The State of Washington, Respondent, v. Dara Ruem, Petitioner, 179 Wash. 2d 195

Stephens, J. ¶1 We are asked to determine whether law enforcement officers must expressly advise a person of his or her right to refuse entry into a home — i.e., provide Ferrier warnings — when the officers seek to execute an arrest warrant. We hold that Ferrier warnings are not required in this instance, though any consent obtained must be voluntary under the totality of the circumstances. ¶2 On the facts of this case, we conclude that Pierce County sheriff’s deputies unlawfully entered Dara Ruem’s mobile home in an attempt to execute an arrest warrant for Ruem’s brother, Chantha Ruem.

The deputies lacked probable cause to believe Chantha was present, and Ruem revoked his initial consent to the entry. Thus, the evidence recovered from the search of the home was illegally obtained and unlawfully admitted. We reverse the Court of Appeals and vacate Ruem’s conviction. FACTS AND PROCEDURAL HISTORY ¶3 Over a period of several months in 2008, Pierce County sheriff’s deputies attempted to execute an arrest warrant for Chantha. The address on the warrant was 10318 East McKinley Avenue. Two dwellings — a house and a mobile home — sat on the property.

The mobile home was located adjacent to the house. ¶4 In March 2008, Chantha’s father allowed Deputy Jeff Reigle into the house and showed him Chantha’s room. Chantha’s girlfriend told Reigle that Chantha was not there. Reigle identified one of the cars parked in the driveway as registered to Chantha. Reigle did not encounter Chantha that day. ¶5 Reigle surveilled the McKinley Avenue address intermittently over the next few months. Chantha’s car was often at the property. The only person Reigle observed driving the car was Chantha’s girlfriend.

Reigle encountered Chantha’s brother, David, at the mobile home, and David told him that Chantha was in California. On one occasion, Reigle made a traffic stop of a vehicle leaving the property. The driver did not know who Chantha was but told Reigle that David was at the mobile home. Reigle never saw Chantha at the McKinley Avenue address. ¶6 On the evening of June 4, 2008, Reigle and a team of deputies again attempted to serve the warrant for Chantha. Reigle went to the house to ask for Chantha, while Deputy Kevin Fries and Sergeant Thomas Seymour went to the mobile home.

Ruem answered Fries’ knock on the front door of the mobile home and told Fries that Chantha was not there. Fries asked for Ruem’s identification because Ruem resembled photographs that Fries had seen of Chantha. Ruem told Fries that he lived in the mobile home with his brother; Fries assumed that Ruem meant Chantha. ¶7 Ruem identified Chantha’s car, which was parked on the property, but told Fries that Chantha had moved to California and bought a new car.

Fries informed Ruem that he was going to go inside to look for Chantha and asked Ruem “if that was okay.” Verbatim Report of Proceedings (VRP) (Dec. 10, 2008) at 33. Ruem initially agreed but stopped the deputies as they started to cross the threshold, saying, “ ‘Now is not a good time.’ ” Id. at 33, 38. At this point, Fries and Seymour could smell burnt marijuana. Fries assured Ruem that they were not interested in arresting him for personal use of marijuana and then entered the mobile home. ¶8 Fries and another deputy searched the mobile home while Seymour stayed with Ruem in the living room.

The deputies testified they were looking for Chantha, and they did not open drawers or spaces too small to hide a person. In the kitchen, Fries spotted several small marijuana plants. The plants were visible from the living room. Seymour arrested Ruem and informed him of his Miranda rights. Seymour then called for a search warrant. In the process of looking for identifying features on the outside of the mobile home, Seymour discovered more marijuana plants.

The deputies did not find Chantha in the mobile home or in the main house. ¶9 Later that same day, deputies from the Pierce County sheriff’s special investigations unit executed the search warrant at the mobile home. They found significant amounts of contraband, including more than 100 marijuana plants in various stages of growth, equipment associated with growing and processing marijuana, several packages of marijuana throughout the mobile home, a DVD (digital video disk) labeled “ ‘High Times Ultimate Grow,’ ” and more than $4,700 in cash. Clerk’s Papers (CP) at 3. They also found a semiautomatic handgun.

