feeding her horses or providing them access to water. This
complaint prompted a second officer, Officer Wiersma, to visit the property.
The property is accessed via a long, gated driveway that was open at every
visit except one. Past the driveway gate, Ms. Mercedes’s pasture borders the
circular driveway area, which is surrounded by a three-rail fence. Thus, from the
driveway, visitors to the property can see into the pasture.
During the initial visit, Ms. Mercedes met Officer Rench outside, where the
officer explained the complaint and asked questions about the animals on the
property. When Officer Rench asked to see the animals, Ms. Mercedes agreed and
led the officer to them. The two viewed the animals from outside the enclosure.
Officer Rench gave Ms. Mercedes recommendations for what to feed the animals
to improve their health. She also instructed Ms. Mercedes to promptly set up an
appointment with a veterinarian to examine the animals and develop a more
specific feeding and care plan to improve their health status. At the end of that first
visit, Officer Rench informed Ms. Mercedes that she would return to the property
to monitor the animals’ conditions.
At the second visit, Ms. Mercedes informed Officer Rench that she had an
appointment with a veterinarian to come see the animals the next day. Officer
Rench told Ms. Mercedes that she would be there during the appointment as part of
3 State v. Mercedes, No. 102622-6
monitoring Ms. Mercedes’s efforts to rehabilitate the animals. The veterinarian
addressed some of the animals’ care needs and gave Ms. Mercedes a feeding plan.
During the subsequent visits, Officer Rench generally asked Ms. Mercedes
for updates on the animals’ care and requested to see the animals. Ms. Mercedes
allowed the officer’s requests.
Usually, Ms. Mercedes met the officer outside in the driveway area, which
included a grassy area between the fenced pasture and driveway. On the one
occasion when the driveway gate was closed, Ms. Mercedes met the officer at the
gate. When Officer Rench asked to see the animals on that occasion, Ms. Mercedes
opened the gate.
After the February 23 visit, Officer Rench sought a warrant to search the
property and seize the horses along with any relevant veterinary or health records
relating to the care of the two horses. The warrant application contained the
observations gathered during the property visits among other evidence. The trial
court issued the warrant. The officers returned the following day with the warrant
and searched the property for more evidence related to the horses’ care. They
brought a veterinarian who examined the horses and concluded that they were still
emaciated. The officers seized the horses to provide them with needed care.
The State charged Ms. Mercedes with two counts of animal cruelty. She
filed a motion to suppress the evidence the officers obtained from being on her
4 State v. Mercedes, No. 102622-6
property, claiming that without providing Ferrier warnings before entering the
property, the State had not established valid consent to enter the property. At the
hearing, Officer Rench labeled her first visit as a type of “knock-and-talk
procedure.” 1 Verbatim Rep. of Proc. (VRP) at 25. She defined such a procedure
as “[t]he right to go to the front door and ask questions and explain a complaint.” 1
VRP at 25. The trial court did not make any finding regarding whether the
investigation was a knock and talk. It did find the officers’ investigations were
searches once the officers were off the driveway and when physically assessing the
animals.
The trial court concluded Ferrier warnings were required when seeking
consent to see the animals and to venture beyond the driveway. It suppressed any
evidence obtained while at Ms. Mercedes’s property except for the officers’
observations from the driveway vantage point. It then found no probable cause
supported the search warrant and dismissed the State’s case against Ms. Mercedes.
The State appealed the trial court’s order suppressing the evidence and
conclusion of law that Ferrier applied to the search of Ms. Mercedes’s outdoor
property. The Court of Appeals, in a split decision, concluded that Ferrier applies
only to the search of a person’s home. It reversed and remanded to the trial court to
determine whether Ms. Mercedes’s consent was voluntary under the totality of the
circumstances. We granted review.
