                                                      This opinion was filed for record
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^ IN CLimCS OPPICS ^                             at                   on
      E COURT,son OF WMHMOTOM

     Q47E MAY 1 n 2018
           VaaaM . (C.                                    SUSAN L. CARLSON
        CHIEF JUSnCB                                    SUPREME COURT CLERK




          IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                         No. 94273-1


                       Respondent,

V.                                           En Banc


HOLLIS BLOCKMAN,
                                             Filed        MAY 1 0 2018
                       Petitioner.




        Gonzalez, J.—Hollis Blockman was charged with and convicted of

unlawful possession of a controlled substance with 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.




        Blockman contends the sweep exceeded the scope of the "protective sweep"

exception to the warrant requirement under Maryland v. Buie, 494 U.S. 325, 110 S.

 Ct. 1093, 108 L. Ed. 2d 276(1990), and therefore the trial court erred in denying
State V. Blockman, No. 94273-1


his motion to suppress evidence discovered in the course ofthe protective sweep.

However, because Burton's unchallenged consent fits within the consent exception

to the warrant requirement, State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859

(1984), we affirm.

                                              Facts


       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.


       Uniformed officers went to Burton's apartment to obtain more information

about the alleged robbery and assault. Upon ]rearing why the officers were at her

door. Burton invited them into her apartment,!saying,"T can't believe [Green]
                                                    .   I


called the cops'" and "[y]ou can search everything. I don't have her money.'"^ 1

Verbatim Report ofProceedings(VRP)(Aug! 17, 2015) at 26, 28. According to
the officer's testimony, the police told Burton,'"You don't have to let us in.'" She

responded,"'No, come on in.'" Id. at 28.


       After entering the apartment and briefly conversing with Burton, the officers

asked if there was anyone else in the apartment. Burton responded that two other




^ Officer Hayward conveyed this account at trial; Burton did not testify at trial.
State V. Blockman, No. 94273-1


people were in the back bedroom. Burton did not specify whether the two people

were Marlowe and Blockman, as Green had suggested earlier.


       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.


       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 ofthe search and stop the search at any time. Id. at 29. Burton then signed a

warrantless search consent form.



       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 Ferriet^ warnings before entering the house. The trial

court denied the motion, ruling that the officer "had concerns for his safety due to

report of at least two unknown individuals . . . somewhere in the residence" and



 State V. Ferrier, 136 Wn.2d 103, 960 P.2d 927(1998).
State V. Blockman, No. 94273-1


"was invited by Ms. Burton to conduct a protective sweep." Clerk's Papers(CP)at

252.^ The trial court found the protective sweep reasonable to ensure no one

would ambush the officers while they were questioning Burton.

       On appeal, Blockman focused mainly on the warrantless protective sweep.

The Court of Appeals affirmed, holding that "nothing in the rationale ofBuie or its

progeny suggests that an arrest is an indispensable prerequisite" for conducting a

protective sweep. State v. Blockman, 198 Wn. App. 34, 39, 392 P.3d 1094.

Blockman appealed, and we granted review. 188 Wn.2d 1014(2017).

                                           Analysis



       This court reviews legal conclusions resulting fi-om an order pertaining to

the suppression of evidence de novo. State v. Duncan, 146 Wn.2d 166, 171, 43

P.3d 513 (2002); see also State v. Carneh, 153 Wn.2d 274, 281, 103 P.3d 743

(2004).




^ 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.
State V. Blockman, No. 94273-1


       1. Ferrier did not apply to the initial contact and consent given


       First, Ferrier warnings were not required prior to the officers entering

Burton's home. 136 Wn.2d 103. \n Ferrier, officers went to a suspect's home

with the intention of searching it after receiving information regarding a possible

marijuana grow operation being conducted in the home. Since the officers thought

they would not be able to obtain a search warrant without including the name of

their informant, the suspect's son, the officers instead devised a plan where they

would do a "knock and talk" in an effort to convince Ferrier to allow them into the


home. Id. at 106-07. The officers appeared at Ferrier's house wearing uniforms,

black '"raid jacket[s],'" and vests emblazoned with the word "police." Id. at 107.

