Opinion
No. 54374-1-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 04-8-01316-1. Judgment or order under review. Date filed: 05/28/2004. Judge signing: Hon. Julia L. Garrett.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Joshua Radmacher (info Only) (Appearing Pro Se), 31825 49th SW B101, Federal Way, WA 98023.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Defendant appeals his juvenile conviction for residential burglary, contending that the police violated his constitutional rights by entering his home intending to search for evidence of a crime, particularly other suspects, without a warrant and without advising him of his right to refuse or limit the search, contrary to the rule in State v. Ferrier, infra. Because the officers were not searching for physical evidence or arbitrarily looking for hidden guests, but entered with permission to locate and detain for identification four youths suspected of burglary during the police investigation immediately following the incident, Ferrier warnings were not required.
FACTS
Hearing a loud noise outside her apartment, Minerva Valerino looked out a window and saw Joshua Radmacher standing on her patio looking toward her bedroom window. Because she concluded that the noise was coming from kids playing ball, she returned to her bathroom to finish brushing her hair. When she heard more loud noises coming from her bedroom, she went into the bedroom and found the window open and two pairs of hands coming into the room through the blinds. After Valerino flung the blinds open and shouted, four youths ran away from her apartment.
Based on Valerino's descriptions and information from the apartment manager that four youths matching Valerino's descriptions had been seen in the complex shortly before the incident, and that they lived in Apartment B-101, police went to that apartment. They knocked, after hearing at least two voices coming from inside. Following about a minute of silence, Radmacher answered, and in response to an officer's question about the delay, he said that he had been sleeping. While at the door, one officer could see a white jacket matching Valerino's description of the clothing worn by one of the suspects and asked Radmacher whether anyone else was home. When Radmacher said that only he and his brother were there, the officer asked if they could come in and check. Radmacher agreed and let them in. Officers found three others, all matching the descriptions given by Valerino and the apartment manager, and detained them in the apartment until Valerino arrived to identify the suspects. Radmacher later admitted that he and the others had planned to `rob' (burgle) Valerino's apartment. The State charged Radmacher as a juvenile with one count of attempted residential burglary and later amended the charge to residential burglary. The trial court denied Radmacher's motion to suppress physical, oral or identification evidence based on State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). Following a fact-finding, the trial court found Radmacher guilty. Radmacher appeals.
ANALYSIS
Radmacher contends that because the police entered his home to search for suspects without a warrant and without informing him that he could refuse or limit the search, all evidence was obtained in violation of his privacy rights under article 1, section 7 of the Washington State Constitution, as described in State v. Ferrier.
In Ferrier, police hatched a plan to investigate an informant's tip about a marijuana grow operation at a residence without obtaining a search warrant, by conducting a `knock and talk,' wherein police knock on the door, ask to come in to talk about a complaint, and then, once inside, ask for permission to search. 136 Wn.2d at 107. Armed officers in black raid jackets went to Ferrier's home and asked for permission to enter. Id. Once inside they obtained her signature on a `consent to search' form without informing her of her right to refuse. Id. at 108. Our Supreme Court held that the knock and talk procedure as employed violated Ferrier's privacy rights under article 1, section 7 of the Washington State Constitution, and adopted a rule requiring officers conducting a knock and talk to inform the person from whom consent is sought, before entering the home, that he or she may lawfully refuse or limit the search, in order to justify a warrantless search the basis of consent. Id. at 118.
In State v. Bustamante-Davila, 138 Wn.2d 964, 967, 938 P.2d 590 (1999) police accompanied an immigration agent to the defendant's home to arrest him under a `removal order' issued by an immigration judge, although the agent did not have an arrest warrant. When the agent knocked and asked for permission to enter, the defendant let him and the officers into the home. Id. at 968-69. While inside, the officers noticed a rifle standing against the wall in plain view, leading to a charge of unlawful possession of a firearm. Id. at 969-70. Because the officers entered the defendant's home to assist the immigration agent with the execution of a deportation order rather than to search for contraband without a search warrant, the Supreme Court held that Ferrier warnings were not required. Id. at 983-84. Similarly, Ferrier warnings were not required in State v. Williams, 142 Wn.2d 17, 19-20, 11 P.3d 714 (2000) where police with an arrest warrant for Williams and information that he was in a particular apartment obtained consent from the resident to come into the apartment and confirm the identities of the persons inside. Because `the police officers did not seek to enter Jelinek's apartment to look for contraband or to arbitrarily search a home for a hidden guest,' and `[c]onsidering the limited purpose of the police entry and that Jelinek acknowledged that he had guests inside,' the case did not `resemble a `knock and talk' warrantless search that Ferrier intended to prevent.' Id. at 27.
In State v. Khounvichai, 149 Wn.2d 557, 559, 69 P.3d 862 (2003) the court reiterated that Ferrier warnings `are required only when police officers seek entry to conduct a consensual search for contraband or evidence of a crime.' Officers went to a home to question a suspect in a malicious mischief incident and obtained permission to enter from the suspect's grandmother. Id. When the suspect came out of a bedroom, officers smelled marijuana and observed Khounvichai dash across the room in a manner that caused an officer concern that he might be going for a weapon. Id. at 560. Khounvichai later moved to suppress evidence in his resulting drug charge, arguing that the officers violated Ferrier by failing to inform the suspect's grandmother of her right to refuse entry, rendering her consent invalid, or by exceeding the scope of that consent. Id. But the court refused to extend Ferrier, stating, `We do not find it prudent or necessary to require that police officers warn citizens of the right to refuse consent to search when they request entry into a home merely to question or gain information from an occupant.' Id. at 566. Because the officers sought entry in order to speak to the suspect about the malicious mischief incident and not to conduct a warrantless search, Ferrier warnings were not required. Id.
Radmacher contends that Khounvichai is distinguishable because here the officers entered the house to search for suspects rather than to ask him about the incident. But as the State points out, when the police began their investigation of the crime scene, they learned that the apartment manager had seen four youths matching Valerino's descriptions in the vicinity of Valerino's apartment around the time of the burglary and told police that the four lived in an apartment in a different part of the same complex. When officers arrived at the apartment they heard voices that fell silent when they knocked on the door. Upon observing the jacket matching the victim's description, and hearing Radmacher's claims that he had been sleeping and only he and his brother were home, they asked to come in and check for others. The officers' stated intention was to determine whether four youths matching the descriptions given by Valerino and the apartment manager were in Radmacher's apartment, to give Valerino a chance to identify them, and then to question them about their involvement. The officers were not looking for physical evidence or `arbitrarily' searching for hidden guests, but investigating their reasonable suspicion that all four youths involved in the burglary were in the apartment, based on information supplied at the crime scene by the victim and the apartment manager. In these circumstances, as in Khounvichai, Ferrier warnings were not required.
Affirmed.
COLEMAN and BECKER, JJ., Concur.