Wa Supreme Court - Retroactive Application of Ruem Rule on Ferrier Warning - Will it Hold Up?
Westvang’s boy was thought to be at her house. Officer’s came, and they asked her for consent to search. They did not give her the full Ferrier warnings, but they did let her know she could refuse consent. She allowed them in. Unfortunately for Westvang, she neglected to clean up the scale, white crystalline substance, and cash on the counter.
Originally, on May 21, 2013, the Court held that Ferrier warnings were required, because of a lack of corroborating evidence that her boy was at her place, and there was no prior experience to prove the informant that led them there was reliable. They reversed her conviction.
No, some six months and six days later, the Court issued its decision in Ruem. As a threshold matter, Ruem did not hold a majority, but was rather a 4 justice opinion, with two justices writing concurrences. Jim Johnson agreed that Ferrier warnings weren’t required every time, but also noted that the officers would have smelled marijuana when they were there legally. Justice Charles Johnson would have protected the homestead privacy interest:
However, when the same homestead privacy interest as in Ferrier is violated, and when the same effect of circumventing constitutional warrant requirements is achieved, it makes little difference that the officers did not mean to circumvent article I, section 7 requirements. Inherently coercive police procedures that result in violations of core privacy interests are unconstitutional, under whatever name. Ferrier should be applied here, particularly because the lead opinion's result does not actually rely on its Ferrier analysis. While I agree with the lead opinion's result, I cannot agree with its stealth undermining of the homeowner's right to deny unwarranted entry by police.
Also in Ruem, the Court held there was no ability to rely on a warrant, and instead relied upon consent only. The Court then went on with a laundry list of cases that Ferrier did not apply, including serving warrants, verifying the identity of guests, and the express limitation on needing them to search for evidence of contraband. They held Ferrier warnings were not required any time the police request consent to search a house.
I am going to pause right here. The whole reason Ferrier was adopted was the highly coercive nature of the knock and talk. Its the same reason you are allowed to refuse consent to search your vehicle until probably cause is established for a search. Here you have police entering personal property on essentially coerced consent. Now, what does that do for Westvang?
So here is the problem. You are retroactively changing your decision in an earlier case based on the Court’s decision in a later case. However, there was no clear intent to retroactively apply Ruem, and I think the Court of Appeals ran afoul here. This was not a case on direct review, but rather reconsideration of a final review six months after the fact. The decision was final. "A new rule will not be given retroactive application to cases on collateral review except where either: (a) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty.” In re Pers. Restraint of Markel, 154 Wn.2d 262, 111 P.3d 249 (2005).
My gut feeling is the Washington Supreme Court would take issue with the retroactive application as a “reconsideration” of a decision over six months old. Given the Court’s makeup, I’m not sure that the limitations on Ferrier would continue to hold, but stare decisis is a powerful doctrine.
Any of my crime law peeps or former clerks (obviously sitting clerk’s can’t comment, as this one may go up, may be remanded, or may affect current cases) care to comment?