Procedural History ¶10 Ruem was charged with one count each of manufacturing marijuana while armed with a firearm, possession of marijuana with intent to deliver while armed with a firearm, and unlawful possession of a firearm. He moved to suppress all evidence from the search, arguing that the deputies failed to advise him of his right to refuse their entry and did not have probable cause to believe that Chantha was present on June 4, 2008.

The trial court denied the motion on the ground that the warrant for Chantha’s arrest authorized the deputies’ presence in the home and the marijuana plants were in plain view. ¶11 Ruem appealed his subsequent jury conviction, and the Court of Appeals affirmed. The court held that the search was valid because Ruem consented to the entry and the deputies were not required to provide Ferrier warnings in seeking to execute the arrest warrant on Chantha. State v. Ruem, noted at 162 Wn. App. 1009, slip op. at 6-9 (2011). We granted Ruem’s petition for review. State v. Ruem, 172 Wn.2d 1006, 268 P.3d 944 (2011).

ANALYSIS ¶12 Constitutional protections of privacy are strongest in the home. U.S. Const, amend. IV; Wash. Const. art. I, § 7; Payton v. New York, 445 U.S. 573, 590,100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (“the Fourth Amendment has drawn a firm line at the entrance to the house”); State v. Young, 123 Wn.2d 173,185, 867 P.2d 593 (1994) (“the home receives heightened constitutional protection”). Warrant-less searches of the home are unreasonable under both the federal and state constitutions unless pursuant to a recognized exception. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).

Exceptions to the warrant requirement are carefully drawn and jealously guarded. Id. Plain view is one of these exceptions. Id. “A plain view search” occurs when law enforcement officers “(1) have a valid justification to be in an otherwise protected area and (2) are immediately able to realize the evidence they see is associated with criminal activity.” State v. Hatchie, 161 Wn.2d 390, 395,166 P.3d 698 (2007). The question here is whether the deputies’ presence was lawful when they observed the evidence that supported the search warrant for the mobile home.

See CP at 207-08. ¶13 The State asserts the deputies’ presence inside the mobile home was justified by (1) the valid arrest warrant for Chantha and

(2) Ruem’s consent. Br. of Resp’t at 20, 25-26. In the alternative, the State argues that the search warrant was adequately supported by the smell of marijuana and that we should uphold the warrant under the independent source doctrine. Suppl. Br. of Resp’t at 2-5. We will discuss each of these arguments in turn. A.

The Arrest Warrant ¶14 Whether the arrest warrant for Chantha justified the deputies’ entry into Ruem’s mobile home hinges on whether the deputies had probable cause to believe that Chantha both resided there and was present on the evening of June 4, 2008. ¶15 “[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603.

An arrest warrant allows law enforcement officers the limited power to enter a residence for an arrest where (1) the entry is reasonable, (2) the entry is not a pretext for conducting other unauthorized searches or investigations, (3) the officers have probable cause to believe the person named in the arrest warrant is an actual resident of the home, and (4) the named person is actually present at the time of entry. Hatchie, 161 Wn.2d at 392-93. The parties do not dispute the first two elements.

But Ruem argues that the deputies did not have probable cause to believe that Chantha was a resident of the mobile home or that Chantha was present that evening. Pet. for Review at 13-16. ¶16 Our opinion in Hatchie is instructive. There, law enforcement officers had an arrest warrant for Eric Schinnell, whom they pursued after observing him purchasing precursor materials for the manufacture of methamphetamine. 161 Wn.2d at 393. Officers lost sight of Schinnell but found his truck parked in the driveway of Raymond Hatchie’s duplex and a second car registered to Schinnell parked on the front lawn. Id.

Both the vehicle registration and the arrest warrant listed a different address for Schinnell. Id. at 404. When questioned, one neighbor thought Schinnell lived in the house and had seen him there earlier that day and another often saw Schinnell there. Id. at 393. A bystander also told the officers that if Schinnell’s truck was there, so was Schinnell. Id. Officers then approached the house and knocked on the door.

