State v. Budd

186 Wash.App. 184

347 P.3d 49

STATE of Washington, Respondent

v.Michael Allen BUDD, Appellant.

No. 31638–6–III.

Court of Appeals of Washington, Division 3.

March 3, 2015.

Brent Adrian De Young, De Young Law Office, Moses Lake, WA, for Appellant.

Edward Asa Owens, Kiel Rigby Willmore, Grant County Prosecuting Attorney's Office, Ephrata, WA, for Respondent.

Opinion

FEARING, J.

Talmadge: Do you remember studying in law school the principle that no matter how humble a man's cottage is, that even the king of England cannot enter without his consent?

Ehrlichman: I am afraid that has been considerably eroded over the years, has it not?

Talmadge: Down in my country, we still think it is a pretty legitimate principle of law.

¶ 1 Exchange between Georgia's United States Senator Herman Talmadge and former White House Counsel John Ehrlichman, United States Senate Watergate Committee hearings, July 25, 1973.

¶ 2 The Washington high court, in State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927 (1998), held that, before entering a citizen's home without a warrant, a law enforcement officer must ask the citizen for consent, inform the citizen that he can revoke consent at any time, and notify the citizen that he can limit the scope of the entry into the home. We are asked today to decide whether the Ferrier holding applies when the law enforcement officer fails to give all Ferrier warnings before entering the home, but delivers all warnings before searching the home.

¶ 3 Appellant Michael Allen Budd was convicted of possession of depictions of minors engaged in sexually explicit conduct. He contends that the trial court erred in its denial of his CrR 3.6 motion to suppress evidence obtained in a warrantless search of his residence by the officers investigating the case. He argues (1) the Ferrier warnings provided by the detective prior to entering his home were insufficient, and (2) the detective's statement that she “could and would obtain a warrant” if Budd refused to consent to the search, vitiated his consent. The first issue requires us to examine whether the officer uttered all Ferrier warnings before entering the home, and, if not, whether providing all admonitions inside the house before searching the house complies with Ferrier and the prohibition against unreasonable searches and seizures. Based on the trial court's findings, we rule that the detective did not voice all Ferrier warnings before entering the home. We also hold, based on the language of Ferrier and other decisions, and based on the purposes behind the Ferrier warnings, that a law enforcement officer must deliver all cautions before entering the residence. Therefore, we do not address Budd's second argument. We reverse the denial of the CrR 3.6 motion and dismiss the charge against Budd.

FACTS

¶ 4 Washington State Patrol's Missing and Exploited Children Task Force received an anonymous “cybertip” from the National Center for Missing and Exploited Children. Clerk's Papers (CP) at 4. The anonymous source declared that Michael Allen Budd communicated with young girls on Yahoo! Messenger and Windows Live Messenger, both free online chat services. The informant stated that, in these chats, Budd talked about molesting his nine-and-a-half-year-old daughter and about engaging in sex with his communicants. The source volunteered that Budd's daughter did not live with him. The anonymous source stated that he or she had seen child pornography on Budd's computer and estimated the amount of pornography to be more than 15 Gb. The informant also provided Michael Budd's Gmail and Yahoo! email addresses, the addresses' respective passwords, and the usernames and passwords for two other profiles associated with the same username as Budd's e-mail addresses, guinness2012.

¶ 5 The Washington State Patrol's Missing and Exploited Children Task Force assigned, for investigation, the Michael Budd inquiry to Lakewood Police Department Detective Kim Holmes. Detective Holmes served a search warrant on Yahoo! and Google and determined that, based on Budd's internet protocol address, he resided in Ephrata.

¶ 6 On March 11, 2009, Detective Kim Holmes travelled to Ephrata to perform a “knock and talk” and assuage her concerns that Michael Allen Budd's daughter might be in danger. In law enforcement, a “knock and talk” is an investigative technique where one or more police officers approaches a private residence, knocks on the door, and requests consent from the owner to search the residence. Law enforcement performs the “knock and talk” when criminal activity is suspected, but officers lack probable cause to obtain a search warrant. State Patrol Officers Tony Doughty and Jesse Rigalotto accompanied Holmes to Budd's residence. When the three officers arrived, Budd's girlfriend informed them that Budd remained at work. The officers waited in a car for Budd to arrive.

