Washington’s Ferrier warnings of a right to refuse a search of the home on a knock-and-talk must come before the police enter the house, not after. State v. Budd, 2015 Wash. App. LEXIS 439 (March 3, 2015):
Like Ernesto Miranda, the subject of Miranda v. State of Arizona, and John Terry, the subject of Terry v. Ohio, Debra Ferrier, the accused in State v. Ferrier, sacrificed her name to a legal doctrine about police practices. Michael Allen Budd argues that law enforcement officers seized his computer and hard drive without sufficiently advising him of the Ferrier warnings before entering his home. Budd maintains that the warnings must be explicit, that Detective Holmes could not merely tell Budd he had a right to refuse the search, and that Holmes could not wait to apprise him of his other Ferrier rights until inside his house. We agree.
Warrantless searches, such as the “knock and talk” entry at issue in this case, are “unreasonable per se” under article I, section 7 of the Washington Constitution. State v. Ferrier, 136 Wn.2d at 111; State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). Exceptions to the requirement that law enforcement obtain a warrant are jealously and carefully drawn and are limited to those cases where the societal costs of obtaining a warrant, such as danger to law enforcement or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. Ark. v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991); State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). Courts do not look kindly on law enforcement’s failure to obtain a search warrant when police have ample opportunity to perform the task. State v. Ferrier, 136 Wn.2d at 115; State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989).
The “knock and talk” technique involves entering a private home. Constitutional privacy protections are strongest in the home. Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Ruem, 179 Wn.2d 195, 200, 313 P.3d 1156 (2013); State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994). The Fourth Amendment draws a firm line at the entrance to the home. Payton v. New York, 445 U.S. at 590. “[A]ll invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life” are subject to constitutional protection. Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886). The home, as a highly private place, receives heightened constitutional protection. State v. Young, 123 Wn.2d at 185. Because of the surprise element of law enforcement officers ringing the doorbell, and the intimidation of officers inviting themselves indoors, any “knock and talk” is inherently coercive to some degree. Ferrier, 136 Wn.2d at 115. The fact that most individuals consent to a search when the search destroys their penal interests illustrates the coercive nature of the “knock and talk.” Ferrier, 136 Wn.2d at 116.
In Ferrier, police conducted a warrantless search of Debra Ferrier’s home based on a tip from her son that she grew marijuana in her house. 136 Wn.2d at 106. The police decided to “knock and talk” in order to avoid disclosing their informant and because they lacked probable cause. Four officers entered Ferrier’s house, informed her they had a tip she was growing marijuana, told her they wanted to search her house and seize the plants, and then reviewed a “consent to search” form with her before she signed. The officers found the plants in a locked room and seized them, along with a large amount of cash from Ferrier’s purse.
In Ferrier, the high court noted that a law enforcement officer’s failure to inform a homeowner of the right to decline a search does not automatically invalidate the search under federal law. 136 Wn.2d at 110. Instead, the omission of this information is a factor in determining the voluntariness of the search. United States v. Heimforth, 493 F.2d 970 (9th Cir. 1974). Thus, our eminent court addressed whether the Washington Constitution afforded greater protection to the accused.
Article I, section 7 of our state’s constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” (Emphasis added.) The United States Constitution’s Fourth Amendment also mentions security in “houses.” The Ferrier court held that the Washington Constitution provides added safeguards, in part, because the wording of the state document expresses no limitations to an individual’s right to privacy.
In reversing the trial court’s denial of Ferrier’s CrR 3.6 motion, the Supreme Court imparted explicit instructions to law enforcement officers who seek to execute a “knock and talk” in Washington State:
[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 to 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.
Ferrier, 136 Wn.2d at 118-19 (emphasis added).
