# COUitro/LAPPEALSDlVl STATE OF WASHINGTON 

### 2013 APR 29 AN 8:32

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

v. SAMUEL ELMER FAIRBANKS, Appellant. No. 69895-8 DIVISION ONE

UNPUBLISHED OPINION FILED: April 29, 2013 Becker, J. — Awarrantless search of a home is not unconstitutional after 

### the occupant is informed of his rights and gives officers a voluntary consentto the search. After an officer ofthe Kitsap County Sheriff's Department read 

### AppellantSamuel Fairbanks his Ferrier1 rights, Fairbanks consentedto asearch. We find no error inthe court's denial of Fairbanks' motion to suppress evidence 

### ofmethamphetamine officers found during the search. We affirm. 

### According to the court's unchallenged findings of factentered following a 

### suppression hearing, in October 2010 SergeantJon VanGesen of the Kitsap 

### County Sheriff's Office opened afile documenting an anonymouscomplaintof a marijuana odor emanating from a residence in Port Orchard,Washington. The 

### complainant specifically named Fairbanks and hiswife as the occupants of the residence. SergeantVanGesen was aware that Fairbanks had previously been 1 State v. Ferrier. 136 Wn.2d 103, 960 P.2d 927 (1998).No. 69895-8-1/2 investigated for methamphetamine possession, had been found growing marijuana atthe residence, and had been convicted for possession of a controlled substance. Officers had searched the home in 2004 and 2008 pursuant to warrants. On this occasion, possessing only a generalized, anonymous report of a marijuana odor, SergeantVanGesen did not obtain a warrant. He wentto the home to conduct a "knock-and-talk" and ask for Fairbanks' voluntary consent to a search. He drove to the residence in an unmarked patrol car. He and a second officer, both in plain clothes, walked up to the door ofthe home. Two or three other officers waited in the driveway beside marked patrol cars. Fairbanks was at home. He met the officers at the door. When officers informed him ofthe complaint and asked him ifhe was willing to give his consent to a search, Fairbanks responded, "Yes." SergeantVanGesen read Fairbanks 

### the standard Ferrierwarnings—that he could refuse to consentto the search, that he could withdraw or revoke his consent at any time, that he could limit the 

### scope of his consentto certain areas of the premises, and that evidence found during the search may be used incourt against him or any other person. 

### Fairbanks led SergeantVanGesen and another officer to the detached 

### garage, where they found nothing, and then accompanied them back into the home. Before entering the house, Fairbanks produced a marijuana pipe and a 

### bag of marijuana from his pocket. Inside a dresser in the masterbedroom, officers found a balance scale bearing a white, powdery residue. In a secondNo. 69895-8-1/3 bedroom, officers found a second scale and urinalysis drug-testing kits for methamphetamine and cocaine. During the search, Fairbanks wentto the bathroom and flushed the toilet. SergeantVanGesen believed that Fairbanks had flushed the toilet in orderto dispose ofdrugs. Fairbanks was detained. The residue on the scales ultimately tested 

### positive for methamphetamine. Officers charged him with one count of Possession of a Controlled Substance (Methamphetamine). Before trial, Fairbanks moved to suppress the State's evidence of 

### methamphetamine. He argued the warrantless search of his home that had revealed the methamphetamine violated his constitutional right to privacy 

### guaranteed by article 1 section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. 

### The court held a suppression hearing pursuantto Criminal Rule 3.6. Fairbanks and the two officers who led the search testified. The court denied 

### Fairbanks' motion and permitted the State to introduce the evidence ofthe drug residue at trial. 

### Abench trialwas held on stipulated facts. The facts included a stipulation that both ofthe scales found in Fairbanks' house tested positive for 

### methamphetamine residue. Fairbanks was convicted as charged. He now appeals. ANALYSIS Fairbanks contends his conviction should be reversed, and the evidenceNo. 69895-8-1/4
of methamphetamine suppressed, because the warrantless search of his home

was unconstitutional. The Washington Constitution guarantees the right ofevery person to be free from invasions ofthe home "without authority of law." Wash. Const, art. I, § 7. This provision provides greater privacy protections than its federal counterpart in the Fourth Amendment, which prohibits only "unreasonable" searches. State

v. Eisfeldt, 163 Wn.2d 628, 634, 185 P.3d 580 (2008). "Authority of law" requires that officers possess a valid search warrant unless one of "'a fewjealously 

