Good decision. In State v. Budd, the WA Court of Appeals decided a law enforcement officer must properly deliver all three parts of the Ferrier warnings before entering a residence.
Some background on Ferrier warnings is necessary. In State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998) the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and also subject to being suppressed.
Appellant Michael Allen Budd was convicted of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He contends that the trial court erred in its denial of his ER 3.6 motion to suppress evidence obtained in a warrantless search of his residence by the officers investigating the case. He argued the Ferrier warnings were insufficient.
Washington State Patrol’s Missing and Exploited Children Task Force received an anonymous “cybertip” from the National Center for Missing and Exploited Children. 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 anonymous source stated that he or she had seen child pornography on Budd’s computer.
On March 11,2009, Detective Kim Holmes travelled to Ephrata to Mr. Budd’s home. 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.
Detective Kim and other officers made contact with Holmes at his home. Although many of the facts are in dispute, it appeared that Detective Kim did not properly discuss Ferrier warnings with Mr. Holmes.
The court reasoned that Detective Holmes’ police 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. Finally, the report implied that Holmes misrepresented that a court would authorize a search warrant. Based on this, the Court of Appeals ruled that the detective did not voice all Ferrier warnings before entering the home, and that law enforcement officers MUST deliver all cautions before entering the residence. Consequently, the Court reversed the conviction and dismissed the case.
My opinion? I agree with this excerpt from the Court of Appeals:
Viewing child pornography is a hideous crime that robs children of innocence and scars them for life. Those who watch child pornography obsessively gamer gratification through violent acts on defenseless children. Catching one at the crime takes diligence since the viewer indulges in the privacy of his home, often by elaborate security measures on his computer. Thus, we reluctantly reverse the trial court.
Nevertheless, as judges, we pledged to uphold the constitution and the endearing rights protected by the constitution. Those engaged in hideous conduct are entitled to the protections afforded under our state and federal constitution including the right to be free of unlawful searches and seizures.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.