Id. ¶17 Answering the knock, a resident of the duplex who had been living with Hatchie for three months told officers that he believed Schinnell was “ ‘home’ ” and that Schinnell had been there “ ‘off and on’ ” for the last two months. Id. at 393-94. Officers entered the duplex and found Schinnell hiding. Id. at 393. Based on their observations during the search, officers obtained a warrant to search Hatchie’s residence for contraband. Id. at 394.

We held that the arrest warrant provided a legitimate occasion for the officers’ plain view observations; however, we cautioned that the facts of the case were “barely enough to suggest to a reasonable person” that the subject of the arrest warrant actually lived in the defendant’s residence. Id. at 405. ¶18 The trial court here concluded that “the deputies had a reasonable basis to believe that Chantha Ruem was at the residence on June 4, 2008, based on [his] father’s statement that Chantha resided there and the fact that Chantha Ruem’s vehicle was there and had been used continuously and recently.” CP at 209.

This is insufficient, as the standard under Hatchie is probable cause, not a reasonable basis. 161 Wn.2d at 404. ¶19 Probable cause requires more than suspicion or conjecture. It requires facts and circumstances that would convince a reasonably cautious person. Id. On these facts, we cannot conclude that the deputies had information that would convince a reasonably cautious person that Chantha was either in residence or present at the home on the evening in question. It is true that the McKinley Avenue address was Chantha’s address of record, but deputies had no current information that Chantha lived there.

Unlike in Hatchie, where reports of Schinnell’s presence were recent and consistent, here it had been several months since Chantha’s father told the deputies Chantha lived there. VRP (Dec. 10, 2008) at 13. Additionally, deputies had reports from two people that Chantha had moved to California, id. at 15, 32, and the only independent witness interviewed did not even know who Chantha was. Id. at 16-17. Deputies here never encountered Chantha on the property. VRP (Feb. 19, 2009) at 97-98, 118; VRP (Feb. 23, 2009) at 225.

Fries and Seymour both testified that they had no way of knowing the last time Chantha was at the address. VRP (Feb. 19, 2009) at 98, 118. ¶20 Even if we assume that the deputies had probable cause to believe Chantha resided at the McKinley Avenue address because it was his address of record, the constitution also requires probable cause to believe that the subject of the arrest warrant is actually present at the time of entry. Hatchie, 161 Wn.2d at 392-93. The State argues that the deputies had probable cause to believe that Chantha was present because his car was parked there. Br. of Resp’t at 24.

In Hatchie, we held that the presence of two cars registered to Schinnell, including one that he was driving while officers pursued him, provided probable cause that Schinnell resided at the duplex. 161 Wn.2d at 405. ¶21 But here, in contrast to Hatchie, the only information deputies had was that the car was registered to Chantha. At the same time, they knew Chantha’s girlfriend lived at the property and drove the car, and they were told by family members that Chantha left the car behind when he moved to California and bought another car. VRP (Dec. 10,2008) at 15, 32.

Deputies never encountered Chantha on the days that his car was at the address, and they observed his girlfriend driving the car. See id. at 13, 15; CP at 206. Given these circumstances, we hold that the deputies did not have probable cause to believe that Chantha was actually present at the time the arrest warrant was executed. As a result, we hold that the arrest warrant did not authorize the deputies to enter Ruem’s mobile home. B.

Consent ¶22 Because the State cannot rely on Chantha’s arrest warrant to justify its entry into Ruem’s home, we must consider the Court of Appeals’ conclusion that Ruem consented to the entry. Ruem argues that because the deputies did not advise him he was free to withhold consent to enter — i.e., provide a Ferrier warning — the consent was per se involuntary. See Pet. for Review at 9-13. Alternatively, he argues that consent was not voluntarily given under the totality of the circumstances.

