IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. MICHAEL HARRIS EHAT, Appellant. No. 71963-7-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: July 28, 2014 — -He:

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### Schindler, J. — The jury convicted Michael Harris Ehat on two counts of unlawful possession of a firearm. Ehat claims his attorney providedineffective assistance ofcounsel byfailing to file a motion to suppress the firearms. Ehat also contends the undisputed evidence at trialsupported his reliance on the advice of a 

### policeofficerthat he was entitled topossess the firearms. Because Ehat cannot establish ineffective assistance, and because the record does not supportthe argument 

### thatthe undisputed evidence supported his defense, we affirm. FACTS Michael Harris Ehat lives in a two-bedroom trailer in Roy, Washington. Ehat's brother Frank Robbins lived in a separate trailer on the same property.No. 71963-7-1/2 In 2007, Ehat pleaded guilty to assault inthe fourth degree, domestic violence. As a condition ofthejudgmentand sentence, Ehat was prohibited from possessing firearms. The "Notice of Ineligibility to Possess a Firearm" states, in pertinent part: YOU ARE ADVISED THAT YOU MAY NOT POSSESS A FIREARM UNTIL YOUR RIGHT HAS BEEN RESTORED BYA COURT OF RECORD. VIOLATION IS A FELONY UNDER RCW9.41.040.TM InJuly 2012, Ehat's friend Richard Young moved into the trailerwith Ehat. On August 6, Ehat discovered his brother Robbins had committed suicide and called 911. Pierce County Sheriff's Department Detective Gary Sanders responded to the 911 call. Ehattold Detective Sanders that his brother had personal property and firearms inside the trailer. Detective Sanders told Ehat to secure the trailer "so that none ofthat stuff would be taken." Ehat did not tell Detective Sanders that he was prohibited from possessing firearms. Ehattook his brother's guns to his trailer. 

### On October 21, 2012, Young called 911 to reportthat Ehat had pointed a shotgun at him. Deputies Franklin Brown and Anthony Filingresponded to the 911 call. 

### Young was standing in a neighbor's driveway about 100 feet away from Ehat's trailer. Detective Daren Witt arrived a few minutes later. The officers spoke to Young for about 10 to 15 minutes. 

### Deputy Filing was concerned about officersafety and called Ehat on his cell 

### phone to ask him to come outside. Ehat agreed to come outside. The officers handcuffed Ehat and advised him of his Miranda2 rights. Ehat then told the officers that "there were some firearms in the house," and invited the officers inside.

1 Emphasis in original. 2Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 71963-7-1/3
Ehat showed the officers a .22 caliber rifle on the floor ofone ofthe bedrooms. 

### Ehattold officers that "the shotgun should have been inthe room, but itwas missing." Young told officers the shotgun was behind the sofa inthe living room. Deputy Brown retrieved the shotgun from behind the sofa and secured both firearms inthe patrol car. The State charged Ehatwith assault inthe second degree with a deadly weapon inviolation of RCW 9A.36.021(1)(c) and two counts ofunlawful possession of a firearm in violation of RCW 9.41.040(2)(a)(1). The defense theory at trial on the assault charge was general denial. As to the two counts of unlawful possession of a firearm, the defense theory was entrapment by 

### estoppel. The defense argued Ehat relied ingood faith on Detective Sanders' instruction to secure the weapons from his deceased brother's trailer. The State called Young and several officers, including Deputy Brown and 

### Detective Sanders, to testify at trial. The court admitted certified copies of the "Statement ofDefendant on Plea ofGuilty" forthe 2007 assault conviction and the 

### Notice ofIneligibilityto Possess a Firearm. The court also admitted intoevidence a copy ofthe 911 call, and the rifle and shotgun found inEhat's trailer. 

### Young testified that on October21, Ehat came "out of the bedroom with a 

### shotgun, puts itin myface, pumps out a round on thefloor and says he can pick me out the country boy way, matter of fact he can blow my brains out." Young testified he 

### grabbed the shotgun barrel and pushed it away, and then leftthe trailertocall 911. Young testified that Ehat "kept a pump shotgun behind the couch and some other .22s in the back bedroom."No. 71963-7-1/4 

### Detective Witttestified that after Deputy Brown read Ehat his Miranda rights, "Mr. Ehat invited us inside his home. We went inside. He showed us where some firearms were." Deputy Brown testified that Ehat told him that "he knew he shouldn't be possessing [the shotgun] because he couldn't, butthen he also explained that he was told by Deputy Sanders to secure the weapons." Deputy Brown also testified that Ehat
was calm, cooperative, and not upset during his contactwith him. Detective Sanders testified that when he talked to Ehat after his brother's suicide, "[tjhere was a mention ofpersonal property and possibly guns inthe residence, and I justtold him to make sure to secure the residence so that none ofthat stuffwould be taken." Detective Sanders testified he assumed Ehatwould "[IJockthe front door and the back door." Detective Sanders testified that he did not instruct Ehat to take the firearms home and that Ehat never said anything about his ineligibility to possess firearms. Detective Sanders testified that he does not tell anyone to take firearms into their possession "without doing a criminal history" check. 

