Opinion
No. 62344-3-I.
September 8, 2009.
Appeal from the Superior Court, King County, No. 07-1-09146-3, William L. Downing, J., entered September 2, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Ellington, JJ.
Ferrier warnings are required when police seek entry to a residence or other dwelling to conduct a consensual search for contraband or other evidence of crime. Here, the unchallenged findings of the court following a suppression hearing establish that the police in this case sought entry to Maurice Thrower's motel room to look for two juvenile runaways, not for evidence of any crime. Consequently, there was no need for police to give warnings before entering the room and observing in plain view the illegal drug that was the basis for arrest. The trial court properly denied the suppression motion. We affirm.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
State v. Khounvichai, 149 Wn.2d 557, 559, 69 P.3d 862 (2003).
On the evening of April 29, 2007, Tukwila police officers were searching for two juvenile runaways from Bellevue. The night before, Officer Mike Richardson had been called to the Great Bear Motel in Tukwila while the clerk evicted people who had been seen bringing several juveniles to their room for unknown reasons. Based on that, Officer Richardson and his partner, Officer Alan Baalaer, drove to the Great Bear Motel to inquire whether the front desk manager had seen the runaways. The manager said that he had seen some juvenile females in room 301 earlier that day. The room was registered to Maurice Thrower. Neither officer knew Thrower.
Officers Baalaer and Richardson went to room 301 with the sole intention of locating the juvenile runaways. In doing so, they had no hidden objectives, they were not searching for narcotics or other contraband, and they were not involved in an investigation of Thrower or anyone else at the time.
The uniformed officers went to the door of room 301, which was ajar, and knocked. A male voice said, "Come in!" The officers pushed open the door, and Officer Baalaer stepped into the room.
Upon opening the door, the officers saw Thrower and a female seated inside the room. Officer Richardson asked Thrower to come outside to discuss whether he had seen the missing juvenile runaways. Officer Baalaer then observed what appeared to be marijuana in plain view on the table between where Thrower and the female were seated. Based on this observation, Officer Baalaer told Officer Richardson to arrest Thrower. This was the first moment that the officers intended a criminal investigation. The officers arrested Thrower and the female.
The officers did not seize any items from Thrower's room at this time. Before leaving the room, Officer Baalaer looked around the room to see if any juveniles were there. He found none. He then sealed the room to request a warrant.
The parties stipulate that the subsequent search of the room and retrieval of items by police was made after Thrower's knowing, intelligent, and voluntary waiver. In that search, among other things, police seized marijuana and powder and crack cocaine.
The State charged Thrower with one VUCSA count, alleging possession of cocaine with intent to manufacture or deliver. Thrower moved to suppress the State's evidence, arguing that officers violated his constitutional right to privacy in his motel room when they failed to advise him of any rights he had regarding consent prior to entering his room. The trial court denied his motion and entered findings of fact and conclusions of law pursuant to CrR 3.6(b). The court found Thrower guilty after a bench trial on stipulated facts.
Thrower appeals.
MOTION TO SUPPRESS EVIDENCE
Thrower argues that police failed to give a constitutionally required warning before entering his motel room and that the evidence they found should have therefore been excluded from trial. We disagree.
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." A person's privacy right in a home applies equally to a temporary dwelling such as a motel room.
See Ferrier, 136 Wn.2d at 114-15 (holding that article I, section 7 provides greater privacy protection against warrantless searches of the home); Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964) (holding that guest in hotel room is entitled to Fourth Amendment protection against unreasonable searches and seizures).
"[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. . . ." But where entry is sought to question a resident rather than to search the home, police are not required to inform the owner of the right to refuse consent.
Ferrier, 136 Wn.2d at 118-19.
Khounvichai, 149 Wn.2d at 566.
The failure to provide warnings, where required, vitiates any consent given thereafter. Conclusions of law in a suppression order are reviewed de novo.
