State v. Khounvichai

• Decision Date: 05 June 2003
• Docket Number: No. 72412-1.,72412-1.
• Citation: 69 P.3d 862,149 Wash.2d 557
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Viengmone KHOUNVICHAI, Petitioner.

69 P.3d 862

149 Wash.2d 557

STATE of Washington, Respondent, v. Viengmone KHOUNVICHAI, Petitioner.

No. 72412-1.

Supreme Court of Washington, En Banc.

Argued January 22, 2003.

Decided June 5, 2003.

Nielsen, Broman & Assoc., Eric Nielsen, Seattle, WA, for Petitioner.

Norm Maleng, King County Prosecutor, Randi Austell, Deputy, Seattle, WA, for Respondent.

MADSEN, J.

In State v. Ferrier, we adopted the rule that when police officers seek entry into a home for the purpose of obtaining consent to a warrantless search of the home, they must, prior to entering, inform the person from whom consent is sought of the right to refuse consent to the search and of the right to limit the scope of the search. State v. Ferrier, 136 Wash.2d 103, 118, 960 P.2d 927 (1998). We granted review to determine whether the police must administer Ferrier warnings when seeking entry into a home to question a resident in the course of investigating a crime.

We hold that the Ferrier warnings are not required in this situation and reiterate that these warnings are required only when police officers seek entry to conduct a consensual search for contraband or evidence of a crime. We affirm the Court of Appeals.

FACTS

On the night of January 30, 2000, two police officers were called to respond to a malicious mischief report. The complainant told the officers that a man named McBaine had been at her home, and shortly after he left, an object broke her window.

The officers proceeded to the address given by the complainant to question McBaine about the incident. They did not have probable cause to arrest McBaine but considered him a suspect. The officers knocked on the apartment door, and an occupant, Elizabeth Orr, answered. Officer Penwell asked Ms. Orr if McBaine was home and stated that she wanted to talk to him about the incident. Ms. Orr told the officer that McBaine was her grandson and that he was home, and she asked if he was in trouble. Officer Penwell told her that they just wanted to talk to him and requested entry. Ms. Orr replied "oh, yes" and waved the two officers inside.

Upon entry, the officers noticed a man lying on the couch in the living room. For safety, Officer Penwell remained near the entry while Officer Bowman followed Ms. Orr down a hallway toward a closed bedroom door. Ms. Orr knocked and called, "there is someone here to see you." When the door opened, the officers smelled marijuana. McBaine stepped out of the room and upon seeing the officers, turned and whispered something to two individuals in the room, one of whom was the petitioner, Viengmone Khounvichai. Khounvichai made a sudden dash across the room and out of the officers' sight.

Concerned that Khounvichai was going for a weapon, Officer Bowman ran into the bedroom where he saw Khounvichai reaching into a closet. The officer demanded that Khounvichai show his hands. When he failed to comply, the officer grabbed at his right hand. During the struggle that ensued, a baggie of white powder, later determined to be cocaine, fell out of Khounvichai's hand. The officers arrested Khounvichai. They also questioned McBaine about the malicious mischief incident.

The State charged Khounvichai in juvenile court with one count of possession of cocaine under RCW 69.50.401(d). At trial, Khounvichai moved to suppress the cocaine, arguing that Ms. Orr's consent was invalid under State v. Ferrier because she had not been warned of her right to refuse entry. He also argued that assuming consent was valid police exceeded the scope of that consent. The juvenile court denied the motion and found Khounvichai guilty at the conclusion of the fact finding hearing.

The Court of Appeals affirmed, holding that Ferrier warnings were not required, that Ms. Orr gave voluntary consent for the police entry, and that the police did not exceed the scope of Ms. Orr's consent. State v. Khounvichai, 110 Wash.App. 722, 42 P.3d 1000 (2002). Khounvichai sought review in this court on the sole question of whether Ms. Orr's consent to police entry was voluntary in the absence of Ferrier warnings.

We granted Khounvichai's petition for review.

ANALYSIS

Khounvichai takes exception to the Court of Appeals' decision, which held that police were not required to give Ferrier warnings in this case because the officers sought consensual entry into Ms. Orr's home for the purpose of speaking to her grandson and not for the purpose of conducting a warrantless search. Khounvichai, 110 Wash.App. at 728, 42 P.3d 1000. He contends that police officers must advise a home dweller of the Ferrier warnings when requesting entry into a home to speak to a resident as part of a criminal investigation because a request for entry is a request to search—the officers may obtain a confession from the resident or discover evidence of a crime or contraband through a plain view discovery.

In State v. Ferrier, this court considered the constitutional implications of a police procedure described as a "knock and talk." The technique was employed by police to gain entry into a defendant's home for the purpose of obtaining consent to conduct a warrantless search. Ferrier, 136 Wash.2d at 107, 960 P.2d 927. Quoting police testimony, Ferrier explained the nature of a "knock and talk":

"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....

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

Id. at 107, 960 P.2d 927.

In Ferrier, the police had uncorroborated information that Debra Ferrier was conducting a marijuana growth operation in her home. Id. at 106, 960 P.2d 927. Lacking the probable cause necessary to obtain a search warrant, officers admitted that they conducted a "knock and talk" in order to avoid the necessity of obtaining a warrant. Id. Dressed in black raid jackets, four officers proceeded to Ferrier's home and asked for her permission to enter. Id. at 107, 960 P.2d 927. Once inside, they informed Ferrier of their suspicions and asked for her consent to search the home and seize the marijuana. Id. at 108, 960 P.2d 927. The officers asked Ferrier to sign a "consent to search" form but did not advise Ferrier of her right to refuse to consent or of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id.

We concluded that the "knock and talk" conducted under those circumstances violated Ferrier's state constitutional right to privacy in her home. Id. at 115, 960 P.2d 927. Article I, section 7 of the Washington Constitution, provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Const. art. I, § 7. The right to privacy includes the right to be free from warrantless searches, which are "unreasonable per se." State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996). Consent, however, is one of the narrow exceptions to the search warrant requirement, and the State bears the burden of establishing the exception. Id. at 71, 917 P.2d 563.

While voluntary consent is an exception to the warrant requirement, we also recognized in Ferrier that to some degree it is inherently coercive whenever a police officer requests consent to search a home without a warrant:

[W]e believe that the great majority of home dwellers confronted by police officers on their doorstep or in their home would not question the absence of a search warrant because they either (1) would not know that a warrant is required; (2) would feel inhibited from requesting its production, even if they knew of the warrant requirement; or (3) would simply be too stunned by the circumstances to make a reasoned decision about whether or not to consent to a warrantless search.

Ferrier, 136 Wash.2d at 115, 960 P.2d 927. Moreover, "unlike a search warrant, a search resulting from a knock and talk need not be supported by probable cause, or even reasonable suspicion." Id. at 118, 960 P.2d 927.

We noted that the only way to protect the right against warrantless searches of the home is to require police to inform citizens of their right to refuse consent. Id. at 116, 960 P.2d 927. "If we were to reach any other conclusion, we would not be satisfied that a home dweller who consents to a warrantless search possessed the knowledge necessary to make an informed decision. That being the case, the State would be unable to meet its burden of proving that a knowing and voluntary waiver occurred." Id. at 116-17, 960 P.2d 927. Accordingly, we 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." Id. at 118, 960 P.2d 927. Thus:

[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.

Id. 118-19, 960 P.2d 927 (emphasis added).

We have since clarified that the Ferrier requirement is limited to situations where police request entry into a home for the purpose of obtaining consent to conduct a warrantless search and have declined to broaden the rule to apply outside the context of a request to search. See State v. Williams, 142 Wash.2d 17, 28, 11 P.3d 714 (2000)

(Ferrier warnings not required where police request consent to enter a home to arrest visitor pursuant to a valid arrest warrant); State v. Bustamante-Davila, 138 Wash.2d 964, 981, 983 P.2d 590 (1999) (Ferrier warnings not required where police and agent of Immigration and Naturalization...