In light ofthe "knock and talk's" sometimes unavoidable, inherently coercive

nature, this court held that "article I, section 7 is violated whenever the authorities

fail to inform home dwellers of their right to refuse consent to a warrantless

search." M at 118.


       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 contraband or evidence of a crime. 149 Wn.2d 557, 566,69 P.3d 862

(2003). These warnings are not required when the police are seeking entry into a

home to question a resident in the course ofinvestigating a crime. Id.
State V. Blockman, No. 94273-1


        Here, the officers approached Burton's apartment as a result of Green's

report of 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 unnecessarv to decide the applicabilitv ofBuie in nonarrest situations

       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.

494 U.S. at 334. Relying on its rationale in Terry' and Long,^ the Buie Court held



  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968). "Stop-and-frisks" are not—
and could not practically be—subject to Fourth Amendment's warrant requirement; rather, they
must be analyzed under the Fourth Amendment's general prescription against unreasonable
searches and seizures. Id. at 20. Officers need to have only reasonable suspicion, not probable
cause, that defendant may be involved in criminal activity and may be armed. Id. at 24, 27, 30-
31.
5 Michigan v. Long,463 U.S. 1032, 103 S. Ct. 3469, 77 L.,Ed. 2d 1201 (1983). It is
constitutional for an officer to search a passenger compartment where weapons could be hidden
when the officer has reasonable suspicion to believe the person being stopped is dangerous and
might have immediate access to weapons. Id. at 1049.
State V. Blockman, No. 94273-1


it is constitutional for law enforcement officers to either conduct a quick-look

search of the spaces immediately adjoining the place of arrest without probable

cause or reasonable suspicion or conduct a cursory sweep of a home incident to

arrest where they have reasonable suspicion to believe the home is harboring a

dangerous third person. Id.


        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, 198 Wn.

App. at 40, with State v. Hopkins, 113 Wn. App. 954, 959-60, 55 P.3d 691 (2002).

However, because the issue before us is resolved by Burton's unequivocal consent

to the officer's search, it is unnecessary for us to decide the split.^


^ 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 Biiie to nonarrest situations, there is significant focus on how the expansion ofthe
protective sweep doctrine could lead to drastic erosion ofindividual 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"ofSearch Incident to Arrest, 14 Wm.& Mary Bill RtS. J. 677,680
(2005)("In order ... to ensure that the Fourth Amendment is upheld even under such stressful
circumstances, a detached and neutral magistrate has to be placed between the individual and the
police aiming to intrude on his or her rights.").
        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. 470 F.3d 992,
997-98 (10th Cir. 2006); see also United States v. Davis, 290 F.3d 1239, 1242 n.4(10th Cir.
2002); United States v. Smith, 131 F.3d 1392, 1396(10th Cir. 1997). Similarly, the Ninth Circuit
held in United States v. Reid that protective sweeps should not be justified in the absence of an
arrest or lack of suspicion regarding the possible presence of a dangerous third party. 226 F.3d
1020,1027(9th Cir. 2000).
        Meanwhile, other courts have extended the protective sweep doctrine to nonarrest
situations. In United States v. Daoiist, the First Circuit reasoned that the defendant's violent
State V. Blockman, No. 94273-1


       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 ofBuie, 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, 494 U.S. at 334. Or, if the officers do not have probable cause or

reasonable suspicion, they are permitted to conduct a quick-look search ofthe

spaces immediately adjoining the place of arrest. Id. Here, the officer's indication

of protective sweeps being standard procedure was improper and potentially

misleading.