Ferrier, 136 Wn.2d at 118-19.
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
Here, Thrower argues that State v. Ferrier applies. At the heart of Thrower's argument is the contention that police came to his motel room with the intent to search for evidence of juvenile prostitution, not to find juvenile runaways. He argues that because the officers failed to give the required Ferrier warning, they entered his hotel room unlawfully.
136 Wn.2d 103, 960 P.2d 927 (1998).
Reply Brief of Appellant at 1.
The State contends that a Ferrier warning was not necessary because police were performing a social contact to inquire about missing juveniles when they knocked and not to conduct a criminal investigation of Thrower. Further, the State argues that a knock and talk, as discussed in Ferrier, relates to entry and search done to search for illegal activity, which was not the case here. The unchallenged findings in this case support the State.
In Ferrier, police had uncorroborated information that Debra Ferrier was conducting a marijuana grow operation in her home. Because police believed they could not obtain a search warrant on the information they had, the officers "hatched a plan to conduct a 'knock and talk'" to gain entry into the home and ask for consent to conduct a search. A knock and talk is an investigative procedure that involves going to the door and knocking, making contact with the resident, asking to enter the home and talk about the complaint, and once inside, asking for permission to search the premises.
Ferrier, 136 Wn.2d at 106.
Id. at 106-07.
Id. at 107.
Four armed police officers dressed in raid jackets went to Ferrier's home, knocked, identified themselves as police, and asked for permission to enter.
Id.
Once inside, they informed Ferrier about their suspicion that she was growing marijuana and asked for her consent to search the home and seize the marijuana. Ferrier consented and signed a consent form. The officers did not advise Ferrier of her right to refuse consent or of any other rights.
Id. at 108.
Id.
Id.
On review, our supreme court concluded that a knock and talk conducted under the circumstances in that case violated Ferrier's right to privacy in her home guaranteed by the state constitution. To protect the right to be free of warrantless searches, the court announced the following rule:
Id. at 115.
[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. . . . The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.
Id. at 118-19.
Two subsequent decisions are helpful in determining whether such warnings were required in this case.
In State v. Williams, our supreme court limited the need for a Ferrier warning "to situations where police seek to conduct a search for contraband or evidence of a crime without obtaining a search warrant."
142 Wn.2d 17, 11 P.3d 714 (2000).
Id. at 28.
There, police had a felony arrest warrant for Harlan Williams. Based on a tip that he was at a friend's apartment, police went to the apartment and observed Williams' van in the parking lot. An officer approached the apartment's open door and called inside for Williams. When the tenant came to the door, the officer inquired whether Williams was there and the tenant denied that he knew Williams or the owner of the van. The officer advised the tenant that he had a warrant for Williams and asked for consent to enter and look for him. The tenant agreed and allowed the officer to enter. Police found Williams in the apartment and arrested him.
Id. at 19.
Id. at 20.
Id. at 19-20.
Id. at 20.
Id.
Id.
Williams appealed his subsequent conviction, challenging the validity of the search of the apartment. Although the supreme court held that Williams did not have standing to challenge the search, the court observed that police did not seek to enter the apartment to look for contraband or to arbitrarily search for a hidden guest. Based on the limited purpose of the police entry and the tenant's acknowledgment that he had guests inside, the court concluded that the case was unlike the knock and talk warrantless search Ferrier was intended to prevent.
Id.
Id. at 23, 27.
Id. at 27.
In State v. Khounvichai, the court further narrowed the applicability of Ferrier. The court held that such warnings were not necessary when police request entry into a home merely to question or gain information from an occupant. There, police were investigating a malicious mischief complaint and went to the talk to a man they believed was involved named McBaine. The officers knocked on the apartment door of the address they were given and told the woman who answered they wanted to talk with McBaine. The woman told officers that he was her grandson, that he was home, and she asked if he was in trouble. Officers told her they just wanted to talk to him and requested entry, which she granted. One officer followed the woman down the hallway to a closed bedroom door where she knocked and called, "'there is someone here to see you.'" When the door opened, officers smelled marijuana. McBaine stepped out of the room and, upon seeing the officers, turned and whispered to two others in the room. One of the other men in the room, Khounvichai, dashed across the room and out of the officers' sight. Concerned, the officer ran into the bedroom where he saw Khounvichai reaching into a closet. The officer grabbed Khounvichai's hand, making him drop a baggie of what was later determined to be cocaine.
