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State v. Blockman

Supreme Court of Washington, En Banc

May 10, 2018

STATE OF WASHINGTON, Respondent,
v.
HOLLIS BLOCKMAN, Petitioner.

          GONZALEZ, J.

         Hollis Blockman was charged with and convicted of unlawful possession of a controlled substance with intent to deliver within 1, 000 feet of a school bus stop. Blockman was discovered in Patricia Burton's apartment during a protective sweep by police, which Burton consented to, in response to a report of an assault and robbery committed in the apartment by Burton and two men.

         Blockman contends the sweep exceeded the scope of the "protective sweep" exception to the warrant requirement under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and therefore the trial court erred in denying his motion to suppress evidence discovered in the course of the protective sweep. However, because Burton's unchallenged consent fits within the consent exception to the warrant requirement, State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984), we affirm.

         Facts

         Teresa Green contacted police officers, ! reporting that she was assaulted and robbed while in Burton's apartment. Green identified Burton and James Marlowe as the assailants and notified police that they, along with Blockman, were likely still in the apartment.

         Uniformed officers went to Burton's apartment to obtain more information about the alleged robbery and assault. Upon hearing why the officers were at her door, Burton invited them into her apartment, saying, "'I can't believe [Green] called the cops'" and "[y]ou can search everything. I don't have her money.'"[1] 1 Verbatim Report of Proceedings (VRP) (Aug 17, 2015) at 26, 28. According to the officer's testimony, the police told Burton, "'You don't have to let us in.'" She responded, '"No, come on in.'" Id. at 28.

         After entering the apartment and briefly conversing with Burton, the officers asked if there was anyone else in the apartment. Burton responded that two other people were in the back bedroom. Burton did not specify whether the two people were Marlowe and Blockman, as Green had suggested earlier.

         As the officers began the sweep, one officer proceeded in the hallway toward an open bedroom, and the officer witnessed a woman placing a $20 bill on a coffee table and Blockman holding a clear plastic bag containing a rock-like substance, which later tested positive for cocaine. As the officer announced he was with Tacoma Police, Blockman allegedly put his hands under the table rapidly. Blockman was seized and removed from the room.

         Following his encounter with Blockman, the police officer further questioned Burton about the alleged robbery. The officer testified that he asked Burton, '"Are you giving me consent to search?'" and told her she could limit the scope of the search and stop the search at any time. Id. at 29. Burton then signed a warrantless search consent form.

         At trial, Blockman moved to suppress the evidence acquired during his interaction with the officers in Burton's apartment. His argument focused on the officer's failure to provide Ferrier[2] warnings before entering the house. The trial court denied the motion, ruling that the officer "had concerns for his safety due to report of at least two unknown individuals . . . somewhere in the residence" and "was invited by Ms. Burton to conduct a protective sweep." Clerk's Papers (CP) at 252.[3] The trial court found the protective sweep reasonable to ensure no one would ambush the officers while they were questioning Burton.

         On appeal, Blockman focused mainly on the warrantless protective sweep. The Court of Appeals affirmed, holding that "nothing in the rationale of Buie or its progeny suggests that an arrest is an indispensable prerequisite" for conducting a protective sweep. State v. Blockman, 198 Wn.App. 34, 39, 392 P.3d 1094. Blockman appealed, and we granted review. 188 Wn.2d 1014 (2017).

         Analysis

         This court reviews legal conclusions resulting from an order pertaining to the suppression of evidence de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); see also State v. Carneh, 153 Wn.2d 274, 281, 103 P.3d 743 (2004).

         1. Ferrier did not apply to the initial contact and consent given

         First, Ferrier warnings were not required prior to the officers entering Burton's home. 136 Wn.2d 103. In Ferrier, officers went to a suspect's home with the intention of searching it after receiving information regarding a possible marijuana grow operation being conducted in the home. Since the officers thought they would not be able to obtain a search warrant without including the name of their informant, the suspect's son, the officers instead devised a plan where they would do a "knock and talk" in an effort to convince Ferrier to allow them into the home. Id. at 106-07. The officers appeared at Ferrier's house wearing uniforms, black '"raid jacket[s], '" and vests emblazoned with the word "police." Id. at 107. In light of the "knock and talk's" sometimes unavoidable, inherently coercive nature, this court held that "article I, section 7 is violated whenever the authorities fail to inform home dwellers of their right to refuse consent to a warrantless search." Mat 118.

         Later, in State v. Khounvichai, this court clarified that Ferrier warnings are required only when law enforcement officers seek entry to conduct a consensual search for contraband or evidence of a crime. 149 Wn.2d 557, 566, 69 P.3d 862 (2003). These warnings are not required when the police are seeking entry into a home to question a resident in the course of investigating a crime. Id.