5 State v. Mercedes, No. 102622-6
ANALYSIS
Article I, section 7 provides, “No person shall be disturbed in his private
affairs, or his home invaded, without authority of law.” Generally, under our article
I, section 7 cases, searches are valid when done pursuant to a properly issued
search warrant. Exceptions to the warrant requirement are narrow. The exception at
issue here is the validity of consent by an individual. The State has the burden to
establish that an individual consented to any search conducted without a warrant.
For consent to be valid when a law enforcement officer seeks consent to conduct a
warrantless search of a person’s home under certain circumstances, we have held
that the officer must first inform the individual they have the right to refuse, limit,
and revoke consent. Ferrier, 136 Wn.2d at 118-19. Ms. Mercedes asserts that here,
Officers Rench and Wiersma conducted “knock and talk” investigations on her
property and that automatically triggered Ferrier requirements.
Ferrier involved a situation where police officers got a tip about a marijuana
grow operation inside Ferrier’s home. Four officers went to her home, knocked on
her door, and, while stepping inside, stated they were there to discuss her son.
They told Ferrier about the information they received about the grow operation and
asked consent to search her home for evidence. At this point, Ferrier, who was
frightened and upset, consented. One officer witness in Ferrier described their
approach in getting into Ferrier’s home as a knock and talk. He explained it as
6 State v. Mercedes, No. 102622-6
when an officer, without a search warrant, goes to an individual’s home, knocks on
the door, and asks permission to enter the house to discuss the complaint against
that individual. One of the officers admitted their method for getting inside and
obtaining consent to search was done to circumvent the search warrant process.
The officer expressed concern about applying for a search warrant that might
divulge the informant’s identity. We held that the knock and talk procedure and
entry into the home was nonconsensual and listed specific requirements applicable
to establish valid consent under those circumstances. We adopted the rule that a
resident must be advised they can refuse, limit, and revoke consent when officers
request entry into their home to conduct a warrantless search. Ferrier, 136 Wn.2d
103. Our cases later limited the scope of that requirement and held that under other
circumstances, law enforcement officers are not always required to provide Ferrier
warnings when seeking consent to enter someone’s home.
In State v. Khounvichai, 149 Wn.2d 557, 559, 69 P.3d 862 (2003), two
police officers asked to enter an individual’s apartment to speak with her grandson
who was living there. While inside, the officers saw Khounvichai make a sudden
dash across the room and out of sight. Worried he was going for a weapon, one
officer secured Khounvichai and discovered he was holding a bag of cocaine. After
charges were brought against Khounvichai for possessing cocaine, he moved to
suppress the cocaine because the officers failed to provide Ferrier warnings to the
7 State v. Mercedes, No. 102622-6
apartment tenant before entering. We rejected this argument. Relying on the
language in Ferrier, we explained that the underlying purpose of the officers’ visit
was significant. Where officers are at a person’s doorstep for merely investigative
purposes, such as when responding to reported criminal activity, Ferrier warnings
are not needed. We explained the distinction and reasoned that for valid consent
when “police seek entry to a home to conduct a warrantless search for contraband
or evidence of a crime,” they must inform the home dweller they can refuse, limit,
and revoke consent to enter their home. Khounvichai, 149 Wn.2d at 566 (emphasis
added). Since Khounvichai did not involve that conduct, we upheld the search.
Similarly, in State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 (2013) (plurality
opinion), we reiterated that the purpose of an officer’s entry into a home is
instructive of the circumstances where Ferrier applies. In that case, police had an
arrest warrant for a certain individual, Chantha. During an attempt to serve the
warrant at the residence where the officer believed Chantha lived, an occupant,
Ruem, told the officer that Chantha had moved away. When the officer asked for
consent to look inside, Ruem initially consented and then immediately changed his
mind saying it was “‘not a good time.’” Ruem, 179 Wn.2d at 198 (internal
quotation marks omitted) (quoting court papers). The officer had already entered
and smelled marijuana. The officer assured Ruem he was only there to look for
Chantha. While in the house, the officer saw several marijuana plants and arrested
8 State v. Mercedes, No. 102622-6
Ruem. After being charged, Ruem moved to suppress all evidence the officer
gathered while in his home on the basis the officer failed to give Ruem Ferrier
warnings. We held that Ferrier did not apply. In our analysis, we again focused on
the purpose of the visit and stated that Ferrier warnings “apply when police
conduct a ‘knock and talk.’” Ruem, 179 Wn.2d at 206. We held that Ferrier
warnings were not required before entering Ruem’s home, reasoning that the
officers sought entry into Ruem’s home to execute the arrest warrant for Chantha,
and not for the purpose of searching for contraband or evidence of a crime.
