State v. Blockman
State v. Blockman
Opinion of the Court
*652¶ 1 Hollis Blockman was charged with and convicted of unlawful possession of a controlled substance *653with 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.
¶ 2 Blockman contends the sweep exceeded the scope of the "protective sweep" exception to the warrant requirement under Maryland v. Buie,
FACTS
¶ 3 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.
¶ 4 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.' "
¶ 5 After entering the apartment and briefly conversing with Burton, the officers asked if there was anyone else in *654the 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. *1197¶ 6 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.
¶ 7 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.
¶ 8 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
¶ 9 On appeal, Blockman focused mainly on the warrantless protective sweep. The Court of Appeals affirmed, holding *655that "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,
ANALYSIS
¶ 10 This court reviews legal conclusions resulting from an order pertaining to the suppression of evidence de novo. State v. Duncan,
1. Ferrier did not apply to the initial contact and consent given
¶ 11 First, Ferrier warnings were not required prior to the officers entering Burton's home.
¶ 12 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 *656contraband or evidence of a crime.
¶ 13 Here, the officers approached Burton's apartment as a result of Green's report *1198of 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
¶ 14 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.
¶ 15 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 ,
*1199*658¶ 16 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 ,
¶ 17 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
¶ 18 Lawful consent is one of the few recognized exceptions to the warrant requirement. Mathe,
¶ 19 Here, the trial court entered undisputed findings of fact.
¶ 20 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.
¶ 21 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 ,
*660Walker,
CONCLUSION
¶ 22 Here, the officers were not required to provide Ferrier warnings upon their initial contact with Burton because they approached her apartment with the intent to question her about the alleged crime, not with the intention to search her home. Furthermore, although the issue of whether the protective sweep exception to the warrant requirement, set forth in Buie, extends to nonarrest encounters is still undecided, this is not the proper case to reconcile the confusion. Ultimately, Burton unambiguously consented to the sweep; a fact that was uncontested on appeal. Burton's unchallenged, unequivocal consent justified the protective sweep at issue. Therefore, we affirm the Court of Appeals.
WE CONCUR:
Fairhurst, C.J.
Johnson, J.
Madsen, J.
Owens, J.
Stephens, J.
Yu, J.
Officer Hayward conveyed this account at trial; Burton did not testify at trial.
State v. Ferrier,
The officer then asked if he could take a look, stating that they "always do a protective sweep" and that it is "standard procedure" for officers to conduct protective sweeps. 1 VRP (Aug. 17, 2017) at 26, 46. It is debatable whether the officer's incorrect assertion of the applicability of protective sweeps impaired Burton's consent in any meaningful way. However, no one has challenged the trial court's conclusion of facts regarding Burton's consent.
Terry v. Ohio,
Michigan v. Long,
We also recognize the split among the federal courts. Several cases have held that the protective sweep warrant exception are per se invalid in nonarrest situations. For courts refusing to expand Buie to nonarrest situations, there is significant focus on how the expansion of the protective sweep doctrine could lead to drastic erosion of individual rights that probable cause and warrant requirements are meant to safeguard. George Dery & Michael J. Hernandez, Turning a Government Search into a Permanent Power: Thorton v. United States and the "Progressive Distortion" of Search Incident to Arrest,
Considering the confrontational nature of arrests, the Tenth Circuit in United States v. Torres-Castro held protective sweeps are valid only when pursuant to an arrest.
Meanwhile, other courts have extended the protective sweep doctrine to nonarrest situations. In United States v. Daoust, the First Circuit reasoned that the defendant's violent history, known gun possession, and residence in an isolated cabin provided the officers with the reasonable suspicion required to conduct the protective sweep.
Findings of fact were entered by the court on June 16, 2016, after Blockman filed his initial appeal. The CrR 3.5 and 3.6 hearings were held on August 17, 2015. As noted by the Court of Appeals, written findings and conclusions are to be entered after a suppression hearing. However, the Court of Appeals cites State v. Cruz,
According to Officer Hayward's testimony, Burton opened the door and invited the officers into the living room, saying, " 'I can't believe she called the cops' " and " '[y]ou can search everything. I don't have her money.' " 1 VRP (Aug. 17, 2015) at 41, 28. Hayward testified that initially he informed Burton, " 'You don't have to let us in,' " to which she responded, " 'No, come on in.' " Id. at 28. Later, Burton said, "You can search everywhere." Id. at 29 (explaining that Burton did not limit her scope and signed a consent to search without a warrant form).
