State v. Kennedy

107 Wash. App. 972
CourtCourt of Appeals of Washington
DecidedAugust 24, 2001
DocketNo. 26044-1-II
StatusPublished
Cited by19 cases

This text of 107 Wash. App. 972 (State v. Kennedy) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kennedy, 107 Wash. App. 972 (Wash. Ct. App. 2001).

Opinions

Seinfeld, J.

The State appeals a trial court ruling granting Michael Kennedy’s motion to suppress evidence obtained from his motel room. The police gained access by asking if they could come inside and talk about a complaint they had received concerning the room. Because the rule announced in State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), applies here and because the police failed to advise Kennedy of his right to refuse consent, we affirm.

FACTS

Following a CrR 3.6 hearing on Kennedy’s motion to suppress, the trial court found that police officers Smith and Costello had received a complaint about a narcotics transaction in progress between the complainant’s girl friend and Kennedy at a local motel. The officers went to Kennedy’s motel room where they listened for a short time to two voices, one male and one female, coming from inside. The officers heard a reference to a “razor” and to something being “smooth.”

The officers then knocked and identified themselves as police officers, whereupon they heard the sound of drawers shutting. When Kennedy opened the door, the officers told him that they had received a complaint about the room and asked if they could come in to talk about it. Kennedy waved the officers in.

Once inside, the officers told Kennedy they had received a narcotics complaint involving his room. While Officer Smith spoke with Kennedy, Officer Costello noticed a plastic baggie with a white powder residue laying on top of a pile of clothes on a credenza. The baggie contained methamphetamine.

The State charged Kennedy with unlawful possession of a controlled substance with intent to deliver, RCW 69[974]*974.50.401(a)(1)(ii). But the trial court granted Kennedy’s motion to suppress evidence obtained from the police entry into the motel room and thereby terminated the case. The trial court ruled that Kennedy’s apparent consent to the entry was not voluntary because the police had not advised him of his right to refuse consent.

On appeal, the State challenges the suppression ruling, contending that this advisement was not necessary because the police were merely investigating a complaint, not seeking consent to search.

ANALYSIS

The State concedes that Kennedy had the same expectation of privacy in his motel room as he would in his private residence. See State v. Davis, 86 Wn. App. 414, 419, 937 P.2d 1110 (1997). But it argues that the police did not employ a traditional “knock and talk” procedure in this case and, thus, the trial court erred in applying Ferrier. Because this involves an issue of law, our review is de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).

In Ferrier, the Supreme Court adopted the following rule:

[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.

136 Wn.2d at 118-19 (emphasis added).

The police in Ferrier had received information that Ferrier was operating a marijuana grow in her home. 136 Wn.2d at 106. After confirming some of the informant’s information, the police decided to conduct a “knock and talk” procedure because they did not think they could get a [975]*975search warrant without revealing the informant’s name. Ferrier, 136 Wn.2d at 106-07. One officer described a “knock and talk” as a procedure

“like any other follow-up investigation that a detective or police officer would do. You go to the door, knock on the door, make contact with the resident, ask if you can come in to talk about whatever the complaint happens to be ... .
Once you’re inside, you talk about why you’re there and you ask for permission to search the premises.”

Ferrier, 136 Wn.2d at 107.

The police went to Ferrier’s home, knocked on her door, and identified themselves. Ferrier, 136 Wn.2d at 107. Once inside, the officers told Ferrier that they had information about a marijuana grow operation in her home and asked for and received her consent to search the home; they did not tell her that she had the right to refuse consent. Ferrier, 136 Wn.2d at 108.

The Ferrier court held that a police entry without providing this information violates the Washington State Constitution’s protection of the right to privacy in one’s home, thus vitiating any consent. 136 Wn.2d at 114-15 (citing Wash. Const. art. I, § 7). The court noted that it was significant to its holding that Ferrier was in her home when the police initiated contact and that the officers “admitted that they conducted the knock and talk in order to avoid the necessity of obtaining a search warrant authorizing a search of the home.” Ferrier, 136 Wn.2d at 115. The Ferrier rule applies only where officers employ a “knock and talk” procedure; the rule is not applicable where officers have an arrest or search warrant or in good faith believe they do. State v. Johnson, 104 Wn. App. 489, 505-06, 17 P.3d 3 (2001); State v. Johnson, 104 Wn. App. 409, 421, 16 P.3d 680 (2001).

Thus, in State v. Bustamante-Davila, 138 Wn.2d 964, 966-67, 983 P.2d 590 (1999), the court found Ferrier inapplicable where local law enforcement officers accompanied an Immigration and Naturalization Service (INS) agent to [976]*976the defendant’s home to arrest him under a removal order issued by an immigration judge. When the defendant allowed both the INS agent and the local officers into his home, they noticed a rifle in plain view. Bustamante-Davila, 138 Wn.2d at 968-69. The State then charged him with unlawful possession of a firearm. Bustamante-Davila, 138 Wn.2d at 970.

The Supreme Court affirmed the denial of the defendant’s suppression motion and limited Ferrier to situations where

not having obtained a search warrant, police officers proceed to premises where they believe contraband will be found. Once there they knock on the door and talk with the resident, asking if they may enter. After being allowed to enter, the officers then explain why they are there, that they have no search warrant, and ask permission to search the premises.

Bustamante-Davila, 138 Wn.2d at 976-77 (footnotes omitted). As the law enforcement officers in

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Bluebook (online)
107 Wash. App. 972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kennedy-washctapp-2001.