In State v. Budd, 185 Wn.2d 566, 569, 374 P.3d 137 (2016), we held that
under the circumstances there, Ferrier advisement was required. In that case,
police officers met Budd on his driveway and then, after discussing why they were
there, requested entry into his home to seize a computer they suspected contained
contraband. Budd agreed to let them inside specifically for that limited purpose.
Only after the officers were inside the home did they provide Budd with a written
consent form containing Ferrier warnings. We characterized the officers’ visit as a
type of knock and talk in which the entry was for the purpose of searching for and
seizing a computer as evidence of a crime. Our analysis focused on the purpose of
the officers’ entry: “to search for and seize suspected contraband.” Budd, 185
Wn.2d at 573-74. Under the facts, we held that Ferrier warnings were required
before the officers’ entry into the home to establish valid consent.
9 State v. Mercedes, No. 102622-6
Here, Officer Rench did not attempt to enter Ms. Mercedes’s home. Officer
Rench’s own characterization of the visit as being a knock and talk is irrelevant in
deciding the applicability of Ferrier warnings. The officer asked for consent to
look at the animals from the outside of the enclosure and not from inside the home.
Further, the purpose of Officer Rench’s initial visit was to investigate a report of
animal cruelty and determine if circumstances existed to seize the animals, not to
search for contraband or evidence of a crime. The purpose of Officer Rench’s
follow-up visits was to monitor Ms. Mercedes’s compliance with the feeding and
care recommendations given by the veterinarian to determine if further action
would be needed. The purpose of Officer Wiersma’s visit was to investigate
another complaint, which included determining if the animals had access to food
and drinking water. Because the visits were for investigative purposes and were
conducted outside of the home, these circumstances do not trigger Ferrier
requirements.
Ms. Mercedes argues the Ferrier requirements should not be limited to
homes but, more broadly, to constitutionally recognized private affairs under
article I, section 7, and that no distinction exists between invading a person’s home
and disturbing their private affairs. She argues that a consistent rule should exist
for establishing consent for all privacy interests. We disagree. Our constitution
establishes that the government cannot invade a home or disturb a private affair
10 State v. Mercedes, No. 102622-6
without a warrant unless an exception to the warrant requirement exists, consent
being a recognized exception. What the cases discussed above hold is a consistent
rejection of arguments made to expand the scope of constitutional privacy
protections beyond what Ferrier established.
In declining to expand Ferrier’s added protection more broadly, we do not
diminish the State’s high burden to establish valid consent to warrantless searches.
The standard to establish valid consent, which is the totality of circumstances
analysis, remains intact. Ruem, 179 Wn.2d at 207. The State still has the burden to
prove the validity of Ms. Mercedes’s consent based on the totality of the
circumstances. The Court of Appeals correctly remanded the case to the trial court
to determine whether the State can meet this burden. Accordingly, we affirm the
decision of the Court of Appeals and remand.
11 State v. Mercedes, No. 102622-6
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12 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)
No. 102622-6
STEPHENS, C.J. (concurring)—I join the lead opinion’s holding that the
evidence obtained while at Ms. Mercedes’s property should not have been
suppressed due to a lack of Ferrier warnings. The protection against coerced
consent that Ferrier addresses was not implicated here, as the animal control
officers’ purpose was to follow up on a report of animal cruelty and monitor
Mercedes’s compliance with veterinary recommendations, not to seize contraband
or evidence of a crime. I write separately to emphasize that any commentary about
whether Mercedes’s horse pasture was part of her home is unnecessary to this
result.