Concurring Opinion
¶ 23 According to the trial court's unchallenged findings of fact, Patricia Burton consented to the search of her apartment. Her consent provided the officers with the authority to conduct a warrantless search. I therefore agree with the majority's decision to affirm the trial court's order denying Hollis Blockman's motion to suppress evidence discovered during that search.
*661¶ 24 The majority also correctly observes that the parties did not present the issue of consent, but instead briefed the applicability of Buie
¶ 25 I therefore respectfully concur.
ANALYSIS
I. Burton consented to the search of her apartment
¶ 26 The police did not have a warrant to search Burton's apartment. This court has repeatedly held, " ' "As a general rule, warrantless searches and seizures are per se unreasonable." ' " State v. Ladson,
¶ 27 I agree with the majority that Burton consented to the search of her apartment. This court recognizes lawful *662consent as one of the few exceptions to the warrant requirement. State v. Mathe,
¶ 28 Burton, however, had the right to limit her consent and define the scope of any consent search. See State v. Bustamante-Davila ,
*663II. Buie protective sweeps cannot be used in cases where the consent exception to the warrant requirement is used for entry
¶ 29 The majority continues that officers cannot conduct "protective sweeps" as "standard procedure," majority at 1199, any time they enter a home. I agree. This limitation on such sweeps and searches is critical where, as here, entry is based on consent. There are two reasons for this: first, Buie ' s exception to the warrant requirement did not extend that far (Section A, infra ); and second, the consent exception to the warrant requirement is based on the rule that the consentee gets to limit the scope of his or her consent (Section B).
A. The Buie Court's holding was limited to protective sweeps in the incident-to-arrest situation
¶ 30 Buie defines the United States Supreme Court's protective sweep doctrine in a very limited way as follows:
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.
¶ 31 The first type is a quick "look"-with no probable cause or reasonable suspicion requirement-into spaces immediately adjoining the place of arrest that could conceal a person. That one is not at issue here.
*664¶ 32 The second type is a broader sweep for persons if the Terry and Long prerequisites are satisfied.
¶ 33 But the Buie Court limited both types of searches incident to arrest-the "look" and the broader "sweep"-to the context of an in-home arrest because "[t]he risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter."
¶ 34 Nevertheless, there is substantial debate throughout state and federal courts about Buie's implications for sweeps without arrests. The Ninth
¶ 35 On the other hand, other circuits have stated that although the Buie decision arose from a sweep incident to arrest, nothing in Buie stated that a protective sweep would be *1203unconstitutional if officers were in the residence for some other lawful reason. United States v. Gould,
¶ 36 Division One's decision in this case, State v. Blockman, created a similar split within the Washington Courts of Appeals over the Buie "protective sweep" prerequisites.
¶ 37 Division One's decision in Blockman, which extended Buie protective sweeps to the nonarrest situation, conflicts with all of those prior Court of Appeals cases.
*1204¶ 38 The leading and controlling federal case on this issue, though, is Buie. And the "protective sweep" employed in this case goes far beyond the incident to arrest sweep approved in Buie. This is impermissible. We have repeatedly stated that " ' "[a]s a general rule, warrantless searches and seizures are per se unreasonable." ' " Ladson, 138 Wash.2d at 349,
¶ 39 In fact, we have already implicitly rejected such an expansion of the Buie protective sweep exception. In State v . Eserjose , officers-acting on a tip that James Eserjose and Joseph Paragone were responsible for a robbery-went to the suspect's house at 1:30 a.m. without a warrant.
B. The Buie Court did not disturb the rule that one, like Burton, who gives officers consent to enter or search retains the right to define the scope of that consent
¶ 40 Such an expansion would also conflict with the rule that the scope of a consent to enter or search must be strictly respected. Under controlling law of this court, Burton, like all home residents, had the right to define the scope of her consent to enter or search. We have explicitly held that "[a] search exceeding the scope of consent is invalid." Bustamante-Davila,
¶ 41 Allowing Buie protective sweeps after police obtain limited consent to enter would deprive the consentee-in this case, Burton-of her constitutional right to retain control of the scope of her consent.
*670¶ 42 Federal courts have similar concerns with such an expansion of Buie. The Second Circuit has stated, "[W]hen police have gained access to a suspect's home through his or her consent, there is a concern that generously construing Buie will enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home." United States v. Gandia,
"[P]rotective sweeps following a consent entry may in certain circumstance pose Fourth Amendment concerns not present in cases where the initial entry is pursuant to a warrant. For example, concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement."
C. Any potential danger to the officers could have been resolved without eroding Burton's right to define the scope of consent
¶ 43 Unlike in Buie, the Blockman officers did not face the same disadvantage of being on their "adversary's 'turf' " at an arrest scene. Buie,
CONCLUSION
¶ 44 I agree with the majority that the trial court correctly denied the motion to suppress because Burton consented to the officers' entry into and sweep of her home. I also agree with its decision to decline the State's invitation to hold that the Buie exception to the warrant requirement should be expanded to conflict with controlling case law holding that a consentee retains the ability to define the scope of his or her consent to enter or search.
¶ 45 I therefore concur.
Wiggins, J.
Maryland v. Buie ,
See Arkansas v. Sanders,
See Clerk's Papers at 251-52 (Findings of Fact).
See, e.g., 1 Verbatim Report of Proceedings (Aug. 17, 2015) at 26, 28, 41 (Burton opened the door and invited them into the living room, saying, according to Hayward, " 'I can't believe she called the cops' " and " '[y]ou can search everything. I don't have her money,' that kind of thing"; Hayward testified that initially he informed Burton, " 'You don't have to let us in,' " to which she responded, " 'No, come on in.' "), 52 ("I didn't ask her for her consent to search at that point. She said, 'You can search everything.' I said: 'Okay, okay. Is there anyone else inside?' "), 29 ("And did she limit her stop of that search at any time?" Hayward answered, "No, she did not... And did you ask her to sign a consent to search without a warrant form? ... Yes, I did. ... And did you see her sign that form? ... Yes, I did.").
Terry v. Ohio,
The Ninth Circuit has taken two different approaches to these cases. The current precedent states that Buie protective sweeps are valid in "searches conducted immediately following a home arrest." United States v. Lemus,
The Tenth Circuit also declined to extend the Buie doctrine to nonarrest situations, stating that "[f]ollowing Buie, we held that such 'protective sweeps' are only permitted incident to an arrest." Torres-Castro,
For example, the First Circuit stated:
We hold, therefore, that police who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry. See United States v. Gould,364 F.3d 578 , 584-87 (5th Cir. 2004) (en banc) (stating that a protective sweep may be justified so long as police did not enter illegally); United States v. Taylor,248 F.3d 506 , 513 (6th Cir. 2001) (holding that because officers can constitutionally secure an area while awaiting a search warrant to ensure that evidence will not be destroyed, "it follows logically that... the police may conduct a limited protective sweep [of that area] to ensure the safety of those officers"); cf. United States v. Garcia,997 F.2d 1273 , 1282 (9th Cir. 1993) (permitting protective sweep when police were lawfully present in a home by consent); United States v. Patrick, [294 U.S. App. D.C. 393 ,]959 F.2d 991 , 996 (D.C.Cir. 1992) (declaring, in the context of a consensual entry, that "[o]nce the police were lawfully on the premises, they were authorized to conduct a protective sweep").
United States v. Martins,
Division Three held,
While making a lawful arrest, officers may conduct a reasonable "protective sweep" of the premises for security purposes. ... Buie, 494 U.S. [at] 334-35 [110 S.Ct. 1093 ].... The scope of such a "sweep" is limited to a cursory visual inspection of places where a person may be hiding.Id. at 335 [110 S.Ct. 1093 ]. If the area immediately adjoins the place of arrest, the police need not justify their actions by establishing a concern for their safety.Id. at 334 [110 S.Ct. 1093 ]. However, when the "sweep" extends beyond this immediate area, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."Id.
State v. Hopkins,
Dennis continued by analyzing whether, if Washington were to adopt a nonarrest standard for the second type of Buie protective sweeps, the State could point to facts indicating that the " 'area involved in the protective sweep may harbor an individual who poses a danger to those on the scene.' " Slip op. at 13 (quoting State v. Sadler,
In its analysis, Division One cited to several federal cases, including Buie,
Division One also briefly mentioned Hopkins,
This case was a direct appeal from the superior court, and none of the parties argued that the officers' move from the entryway to the upstairs area was a Buie protective sweep.
Eserjose did not confess until arriving at the sheriff's office, and the question was whether the trial court erred in admitting Eserjose's confession-not whether the upstairs sweep was constitutional or not.
The Second Circuit also made this observation, stating, "There was also nothing preventing the officers from making explicit any concern they may have had about the presence of others in Gandia's apartment and seeking his express permission for a search of other rooms." Gandia,
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