Knock, Talk, and Walk

By Lance M. Hester; Oct 1998

    During the last week of August the Washington State Supreme Court published its opinion in State v. Ferrier ___ Wn.2d ___ (1998).  Debra Ferrier was convicted of manufacture of a controlled substance.  She argued that the “knock and talk” procedure employed by the officers to obtain her consent to search her home was violative of both the state and federal constitutions.  The court concluded, “because Farrier had heightened privacy rights in her home, as guaranteed by Article I, Section 7 of our state constitution, she should have been informed that she need not consent to the search.  Because she was not so informed, the search was unconstitutional and the evidence obtained as a result should not have been admitted into evidence.”  Her conviction was therefore reversed.

     For a number of reasons, police officers often choose not to obtain a search warrant.  As such, the officers have devised a number of methods by which they gain entry and conduct subsequent searches without such warrants.  Most of the time the efforts involve smooth talking a resident and/or potential defendant to consent to officer entry into a home.  When officers talk their way into gaining consensual entry into a place where a search warrant would normally be required the procedure is referred to as the “knock and talk.”  In the Ferrier case the officers failed to obtain a search warrant because they did not want to disclose the name of the informant.

     In Ferrier, as in nearly every other knock and talk case, the officers did not tell her that she could refuse to consent to a search.

     The search in Ms. Ferrier’s case resulted in the seizure of 29 mature marijuana plants, 39 starter plants, and other marijuana grow evidence.  The trial court denied Ms. Ferrier’s CrR 3.6 (a) motion to suppress all the evidence obtained as a result of the search of her home.  She was consequently found guilty and the Court of Appeals affirmed.

     While recognizing that Article I, Section 7 of our State Constitution goes further than the Fourth Amendment to the U.S. Constitution in protecting individual’s privacy, the Washington State Supreme Court engaged in a thorough Gunwall analysis.  (Note:  Whenever one asserts more rights exist under the Washington State Constitution than the U.S. Constitution an independent analysis is required as set forth in State v. Gunwall, 106 Wn.2d 54 (1986).)

     Ultimately the court stated,

we, therefore, adopt the following rule:  that when police officers conduct a knock and talk for the purposes for 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.”

     In the end, the court concluded that the trial court erred in failing to suppress the evidence obtained in the unlawful search of Ms. Ferrier’s home; her conviction was therefore reversed.

     It is clear that from now on officers and detectives who want to search but don’t want a warrant must finally adequately advise suspects of their right to refuse the search.

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