### The court gave the defense proposed instruction on entrapment by estoppel. Jury instruction 20 states: 

### It is a defense to the charge of Unlawful Possession of a Firearm Second 

### Degree, as charged inCounts II and III, ifyou findthatthe defendant believed he was acting out of a good faith reliance on the apparent 

### authority ofanotherto authorize his actions as long as his reliance was objectively reasonable. The defendant has the burden of proving this defense by a preponderance 

### ofthe evidence. Preponderance ofthe evidence means thatyou must be persuaded, considering all of the evidence inthe case, that it is more probably true than not true. Ifyou find from the evidence thatthe defendant has established this defense, it willbe your duty to return a verdict ofnot guilty as to these charges.No. 71963-7-1/5 

### The jury found Ehat not guilty ofassault in the second degree and convicted Ehat
on the two counts of unlawful possession of a firearm. The trial court imposed a standard-range six-month sentence. Ehat appeals. ANALYSIS Ineffective Assistance 

### Ehat argues his counsel provided ineffective assistance by failing to file a motion to suppress the rifleand shotgun found in his trailer. A criminal defendant has a constitutional right to effective assistance ofcounsel. 

### Strickland v. Washington. 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In orderto prevail on a claim of ineffective assistance of counsel, Ehat must demonstrate (1) deficient performance, that his attorney's representation fell belowthe standard ofreasonableness; and (2) resulting prejudice, that but for the deficient performance, the result would have been different. Strickland. 466 U.S. at 687; State v. Bowerman. 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in Strickland). Ifa defendantfails to establish either prong, we need not inquire further. State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996). To prevail on his claim that his attorney's performance was deficient because the attorney did notfile a motion to suppress the firearms found in his home, Ehat must 

### showthe courtwould have granted the motion to suppress. Hendrickson. 129 Wn.2d at 79-80; see also State v. Brown. 159 Wn. App. 366, 371, 245 P.3d 776 (2011) (defense counsel has no duty to pursue arguments that appear unlikely to succeed). 

### Ehat argues the warrantless search of his home violated his rights under article 1, section 7 of our state constitution because the officers did nottell Ehat he couldNo. 71963-7-1/6 

### refuse to consentto the search as required by State v. Ferrier. 136 Wn.2d 103, 118-19, 960 P.2d 927 (1998). The State contends Ferrierdid not apply inthese circumstances. We agree with the State. In Ferrier. the court held that under article 1 section 7, an officer employing a "knock and talk" procedure must inform the person whose consent is sought ofthe right to refuse entry. Ferrier. 136 Wn.2d at 115. A "knock and talk" occurs when a police officer, in orderto avoid obtaining a warrant, goes to a residence, knocks on the door, and asks to enter and search the home for contraband. Ferrier. 136 Wn.2d at 115.3 In Ferrier. four armed officers wearing "black 'raidjackets'" asked Ferrier's permission to enter her home. Ferrier. 136 Wn.2d at 107. The officers had uncorroborated information that Ferrierwas conducting a marijuana grow operation in her home, and conducted the "knock and talk" in orderto avoid obtaining a warrant. Ferrier. 136 Wn.2d at 106-07. Once Ferrier invited the officers inside, the officers told 

### Ferrier thatthey learned of a marijuana grow operation in her house. Ferrier. 136 Wn.2d at 108. Officers asked for consentto search the home and had Ferrier sign a consentform, but did not explain that Ferriercould refuse to allow the officers to search 

### the home. Ferrier. 136 Wn.2d at 108. The Supreme Court held that under article 1, section 7, an officer conducting a "knock and talk" procedure to obtain consentto search a home must "informthe person from whom consent is soughtthat he or she 

### may lawfully refuse to consentto the search." Ferrier. 136 Wn.2d at 114-15, 118.

3In Ferrier, the court quoted a police officer's testimony defining a "knock and talk" as: You go to the door, knock on the door, make contactwith the resident, ask ifyou can come in to talk about whateverthe complaint happens to be
.... Once you're inside, you talk about why you're there and askfor permission to search the premises. Ferrier, 136 Wn.2d at 107 (internal quotation marks omitted).No. 71963-7-1/7 In State v. Williams. 142 Wn.2d 17, 11 P.3d 714 (2000), the Supreme Court held that it is not "prudent or necessary to extend Ferrierto require that police advise citizens 