We must first address the threshold question of whether a Ferrier warning was required; if it was required, we need not consider the parties’ additional arguments concerning the validity of the entry and subsequent search. Ferrier Warning ¶23 In Ferrier, we considered whether our state constitution affords greater protection than the Fourth Amendment against warrantless entry into the home during a “knock and talk.” Ferrier, 136 Wn.2d at 115. Officers had information that Debra Ferrier was growing marijuana in her home but lacked probable cause to secure a warrant. Id. at 106-07.

Officers knocked on her door and asked permission to search the home for marijuana plants but did not tell Ferrier that she had a right to refuse consent. Id. at 108-09. We held that under

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section 7, such a “knock and talk” procedure is inherently coercive and law enforcement officers must inform the subject of the right to refuse consent to search before entering the home. Id. at 115-16. ¶24 We articulated the limits of Ferrier in State v. Bustamante-Davila, 138 Wn.2d 964, 983 P.2d 590 (1999). In that case, officers accompanied a United States Immigration and Naturalization Service agent to the home of Bustamante-Davila to serve a deportation order. Id. at 969.

Bustamante-Davila consented to the agent’s entry, and the officers followed the agent into the house when Bustamante-Davila stepped back from the door. Id. at 965-69. While there, officers observed an unlawful firearm, which led to a conviction. Id. at 969-70. On review, we held that Ferrier did not apply because the officers had not entered the home to search for contraband without a search warrant. Id. at 984. ¶25 We subsequently reaffirmed the limitations on the Ferrier rule. In State v.

Williams, 142 Wn.2d 17, 27,11 P.3d 714 (2000), we held that Ferrier did not apply where a homeowner granted a law enforcement officer access to his home to verify the identity of his guests. In State v. Vy Thang, 145 Wn.2d 630, 635-37,41 P.3d 1159 (2002), we held that failure to give Ferrier warnings did not vitiate consent where police entered a house to serve arrest warrants on two individuals in the home. Finally, in State v.

Khounvichai, 149 Wn.2d 557, 559, 69 P.3d 862 (2003), we reiterated that Ferrier warnings “are required only when police officers seek entry to conduct a consensual search for contraband or evidence of a crime.” ¶26 This case follows in the vein of Bustamante-Davila, Williams, Thang, and Khounvichai. The deputies did not seek Ruem’s consent in order to circumvent the requirements of the search warrant process. The mobile home was of interest to them because they suspected Chantha lived there and they had a warrant for his arrest.

The deputies did not “seek entry to conduct a consensual search for contraband or evidence of a crime.” Khounvichai, 149 Wn.2d at 559. In this instance a Ferrier warning was not required. As in Williams, 142 Wn.2d at 27-28, we reject the invitation to “adopt a bright-line rule requiring Ferrier warnings whenever police seek entry into a home based on the consent of the occupant.” Br. of Amicus Curiae Am. Civil Liberties Union (ACLU) at 2.

We instead confirm that Ferrier warnings apply when police conduct a “knock and talk”; they were not required here. ¶27 Because we reject Ruem’s invitation to hold that his consent to the deputies’ entry was per se invalid under Ferrier, we must address his alternative argument that even if Ferrier warnings were not required, he did not voluntarily consent to the entry under the totality of the circumstances.

Totality of the Circumstances, Voluntariness, and Withdrawal of Consent ¶28 Outside of the Ferrier context, we employ a totality of the circumstances test to determine whether consent to enter has been given voluntarily. Thang, 145 Wn.2d at 636. This test derives from the Supreme Court’s Fourth Amendment jurisprudence. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Schoemaker, 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975).

The factors considered are (1) the education and intelligence of the consenting person; (2) whether Miranda warnings, if applicable, were given prior to consent; and (3) whether the consenting person was advised of his right not to consent. Schoemaker, 85 Wn.2d at 212. No single factor is dispositive, but consent granted “only in submission to a claim of lawful authority” is not considered voluntary. Schneckloth, 412 U.S. at 233 (citing Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)); State v. O’Neill, 148 Wn.2d 564, 579, 62 P.3d 489 (2003).

