State v. Mercedes

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MARCH 6, 2025

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON MARCH 6, 2025 SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 102622-6 Respondent, ) ) v. ) En Banc ) MARY MARGARET MERCEDES, ) ) Petitioner. ) ) Filed: March 6, 2025

JOHNSON, J.—This case involves a challenge to a warrantless search of

property, which disclosed evidence of criminal animal neglect and cruelty. More

specifically, the issue raises a state constitutional argument that under article I,

section 7 of the Washington Constitution, consent to enter property is invalid

unless investigating officers advise the property owner of the right to refuse, limit,

and revoke consent, which we adopted as required to enter a person’s home to

search for evidence of a crime. State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927

(1998). State v. Mercedes, No. 102622-6

Two counts of animal cruelty were brought based on evidence obtained in a

search pursuant to a search warrant, which was issued based on observations

contained in a supporting affidavit gathered by officers during several visits to the

property. The trial court granted a motion to suppress, holding that the consent to

enter the property was invalid, and dismissed. The State appealed, and the Court of

Appeals reversed. State v. Mercedes, No. 84469-5-I (Wash. Ct. App. Nov. 6, 2023)

(unpublished), https://www.courts.wa.gov/opinions/pdf/844695.pdf, review

granted, 2 Wn.3d 1028 (2024). We conclude Ferrier warnings were not required.

We affirm the Court of Appeals and remand.

FACTS AND PROCEDURAL HISTORY

Between January 4 and February 23, 2018, Snohomish County Animal

Services received multiple complaints that animals on Mary Mercedes’s property

were being starved and neglected.

An employee from the adjoining horse ranch made the initial complaint after

that ranch’s veterinarian saw the animals on Ms. Mercedes’s property and stated

that the horses were emaciated and that a lamb was dying. Animal Control Officer

Rench went to Ms. Mercedes’s rural 2.89-acre property to investigate the

complaint and returned several more times over the following seven-week period.

Another employee at that ranch made the final complaint on February 23, claiming

2 State v. Mercedes, No. 102622-6

Ms. Mercedes was not feeding her horses or providing them access to water. This

complaint prompted a second officer, Officer Wiersma, to visit the property.

The property is accessed via a long, gated driveway that was open at every

visit except one. Past the driveway gate, Ms. Mercedes’s pasture borders the

circular driveway area, which is surrounded by a three-rail fence. Thus, from the

driveway, visitors to the property can see into the pasture.

During the initial visit, Ms. Mercedes met Officer Rench outside, where the

officer explained the complaint and asked questions about the animals on the

property. When Officer Rench asked to see the animals, Ms. Mercedes agreed and

led the officer to them. The two viewed the animals from outside the enclosure.

Officer Rench gave Ms. Mercedes recommendations for what to feed the animals

to improve their health. She also instructed Ms. Mercedes to promptly set up an

appointment with a veterinarian to examine the animals and develop a more

specific feeding and care plan to improve their health status. At the end of that first

visit, Officer Rench informed Ms. Mercedes that she would return to the property

to monitor the animals’ conditions.

At the second visit, Ms. Mercedes informed Officer Rench that she had an

appointment with a veterinarian to come see the animals the next day. Officer

Rench told Ms. Mercedes that she would be there during the appointment as part of

3 State v. Mercedes, No. 102622-6

monitoring Ms. Mercedes’s efforts to rehabilitate the animals. The veterinarian

addressed some of the animals’ care needs and gave Ms. Mercedes a feeding plan.

During the subsequent visits, Officer Rench generally asked Ms. Mercedes

for updates on the animals’ care and requested to see the animals. Ms. Mercedes

allowed the officer’s requests.

Usually, Ms. Mercedes met the officer outside in the driveway area, which

included a grassy area between the fenced pasture and driveway. On the one

occasion when the driveway gate was closed, Ms. Mercedes met the officer at the

gate. When Officer Rench asked to see the animals on that occasion, Ms. Mercedes

opened the gate.

After the February 23 visit, Officer Rench sought a warrant to search the

property and seize the horses along with any relevant veterinary or health records

relating to the care of the two horses. The warrant application contained the

observations gathered during the property visits among other evidence. The trial

court issued the warrant. The officers returned the following day with the warrant

and searched the property for more evidence related to the horses’ care. They

brought a veterinarian who examined the horses and concluded that they were still

emaciated. The officers seized the horses to provide them with needed care.

