110 Wash. App. 722 | Wash. Ct. App. | 2002
— Police officers obtained consent to enter a residence for the purpose of talking to Viengmone Khounvichai about a recently reported incident of malicious mischief. We agree with the juvenile court that the requirements of State v. Ferrier
Facts
Viengmone Khounvichai was charged in juvenile court with one count of possession of cocaine. At the fact-finding hearing, Redmond Police Officer Christine Penwell testified that she investigated a reported incident of malicious mischief on January 30, 2000. The complainant said that a man named McBaine had been at her house shortly before an object came through the window. The complainant then gave Officer Penwell an address for McBaine.
At about 10:00 p.m., accompanied by Officer Bowman, Officer Penwell went to the address provided by the complainant. According to Officer Penwell, McBaine was a “person of interest” and the purpose of the visit was “basically [to conduct] a knock and talk.”
After the officers entered, Orr immediately walked down the hallway to a rear closed bedroom door. Officer Penwell stood near the man in the living room, while Officer Bowman followed Orr about halfway down the hallway and stopped. Orr knocked on the bedroom door and told the occupants that “there was somebody here to see you.”
McBaine turned around and said something to the two other occupants of the room, including Khounvichai. Through the open door, both officers saw Khounvichai bolt from view. Believing that Khounvichai might be going for a weapon, Officer Bowman quickly entered the bedroom and saw Khounvichai part way inside a closet. Officer Bowman then ordered Khounvichai to show his hands. When Khounvichai failed to comply, Officer Bowman attempted to grab his hands. During the ensuing struggle, Officer Bowman saw Khounvichai fling a white object, which fell near the open door. Officer Penwell looked down as she entered the room and saw a baggie containing a white substance that was later identified as cocaine. As the officers looked at the baggie on the floor, Khounvichai yelled out, “That ain’t my shit.”
Khounvichai moved to suppress the cocaine, arguing that Orr’s consent to enter the home was invalid under Ferrier
Analysis
Khounvichai contends that Orr’s consent to enter was involuntary because the officers did not advise her of the right to refuse consent as required by Ferrier. In Ferrier, the court addressed the propriety of police “knock and talk”
[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.[8 ]
Central to the Ferrier court’s ruling is the inherently coercive nature of a police request to search, particularly when the request is made after officers have entered the
But the Supreme Court has repeatedly rejected any suggestion that Ferrier established a bright-line rule requiring a warning every time a police officer requests permission to enter a residence.
We recognize that law enforcement officers need to enter people’s homes in order to provide their valuable services for the community on a daily basis. We do not find it prudent or necessary to extend Ferrier to require that police advise citizens of their right to refuse entry every time a police officer enters their home. Police officers are oftentimes invited into homes for investigative purposes, including inspection of break-ins, vandalism, and other routine responses. We do not find a constitutional requirement that a police officer read a warning each time the officer enters a home to exercise that investigative duty. To apply the Ferrier rule in these situations would unnecessarily hamper a police officer’s ability to inves*728 tigate complaints and assist the citizenry. Instead, we limit the requirement of a warning to situations where police seek to conduct a search for contraband or evidence of a crime without obtaining a search warrant.[12 ]
Here, as in Williams, the officers did not seek to enter the residence to look for contraband or arbitrarily search the house.
The officers in this case entered the residence for a limited, routine investigatory purpose. Because their conduct did not constitute the type of coercive knock and talk procedure addressed in Ferrier, the officers were not required to advise Orr of her right to refuse consent. Contrary to Khounvichai’s suggestion, Officer Penwell’s characterization of the procedure as a knock and talk is not controlling. It is the nature of police conduct, not a witness’s descriptive label, that determines the applicability of the Ferrier rule.
Khounvichai argues that an officer’s request to enter a residence to talk to an occupant about an alleged offense is no different than a request to search because “[t]he result of the entry is the same — an open or plain view search without a warrant.”
In Kennedy, police officers went to the defendant’s motel room to investigate a complaint about a narcotics transaction in progress. After hearing activity inside the room that was consistent with drug activity, the officers knocked at the door. When the defendant opened the door, the officers explained that they were investigating a complaint about the room and asked if they could come in and talk about it. After entering, the officers saw drugs in plain view. Although the officers in Kennedy did not ask for permission to search, they were investigating a crime in progress, with the obvious possibility of contraband in plain sight. Under such circumstances, a request to enter is arguably tantamount to a request to search. The facts in Kennedy are therefore distinguishable, and we do not read the decision as suggesting that Ferrier warnings are required whenever an officer asks for permission to enter a residence to talk to an occupant about a potential criminal matter.
Khounvichai next contends that even if Ferrier does not apply in this case, the juvenile court erred in finding that Orr’s consent to enter was voluntary and that the officers did not exceed the scope of the consent. Whether consent is freely given is a factual determination based on the totality of the circumstances, including whether Miranda
Finally, Khounvichai contends that Officer Bowman exceeded the scope of consent when he walked down the hallway. We disagree. After inviting the officers inside to talk to McBaine, Orr immediately walked down the hallway to the bedroom door. While Officer Penwell stood near the man in the living room, Officer Bowman walked a short distance down the hallway, where he stopped and waited. Under the circumstances, Officer Bowman’s conduct was reasonable and completely consistent with the scope of Orr’s consent and the purpose of talking to McBaine.
Affirmed.
Agid, C.J., and Grosse, J., concur.
Review granted at 147 Wn.2d 1008 (2002).
136 Wn.2d 103, 960 P.2d 927 (1998).
Report of Proceedings (RP) (July 25, 2000) at 17, 19.
RP (July 25, 2000) at 57.
RP (July 25, 2000) at 19.
RP (July 25, 2000) at 24.
RP (July 25, 2000) at 36-37.
“In a ‘knock and talk,’ the goal of the police is to search for contraband without first obtaining a warrant. They knock on a suspect’s door, obtain the resident’s permission to enter to discuss a complaint, and subsequently ask permission to search the premises.” State v. Vy Thang, 145 Wn.2d 630, 635, 41 P.3d 1159 (2002) (citing Ferrier, 136 Wn.2d at 107).
Ferrier, 136 Wn.2d at 118-19.
Ferrier, 136 Wn.2d at 118.
See State v. Bustamante-Davila, 138 Wn.2d 964, 983 P.2d 590 (1999) (Ferrier warnings not required when police officers accompanied Immigration and Naturalization Service agent serving a deportation order); see also State v. Leupp, 96 Wn. App. 324, 334, 980 P.2d 765 (1999) (police officer responding to 911 “hang-up” call not required to advise resident of the right to refuse consent before entering to ascertain whether anyone inside was in need of assistance).
142 Wn.2d 17, 11 P.3d 714 (2000).
Williams, 142 Wn.2d at 27-28 (emphasis added).
See State v. Holmes, 108 Wn. App. 511, 517, 31 P.3d 716 (2001) (Ferrier warnings required where police went to defendant’s apartment without a warrant, intending to search for contraband).
Appellant’s Br. at 15.
107 Wn. App. 972, 977, 29 P.3d 746 (2001), review denied, 145 Wn.2d 1030 (2002).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Bustamante-Davila, 138 Wn.2d at 981-82.
See State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990).
See Vy Thang, 145 Wn.2d at 636.
Clerk’s Papers at 23.
See Bustamante-Davila, 138 Wn.2d at 982.
See Leupp, 96 Wn. App. at 333.
See State v. Cotten, 75 Wn. App. 669, 679-80, 879 P.2d 971 (1994).