Washington Appeals Court Determines Fenced Pasture Not Protected by Ferrier Rule

Article I, section 7 of the Washington Constitution protects a person from having their “home invaded, without authority of law,” which generally requires a valid warrant.  There is, however, an exception to the warrant requirement when officers obtain a valid consent to search.    The consent except applies only when the consent is voluntary, the person has the authority to consent, and the search is within the scope of the consent.

Pursuant to State v. Ferrier, before entering a home when conducting a “knock and talk,” an officer must inform the person they have the right to refuse consent, revoke consent, and limit the scope of their consent to certain locations in the home.  An important aspect of the court’s analysis in Ferrier was the constitutional protection of a person’s home.  The court also expressed concerns about officers using the knock and talk to avoid getting a search warrant.  The Ferrier court concluded officers violate article I, section 7 if they fail to inform a resident of the right to refuse consent to a warrantless search of the home.

The state recently appealed an order suppressing evidence officers obtained in multiple warrantless searches of a fenced pasture after the trial court suppressed the evidence based on the Ferrier rule.

According to the unpublished opinion of the appeals court, Animal Services responded to a complaint of neglected horses on the defendant’s property on January 4, 2018.  The officer observed the horses eating hay inside a fenced pasture as she drove down the driveway.  There was no shelter for the horses other than a “small tarp” and the horses were not blanketed.

The defendant admitted owning the horses.  The officer determined the horses’ body condition scale and that they were emaciated.  She told the defendant to increase the amount and frequency of feedings. She also suggested the defendant blanket them and provide them with shelter. She further instructed the defendant to have them examined by a veterinarian.

The officer came back the next day.  From the driveway, she observed a vet checking one of the horses and saw they had been feed.  The officer returned a few times in January.  During that time, another complaint was filed.

The officer returned on February 21, more than a month after her last visit.  From the vehicle, she observed the horses’ body condition “had improved only slightly,” and they still did not have blankets or shelter. She did not see any hay, but thought she saw a bag of grain or beet pulp.  She did not think anyone was there, so she left without getting out of the vehicle.

A few days later another animal control officer visited.  He saw no evidence the horses had been fed and their water was frozen.  The officer said they were “still very emaciated,” without blankets or shelter.

The defendant told him she bought two bales of hay since the other officer was there, but ran out the previous night and intended to get more that day.  She could not provide receipts when asked.  She told him where she had purchased the hay, but when he said he would call to confirm, she said sometimes her son got hay and sometimes she bought it elsewhere.

The officer reported back to the previous officer.  She contacted an employee of the neighboring horse farm who said she had been feeing the defendant’s horses through the fence because they were emaciated and she did not see any food out for them. The employee also “broke the ice in the creek” so they would have water.

The officer obtained a search warrant.  The probable cause affidavit included both officers’ observations.  They served the warrant the next day and searched for evidence of food and water.  A veterinary examination found the horses were still emaciated, so they were seized.

The defendant was charged with two counts of first degree cruelty to animals.  She moved to suppress the evidence the officers gathered during their visits, arguing they violated her rights under the Fourth Amendment and article I, section 7 of the Washington Constitution.

The trial court held a CrR 3.6 hearing with testimony from both officers.  In its findings of fact and conclusions of law, the trial court concluded the officers unlawfully searched the “privately owned fenced farmland” when they entered the pasture because they had not given the defendant Ferrier warnings. The court found the officers’ testimony was vague with regard to when they entered the pasture and presumed the observations were made inside the pasture in those instances. The court suppressed the information obtained from inside the fenced pasture, but allowed the officer’s observations from her vehicle in the driveway on February 21.  The court also concluded the officer omitted a material fact from the affidavit because it stated the veterinarian said the horses were “severely emaciated” but failed to state they were “otherwise healthy.” The court concluded that the affidavit, with the observations from inside the fence redacted and the statement the horses were “otherwise healthy” added, did not show probable cause.  The court therefore excluded all of the evidence obtained in the search.  The court subsequently terminated the case.

The state appealed, arguing the trial court erred in finding Ferrier warnings were required.

The defendant argued the trial court had correctly determined the pasture was curtilage and therefore Ferrier applied. “Curtilage” is the area around the home that is so connected to the home that the same constitutional protections apply.  There are no published decisions extending the Ferrier rule to curtilage, but the defendant cited an unpublished decision from Division Two.  The appeals court noted that two of the state’s appeals divisions have declined to extend Ferrier warnings outside the home.  Outside the context of a knock and talk, the court considers the totality of the circumstances to determine if there was a valid consent to search.

The appeals court in this case, however, rejected the defendant’s argument the trial court had determined the pasture was curtilage.  The trial court had not assessed if the pasture’s proximity, use, and expectation of privacy warranted the constitutional protections afforded to a home.  The appeals court had pointed out that the trial court determined the officer was “no longer on any ‘curtilage’ of the property” when she entered the pasture on one occasion.  The trial court had instead followed an unpublished case to conclude Ferrier applied “to privately owned fenced farmland. . .”  The appeals court noted that unpublished case did not apply because the search of the home, and not the fenced farmland, was at issue on appeal in that case.  The court further noted that curtilage is a question of fact based on the specific proximity, use, and expectation of privacy of the area.

The appeals court concluded the trial court erred in applying the Ferrier rule to the fenced pasture and reversed and remanded the case so the trial court could determine if the defendant voluntarily gave consent under the totality of the circumstances test.

If you are facing an investigation, a knowledgeable Washington criminal defense attorney can advise you of your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 for a consultation.


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