We have long recognized that “the home receives heightened constitutional
protection.” State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994). In
Ferrier, we articulated a prophylactic protection against invasions of individual
privacy by requiring police to inform people of their right to refuse consent before
conducting a warrantless search within their home. State v. Ferrier, 136 Wn.2d
103, 118, 960 P.2d 927 (1998). Subsequent cases clarified that the Ferrier rule
applies only when police conduct a “knock and talk,” i.e., when their purpose is to
search for and seize contraband or evidence of an already completed crime within
the home. See State v. Khounvichai, 149 Wn.2d 557, 69 P.3d 862 (2003) (holding
Ferrier warning not required when seeking entry to home to question resident); 1 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)
State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 (2013) (holding Ferrier warning not
required when seeking entry to home to execute arrest warrant); State v. Budd, 185
Wn.2d 566, 374 P.3d 137 (2016) (holding Ferrier warning required when seeking
entry to home to seize contraband). While these cases all involved a residence
with four walls, a roof, and a front door (including a mobile home in Ruem), our
holdings did not turn on the physical qualities of the structure but, rather, the police
officers’ method and purpose for seeking entry to the home. This is because in
Ferrier, we recognized the inherently coercive nature of the knock and talk
procedure in which police confront a person they already suspect to be guilty of a
crime at the threshold of the place where they are entitled to heightened
constitutional protection. See Ferrier, 136 Wn.2d at 115. We have never
suggested that this inherent coercion disappears when police confront a person at
the gate of a fence and seek consent to search for evidence in an outdoor part of
their home.
Washingtonians live in a variety of settings. There are many types of
homes, ranging from apartments and accessory dwelling units in urban and
suburban areas to parcels in rural areas that may contain multiple structures.
People typically sleep inside a building or structure (though not always), and they
often use the space in and around that structure to eat, talk, exercise, play, store
belongings, or raise plants and animals. However they live, they have a reasonable
2 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)
expectation of privacy in the objects and activities in their home, except for what
they knowingly expose to the plain view of outsiders. See State v. Berber, 48 Wn.
App. 583, 591, 740 P.2d 863 (1987) (quoting Katz v. United States, 389 U.S. 347,
361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). People can
shield the outdoor parts of their home from the public view in a number of ways,
including with a fence or awning, or by locating objects and activities far from
fence lines or a public road. The determination of what constitutes a person’s
home is highly fact specific and must account for the diverse ways that people in
Washington live their lives.
I would not limit the heightened constitutional protection Ferrier recognizes
in the home solely to the inside of dwellings, as Justice Pro Tempore Melnick’s
concurrence suggests. I do not read Ferrier as tying its protection to RCW
10.79.040 in such a restrictive way. Rather, Ferrier affirms the principle that “the
closer officers come to intrusion into a dwelling, the greater the constitutional
protection.” State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419 (1984). Far
from suggesting that the home is limited to the four walls of a building where
people sleep, this quote underscores the fundamental notion that a person’s home is
their castle.1 What constitutes the home is best understood with reference not to
1 See James Otis, Against Writs of Assistance (1761), NAT’L CONST. CTR., https://constitutioncenter.org/the-constitution/historic-document-library/detail/james-otis- against-writs-of-assistance-february-24-1761 [https://perma.cc/YWT7-BR6Q]. 3 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)
structural details but to the reason why the home deserves special protection as a
person’s private space.
This case does not require the court to define the boundaries of the home for
purposes of article I, section 7 because the officers’ actions here did not implicate
the need for Ferrier warnings. Each time the officers visited Mercedes’s home and
sought entry into her horse pasture, their purpose was to follow up on allegations
of animal cruelty and monitor Mercedes’s compliance with the veterinarian’s horse
care recommendations, not to seize evidence of a crime they had already
determined to be committed by Mercedes. The officers’ actions here do not
resemble the show of authority and inherent coercion that rendered Ferrier’s
consent invalid without a warning of her right to refuse consent.