       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




history, known gun possession, and residence in an isolated cabin provided the officers with the
reasonable suspicion required to conduct the protective sweep. 916 F.2d 757, 759(1st Cir.
1990); see also United States v. Martins, 413 F.3d 139, 150(1st Cir. 2005). Considering the
adversarial nature and risk of ambush in a suspect's home,the Ninth Circuit also held that the
law enforcement's entry was pursuant to lawful consent and the subsequent protective sweep
was valid. United State v. Garcia, 997 F.2d 1273, 1281-82(9th Cir. 1993); see also Leafv.
Shelnutt, 400 F.3d 1070, 1087(7th Cir. 2005); United States v. Gould, 364 F.3d 578, 584(5th
Cir. 2004), abrogated by Kentucky v. King, 563 U.S. 452, 464, 131 S. Ct. 1849, 179 L. Ed. 2d
865 (2011).
State V. Blockman, No. 94273-1


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


       Lawful consent is one ofthe few recognized exceptions to the warrant

requirement. Mathe, 102 Wn.2d at 541 ("Consent to search establishes the validity

ofthat search if the person giving consent has the authority to so consent."). Our

court has set out three requirements for a valid consensual search:(1)the consent

must be voluntary,(2)the consent must be granted by a party having authority to

consent, and (3)the search must be limited to the scope ofthe consent granted.

State V. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658(1992). Thus, officers must

strictly abide by the scope ofthe proffered consent. State v. Walker, 136 Wn.2d

678, 682, 965 P.2d 1079(1998). Accordingly, an officer who receives consent to

enter the entryway of a home cannot exceed the scope ofthe consent and begin

searching the rest ofthe home without cause.


       Here, the trial court entered undisputed findings of fact.^ Most notably,

finding of fact 8 states, "Officer Hayward was invited by Ms. Burton to conduct a


^ 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, 88 Wn. App. 905, 907 n.l, 946 P.2d 1129
(1997), stating,"In some cases we have accepted findings that are entered after a case is
appealed as long as there is no prejudice to the defendant. That is true here." Blockman, 198 Wn.
State V. Blockman, No. 94273-1


protective sweep. Officer Hayward conducted a protective sweep to make sure no

one would jump out and surprise them while he was questioning Ms. Burton. [His]

gun was still in its holster when he conducted the protective sweep." CP at 252.

       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 eame 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 offacts, including Burton's consent to the officers'

entry and protective sweep, was unchallenged.


       There is no testimony or evidence suggesting Burton withdrew her invitation

or intended to limit the scope of her consent. Had she withdravm 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, 138 Wn.2d 964,

981, 983 P.2d 590(1999)("To be valid, the eonsent must be voluntary and the

search must not have exceeded the scope of consent."); Walker, 136 Wn.2d at 682.




App. at 36 (citation omitted). Blockman's cotmsel confirmed at oral argument that error was not
assigned to the trial court's findings offact. Wash. State Supreme Court oral argument, State v.
Blockman, No. 94273-1 (Nov. 14, 2017), at 4 min., 54 sec. to 6 min., 5 sec., Washington State's
Public Affairs Network, http://www.tvw.org.


                                               10
State V. Blockman, No. 94273-1


Instead of revoking her consent, Burton continued to affirm it.^ Based on these

facts, Burton's consent fits within the consent exception to the warrant

requirement.


                                        Conclusion



       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 consentjustified the protective sweep

at issue. Therefore, we affirm the Court of Appeals.




® 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).


                                              11
State V. Blockman, No. 94273-1




                                          0?




WE CONCUR:




                                 1




                                     12
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)




                                     No. 94273-1


       GORDON McCLOUD, J. (concurring)—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.

       The majority also correctly observes that the parties did not present the issue

of consent, but instead briefed the applicability of Buie^ protective sweeps incident

to arrest to a nonarrest context. I agree with its description ofthe conflicting lines of

authority on that issue. I write separately only to explain that the legal principles and

privacy values identified by the majority compel a single resolution of that Buie

issue: Buie protective sweeps are impermissible when police enter based on the

consent exception to the search warrant requirement. The reason is that—as the

 majority recognizes—^the key attribute of the consent exception to the warrant

requirement is that the consentee defines the scope of that consent.



       1 Maryland V. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).
                                            1
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


       I therefore respectfully concur.

                                      Analysis


       I.    Burton consented to the search of her apartment

       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, 138 Wn.2d 343, 349, 979 P.2d 833 (1999)

(quoting State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)(quoting

State V. Houser,95 Wn.2d 143, 149,622 P.2d 1218(1980))). Thus,the first question

in this case is whether one of the few, limited, and carefully defined exceptions to

the warrant requirement permitted the search that led to Blockman's arrest.^
       I agree with the majority that Burton consented to the search of her apartment.

