State v. Freepons

¶1¶20 (dissenting) Here the deputies were not seeking to conduct a “knock and talk” search of the appellants’ residence for contraband or crime evidence against the appellants. The deputies merely inquired about Bryan Byrne in an unrelated matter. When appellants denied Mr. Byrne’s presence, the deputies asked to check appellants’ negative response by looking inside. Appellants consented. When inside, a deputy saw a marijuana grow but did not find Mr. Byrne and left. After clearing up the Byrne matter, the deputies told appellants they wanted to go back into the residence to investigate the marijuana grow, and asked for and received consent conforming to State v. Ferrier, 136 Wn.2d 103, 118-19, 960 P.2d 927 (1998).

¶2¶21 The Ferrier court’s focus was to prevent unwarranted police intrusions against crime suspects using a “knock and talk” ruse when police suspect the presence of contraband or crime evidence and have ample opportunity to secure a warrant. Id. at 115; see also State v. Khounvichai, 149 Wn.2d 557, 559, 69 P.3d 862 (2003) (stating, “[w]e . . . reiterate that [Ferrier] warnings are required only when police officers seek entry to conduct a consensual search for contraband or evidence of a crime”). In Ferrier, unlike here, the officers admitted they conducted the “knock and talk” to avoid the necessity of obtaining a search warrant. Ferrier, 136 Wn.2d at 115. Here, the deputies were not seeking crime evidence against the appellants when they secured the appellants’ consent to search. Moreover, considering the emergent and community caretaking nature of their inquiry, the deputies did not have “ ‘ample opportunity to obtain a warrant,’ ” as in Ferrier. Id.(internal quotation marks omitted) (quoting State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989)). Thus, even Ferrier would seem to allow a consent entry under our facts.

¶3*696¶22 Further, the majority reasons “[t]hat Mr. Freepons and Mr. Hazzard were given Miranda[3] warnings prior to the deputies’ entry into the house shows that the deputies anticipated that they would find what they were looking for — evidence of criminal activity within the home.” Majority at 694. However, one of the factors in determining whether consent to search is freely given is whether Miranda warnings were given prior to obtaining consent. See State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999) (setting forth the test for determining voluntariness of consent to search)'. Giving Miranda warnings does not factor into the analysis of whether Ferrier warnings are required prior to a consent search.

¶4¶23 Accordingly, I respectfully dissent.

¶5Review denied at 166 Wn.2d 1008 (2009).