I join the lead opinion in holding that Ferrier warnings were not required in
this case and that the evidence obtained should not have been suppressed. Officers
did not conduct a knock and talk to search for and seize evidence of a crime at
Mercedes’s home. On this basis, I respectfully concur.
4 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)
5 No. 102622-6
MELNICK, J. * (concurring)—I respectfully concur in the lead opinion’s
decision to affirm the Court of Appeals and to remand to the trial court. I
would decide this case solely on the narrow grounds that the consent to search
the defendant’s property did not involve a home.
As the lead opinion clearly points out, the rule of State v. Ferrier, 136
Wn.2d 103, 960 P.2d 927 (1998), and its progeny all involve law enforcement
seeking consent to search a home or a dwelling. The constitutional right at
issue in Ferrier involved the “heightened privacy rights in her home, as
guaranteed by article I, section 7 of [Washington’s] constitution….” 136 Wn.2d
at 106. “Especially evident is the fact that ‘[i]n no area is a citizen more
entitled to his privacy than in his or her home. For this reason, the closer
officers come to intrusion into a dwelling, the greater the constitutional
protection.’ ” Ferrier, 136 Wn.2d at 112 (alteration in original) (internal
quotation marks omitted) (quoting State v. Young, 123 Wn.2d 173, 185, 867
P.2d 593 (1994)).
For support, the court cited to former RCW 10.79.040 (1921), which
reads as follows: “It shall be unlawful for any policeman or other peace officer
* Judge Rich Melnick is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a). State v. Mercedes, No. 102622-6 (Melnick, J.P.T., concurring)
to enter and search any private dwelling house or place of residence without
the authority of a search warrant issued upon a complaint as by law
provided.” 1 Ferrier, 136 Wn.2d at 112.
Ferrier recognized that “a home dweller should be permitted to
voluntarily consent to a search of his or her home, [but] the waiver of the right
to require production of a warrant must, in the final analysis, be the product of
an informed decision. 136 Wn.2d at 118.
This analysis is consistent with subsequent decisions from this court. “It
would also distort the purpose of Ferrier, which is to ensure that a person who
has not been illegally seized can make an informed decision as to whether to
consent to a search of his or her home.” State v. Mayfield, 192 Wn.2d 871, 901,
434 P.3d 58 (2019).
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.
State v. Budd, 185 Wn.2d 566, 573, 374 P.3d 137 (2016).
Although this court has consistently confined Ferrier warnings to knock
and talk procedures, Budd, 185 Wn.2d at 573, the petition in this case only
1 RCW 10.79.040 has been amended to read, in per�nent part, “It shall be unlawful for any police officer or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.” LAWS OF 2010, ch. 8, § 1062.
2 State v. Mercedes, No. 102622-6 (Melnick, J.P.T., concurring)
sought review, and we only granted review, on the issue of whether Ferrier
warnings are required when officers seek consent to search a gated, fenced
area surrounding a home. Pet. for Rev. at 2. The petitioner argued that the
constitutional basis of Ferrier extends to private areas surrounding a person’s
home. Pet. for Rev. at 12. The issue of whether this consent search involved a
knock and talk has neither been briefed nor argued. The trial court made no
findings of fact on this issue. We should generally “decide a case only on the
basis of issues set forth by the parties in their briefs.” RAP 12.1(a).
Since it is unquestioned that this case does not involve a consent search
of a home, I would end the inquiry at that point. An analysis and discussion of
the investigative technique employed by law enforcement in this case is
unnecessary, especially considering that the trial court did not make any
findings regarding this issue.
Because this case involves the consent to search fenced areas of the
defendant’s property, and not her home, I join the lead opinion in affirming the
Court of Appeals and remanding to the trial court.
Melnick, J.P.T.