The Police knock on your door. Now what?
As mentioned in previous articles on this blog, any warrantless search or seizure is unlawful – without a jealously guarded exception to the warrant requirement.
What are the exceptions?
Consent is an exception.
In State v. Ferrier, 136 Wn.2d 103 (1998), the Washington Supreme Court held that, before entering a citizen’s home, Article I, section 7 of the Washington state constitution requires that police officers:
- Ask the citizen for consent
- Inform the citizen consent can be revoked at any time
- Notify the citizen can limit the scope of the consent (i.e. limit the extent of the officer’s entry).
These warnings are known commonly as “Ferrier Warnings.” Such warnings must be given by officers in Washington state in order for a home entry and search to be considered lawful.
Evidence must be suppressed pursuant to the exclusionary rule and “fruit of the poisonous tree” doctrine if this rule is violated.
On March 3, 2015, in State v. Budd, Division Three of the Washington State Court of Appeals issued an opinion that revisited Ferrier. The Court of Appeals directly addressed the issue of whether all Ferrier warnings must be given before entering the home, or whether the warnings may be given after the officer enters the home but before searching it.
The Court of Appeals also addressed the issue of whether each Ferrier warning must be given before entering the home.
In Budd, a “knock and talk” was performed at a resident’s home. A “knock and talk” is a police procedure where officers approach a private residence, knock on the door, and asks to come in and “take a look around.” This is done when the officers suspect criminal activity, but do not have probable cause for a warrant.
Often the resident does not understand they have a right to refuse entry. Other times, residents may feel pressured to permit the officers to enter – they may feel a need to be policed or may feel that refusing entry may indicate guilty knowledge or that something is being hidden.
Three officers went to the resident’s door in Budd, but the resident was not home at first. His girlfriend answered the door and explained the he was at work. 15 minutes later, he arrived. The Detective identified herself and other officers and told them they received a tip that indicated illegal items were located inside his home, and they were concerned about the safety of another inside. The Detective asked for consent to enter the home and search a computer, and the resident asked the detective if she had a warrant.
The detective replied that she would apply for a warrant if he did not consent. He replied that he didn’t want his computer viewed in front of his girlfriend, then allowed the officers to enter his home for the purpose of searching his computer.
The officers reviewed a written consent form containing Ferrier warnings with him after entering the home, but before searching the resident’s computer. He signed the document after acknowledging he understood the warnings and was giving consent. The officers seized the resident’s computer and found some bad stuff on it that led to a felony conviction.
Would this have seemed totally reasonable to you at the time, if the police were at your home?
It turns out that this was NOT correct procedure.
The Court of Appeals held that law enforcement officers must deliver EACH Ferrier Warning BEFORE entering a residence. The court concluded that the Detective could not merely tell the resident that he had a right to refuse the search before entering.
It also concluded that the detective could not wait to inform the resident of other Ferrier warnings after entering the home. All Ferrier warnings must be given before police enter the home. Because the officers failed to do this in Budd, the Court sent the case back to the trial court with directions to dismiss the charges against resident. The court looked to the plain directive given by the Supreme Court of Washington in Ferrier:
[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 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.
Your home is your castle.
The court also reasoned that the law draws a firm line at the entrance to the home and the home is a highly private place that receives heightened constitutional protection. It also recognized that any “knock and talk” is inherently coercive to some degree. The court also even pointed out that 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.
Are there exceptions to this?
However, the court did explain that Ferrier warnings are not required in all circumstances such as circumstances involving an emergency. The Ferrier warning requirement generally applies in the context of police use of a “knock and talk.”
In short, citizens have a right to refuse consent when officers request entry into their home. In Washington, officers must inform the resident of each and every Ferrier warning prior to entry in order for the entry to be deemed lawful.
If this is not done, all evidence derived thereafter (“poisonous fruits”) must be suppressed.