The State charged Ms. Mercedes with two counts of animal cruelty. She

filed a motion to suppress the evidence the officers obtained from being on her

4 State v. Mercedes, No. 102622-6

property, claiming that without providing Ferrier warnings before entering the

property, the State had not established valid consent to enter the property. At the

hearing, Officer Rench labeled her first visit as a type of “knock-and-talk

procedure.” 1 Verbatim Rep. of Proc. (VRP) at 25. She defined such a procedure

as “[t]he right to go to the front door and ask questions and explain a complaint.” 1

VRP at 25. The trial court did not make any finding regarding whether the

investigation was a knock and talk. It did find the officers’ investigations were

searches once the officers were off the driveway and when physically assessing the

animals.

The trial court concluded Ferrier warnings were required when seeking

consent to see the animals and to venture beyond the driveway. It suppressed any

evidence obtained while at Ms. Mercedes’s property except for the officers’

observations from the driveway vantage point. It then found no probable cause

supported the search warrant and dismissed the State’s case against Ms. Mercedes.

The State appealed the trial court’s order suppressing the evidence and

conclusion of law that Ferrier applied to the search of Ms. Mercedes’s outdoor

property. The Court of Appeals, in a split decision, concluded that Ferrier applies

only to the search of a person’s home. It reversed and remanded to the trial court to

determine whether Ms. Mercedes’s consent was voluntary under the totality of the

circumstances. We granted review.

5 State v. Mercedes, No. 102622-6

ANALYSIS

Article I, section 7 provides, “No person shall be disturbed in his private

affairs, or his home invaded, without authority of law.” Generally, under our article

I, section 7 cases, searches are valid when done pursuant to a properly issued

search warrant. Exceptions to the warrant requirement are narrow. The exception at

issue here is the validity of consent by an individual. The State has the burden to

establish that an individual consented to any search conducted without a warrant.

For consent to be valid when a law enforcement officer seeks consent to conduct a

warrantless search of a person’s home under certain circumstances, we have held

that the officer must first inform the individual they have the right to refuse, limit,

and revoke consent. Ferrier, 136 Wn.2d at 118-19. Ms. Mercedes asserts that here,

Officers Rench and Wiersma conducted “knock and talk” investigations on her

property and that automatically triggered Ferrier requirements.

Ferrier involved a situation where police officers got a tip about a marijuana

grow operation inside Ferrier’s home. Four officers went to her home, knocked on

her door, and, while stepping inside, stated they were there to discuss her son.

They told Ferrier about the information they received about the grow operation and

asked consent to search her home for evidence. At this point, Ferrier, who was

frightened and upset, consented. One officer witness in Ferrier described their

approach in getting into Ferrier’s home as a knock and talk. He explained it as

6 State v. Mercedes, No. 102622-6

when an officer, without a search warrant, goes to an individual’s home, knocks on

the door, and asks permission to enter the house to discuss the complaint against

that individual. One of the officers admitted their method for getting inside and

obtaining consent to search was done to circumvent the search warrant process.

The officer expressed concern about applying for a search warrant that might

divulge the informant’s identity. We held that the knock and talk procedure and

entry into the home was nonconsensual and listed specific requirements applicable

to establish valid consent under those circumstances. We adopted the rule that a

resident must be advised they can refuse, limit, and revoke consent when officers

request entry into their home to conduct a warrantless search. Ferrier, 136 Wn.2d

103. Our cases later limited the scope of that requirement and held that under other

circumstances, law enforcement officers are not always required to provide Ferrier

warnings when seeking consent to enter someone’s home.

In State v. Khounvichai, 149 Wn.2d 557, 559, 69 P.3d 862 (2003), two

police officers asked to enter an individual’s apartment to speak with her grandson

who was living there. While inside, the officers saw Khounvichai make a sudden

dash across the room and out of sight. Worried he was going for a weapon, one

officer secured Khounvichai and discovered he was holding a bag of cocaine. After

charges were brought against Khounvichai for possessing cocaine, he moved to

suppress the cocaine because the officers failed to provide Ferrier warnings to the

7 State v. Mercedes, No. 102622-6

apartment tenant before entering. We rejected this argument. Relying on the

language in Ferrier, we explained that the underlying purpose of the officers’ visit

was significant. Where officers are at a person’s doorstep for merely investigative

purposes, such as when responding to reported criminal activity, Ferrier warnings

are not needed. We explained the distinction and reasoned that for valid consent

when “police seek entry to a home to conduct a warrantless search for contraband

or evidence of a crime,” they must inform the home dweller they can refuse, limit,

and revoke consent to enter their home. Khounvichai, 149 Wn.2d at 566 (emphasis

added). Since Khounvichai did not involve that conduct, we upheld the search.