This court recognizes lawful consent as one of the few exceptions to the warrant

requirement. State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984)("Consent

to a search establishes the validity ofthat search ifthe person giving consent has the

authority to so consent."); see also Schneckloth v. Bustamonte, 412 U.S. 218, 222,


       ^ See Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S. Ct. 2586, 61 L. Ed. 2d 235
(1979)("[BJecause each exception to the warrant requirement invariably impinges to some
extent on the protective purpose of the Fourth Amendment, the few situations in which a
search may be conducted in the absence of a warrant have been carefully delineated and
'the burden is on those seeking the exemption to show the need for it.'" (quoting United
States V. Jeffers, 342 U.S.48,51,72 S. Ct. 93,96 L.Ed.59(1951),abrogated by California
V. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619(1991)).
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


93 S. Ct. 2041,36 L. Ed.2d 854(1973). As discussed by the majority,there are three

requirements for a valid consensual search:(1) the consent must be voluntary,(2)

the consent must be granted by a party having authority to consent, and(3)the search

must be limited to the scope of the consent granted. Majority at 9 (citing State v.

Hastings, 119 Wn.2d 229,234,830 P.2d 658(1992)). While there was contradictory

testimony presented at the CrR 3.6 hearing, neither party challenged the trial court's

ultimate finding that Burton consented to both the entry into and the sweep of the

apartment.^

       Burton, however, had the right to limit her consent and define the scope of

any consent search. See State v. Biistamante-Davila, 138 Wn.2d 964, 981, 983 P.2d

590 (1999)("To be valid, the consent must be voluntary and the search must not

have exceeded the scope of consent."(citing Hastings, 119 Wn.2d at 234)). And she

did, by repeatedly affirming her consent to the officers' presence in her apartment

and to the sweep conducted."^ Therefore, I agree with the majority's conclusion that


       ^ See Clerk's Papers at 251-52(Findings of Fact).

       ^ See, e.g., 1 Verbatim Report ofProceedings(Aug. 17, 2015) at 26, 28,41 (Burton
opened the door and invited them into the living room, saying, according to Ha3nvard, "T
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
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


Burton consented to the search of her entire apartment and hence that the evidence

obtained during that search was admissible.

       II.     Buie protective sweeps cannot be used in cases where the consent
               exception to the warrant requirement is used for entry

       The majority continues that officers cannot conduct "protective sweeps" as

"standard procedure," majority at 8, 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


       Buie defines the United States Supreme Court's protective sweep doctrine in

a very limited way as follows:

            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 articulablefacts 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

to search without a warrant form? ... Yes, I did. . . . And did you see her sign that form?
. . Yes, I did.").
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


        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.

494 U.S. at 334(emphasis added). Thus, this Buie exception provides for two types

of searches—^but both are "incident to ... arrest."


        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.

        The second type is a broader sweep for persons if the Terry and Long

prerequisites are satisfied.^ Those Terry and Long prerequisites require that a

rational, fact-based inference can be made by a reasonably prudent officer that a

dangerous individual is present. Buie, 494 U.S. at 325; see also Long, 463 U.S. at

1050("'[T]he issue is whether a reasonably prudent man in the circumstances would

be warranted in the beliefthat his safety or that of others was in danger. (alteration

in original)(quoting Terry, 392 U.S. at 27)). That is the one the State argued in this

case.