### oftheir right to refuse entry every time a police officerenters their home." Williams. 142 Wn.2d at 27. In State v. Khounvichai. 149 Wn.2d 557, 69 P.3d 862 (2003), the court 

### concluded, "[Tjhere is a fundamental difference between requesting consentto search a home and requesting consentto enter a home for other legitimate investigatory 

### purposes." Khounvichai. 149 Wn.2d at 564. And inState v. Leupp. 96 Wn. App. 324, 980 P.2d 765 (1999), the court held that an officerresponding to a 911 distress call had 

### no duty to inform the defendant Leupp of his right to refuse consentto enterthe home: [The officer] did not go to Leupp's residence to conduct a knock and talk. That inherently coercive situation occurs when police officers come to someone's doorwithout a warrant or otherbasis for entry, suspecting 

### illegal activity butlacking probablecauseto arrest or search, and ask if they can come inside to look around. . . . Instead, [theofficer] came to Leupp's door responding to a 911 distress call.
... In this situation, [the officer] had no duty to inform Leupp of a right to refuse consent. 

### Leupp. 96 Wn. App. at 333-34.4 Likewise, here, the police did not employ a coercive "knock and talk"procedure. 

### Thepolice responded toYoung's 911 call and entered thetrailerwith the consent of both residents to securefirearms allegedly involved in a domestic violence assault. 

### Because a motion to suppress on the grounds asserted by Ehatwould not have been successful, he does not establish ineffective assistance ofcounsel. Sufficiency ofthe Evidence 

### In the alternative, Ehat argues insufficientevidence supports the unlawful 

### possession of afirearm convictions because the undisputed evidenceestablished his affirmative defense ofentrapment by estoppel. Internal quotation marks omitted.No. 71963-7-1/8 

### The State must prove each essential element ofthe crime beyond a reasonable doubt. InreWinship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L Ed. 2d 368 (1970); State
v. Oster. 147 Wn.2d 141, 146, 52 P.3d 26 (2002). Indeciding whether sufficient 

### evidence supports a conviction, we mustview the evidence inthe lightmostfavorable to 

### the State to determine whether any rational trier of fact could have found the essential 

### elements of the crime beyond a reasonable doubt. State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Achallenge to the sufficiency of the evidence admits the truth ofthe State's evidence. Salinas. 119 Wn.2d at 201. "[A]ll reasonable inferences from the evidence must be drawn infavor ofthe State and interpreted most strongly 

### against the defendant." Salinas. 119Wn.2d at 201. We defer to the trier offact on "issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness of the evidence." State v. Thomas, 150Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 

### While ignorance ofthe law is nodefense," 'there exists a narrowly limited class ofcases where misleading governmental activity constitutes a good defenseto a 

### criminal charge.'" State v. Locati. 111 Wn. App. 222, 227, 43 P.3d 1288(2002) 

### (quoting United Statesv. Lansing. 424F.2d 225, 226 (9th Cir. 1970)). "Such adefense may rest on adiversity oftheories, such as entrapment, or'on more general principles ofdue process and estoppel.'" Locati. 111 Wn. App. at 227(quoting Lansing. 424F.2d at227). Entrapmentbyestoppel is an affirmative defense that"maybe raisedonly 

### where agovernmentofficial or agent has actively assured thedefendantthatcertain conduct is reasonable, and the defendant reasonably relies on that advice and

8No. 71963-7-1/9 continues or initiates the conduct." State v. Krzeszowski. 106Wn. App. 638, 646, 24 P.3d 485 (2001) (citing United States v. Trevino-Martinez. 86 F.3d 65, 69 (5th Cir. 1996)).Ehat claims the undisputed evidence supports his affirmative defense of entrapment by estoppel. The record does not support his argument. Detective Sanders did not tell Ehat to take custody ofthe firearms ortake the firearms to his trailer. Detective Sanders testified that he told Ehat to lock the front and back door of his brother's trailerto protectthe firearms and other personal property. Detective Sanders 

### testified that incases involvingdeaths, "property becomes disputed, so we nevertell 

### anybodyto take the property out because you have otherfamilymembers that possibly have vested interest inthe property." Detective Sanders testified he would not have 

### given Ehatpermission to take a firearm withoutverifying whether Ehat had a conviction that prohibited him from possessing firearms. We affirm. 

# vo^wpg /

WE CONCUR: