State v. Ferrier

Citation960 P.2d 927,136 Wn.2d 103
Decision Date27 August 1998
Docket NumberNo. 64930-8,64930-8
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Debra M. FERRIER, Petitioner.

John Jensen, Tacoma, for Petitioner.

Russell Hauge, Kitsap County Prosecutor, Pamela B. Loginsky, Deputy Kitsap County Prosecutor, Port Orchard, for Respondent.

ALEXANDER, Justice.

We granted Debra Ferrier's petition to review a Court of Appeals' decision affirming her conviction for manufacture of a controlled substance. At issue is the validity of a warrantless search of Ferrier's home by officers of the Bremerton Police Department. One of Ferrier's contentions is that the so-called "knock and talk" procedure employed by the police officers to obtain her consent to the search is violative of both the state and federal constitutions. She asserts, additionally, that she did not voluntarily consent to the search that was conducted by the police officers. We conclude that because Ferrier had heightened privacy rights in her home, as guaranteed by article I, section 7 of our state constitution, she should have been informed that she need not consent to the search. Because she was not, the search was unconstitutional and the evidence obtained as a result should not have been admitted into evidence. We, therefore, reverse her conviction.

On April 19, 1993, two officers of the Bremerton Police Department received information from Ferrier's son, who was then in detention at the Youth Services Center in Port Orchard, that his mother was conducting a marijuana grow operation at her house in Bremerton. Because Ferrier's son had no record as an informant, the officers were unable to make any judgment about his credibility. They did, however, drive by the residence that was located at the address given to them by the youth and confirmed that a house matching the description given to them was at that location.

Possessed only with the information Ferrier's son had provided to them and knowledge of the location of Ferrier's home, the officers met with two other Bremerton police officers at a "covert police department location" to discuss a procedure whereby they could gain entry to the home. Verbatim Report of Proceedings (VRP) (vol.II) at 151. At this meeting they hatched a plan to conduct a "knock and talk" because they believed that they could not obtain a search warrant without disclosing "the name of the informant, and we could do a knock and talk without doing that." VRP (vol.I) at 40.

According to one of the police officers who testified at a suppression hearing, a knock and talk is a procedure

like any other follow-up investigation that a detective or police officer would do. You go to the door, knock on the door, make contact with the resident, ask if you can come in to talk about whatever the complaint happens to be, which in this case there's a complaint of a marijuana grow.

Once you're inside, you talk about why you're there and you ask for permission to search the premises.

VRP (vol.I) at 24. The officer also testified that police officers have a high rate of success in getting home dwellers to consent to a search during a knock and talk. He indicated that "[v]irtually everybody allows you in.... I would say about half of them [knock and talks] were successful in terms of the fact that we found evidence of a crime." VRP (vol.I) at 26.

At the conclusion of the meeting, the four police officers proceeded to Ferrier's residence. They were all armed and each wore a black "raid jacket[ ]" which had the word "police" emblazoned in yellow letters across the front and back. VRP (vol.I) at 28. Upon arriving at Ferrier's residence, two of the officers went to the back of the house in order to "secure the premises." VRP (vol.I) at 45-46. The others proceeded to the front entrance.

The officers who initially went to the front door of Ferrier's home later testified at the suppression hearing that Ferrier opened the door in response to their knock. They said that they immediately identified themselves to Ferrier as police officers, whereupon she invited them into her house. Upon entering the front room of Ferrier's home, the officers noticed that there were two infant children in the room. According to both officers, they then radioed the officers at the rear of the home who responded by entering the dwelling. Upon their entry into the home, the 15-by 15-foot front room contained Ferrier, her two infant grandchildren and the four Bremerton police officers.

According to all three officers who testified at the suppression hearing, Ferrier was told by them that they had information that a marijuana grow operation was being conducted in the house, and that they wanted to search the home and seize the marijuana. All of these officers indicated that Ferrier was then asked to consent to a search and that they went over a "consent to search" form with her before she signed it. The form did not indicate that she had the right to refuse consent to the search. The officers conceded that Ferrier was not told by them that she had the right to refuse to consent to a search, nor was she informed of any other rights. According to these officers, the consent form was signed by Ferrier within six or seven minutes after their entry into the home.

Ferrier, according to two of the officers, eventually led them upstairs to a locked door, which she unlocked after retrieving a key. The officers then entered the previously locked room and proceeded to search it. One officer testified that Ferrier was crying during the time the police officers were searching the room. Another officer indicated that Ferrier appeared frightened and nervous throughout the entire time they were at the premises.

Ferrier's testimony about the events leading to the search of her home varied in several respects from that of the police officers. She testified that when the officers were at her front door they said they wanted to talk to her about her son, and that they then "stepped into the house while they said that." VRP (vol.II) at 288. She also stated that "I was terrified. I was scared. They [the police officers] told me they were going to take my grandchildren to Child Protective Services." VRP (vol.II) at 261. Ferrier indicated that she only signed the consent to search form "[b]ecause I didn't want them to take my grandchildren away." VRP (vol.II) at 264. Ferrier confirmed that the police officers did not tell her that she could refuse to consent to a search nor did they inform her of any other rights.

The search of the upstairs room resulted in the seizure of 29 mature marijuana plants, 39 starter plants, and other evidence of a marijuana grow operation. The police officers also seized $2,120 in cash from Ferrier's purse. Ferrier was thereafter charged in Kitsap County Superior Court with manufacturing a controlled substance. 1

Ferrier moved, pursuant to CrR 3.6(a), to suppress all of the evidence obtained as a result of the search of her home. Following a suppression hearing, the trial court denied her motion and entered findings of fact generally consistent with the State's version of the events leading to the seizure of the marijuana and other evidence. Ferrier and the State then entered into a stipulation as to the facts and submitted them to the trial court which, following Ferrier's waiver of a jury trial, found Ferrier guilty of the charged crime. Ferrier appealed the conviction to the Court of Appeals which affirmed. State v. Ferrier, No. 19280-2-II, slip. op. (Wash.Ct.App. Nov. 27, 1996). This court thereafter granted Ferrier's petition for review. 2

I.

Ferrier contends that the knock and talk procedure, as employed here, is violative of her rights under the Fourth Amendment to the United States Constitution. 3 Thus, she argues, the consent to search given by her is vitiated. Because she cites no authority for her argument that her federal constitutional rights were violated, we are not obliged to consider the contention. 4 See State v. Lord, 117 Wash.2d 829, 853, 822 P.2d 177 (1991). In any case, the failure of the police to warn an individual of their right to refuse to consent to a warrantless search has previously been found to be merely a factor, and not necessarily dispositive, in assessing the voluntariness of the consent under a Fourth Amendment analysis. State v. Shoemaker, 85 Wash.2d 207, 212, 533 P.2d 123 (1975) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Heimforth, 493 F.2d 970 (9th Cir.1974)).

II.

Ferrier's principal contention is that the knock and talk procedure as employed here violated her right to privacy granted by article I, section 7 of Washington's Constitution and thus invalidated the consent she gave to the officers to search her home. Because Ferrier engages in the independent analysis required by State v. Gunwall, 106 Wash.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986), we can consider her claim under our state constitution. State v. Wethered, 110 Wash.2d 466, 472-73, 755 P.2d 797 (1988).

Article I, section 7 of our state's constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision differs from the Fourth Amendment in that "[u]nlike the Fourth Amendment, Const. art. 1, § 7 'clearly recognizes an individual's right to privacy with no express limitations.' " State v. Young, 123 Wash.2d 173, 180, 867 P.2d 593 (1994) (emphasis added) (quoting State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980)).

Nevertheless, in order to determine whether article I, section 7 provides greater protection for Ferrier's privacy interests under the present facts, we must apply the six nonexclusive criteria that were first identified in Gunwall, 106 Wash.2d at 58, 720 P.2d 808. Because this court is examining the same constitutional provision that was at issue in Gunwall, ...

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