The Ferrier court based its ruling on numerous observations. The home receives heightened constitutional protection. 136 Wn.2d at 118. In no area is a citizen more entitled to his or her privacy than in the home. 136 Wn.2d at 112. The closer officers come to intrusion into a dwelling, the greater the constitutional protection. 136 Wn.2d at 112. RCW 10.79.040 creates the misdemeanor of a law enforcement officer entering and searching a private dwelling without the authority of a search warrant. Law enforcement officers should obtain a search warrant except in emergency situations. The great majority of home dwellers confronted by police on their doorstep or in their home would not question the absence of a search warrant and will feel inhibited from asking for a warrant. 136 Wn.2d at 115. Home dwellers will be too stunned by the circumstances to render a reasonable decision about whether to consent to a home search. 136 Wn.2d at 115. One wonders, however, if giving the Ferrier warnings will settle the nerves of the homeowner and lessen the inhibition to deny consent.
Since its 1998 ruling, our Supreme Court has reiterated that the warnings must be given if the officer seeks to enter the home to conduct a warrantless search for evidence of a crime or contraband. State v. Khounvichai, 149 Wn.2d 557, 566, 69 P.3d 862 (2003); State v. Ruem, 179 Wn.2d 195, 206, 313 P.3d 1156 (2013). Washington courts, however, have clarified that Ferrier warnings are not always required when a law enforcement officer enters a private residence without a warrant. State v. Ruem, 179 Wn.2d at 206; State v. Khounvichai, 149 Wn.2d at 563; State v. Williams, 142 Wn.2d 17, 26, 11 P.3d 714 (2000); State v. Bustamante-Davila, 138 Wn.2d 964, 976, 983 P.2d 590 (1999); State v. Leupp, 96 Wn. App. 324, 333, 980 P.2d 765 (1999). For example, the admonitions need not be given when an officer enters a home in response to a distress call. State v. Leupp, 96 Wn. App. at 333-34 (1999). Ferrier warnings are not needed if a law enforcement officer accompanies an immigration agent inside a home to deport an individual, State v. Bustamante-Davila, 138 Wn.2d at 976; nor are the warnings demanded if the officer enters the home to arrest an occupant pursuant to an arrest warrant. State v. Ruem, 179 Wn.2d at 197; State v. Williams, 142 Wn.2d at 27. The Ferrier admonitions are not prudent when the homeowner invites the officer inside to investigate a crime. State v. Khounvichai, 149 Wn.2d at 564; State v. Williams, 142 Wn.2d at 27.
The facts in the cases limiting Ferrier are inapposite here. This appeal entails a classic use of the “knock and talk” method of attempting to coerce consent to search inside a house when law enforcement lacks probable cause.
The trial court ruled that it is permissible to give some of the warnings once an officer has already entered the house. Nevertheless, no Washington decision permits this practice. Ferrier does not stand for such a rule. Ferrier, 136 Wn.2d at 110 talks at length about the heightened privacy protections afforded by Washington Constitution article I, section 7, and the special protections available to an individual in their home. 136 Wn.2d at 112, 114, 118. Finding that Ferrier only requires an advisement of its warnings prior to a search, and not entry into the home itself, defeats the purpose of the case’s explicit directions to law enforcement personnel that the warnings be given before entry.
Ferrier expressly demands that all warnings be given before entry of the home. 136 Wn.2d at 118-19. Later decisions refer to the rule as requiring warnings before entry into the home. State v. Ruem, 179 Wn.2d at 201, 205; State v. Khounvichai, 149 Wn.2d at 559; State v. Williams, 142 Wn.2d at 25; State v. Bustamante-Davila, 138 Wn.2d at 978. Any erosion of the Ferrier rule should come from our Supreme Court.
And, speaking of “erosion,” the opinion started with this exchange:
Talmadge: Do you remember studying in law school the principle that no matter how humble a man’s cottage is, that even the king of England cannot enter without his consent?
Ehrlichman: I am afraid that has been considerably eroded over the years, has it not?
Talmadge: Down in my country, we still think it is a pretty legitimate principle of law.
Exchange between Georgia’s United States Senator Herman Talmadge and former White House Counsel John Ehrlichman, United States Senate Watergate Committee hearings, July 25, 1973.