### guarded exceptions'" applies. In re Pers. Restraint of Nichols, 171 Wn.2d 370, 379, 256 P.3d 1131 (2011), quoting York v. Wahkiakum Sch. Dist. No. 200. 163 Wn.2d 297, 306, 178 P.3d 995 (2008). Well-settled exceptions to the warrant 

### requirement include exigent circumstances, searches incident to an arrest, 

## inventory searches, plain viewdoctrine, Terry stops,2 and consent. Nichols, 171 Wn.2d at 379. Atissue in this appeal is the consent exception. The State bears 

### the burden of proving the exception applies. State v. Schultz, 170Wn.2d 746, 754, 248 P.3d 484 (2011). 

### To satisfy the consentexception, the State must prove three elements: 

### (1) the consent was voluntary, (2) the person granting consent had authorityto do so, and (3) the search did notexceed the scope of the consent. State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004). Indetermining 

### voluntariness, the court looks at the totality ofthe circumstances. State v.

2Terry v. Ohio, 392 U.S. 1.88S. Ct. 1868, 20 L Ed. 2d 889 (1968). 4No. 69895-8-1/5 

### Bustamante-Davila. 138 Wn.2d 964, 981-82, 983 P.2d 590 (1999). The factors the court considers include the degree ofeducation and intelligence of the consenting individual,whether or notthe individualwas advised of his right to refuse consent, and the experience ofthe individual inthe criminaljustice system. Bustamante-Davila. 138 Wn.2d at 981-82. Where officers conduct a 

### "knock and talk," for a consentto be voluntary the officers must specifically informthe individual "that he or she may lawfullyrefuse to consentto the search and that they can revoke, at any time, the consentthat they give, and can limit the scope ofthe consent to certain areas ofthe home." State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998). Following the suppression hearing, the court entered findings offact and conclusions of law, ultimately concluding thatthe search was proper. The court's unchallenged findings include the following: (1) that SergeantVanGesen "asked the Defendant ifhe was willing to give his consent to a search, to which the Defendant responded 'Yes,'" (2) that SergeantVanGesen read aloud to Fairbanks his Ferrier rights, (3) that after reading these rights, Sergeant VanGesen asked Fairbanks foundational questions to ascertain his ability to understand the warnings, (4) that Fairbanks then "led" the officers to the garage, (5) that Fairbanks voluntarily produced marijuana and a pipe from his pocket, (6) that Fairbanks "accompanied" the officers into the residence, (7) that Fairbanks "did not place limitations on the search," and (8) that Fairbanks "was 

### cooperative at alltimes, otherthan his presumablyflushing drugs down the toilet."No. 69895-8-1/6 We treat these unchallenged findings offact as verities on appeal. State

v. Hill. 123 Wn.2d 641, 647, 870 P.2d 313 (1994). We review conclusions of law de novo. Schultz, 170 Wn.2d at 754. Viewed in theirtotality, the unchallenged 

### facts establish thatthe consent Fairbanks gave was voluntary. He was read the 

### required Ferrier warnings, he unequivocally said "Yes" when asked for his consentto a search, and he actively led and accompanied officers to both his 

### garage and residence. He is a person notunfamiliarwith the criminaljustice system. Fairbanks contends he told the officers to stop the search. Atthe hearing, 

### Fairbanks insisted that after showing officers that he no longer had a marijuana 

### grow operation in the garage, hetold the officers to stop searching. Fairbanks assigns errorto the court'sfindings thatall hedid was to ask the officers, "'SoI 

### cantell you to stopsearching at anytime?', orwords to thateffect," that Sergeant VanGesen responded, "'Yes, you can, as Iexplained earlier," and thatFairbanks then made "no further conversation or protestation." 

### We review a trial court's challenged findings of fact in a suppression 

### hearing for substantial evidence. Hill. 123Wn.2d at647. Substantial evidence exists where there is a sufficientquantity ofevidence in the record to persuade a 

### fair-minded, rational person of thetruth ofthefinding. Hill, 123Wn.2d at 644. The court'sfindings find substantial support in the testimony ofSergeant VanGesen and the testimony of a second officer in the room who witnessed the interaction. The court's findings rest on its judgments ofcredibility and theNo. 69895-8-1/7

demeanor ofwitnesses—well-settled functions ofthe trier offact. See Hill, 123 Wn.2d at 646. Furthermore, Fairbanks does not challenge the court's finding that what SergeantVanGesen subjectively heard Fairbanks pose was a "question
... a clarification ofthe earlier rights advisement," and not "an equivocation or an instruction to the officers to stop the search." We treat this finding as a verity on appeal. Fairbanks contends his consentwas involuntary because, as the court found, he possessed a subjective beliefthat the officers would search his home 