Consequently, a court may weigh any express or implied claims of police authority to search. State v. Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80 (2004). ¶29 Consent, once voluntarily given, may be withdrawn. A person consenting to a search has the right to restrict or revoke that consent at any time. Ferrier, 136 Wn.2d at 118; see also United States v. McWeeney, 454 F.3d 1030,1034 (9th Cir. 2006) (A suspect is “free ... to delimit or withdraw his or her consent at anytime.”); Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L.

Ed. 2d 297 (1991) (“A suspect may of course delimit as he chooses the scope of the search to which he consents.”). ¶30 Here, even if Ruem’s initial consent was validly obtained, it appears he revoked that consent almost immediately. Fries and Seymour acknowledge that shortly after giving consent and before allowing deputies to completely cross the threshold of the mobile home, Ruem said, “No. This is not a good time.” VRP (Dec. 10, 2008) at 33, 54. The trial court found that Ruem had “changed his mind.” CP at 207. We therefore conclude that the deputies did not have Ruem’s voluntary consent to enter his home.

And because, as previously explained, the arrest warrant they carried did not justify their presence inside the residence, their plain view observation of contraband from inside the home cannot form the basis for probable cause supporting the later-executed search warrant. ¶31 We therefore must address the State’s alternative argument that the independent source rule justifies the later-executed search warrant. C.

Independent Source Rule ¶32 The State argues that even if the illegally viewed evidence is not considered, the smell of burnt marijuana alone provides an independent source of probable cause to uphold the search warrant. See Suppl. Br. of Resp’t at 3-4. We do not agree. ¶33 Evidence obtained in violation of the privacy protections of the Fourth Amendment or

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section 7 must be excluded. State v. Afana, 169 Wn.2d 169,179-80,233 P.3d 879 (2010). The United States Supreme Court has recognized several exceptions to the exclusionary rule, but “[u]n-like its federal counterpart, Washington’s exclusionary rule is ‘nearly categorical.’ ” Id. at 180 (quoting State v. Winterstein, 167 Wn.2d 620, 636, 220 P.3d 1226 (2009)).

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section 7 includes no express limitations on an individual’s right to privacy. Id. While the exclusionary rule under the Fourth Amendment is meant to deter unlawful police action, our state’s exclusion rule serves primarily to protect an individual’s right to privacy. Id. ¶34 One of the few exceptions that we recognize is the independent source rule, under which a search warrant obtained with unlawfully seized evidence may still be valid if the information that remains after excluding the improper information independently provides probable cause. Winterstein, 167 Wn.2d at 633.

Significantly, the lawfully gained information must be genuinely independent of the illegal search. State v. Gaines, 154 Wn.2d 711, 721-22, 116 P.3d 993 (2005) (citing Murray v. United States, 487 U.S. 533,108 S. Ct. 2529,101 L. Ed. 2d 472 (1988) as controlling authority). ¶35 The State argues that the smell of marijuana may provide probable cause to search a house. Suppl. Br. of Resp’t at 2 (citing State v. Fry, 168 Wn.2d 1, 228 P.3d 1 (2010) (suggesting the smell of marijuana wafting over a threshold provides probable cause to support a search warrant)).

Even so, it is not clear from the record that the deputies’ detection of the odor of burnt marijuana was independent of their illegal entry into the home. Fries testified that he detected the odor of marijuana once he “had already started to step over the threshold.” VRP (Dec. 10, 2008) at 33. The trial court’s findings do not establish that the marijuana smell was evident from outside the home. Thus, on this record, we cannot conclude that the deputies made any observations supporting probable cause prior to their illegal entry.

Accordingly, we cannot uphold the search warrant for Ruem’s home under the independent source doctrine. CONCLUSION ¶36 Ferrier warnings are not required when law enforcement officers seek consent to enter a home to execute an arrest warrant. Though Ferrier warnings were not required in this case, the deputies’ entry was invalid because they lacked probable cause to believe Chantha would be in the mobile home and because Ruem’s initial consent to the entry was revoked.

