Page:State v. Brown.pdf/12

Rh "knock-and-talk" procedure as an alternative to obtaining a search warrant. In State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927 (1998), the Washington Supreme Court analyzed the "knock-and-talk" procedure under the right to privacy as found in the Washington Constitution, as well as under the protection given to its citizens against warrantless searches and seizures. In doing so, that court said: "Especially evident is the fact that [i]n no area is a citizen more entitled to his privacy than in his or her own home. For this reason, the closer officers come to intrusion into a dwelling the greater the constitutional protection." 136 Wash. 2d at 112, 960 P.2d at 931 (internal quotations omitted). The supreme court concluded that preexisting state law amply supported review under the state constitution and that privacy in one's home was "primarily a local concern." Id., 960 P.2d at 931.

The Washington Supreme Court next admitted that when considering voluntary consent under the Fourth Amendment of the United States Constitution, its court of appeals had concluded that it was in lockstep with federal law. But the court emphasized that for the privacy right in one's home, there is a heightened protection for state citizens against unlawful intrusion into the home, and this "places an onerous burden upon the government to show a compelling need to act outside of our warrant requirement." Id. at 114, 960 P.2d at 932. The court then held that "knock and talk" was inherently coercive to some degree, but that these coercive effects can "be mitigated by requiring officers who conduct the procedure to warn home dwellers of their right to refuse consent to a warrantless search." Id. at 116, 960 P.2d at 933. The court concluded:

We, therefore, adopt the following rule: that when 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.

Id. at 118-19, 960 P.2d at 934. The absence of the required warnings rendered the procedure constitutionally infirm under the Washington Constitution.