149 Wn.2d 557, 69 P.3d 862 (2003).
Id. at 566.
Id. at 559.
Id.
Id.
Id. at 560.
Id.
Id.
Id.
Id.
Id.
Khounvichai was convicted of one VUCSA count and appealed, arguing that the cocaine evidence should have been suppressed because the grandmother's consent was invalid under Ferrier. On review, the supreme court affirmed and clarified that the Ferrier rule applies only when police officers seek entry to conduct a consensual search for contraband or evidence of a crime. The court also held that Ferrier warnings were not necessary when police request entry into a home merely to question or gain information from an occupant.
Id.
Id. at 559.
Id. at 566.
Here, the unchallenged findings show that the officers went to Thrower's room "with the sole good faith intention of locating the missing juveniles." The court also found that Officers Richardson and Baalaer had "no impure or improper police motivation," that they were not involved in a criminal investigation against Thrower or anyone else at the time, and that they were not searching for contraband.
Clerk's Papers at 25.
Id.
This case is more like Khounvichai than Ferrier. Here, officers sought to talk with Thrower to find runaway juveniles, not to investigate him or anyone else. The officers did not seek entry to Thrower's room to conduct a search for evidence of a crime or contraband. Because the officers requested entry into Thrower's room merely to gain information about the juvenile runaways, no warning prior to entry was required.
See Khounvichai, 149 Wn.2d at 566 (no Ferrier warning required where police seek entry to a home merely to question or gain information).
Thrower contends that the officers knocked on his door "not to question [him] about a crime unrelated to the motel room," but intending to search for juveniles involved in crime. He argues the officers therefore were required to give a Ferrier warning prior to entry. But the trial court's unchallenged findings discussed above conflict with Thrower's characterization of events. These unchallenged findings are verities.
See State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (trial court's unchallenged findings of fact are verities on appeal).
Thrower next argues that when he said "come in" he did not know he was consenting to a search because the officers did not give a Ferrier warning. Consequently, he argues that police had no right to be in his motel room and observe the marijuana in plain view. As already discussed, the officers did not seek to search for illegal activity, making such warnings unnecessary. The officers knocked and Thrower responded "come in," thereby inviting the person who knocked into his room. What Thrower was thinking when he granted entry in response to the knock on the door is irrelevant.
After the officers were invited into Thrower's room, Officer Baalaer saw evidence of marijuana in plain view. Consequently, the officers had probable cause to arrest Thrower. Thrower stipulated that the subsequent search of the room and retrieval of items by police were made after a valid waiver.
See State v. Bustamante-Davila, 138 Wn.2d 964, 971-72, 983 P.2d 590 (1999) (where convicted felon gave consent for police to enter his residence, the officers' observation of a firearm in plain view provided probable cause for arrest).
Finally, to the extent Thrower argues that the officers' conduct here was coercive, his argument fails. The court's unchallenged findings state, "[t]here was neither trickery, coercive impact, nor hidden objectives by the officers."
Clerk's Papers at 25 (Finding of Fact 3).
These too are verities on appeal.
In sum, because the officers requested entry into Thrower's room merely to question or gain information about the juvenile runaways, no Ferrier warnings were required here. The trial court properly denied Thrower's motion to suppress.
See Khounvichai, 149 Wn.2d at 566 (no Ferrier warning required where police seek entry to a home merely to question or gain information).
We affirm the judgment and sentence.
WE CONCUR: