State v. Overholt

147 Wash. App. 92
Court of Appeals of Washington·Decided October 14, 2008·No. No. 26270-7-III·Published

Opinion

Korsmo, J.

¶1 Appellant Allen Overholt was convicted of four counts of second degree unlawful hunting of big game in Columbia County District Court. The charges arose [93] after a game agent, finding two fresh cow elk gut piles, followed the vehicle tracks to Mr. Overholt’s home. He showed the agent the two carcasses hanging in a shed. Concluding that Ferrier1 warnings were not required in this circumstance, we affirm.

¶2 Fish and Wildlife Officer Ryan John, investigating a report of unlawful hunting, found two fresh cow elk gut piles in the Cougar Canyon area of Columbia County. It was not hunting season for cow elk. He found a cigarette with brown stripes and the word BRONCO inscribed on it. There were ATV and trailer tire tracks near the gut piles, and another set of vehicle tire tracks nearby. Officer John followed the tracks 2.5 miles to Mr. Overholt’s home on Cougar Canyon Road. The officer parked in the driveway and started walking toward the front of the house. He observed fresh blood spots on the floor of the carport.

¶3 Mr. Overholt approached the officer in the driveway. He was smoking a BRONCO cigarette. The officer explained about the elk guts, the matching BRONCO cigarette he had found in the field, the fact that the tracks went from the field to Mr. Overholt’s house, and the fresh blood in the carport. Mr. Overholt’s hand began shaking. After a period of quiet, he asked the officer if he was “going to write him a ticket.” The officer responded that he first needed to check the two cow elk. Mr. Overholt led the officer to a nearby shed and opened the door. Two cow elk were hanging inside.

¶4 Ten weeks later the four counts of second degree unlawful hunting of big game were filed. In addition to being a closed season, Mr. Overholt did not have a license to hunt elk. He moved to suppress, arguing that the officer needed to give him Ferrier warnings before “searching” the shed.

¶5 The trial court found that the officer had probable cause to believe the crime of unlawful big game hunting had occurred and was lawfully on the premise. The court also [94] found that the officer was not coercive and that Mr. Overholt voluntarily led the officer to the shed. The court concluded that Ferrier warnings were not required and the display of the elk carcasses was voluntary. After the motion was denied, the trial court convicted the defendant on stipulated facts.

¶6 Mr. Overholt appealed to the Columbia County Superior Court. The superior court concluded that the district court had properly found the facts and applied the correct law. Accordingly, it affirmed the convictions. This court subsequently granted review to determine the application of Ferrier to this fact pattern.

¶7 In Ferrier, officers acting on a tip that marijuana was being grown in a residence, arrived in force to seek a “voluntary” consent to search a woman’s house. 136 Wn.2d at 106-107. The officers did not tell the woman that she had the ability to refuse consent. Id. at 106, 108, 115. After being invited into the home, the officers asked for consent to search the residence. Id. at 107. A detective explained that this “knock and talk” procedure was used in order to avoid seeking a search warrant. Id. The Washington Supreme Court reversed the conviction, ruling that because the woman had a heightened right of privacy in her home under article I, § 7 of our constitution, officers could not enter a home to seek voluntary consent to search the dwelling without first informing her, inter alia, that she did not need to consent. Id. at 106, 118-119. The court’s analysis repeatedly emphasized the heightened protection given the home under our constitution. Id. at 106, 110, 113-116, 118.

¶8 Our appellate courts since have considered the application of Ferrier to varying fact patterns. The Washington Supreme Court has several times considered whether Ferrier governed in cases where officers went to residences for different purposes than gaining entry with intent to obtain consent to search in lieu of obtaining a warrant. In each instance, the court has found that the different purpose in going to the residence took the case outside of the need for Ferrier warnings. See State v. Khounvichai, 149 [95] Wn.2d 557, 69 P.3d 862 (2003) (Ferrier warnings not required where police request entry to a home merely to question or gain information regarding an investigation); State v. Williams, 142 Wn.2d 17, 28, 11 P.3d 714 (2000) (Ferrier warnings not required where police request consent to enter a home to arrest a visitor under a valid warrant); State v. Bustamante-Davila, 138 Wn.2d 964, 983 P.2d 590 (1999) (Ferrier warnings not required when police and Immigration and Naturalization Service agent gained consensual entry to defendant’s home to serve a presumptively valid deportation order). The Court of Appeals likewise has addressed and resolved Ferrier issues by focusing on the purpose for which the officers entered a residence. E.g., State v. Dodson, 110 Wn. App. 112, 124, 39 P.3d 324 {Ferrier not applicable to officers looking on rural property for other man suspected in vehicle theft), review denied, 147 Wn.2d 1004 (2002); State v. Johnson, 104 Wn. App. 489, 505-506, 17 P.3d 3 (2001) (Ferrier warnings not necessary when officers went to house with probable cause to arrest suspect); State v. Leupp, 96 Wn. App. 324, 333-334, 980 P.2d 765 (1999) (Ferrier warnings not applicable when police officers arrived at a residence in response to a 911 call), review denied, 139 Wn.2d 1018 (2000).

¶9 On other occasions, the courts have considered the application of Ferrier to locations other than a residence2 and concluded that Ferrier warnings are not required other than in the situation of the heightened scrutiny applied to the home. E.g., State v. Tagas, 121 Wn. App. 872, 90 P.3d 1088 (2004) (Ferrier warnings do not apply to search of purse).

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Related

State v. Bustamante-Davila
983 P.2d 590 (Washington Supreme Court, 1999)
State v. Ferrier
960 P.2d 927 (Washington Supreme Court, 1998)
State v. Leupp
980 P.2d 765 (Court of Appeals of Washington, 1999)
State v. Dodson
39 P.3d 324 (Court of Appeals of Washington, 2002)
State v. Williams
11 P.3d 714 (Washington Supreme Court, 2000)
State v. Khounvichai
69 P.3d 862 (Washington Supreme Court, 2003)
State v. Kennedy
29 P.3d 746 (Court of Appeals of Washington, 2001)
State v. Tagas
90 P.3d 1088 (Court of Appeals of Washington, 2004)
State v. Johnson
17 P.3d 3 (Court of Appeals of Washington, 2001)
State v. Ferrier
136 Wash. 2d 103 (Washington Supreme Court, 1998)
State v. Bustamante-Davila
138 Wash. 2d 964 (Washington Supreme Court, 1999)
State v. Williams
142 Wash. 2d 17 (Washington Supreme Court, 2000)
State v. Khounvichai
149 Wash. 2d 557 (Washington Supreme Court, 2003)
State v. Johnson
104 Wash. App. 489 (Court of Appeals of Washington, 2001)
State v. Kennedy
107 Wash. App. 972 (Court of Appeals of Washington, 2001)
State v. Dodson
110 Wash. App. 112 (Court of Appeals of Washington, 2002)
State v. Tagas
90 P.3d 1088 (Court of Appeals of Washington, 2004)