The later-executed search warrant for Ruem’s home was not supported by probable cause independent of information gathered during the unlawful entry. We therefore reverse the Court of Appeals and vacate Ruem’s conviction. Madsen, C.J., and Owens and Fairhurst, JJ., concur. State v. Ferrier, 136 Wn.2d 103, 115-16, 960 P.2d 927 (1998). Ruem claimed that he told the deputies that Chantha did not live in the mobile home and that he had another brother named David who lived with him in the mobile home. However, the judge who heard the suppression motion did not credit Ruem’s testimony.

The facts recited here are consistent with the court’s findings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Court of Appeals also affirmed the firearm enhancements on Ruem’s sentence. Given our disposition of this case, we do not address Ruem’s challenge to his sentence. The analysis is similar under both the Fourth Amendment and

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section 7, even though the unique language of

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section 7 generally provides greater protection of individual privacy. See Hatchie, 161 Wn.2d at 396-97 (noting both this court and the United States Supreme Court recognize that “the sanctity of the home is perhaps most deserving of constitutional protection”). The deputies did not believe statements by family members that Chantha was not present. VRP (Dec. 10,2008) at 33, 52. Certainly an officer’s impressions of an individual’s truthfulness may be relevant to a probable cause determination.

But here, with no other evidence corroborating the deputies’ suspicions, and given that the deputies had visited the McKinley Avenue address several times without encountering Chantha, suspected misinformation on the part of Chantha’s family does not amount to probable cause. In a “knock and talk” procedure, officers “ ‘go to the door, knock on the door, make contact with the resident, [and] ask if [they] can come in to talk about whatever the complaint happens to be.’ ” Ferrier, 136 Wn.2d at 107 (quoting one of the officers’ testimony).

The concurrence suggests that our holding on the Ferrier question is dicta, presumably because we reverse Ruem’s conviction on other grounds. Concurrence at 210, 214. But, in similar contexts, we have long recognized that a holding rejecting a per se argument before addressing other fact-specific arguments is not dicta. See, e.g., State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 89-90, 273 P.2d 464 (1954). Here, it is only because we reject Ruem’s per se argument under Ferrier that we address whether his consent was voluntary under the totality of the circumstances as well as other questions.

Our sequencing is consistent with the approach we often follow when addressing a number of cascading arguments raised to challenge a conviction. See, e.g., Thang, 145 Wn.2d at 636-49 (holding that a Ferrier warning was not required but reversing Thang’s conviction on the grounds that the trial court erroneously admitted evidence of prior bad acts). Because we decline to require Ferrier warnings every time police seek entry into the home, the ACLU asks us to require them any time the police seek entry to conduct a warrantless search, regardless of whether that search is for a person or contraband.

Br. of ACLU at 16-18. The ACLU suggests that any search carries with it a serious invasion of privacy. In response, we note that the totality of the circumstances test includes consideration of both coercion and consent in its multifactor test. The inapplicability of Ferrier warnings in some cases does not mean law enforcement has leave to disregard individual privacy rights. Though Ruem did not raise an argument concerning the revocation of his consent below, Ruem, slip op. at 9 n.ll, it appears at certain points in his briefing before this court. Pet. for Review at 7 (noting in his fact

section that he “retracted consent”); Suppl. Br. at 11 (arguing that “Ruem clearly withdrew his consent and at that moment the search should have discontinued”). Because a claimed revocation is so integral to the question of whether consent was voluntary, we consider Ruem’s revocation claim not as a late-raised issue, but as part of his argument that consent was not voluntary. We reject the State’s reliance on Seymour’s observation of starter plants outside the mobile home.

These observations, made while walking the perimeter to look for identifying markings to better describe the home in the search warrant application, cannot stand on their own. The State claims that Ruem failed to raise a timely objection at the suppression hearing. Suppl. Br. of Resp’t at 4-5. But the defense’s challenge to the entry into the home and the search that followed encompassed a challenge to the observation of the starter plants.