        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


        5 Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed 2d 889 (1968); Michigan
V. Long,463 U.S. 1032, 1050, 103 S. Ct. 3469,77 L. Ed. 2d 1201 (1983).
                                            5
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


than, it is in an on-the-street or roadside investigatory encounter." 494 U.S. at 333

(emphasis added). Despite this danger, the United States Supreme Court still kept

the parameters of such a protective sweep narrow by holding that "[a] 'protective

sweep' is a quick and limited search ofpremises, incident to an arrest and conducted

to protect the safety of police officer or others." Id. at 327. Thus, Buie^s exception

to the warrant requirement for searches "in the home" is limited to searches that are

"incident to arrest" and that also satisfy Terry and Long.
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


       Nevertheless, there is substantial debate throughout state and federal courts

about Bute's implications for sweeps without arrests. The Ninth^ and Tenth Circuits^

have held that Bute protective sweeps must be incident to arrest. If we were to reject

that line of decisions and instead hold that Bute protective sweeps can be incident to


       ^ The Ninth Circuit has taken two different approaches to these cases. The current
precedent states that Bute protective sweeps are valid in "searches conducted immediately
following a home arrest." United States v. Lemus,582 F.3d 958,961 (9th Cir. 2009). In the
same case, the Ninth Circuit interpreted Bute to hold that protective sweep warrant
exceptions are valid because "'unlike an encounter on the street or along a highway, an in-
home arrest puts the officer at the disadvantage of being on his adversary's 'turf.'" Id. at
962(quoting Buie, 494 U.S. at 333). See, e.g.. United States v. Reid, 226 F.3d 1020, 1027
(9th Cir. 2000); United States v. Noushfar,78 F.3d 1442, 1448 (9th Cir. 1996)(stating "[a]
protective sweep may last 'no longer than it takes to complete the arrest and depart the
premises" (quoting Bide, 494 U.S. at 335-36)). However, United States v. Garcia, 997
F.2d 1273, 1282 (9th Cir. 1993), noted that protective sweeps can occur "where officers
possess a reasonable suspicion that their safety is at risk, even in the absence of an arrest."
 United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006) (collecting cases,
mcluding Reid, 226 F.3d at 1027, and Garcia, 997 F.2d at 1282). Garcia has been cited
only once for its somewhat aberrant (in the Niath Circuit) protective sweep holding, in
Mendez v. County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016), vacated and
remanded on other grounds, U.S. , 137 S. Ct. 1539, 198 L. Ed. 2d 52 (2017)). The
Ninth Circuit's Mendez opinion did not apply the Garcia analysis to the case, but noted the
intracircuit split and stated, "[T]he deputies' protective sweep argument fails for another
reason. . . . [T]he deputies did not have the requisite suspicion of danger to justify a
protective sweep." Id. So at least part of the Ninth Circuit views this as an open
controversy.

       ^ The Tenth Circuit also declined to extend the Buie doctrine to nonarrest situations,
stating that "[fjollowing Buie, we held that such 'protective sweeps' are only permitted
incident to an arrest." Torres-Castro, 470 F.3d at 997(noting "[wjhatever our view of the
holdings in Davis and Smith, we [the panel] are not free to overmle those decisions and
adopt the majority view allowing protective sweeps based on reasonable suspicion alone.
Instead, we must conclude that a protective sweep is only valid when performed incident
to an arrest—at least imtil an en banc panel of this court determines otherwise." (citation
omitted)).


                                              7
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


limited consent to enter, we would be giving Washingtonians less privacy protection

in our state courts than they enjoy in our local federal courts. That can't be right: the

Washington Constitution is more protective, not less protective, of our individual

privacy rights than the federal constitution. State v. Hinton, 179 Wn.2d 862, 868,

319 P.Sd 9 (2014)("It is well established that article I, section 7 is qualitatively

different from the Fourth Amendment and provides greater protections." (citing

State V. Athan, 160 Wn.2d 354, 365, 158 P.3d 27 (2007)); State v. O'Neill, 148

Wn.2d 564,584,62 P.3d 489(2003); State v. Jackson, 150 Wn.2d 251, 259,76 P.3d

217(2003)).

       On the other hand, other circuits have stated that although the Bute decision

arose from a sweep incident to arrest, nothing in Bute stated that a protective sweep

would be unconstitutional if officers were in the residence for some other lawful

reason. United States v. Gould, 364 F.3d 578, 581 (5th Cir. 2004) (en banc),

abrogated in part on other grounds by Kentucky v. King, 563 U.S. 452, 464, 131 S.

