State v. Witherrite

¶1¶16 (concurring) — Under current law, Ferrier3 warnings are not required for vehicle searches. As an intermediary appellate court, we should be cautious not to grant new rights where our state Supreme Court has not indicated a willingness to expand existing rights. With that said, I am troubled when I see citizens being asked for permission to have their private effects searched where probable cause to search is lacking. Here, the officer knew he lacked probable cause to search the vehicle, he knew that an application for a search warrant would be denied, yet he asked for permission to search. In Ferrier, the court noted, *865“ ‘[w]here the police have ample opportunity to obtain a warrant, we do not look kindly on their failure to do so/ ” State v. Ferrier, 136 Wn.2d 103, 115, 960 P.2d 927 (1998) (alteration in original) (internal quotation marks omitted) (quoting State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989)). I might add, where the police lack authority to obtain a search warrant, we look even less kindly on their searching anyway.

¶2*865¶17 The rights found in our state and federal constitutions must be applied equally to each person. Therefore, if courts are to protect the constitutional rights of law abiding citizens, courts must also protect the constitutional rights of law breaking citizens. These rights are best protected by courts extending Ferrier warnings beyond residential searches. Ferrier merely requires law enforcement to advise persons of their rights — the right to refuse, the right to limit, and the right to revoke permission to search. Requiring law enforcement to advise citizens of their rights empowers citizens to knowingly assert their rights instead of unknowingly waive them.

¶3¶18 It is consistent with this state’s strong emphasis on privacy rights, founded on article I, section 7 of our state’s constitution, that we extend rather than limit Ferrier. Article I, section 7 of the Washington Constitution provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” (Emphasis added.) I see no basis to limit Ferrier to home searches when the constitutional basis for Ferrier clearly applies beyond the home.

¶4Fearing, J., concurs with Lawrence-Berrey, J.

¶5Review denied at 182 Wn.2d 1026 (2015).