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State v. Ruem

Supreme Court of Washington, En Banc

November 27, 2013

The State of Washington, Respondent,
Dara Ruem, Petitioner

Argued May 22, 2012.

Page 1157

Appeal from Pierce County Superior Court. 08-1-02685-1. Honorable Lisa R. Worswick.

Lance M. Hester (of Hester Law Group ), for petitioner.

Mark E. Lindquist, Prosecuting Attorney, and Stephen D. Trinen, Deputy, for respondent.

Sarah A. Dunne, Nancy Lynn Talner, and Rabi Lahiri on behalf of American Civil Liberties Union of Washington, amicus curiae.

AUTHOR: Justice Debra L. Stephens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst. AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Justice Charles W. Johnson, Justice Steven C. González, Justice Pro Tem. Tom Chambers. AUTHOR: Justice James M. Johnson., concurring and disenting.


Page 1158

Stephens, J.

[179 Wn.2d 197] ¶ 1 We are asked to determine whether law enforcement officers must expressly advise a person of his or her right to refuse entry into a home--i.e., provide Ferrier [1] warnings--when the officers seek to execute an arrest warrant. We hold that Ferrier warnings are not required in this instance,

Page 1159

though any consent obtained must be voluntary under the totality of the circumstances.

¶ 2 On the facts of this case, we conclude that Pierce County sheriff's deputies unlawfully entered Dara Ruem's mobile home in an attempt to execute an arrest warrant for Ruem's brother, Chantha Ruem. The deputies lacked probable cause to believe Chantha was present, and Ruem revoked his initial consent to the entry. Thus, the evidence recovered from the search of the home was illegally obtained and unlawfully admitted. We reverse the Court of Appeals and vacate Ruem's conviction.


¶ 3 Over a period of several months in 2008, Pierce County sheriff's deputies attempted to execute an arrest warrant for Chantha. The address on the warrant was 10318 East McKinley Avenue. Two dwellings--a house and a mobile home--sat on the property. The mobile home was located adjacent to the house.

¶ 4 In March 2008, Chantha's father allowed Deputy Jeff Reigle into the house and showed him Chantha's room. Chantha's girl friend told Reigle that Chantha was not there. Reigle identified one of the cars parked in the driveway as registered to Chantha. Reigle did not encounter Chantha that day.

[179 Wn.2d 198] ¶ 5 Reigle surveilled the McKinley Avenue address intermittently over the next few months. Chantha's car was often at the property. The only person Reigle observed driving the car was Chantha's girl friend. Reigle encountered Chantha's brother, David, at the mobile home, and David told him that Chantha was in California. On one occasion, Reigle made a traffic stop of a vehicle leaving the property. The driver did not know who Chantha was but told Reigle that David was at the mobile home. Reigle never saw Chantha at the McKinley Avenue address.

¶ 6 On the evening of June 4, 2008, Reigle and a team of deputies again attempted to serve the warrant for Chantha. Reigle went to the house to ask for Chantha, while Deputy Kevin Fries and Sergeant Thomas Seymour went to the mobile home. Ruem answered Fries' knock on the front door of the mobile home and told Fries that Chantha was not there. Fries asked for Ruem's identification because Ruem resembled photographs that Fries had seen of Chantha. Ruem told Fries that he lived in the mobile home with his brother; Fries assumed that Ruem meant Chantha. [2]

¶ 7 Ruem identified Chantha's car, which was parked on the property, but told Fries that Chantha had moved to California and bought a new car. Fries informed Ruem that he was going to go inside to look for Chantha and asked Ruem " if that was okay." Verbatim Report of Proceedings (VRP) (Dec. 10, 2008) at 33. Ruem initially agreed but stopped the deputies as they started to cross the threshold, saying, " 'Now is not a good time.'" Id. at 33, 38. At this point, Fries and Seymour could smell burnt marijuana. Fries assured Ruem that they were not interested in arresting him for personal use of marijuana and then entered the mobile home.

[179 Wn.2d 199] ¶ 8 Fries and another deputy searched the mobile home while Seymour stayed with Ruem in the living room. The deputies testified they were looking for Chantha, and they did not open drawers or spaces too small to hide a person. In the kitchen, Fries spotted several small marijuana plants. The plants were visible from the living room. Seymour arrested Ruem and informed him of his Miranda [3] rights. Seymour then called for a search warrant. In the process of looking for identifying features on the outside of the mobile home, Seymour discovered more marijuana plants. The deputies did not find Chantha in the mobile home or in the main house.

¶ 9 Later that same day, deputies from the Pierce County sheriff's special investigations

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unit executed the search warrant at the mobile home. They found significant amounts of contraband, including more than 100 marijuana plants in various stages of growth, equipment associated with growing and processing marijuana, several packages of marijuana throughout the mobile home, a DVD (digital video disk) labeled " 'High Times Ultimate Grow,'" and more than $ 4,700 in cash. Clerk's Papers (CP) at 3. They also found a semiautomatic handgun.