Ct. 1849, 179 L. Ed. 2d 865 (2011).^


       ^ 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)
                                             8
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


      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. 198 Wn. App. 34, 40, 392 P.3d 1094, review granted, 188 Wn.2d

1014, 396 P.3d 341 (2017). Divisions Two and Three have limited the Buie

protective sweep exception to the search-incident-to-arrest context.^ VrQ-Blockman,


      (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"); of. 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.l992)
      (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, 413 F.3d 139, 150 (1st Cir. 2005)(most alterations in original),
abrogated by Hill v. Walsh, 884 F.3d 16, 23 (1st Cir. 2018).

      ^ Division Three held,

      While making a lawful arrest, officers may conduct a reasonable "protective
      sweep" ofthe premises for security purposes. ... Buie,494 U.S.[at] 334-35.
      . . . The scope of such a "sweep" is limited to a cursory visual inspection of
      places where a person may be hiding. Id. at 335. 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. 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, 113 Wn. App. 954, 959-60, 55 P.3d 691 (2002)(footnote omitted); see
also State v. Boyer, 124 Wn. App. 593, 601, 102 P.3d 833 (2004)("In Washington, as in
most otherjurisdictions,the protective sweep has not be extended to the execution ofsearch
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


Division One had explicitly stated that protective sweeps are limited to searches

incident to arrest, stating that "[h]ere, the deputies did not arrest Dennis before the

protective sweep. Thus, the threshold requirement of a protective sweep is not met

under the circumstances of this case." State v. Dennis, No. 70262-9-1, slip op. at 9

(Wash.         Ct.       App.         Aug.        4,        2014)        (unpublished),

http://www.courts.wa.gov/opinions/pdf/702629.pdf).^°

       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.

198 Wn. App. 34. In fact. Division One's Blockman opinion relied entirely on

selected federal cases and did not cite (either approvingly or disapprovingly) to

Division Two's or Three's or its own prior treatment ofBuie protective sweeps.



warrants."). Citing Division Three's decision in Hopkins, Division Two has similarly held,
"Police may conduct a protective sweep ofthe premises for security purposes as part ofthe
lawful arrest of a suspect." State v. Sadler, 147 Wn. App. 97, 125, 193 P.3d 1108 (2008)
(citing Hopkins, 113 Wn. App. at 959).

         Dennis continued by analyzing whether, if Washington were to adopt a nonarrest
standard for the second type of Buie protective sweeps, the State eould point to faets
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. Sedler, 147 Wn.
App. 97, 125-26, 193 P.3d 1108 (2008)). The court then stated that "we need not address
hypothetical situations unsupported by any evidenee on the record." Id.

      '' In its analysis. Division One cited to several federal eases, including Buie, 494
U.S. 325; Long,463 U.S. 1032; Terry, 392 U.S. 1; Gould, 364 F.3d 578; Taylor, 248 F.3d
506; and Patrick, 959 F.2d 991. Blockman, 198 Wn. App. at 38-40.


                                           10
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


       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 Wn.2d at 349(quotingHendrickson, 129 Wn.2d at 70(quotingHouser,

95 Wn.2d at 149)). The few, limited, preexisting exceptions to the warrant

requirement form a finite list: "[e]xceptions to the warrant requirement fall into
several broad categories: consent, exigent circumstances, searches incident to a valid

arrest, inventory searches, plain view, and Terry investigative stops." Id. at 349-50
(citing Hendrickson, 129 Wn.2d at 71 (citing Robert F. Utter, Survey of Washington
Search and Seizure Law: 1988 Update, 11 U. PUGET SOUND L. Rev. 411, 528-80

(1988))); see also Charles W. Johnson & Debra L. Stephens, Survey of Washington
Search and Seizure Law: 2013 Update, 36 SEATTLE U. L. Rev., at i, 1713 (2013).

Expansions beyond Buie's protective sweep incident to arrest to the limited consent-

to-enter context are not included in this list.



       Division One also briefly mentioned Hopkins, 113 Wn. App. 954, noting that the
 sweep in that case was ineident to arrest—but was held unconstitutional because there was
 no articulable facts that would warrant a sweep—and Division Three had no cause to
 decide the issue of Buie's application outside of an incident-to-arrest context. 198 Wn.
 App. at 40; see also Hopkins, 113 Wn. App. at 959 n.3. Division One did not cite any of
 the Washington Court of Appeals decision that address this issue directly. See supra note
 10.