### regardless ofwhether he gave his consent. The courtfound: "based upon two prior searches of his residence pursuantto search warrants in2004 and 2008, the Defendant subjectively believed that officers would search his residence 

### regardless ofwhether he voiced his consent." Fairbanks' subjective belief does not render his consent involuntary. Officers here made no claim to possess a warrant, and they informed Fairbanks that his consent was needed before a search could occur. These undisputed facts make this case distinct from the case Fairbanks relies on, Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). In Bumper, 

### officers obtained entry to a house by claiming they had a search warrant. Where officers make no claim to possess lawful authority to search, the occupant's 

### subjective distrust of lawenforcement is notenough to renderthe occupant's 

### spoken words ofconsent involuntary. See State v. Reichenbach, 153Wn.2d 126, 132, 101 P.3d 80 (2004) (in determining voluntariness ofconsent court willNo. 69895-8-1/8 consider "any express or implied claims of police authority to search, previous illegal actions ofthe police, the defendant's cooperation, and police deception as to identity or purpose"). Fairbanks contends his consent was involuntary because he was coerced into consenting by the officers' "significant show offorce." A finding ofconsent 

### may be invalidated ifthe circumstances are so coercive as to negate the voluntariness ofthe consent. State v. Werth, 18 Wn. App. 530, 534-35, 571 P.2d 941 (1977), review denied, 90 Wn.2d 1010 (1978). The record presents no 

### evidence offorce so significant as to constitute coercion. InWerth, the court found coercion where officers ordered the defendant out of her home, away from 

### the door, and ordered herto keep her hands in plain view, one officerwas 

### "armed with a shotgun," she was not informed of her right to refuse consent, and twodays earlierher home had been searched illegally without her consent. Werth. 18 Wn. App. at 535. 

### By comparison, the presentrecord portraysonly a mild display ofpolice force. The two officers who approached the doorwere dressed in plain clothes. 

### Although they both worebadges and their guns were visible, Fairbankstestified that as he saw SergeantVanGesen approaching his house, he saw him as "just
an individual walking down my drivewaytowards my back door in plain clothes 

### with a clipboardin his hands. Iwas thinking this was an animalcontrol officer." Although other officers were also present, they waited in the driveway beside their vehicles. AlthoughSergeantVanGesen asked Fairbanks to secure his

8No. 69895-8-1/9 barking dog before they began speaking, itwas not until well into the search, afterthe garage had been searched, the first scale had been discovered, and Fairbanks had flushed something down the toilet, that officers ever constrained 

### his movement by instructing him to go into the living room and sit down. There

was no coercion sufficient to invalidate the voluntariness of Fairbanks' consent. Fairbanks contends the search was invalid because it exceeded an 

### implied limitation on the scope of his consent. Aconsensual search may go no further than the limits for which the consentwas given. Reichenbach, 153 Wn.2d 

### at 133. Anyexpress or implied limitations or qualifications may reduce the scope ofconsent induration, area, or intensity. Reichenbach, 153 Wn.2d at 133. By 

### informing Fairbanks they were there to investigate a complaintof an "odorof marijuana," Fairbanksargues officers limited the scope of the search to a general survey of rooms, not what he refers to as "afull-blown search of the smallest
areas of his home, including areas which could not accommodate a grow 

### operation." Itwas the more detailed search, which included looking into bedroom cabinets, that revealed the methamphetamine. 

### There was no impliedlimitation on the scope of the search. We treat as a 

### veritythe court's unchallenged findings that Fairbanks"did not placelimitations on the search," that he "led" officers to the garage and "accompanied" them into the house, that he was "cooperative" withthe search, and that in a previous 

### search officers foundprocessed marijuana in the master bedroom. The record reflects that Fairbanks stood by unrestrained while officersopened drawers in theNo. 69895-8-1/10

master bedroom and discovered the first balance scale, and thatwhen officers 

### asked for a key to open a small locked safe, Fairbanks got the key and opened it for them. In otherwords, Fairbanks acquiesced to having even the smallest, locked areas of his home searched by officers. The search did not exceed the implied scope ofconsent. Affirmed. 

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WE CONCUR: 

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