Procedural History

¶ 10 Ruem was charged with one count each of manufacturing marijuana while armed with a firearm, possession of marijuana with intent to deliver while armed with a firearm, and unlawful possession of a firearm. He moved to suppress all evidence from the search, arguing that the deputies failed to advise him of his right to refuse their entry and did not have probable cause to believe that Chantha was present on June 4, 2008. The trial court denied the motion on the ground that the warrant for Chantha's arrest authorized the deputies' presence in the home and the marijuana plants were in plain view.

[179 Wn.2d 200] ¶ 11 Ruem appealed his subsequent jury conviction, and the Court of Appeals affirmed. The court held that the search was valid because Ruem consented to the entry and the deputies were not required to provide Ferrier warnings in seeking to execute the arrest warrant on Chantha. [4] State v. Ruem, noted at 162 Wn.App. 1009, slip op. at 6-9 (2011). We granted Ruem's petition for review. State v. Ruem, 172 Wn.2d 1006, 268 P.3d 944 (2011).


¶ 12 Constitutional protections of privacy are strongest in the home. U.S. Const. amend. IV; Wash. Const. art. I, § 7; Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (" the Fourth Amendment has drawn a firm line at the entrance to the house" ); State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994) (" the home receives heightened constitutional protection" ). Warrantless searches of the home are unreasonable under both the federal and state constitutions unless pursuant to a recognized exception. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Exceptions to the warrant requirement are carefully drawn and jealously guarded. Id. Plain view is one of these exceptions. Id. " A plain view search" occurs when law enforcement officers " (1) have a valid justification to be in an otherwise protected area and (2) are immediately able to realize the evidence they see is associated with criminal activity." State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007). The question here is whether the deputies' presence was lawful when they observed the evidence that supported the search warrant for the mobile home. See CP at 207-08.

¶ 13 The State asserts the deputies' presence inside the mobile home was justified by (1) the valid arrest warrant [179 Wn.2d 201] for Chantha and (2) Ruem's consent. Br. of Resp't at 20, 25-26. In the alternative, the State argues that the search warrant was adequately supported by the smell of marijuana and that we should uphold the warrant under the independent source doctrine. Suppl. Br. of Resp't at 2-5. We will discuss each of these arguments in turn.

A. The Arrest Warrant

¶ 14 Whether the arrest warrant for Chantha justified the deputies' entry into Ruem's mobile home hinges on whether the deputies had probable cause to believe that Chantha both resided there and was present on the evening of June 4, 2008.

¶ 15 " [A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton, 445 U.S. at 603. An arrest warrant allows law enforcement officers the limited power to enter a residence for an arrest where (1) the entry is reasonable, (2) the entry is not a pretext for conducting other unauthorized searches or investigations,

Page 1161

(3) the officers have probable cause to believe the person named in the arrest warrant is an actual resident of the home, and (4) the named person is actually present at the time of entry. [5] Hatchie, 161 Wn.2d at 392-93. The parties do not dispute the first two elements. But Ruem argues that the deputies did not have probable cause to believe that Chantha was a resident of the mobile home or that Chantha was present that evening. Pet. for Review at 13-16.

¶ 16 Our opinion in Hatchie is instructive. There, law enforcement officers had an arrest warrant for Eric Schinnell [179 Wn.2d 202], whom they pursued after observing him purchasing precursor materials for the manufacture of methamphetamine. 161 Wn.2d at 393. Officers lost sight of Schinnell but found his truck parked in the driveway of Raymond Hatchie's duplex and a second car registered to Schinnell parked on the front lawn. Id. Both the vehicle registration and the arrest warrant listed a different address for Schinnell. Id. at 404. When questioned, one neighbor thought Schinnell lived in the house and had seen him there earlier that day and another often saw Schinnell there. Id. at 393. A bystander also told the officers that if Schinnell's truck was there, so was Schinnell. Id. Officers then approached the house and knocked on the door. Id.

¶ 17 Answering the knock, a resident of the duplex who had been living with Hatchie for three months told officers that he believed Schinnell was " 'home'" and that Schinnell had been there " 'off and on'" for the last two months. Id. at 393-94. Officers entered the duplex and found Schinnell hiding. Id. at 393. Based on their observations during the search, officers obtained a warrant to search Hatchie's residence for contraband. Id. at 394. We held that the arrest warrant provided a legitimate occasion for the officers' plain view observations; however, we cautioned that the facts of the case were " barely enough to suggest to a reasonable person" that the subject of the arrest warrant actually lived in the defendant's residence. Id. at 405.

¶ 18 The trial court here concluded that " the deputies had a reasonable basis to believe that Chantha Ruem was at the residence on June 4, 2008, based on [his] father's statement that Chantha resided there and the fact that Chantha Ruem's vehicle was there and had been used continuously and recently." CP at 209. This is insufficient, as the standard ...

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