                                            11
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)




       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. 171 Wn.2d 907, 910, 258 P.3d 172 (2011)

(lead opinion). When Eserjose answered the door,the officers asked ifParagone was

home. Eserjose responded that Paragone was upstairs and that he would go get

Paragone. Eserjose then went upstairs, leaving the door open. Eserjose's father

invited the officers into the house, saying he wanted to close the door to keep out the

cold air. The officers stood at the entryway for a minute, but eventually decided to

go upstairs and arrest Paragone and Eserjose.Id. The trial court's conclusions oflaw

stated that this was an unconstitutional arrest—^that the officers had probable cause

to arrest Paragone and Eserjose, but that going upstairs impermissibly exceeded the

scope of consent—and the State did not challenge this conclusion on appeal.'^ Id. at

911. This court accepted the trial court's conclusion of law and analyzed the

admission of Eserjose's subsequent confession—agreeing with the trial court that




         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.



                                            12
State V. Blockman (Hollis), No. 94273-1
(Gordon McCIoud, J., concurring)


"the arrest was unlawful."^^ Id. at 912, 930 (Madsen, C.J., concurring) ("any

illegality occurred when the deputies exceeded the scope of Eserjose's father's

consent and went upstairs"), 935 (C. Johnson, J., dissenting) ("the constitutional

violation here is not at issue"). If this court were to accept the state's argument that

Buie "protective sweeps" could be expanded to include searches incident to a limited

consent to enter, it would essentially overrule Eserjose.

             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 ofthat consent

       Such an expansion would also conflict with the rule that the scope ofa 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, 138 Wn.2d at 982 (citing State v. Murray,

84 Wn.2d 527,527 P.2d 1303(1974)). And as discussed above,in Eserjose, we have

applied this general rule to a factual setting analogous to the one presented here—

we stated that the arrest that occurred when the officers in that case entered pursuant




        Eserjose did not confess until arriving at the sheriffs office, and the question was
whether the trial court erred in admitting Eserjose's confession—^not whether the upstairs
sweep was constitutional or not.

                                            13
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


to consent, but then exceeded the scope of consent by going upstairs to conduct a

sweep for persons was unconstitutional. See supra pp. 11-13.

       Allowing Buie protective sweeps after police obtain limited consent to enter

would deprive the consentee—in this ease, Burton—of her constitutional right to

retain control ofthe scope of her consent.

       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 ofthe home." United States v. Gandia,424 F.3d 255,262(2d Cir.

2005). That Gandia court further explained,

             "[Pjrotective 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."

Id. at 262-63 (alteration in original)(quoting Gould,364 F.3d at 589).Our controlling

decisions holding that the consentee gets to control the scope ofconsent given solves

that problem.


                                          14
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring)


             C. Any potential danger to the officers could have been resolved
                without eroding Burton's right to define the scope ofconsent

       Unlike in Buie, the Blockman officers did not face the same disadvantage of

being on their "adversary's 'turf" at an arrest scene. Buie, 494 U.S. at 333. As the

Second Circuit noted in a similar case, "Indeed, the entrance or hallway of the

building, or their own police vehicle, would have fulfilled their stated purposes."

Gandia,424 F.3d at 263. Had the officers felt concerned for their safety in Burton's

home,they could have interviewed Burton in a number of different locations, rather

than use a Buie protective sweep. Or, as in this case, the officers could have asked

for and received permission to search.''*

                                     Conclusion


       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 ofher 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.




         The Second Circuit also made this observation, stating, "There was also nothing
preventing the officers from making explicit any concem 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, 424 F.3d at 263.
                                            15
State V. Blockman (Hollis), No. 94273-1
(Gordon McCIoud, J., concurring)


       I therefore concur.




                                          16
State V. Blockman (Hollis), No. 94273-1
(Gordon McCloud, J., concurring in result)




                                                  y




                                             17