Similarly, in State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 (2013) (plurality

opinion), we reiterated that the purpose of an officer’s entry into a home is

instructive of the circumstances where Ferrier applies. In that case, police had an

arrest warrant for a certain individual, Chantha. During an attempt to serve the

warrant at the residence where the officer believed Chantha lived, an occupant,

Ruem, told the officer that Chantha had moved away. When the officer asked for

consent to look inside, Ruem initially consented and then immediately changed his

mind saying it was “‘not a good time.’” Ruem, 179 Wn.2d at 198 (internal

quotation marks omitted) (quoting court papers). The officer had already entered

and smelled marijuana. The officer assured Ruem he was only there to look for

Chantha. While in the house, the officer saw several marijuana plants and arrested

8 State v. Mercedes, No. 102622-6

Ruem. After being charged, Ruem moved to suppress all evidence the officer

gathered while in his home on the basis the officer failed to give Ruem Ferrier

warnings. We held that Ferrier did not apply. In our analysis, we again focused on

the purpose of the visit and stated that Ferrier warnings “apply when police

conduct a ‘knock and talk.’” Ruem, 179 Wn.2d at 206. We held that Ferrier

warnings were not required before entering Ruem’s home, reasoning that the

officers sought entry into Ruem’s home to execute the arrest warrant for Chantha,

and not for the purpose of searching for contraband or evidence of a crime.

In State v. Budd, 185 Wn.2d 566, 569, 374 P.3d 137 (2016), we held that

under the circumstances there, Ferrier advisement was required. In that case,

police officers met Budd on his driveway and then, after discussing why they were

there, requested entry into his home to seize a computer they suspected contained

contraband. Budd agreed to let them inside specifically for that limited purpose.

Only after the officers were inside the home did they provide Budd with a written

consent form containing Ferrier warnings. We characterized the officers’ visit as a

type of knock and talk in which the entry was for the purpose of searching for and

seizing a computer as evidence of a crime. Our analysis focused on the purpose of

the officers’ entry: “to search for and seize suspected contraband.” Budd, 185

Wn.2d at 573-74. Under the facts, we held that Ferrier warnings were required

before the officers’ entry into the home to establish valid consent.

9 State v. Mercedes, No. 102622-6

Here, Officer Rench did not attempt to enter Ms. Mercedes’s home. Officer

Rench’s own characterization of the visit as being a knock and talk is irrelevant in

deciding the applicability of Ferrier warnings. The officer asked for consent to

look at the animals from the outside of the enclosure and not from inside the home.

Further, the purpose of Officer Rench’s initial visit was to investigate a report of

animal cruelty and determine if circumstances existed to seize the animals, not to

search for contraband or evidence of a crime. The purpose of Officer Rench’s

follow-up visits was to monitor Ms. Mercedes’s compliance with the feeding and

care recommendations given by the veterinarian to determine if further action

would be needed. The purpose of Officer Wiersma’s visit was to investigate

another complaint, which included determining if the animals had access to food

and drinking water. Because the visits were for investigative purposes and were

conducted outside of the home, these circumstances do not trigger Ferrier

requirements.

Ms. Mercedes argues the Ferrier requirements should not be limited to

homes but, more broadly, to constitutionally recognized private affairs under

article I, section 7, and that no distinction exists between invading a person’s home

and disturbing their private affairs. She argues that a consistent rule should exist

for establishing consent for all privacy interests. We disagree. Our constitution

establishes that the government cannot invade a home or disturb a private affair

10 State v. Mercedes, No. 102622-6

without a warrant unless an exception to the warrant requirement exists, consent

being a recognized exception. What the cases discussed above hold is a consistent

rejection of arguments made to expand the scope of constitutional privacy

protections beyond what Ferrier established.

In declining to expand Ferrier’s added protection more broadly, we do not

diminish the State’s high burden to establish valid consent to warrantless searches.

The standard to establish valid consent, which is the totality of circumstances

analysis, remains intact. Ruem, 179 Wn.2d at 207. The State still has the burden to

prove the validity of Ms. Mercedes’s consent based on the totality of the

circumstances. The Court of Appeals correctly remanded the case to the trial court

to determine whether the State can meet this burden. Accordingly, we affirm the

decision of the Court of Appeals and remand.

11 State v. Mercedes, No. 102622-6

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12 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)

No. 102622-6

STEPHENS, C.J. (concurring)—I join the lead opinion’s holding that the

evidence obtained while at Ms. Mercedes’s property should not have been

suppressed due to a lack of Ferrier warnings. The protection against coerced

consent that Ferrier addresses was not implicated here, as the animal control

officers’ purpose was to follow up on a report of animal cruelty and monitor

Mercedes’s compliance with veterinary recommendations, not to seize contraband

or evidence of a crime. I write separately to emphasize that any commentary about

whether Mercedes’s horse pasture was part of her home is unnecessary to this

result.

We have long recognized that “the home receives heightened constitutional

protection.” State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994). In

Ferrier, we articulated a prophylactic protection against invasions of individual

privacy by requiring police to inform people of their right to refuse consent before

conducting a warrantless search within their home. State v. Ferrier, 136 Wn.2d

103, 118, 960 P.2d 927 (1998). Subsequent cases clarified that the Ferrier rule

applies only when police conduct a “knock and talk,” i.e., when their purpose is to

search for and seize contraband or evidence of an already completed crime within

the home. See State v. Khounvichai, 149 Wn.2d 557, 69 P.3d 862 (2003) (holding

Ferrier warning not required when seeking entry to home to question resident); 1 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)

State v. Ruem, 179 Wn.2d 195, 313 P.3d 1156 (2013) (holding Ferrier warning not

required when seeking entry to home to execute arrest warrant); State v. Budd, 185

Wn.2d 566, 374 P.3d 137 (2016) (holding Ferrier warning required when seeking

entry to home to seize contraband). While these cases all involved a residence

with four walls, a roof, and a front door (including a mobile home in Ruem), our

holdings did not turn on the physical qualities of the structure but, rather, the police

officers’ method and purpose for seeking entry to the home. This is because in

Ferrier, we recognized the inherently coercive nature of the knock and talk

procedure in which police confront a person they already suspect to be guilty of a

crime at the threshold of the place where they are entitled to heightened

constitutional protection. See Ferrier, 136 Wn.2d at 115. We have never

suggested that this inherent coercion disappears when police confront a person at

the gate of a fence and seek consent to search for evidence in an outdoor part of

their home.

Washingtonians live in a variety of settings. There are many types of

homes, ranging from apartments and accessory dwelling units in urban and

suburban areas to parcels in rural areas that may contain multiple structures.

People typically sleep inside a building or structure (though not always), and they

often use the space in and around that structure to eat, talk, exercise, play, store

belongings, or raise plants and animals. However they live, they have a reasonable

2 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)

expectation of privacy in the objects and activities in their home, except for what

they knowingly expose to the plain view of outsiders. See State v. Berber, 48 Wn.

App. 583, 591, 740 P.2d 863 (1987) (quoting Katz v. United States, 389 U.S. 347,

361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). People can

shield the outdoor parts of their home from the public view in a number of ways,

including with a fence or awning, or by locating objects and activities far from

fence lines or a public road. The determination of what constitutes a person’s

home is highly fact specific and must account for the diverse ways that people in

Washington live their lives.

I would not limit the heightened constitutional protection Ferrier recognizes

in the home solely to the inside of dwellings, as Justice Pro Tempore Melnick’s

concurrence suggests. I do not read Ferrier as tying its protection to RCW

10.79.040 in such a restrictive way. Rather, Ferrier affirms the principle that “the

closer officers come to intrusion into a dwelling, the greater the constitutional

protection.” State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419 (1984). Far

from suggesting that the home is limited to the four walls of a building where

people sleep, this quote underscores the fundamental notion that a person’s home is

their castle.1 What constitutes the home is best understood with reference not to

1 See James Otis, Against Writs of Assistance (1761), NAT’L CONST. CTR., https://constitutioncenter.org/the-constitution/historic-document-library/detail/james-otis- against-writs-of-assistance-february-24-1761 [https://perma.cc/YWT7-BR6Q]. 3 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)

structural details but to the reason why the home deserves special protection as a

person’s private space.

This case does not require the court to define the boundaries of the home for

purposes of article I, section 7 because the officers’ actions here did not implicate

the need for Ferrier warnings. Each time the officers visited Mercedes’s home and

sought entry into her horse pasture, their purpose was to follow up on allegations

of animal cruelty and monitor Mercedes’s compliance with the veterinarian’s horse

care recommendations, not to seize evidence of a crime they had already

determined to be committed by Mercedes. The officers’ actions here do not

resemble the show of authority and inherent coercion that rendered Ferrier’s

consent invalid without a warning of her right to refuse consent.

I join the lead opinion in holding that Ferrier warnings were not required in

this case and that the evidence obtained should not have been suppressed. Officers

did not conduct a knock and talk to search for and seize evidence of a crime at

Mercedes’s home. On this basis, I respectfully concur.

4 State v. Mercedes, No. 102622-6 (Stephens, C.J., concurring)

5  No. 102622-6

MELNICK, J. * (concurring)—I respectfully concur in the lead opinion’s

decision to affirm the Court of Appeals and to remand to the trial court. I

would decide this case solely on the narrow grounds that the consent to search

the defendant’s property did not involve a home.

As the lead opinion clearly points out, the rule of State v. Ferrier, 136

Wn.2d 103, 960 P.2d 927 (1998), and its progeny all involve law enforcement

seeking consent to search a home or a dwelling. The constitutional right at

issue in Ferrier involved the “heightened privacy rights in her home, as

guaranteed by article I, section 7 of [Washington’s] constitution….” 136 Wn.2d

at 106. “Especially evident is the fact that ‘[i]n no area is a citizen more

entitled to his privacy than in his or her home. For this reason, the closer

officers come to intrusion into a dwelling, the greater the constitutional

protection.’ ” Ferrier, 136 Wn.2d at 112 (alteration in original) (internal

quotation marks omitted) (quoting State v. Young, 123 Wn.2d 173, 185, 867

P.2d 593 (1994)).

For support, the court cited to former RCW 10.79.040 (1921), which

reads as follows: “It shall be unlawful for any policeman or other peace officer

* Judge Rich Melnick is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a). State v. Mercedes, No. 102622-6 (Melnick, J.P.T., concurring)

to enter and search any private dwelling house or place of residence without

the authority of a search warrant issued upon a complaint as by law

provided.” 1 Ferrier, 136 Wn.2d at 112.

Ferrier recognized that “a home dweller should be permitted to

voluntarily consent to a search of his or her home, [but] the waiver of the right

to require production of a warrant must, in the final analysis, be the product of

an informed decision. 136 Wn.2d at 118.

This analysis is consistent with subsequent decisions from this court. “It

would also distort the purpose of Ferrier, which is to ensure that a person who

has not been illegally seized can make an informed decision as to whether to

consent to a search of his or her home.” State v. Mayfield, 192 Wn.2d 871, 901,

434 P.3d 58 (2019).

Ferrier requires that police officers “must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.” 136 Wn.2d at 118. Officers must give these warnings before entering the home because the resident's knowledge of the privilege is a “ ‘threshold requirement for an intelligent decision as to its exercise.’ ” Id. at 117 (quoting Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). “The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.” Id. at 118–19.

State v. Budd, 185 Wn.2d 566, 573, 374 P.3d 137 (2016).

Although this court has consistently confined Ferrier warnings to knock

and talk procedures, Budd, 185 Wn.2d at 573, the petition in this case only

1 RCW 10.79.040 has been amended to read, in per�nent part, “It shall be unlawful for any police officer or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.” LAWS OF 2010, ch. 8, § 1062.

2 State v. Mercedes, No. 102622-6 (Melnick, J.P.T., concurring)

sought review, and we only granted review, on the issue of whether Ferrier

warnings are required when officers seek consent to search a gated, fenced

area surrounding a home. Pet. for Rev. at 2. The petitioner argued that the

constitutional basis of Ferrier extends to private areas surrounding a person’s

home. Pet. for Rev. at 12. The issue of whether this consent search involved a

knock and talk has neither been briefed nor argued. The trial court made no

findings of fact on this issue. We should generally “decide a case only on the

basis of issues set forth by the parties in their briefs.” RAP 12.1(a).

Since it is unquestioned that this case does not involve a consent search

of a home, I would end the inquiry at that point. An analysis and discussion of

the investigative technique employed by law enforcement in this case is

unnecessary, especially considering that the trial court did not make any

findings regarding this issue.

Because this case involves the consent to search fenced areas of the

defendant’s property, and not her home, I join the lead opinion in affirming the

Court of Appeals and remanding to the trial court.

Melnick, J.P.T.

3