¶ 7 Michael Allen Budd returned home 15 minutes later, and the officers greeted him halfway down his driveway. Kim Holmes identified herself and the other officers, told Budd that they received a tip that he kept child pornography on his computer, and expressed concern for his daughter. Budd insisted that he was not touching or harming his daughter. Budd stated, nevertheless, that he was not surprised that the officers had come. He added: “if you do it long enough, you get caught.” Report of Proceedings (RP) at 13. Detective Holmes interpreted Budd's comment to concede he viewed child pornography.

¶ 8 The outcome of this appeal turns on what happened next. In her police report, Detective Kim Holmes wrote that, after Michael Allen Budd admitted to possessing child pornography, she:

explained to him knowing this, he could give us consent to [preview] his computer or I could and would obtain a search warrant. Budd gave us consent to seize his computer as he explained he did not want us previewing it in front of his girlfriend. Budd signed a WSP consent form and his rights were explained to him.

CP at 4–5. (emphasis added). The report lacked any mention of Holmes' informing Budd that he had a right to decline consent to enter the home, limit the scope of the search, and revoke consent at any time. The report implied that Holmes misrepresented that a court would authorize a search warrant.

¶ 9 Detective Kim Holmes testified during the suppression hearing. Under direct examination, Holmes testified that she gave Michael Allen Budd a proper Ferrier warning:

So I explained to him that we wanted to do a preview, basically a search of his computer, and explained to him that if we got consent—he could give us consent and we would just seize the computer. We wouldn't do a search of the house. We would just seize the computer and related media items and that would be it. We'd keep it very low-key. I told him that I would apply for a warrant if he did not want to give consent.

Q. Okay. And what did the defendant say?

A. He agreed. He didn't want us to search his house—house in front of his girlfriend, and he did not want us previewing his computer in front of his girlfriend. So that was kind of his stipulations, and we agreed to that.

Q. So you told him you wanted to search the computer. And he said that was okay, but he didn't want you to do it on certain situations, one of it being at his house with his girlfriend there?

A. Correct.

Q. And you agreed to that?

A. I did.

Q. Okay. Now, are you aware of Ferrier warnings?

A. Yes.

Q. All right. Now, did you advise the defendant in this case of any Ferrier warnings prior to going into the house?

[DEFENSE COUNSEL]: Objection to the phrasing of that. If it could be asked more specifically.

[PROSECUTING ATTORNEY]: I could try to help him out, I guess.

THE COURT: All right.

BY [PROSECUTING ATTORNEY]:

Q. Before going into the house, did you advise the defendant of anything before going into the house to search?

A. I did.

Q. And what's that?

A. When he agreed to give consent, I explained to him that I had a waiver that he would need to sign, and it would give him rights as to how much we could search, that he could stop the search. I didn't go into great detail.

Q. Right.

A. And after that, I went and got the warnings, the Ferrier form, out of my car and brought it. And that's when we went into the house and sat at the table where we could go over it more thoroughly.

Q. Now, after you advised him of the rights with this Ferrier warning set, you know, the right that he can stop the search at any time, the right that you can, you know, allow him to do that, was this advised to him before you went into the house?

A. Yes.

Q. And then did the defendant still, after you advised him of those things, what this warning was, did he still allow you to go into the house?

A. He did. He invited us into the house specifically so that we could sit down at a table and go over the warnings.

Q. All right. But before you did that, you went and picked up something, correct?

A. Right. The form. The preprinted form with the Ferrier warnings written on it.

Q. Okay. And then when you went into the house, who all went in the house?

A. I believe we all three went into the house. I know we all three did.

Q. All three meaning the officers?

A. Yes.

RP at 15–17.

¶ 10 Kim Holmes, during the suppression hearing, testified that Michael Budd invited the officers into his home. Despite her initial testimony, Holmes later, in answer to a question from the trial court, stated she is unsure as to whether Budd invited the three into the home for the purpose of reviewing the written form.

¶ 11 In cross-examination during the hearing, Kim Holmes conceded that she would place in her police report everything that has evidentiary value. Upon looking at the report, she further testified that she placed into the report all necessary evidence and she would not wish to change the report.

¶ 12 During cross-examination at the suppression hearing, Kim Holmes' testimony grew vague as to what warnings she gave before entering the house.

BY [DEFENSE COUNSEL]:

Q. Prior to the time that you entered the house,

...