         Here, the officers approached Burton's apartment as a result of Green's report of a violent robbery and assault committed by three people who were likely still in the apartment. At the time of initial contact, the officers intended only to question Burton about the alleged crime. They did not approach the apartment seeking to enter or intending to conduct a search. After Burton opened the door and saw the officers, she invited them in. 1 VRP (Aug. 17, 2017) at 28 (after officers assured Burton, "'You don't have to let us in, '" she responded, '"No, come on in'"). Accordingly, officers were not required to give Burton Ferrier warnings before entering the apartment since they were intending only to question her, not search her apartment without a warrant.

         2. Burton's unambiguous consent to officers searching her apartment makes it unnecessary to decide the applicability of Buie in nonarrest situations

         Second, Blockman contends that the protective sweep exception to the warrant requirement set forth in Buie is valid only if it occurs incident to arrest. 494 U.S. at 334. Relying on its rationale in Terry[4] and Long, [5] the Buie Court held it is constitutional for law enforcement officers to either conduct a quick-look search of the spaces immediately adjoining the place of arrest without probable cause or reasonable suspicion or conduct a cursory sweep of a home incident to arrest where they have reasonable suspicion to believe the home is harboring a dangerous third person. Id.

         We recognize that Division One's decision in this case created a split among the Court of Appeals concerning whether a Buie protective sweep warrant exception extends to nonarrest contexts. Compare State v. Blockman, 198 Wn.App. at 40, with State v. Hopkins, 113 Wn.App. 954, 959-60, 55 P.3d 691 (2002). However, because the issue before us is resolved by Burton's unequivocal consent to the officer's search, it is unnecessary for us to decide the split.[6]

         We note, however, the officer's declaration to Burton that they "always do a protective sweep" and that it is "standard procedure" to do protective sweeps was erroneous. Despite differing interpretations regarding the scope of Buie, it is clear that protective sweeps are a limited exception to the warrant requirement. In order to conduct a valid protective sweep, officers who have reasonable suspicion to believe a home may harbor a dangerous third person may conduct a cursory sweep of a home. Buie, 494 U.S. at 334. Or, if the officers do not have probable cause or reasonable suspicion, they are permitted to conduct a quick-look search of the spaces immediately adjoining the place of arrest. Id. Here, the officer's indication of protective sweeps being standard procedure was improper and potentially misleading.

         While courts are still undecided as to whether the protective sweep warrant exception explicated in Buie extends beyond arrest situations, this case is not the proper vehicle to reconcile the split. As a result of Burton's unambiguous consent to officers searching her apartment, it is unnecessary for us to decide the applicability of Buie in nonarrest situations.

         3. Consent was given to conduct a valid protective sweep

         Lawful consent is one of the few recognized exceptions to the warrant requirement. Mathe, 102 Wn.2d at 541 ("Consent to search establishes the validity of that search if the person giving consent has the authority to so consent."). Our court has set out three requirements for a valid consensual search: (1) the consent must be voluntary, (2) the consent must be granted by a party having authority to consent, and (3) the search must be limited to the scope of the consent granted. State v. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658 (1992). Thus, officers must strictly abide by the scope of the proffered consent. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). Accordingly, an officer who receives consent to enter the entryway of a home cannot exceed the scope of the consent and begin searching the rest of the home without cause.

         Here, the trial court entered undisputed findings of fact.[7] Most notably, finding of fact 8 states, "Officer Hayward was invited by Ms. Burton to conduct a protective sweep. Officer Hay ward conducted a protective sweep to make sure no one would jump out and surprise them while he was questioning Ms. Burton. [His] gun was still in its holster when he conducted the protective sweep." CP at 252.

         Burton, as the tenant of the apartment, had authority to consent to a search or sweep. Blockman, however, was not described as Burton's tenant or as someone who would have a valid expectation of privacy in the apartment. Knowing the officers came to her apartment to ask questions about the robbery and assault, Burton invited them in, stating, "'You can search everything.'" 1 VRP (Aug. 17, 2015) at 52. This presentation of facts, including Burton's consent to the officers' entry and protective sweep, was unchallenged.

         There is no testimony or evidence suggesting Burton withdrew her invitation or intended to limit the scope of her consent. Had she withdrawn her consent at any point, the outcome may be different. As mentioned earlier, a search cannot exceed the proffered consent. See State v. Bustamante-Davila,138 Wn.2d 964, 981, 983 P.2d 590 (1999) ("To be valid, the consent must be voluntary and the search must not have exceeded the scope of consent."); Walker, 136 Wn.2d at 682. Instead of revoking her consent, Burton ...


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