A homeowner or resident may consent to police searching the home. Washington drug crime attorneys know that a homeowner or resident’s consent can affect others in the home. In a recent case, a defendant was convicted of unlawful possession of a controlled substance with intent to deliver within 1,000 feet of a school bus stop following a search of an apartment.
The police found the defendant in a woman’s apartment during a protective sweep in response to a report of an assault and robbery in the apartment by the defendant and two others.
The defendant appealed, arguing the sweep exceeded the scope of the “protective sweep” exception to the warrant requirement.
The police came to the apartment in response to a report of a robbery and assault in the apartment. The alleged victim told the officers that her assailants and the defendant were probably still in the apartment.
When the police arrived, the tenant invited them in and told them they could “search everything.” An officer testified they told her she did not have to let them in, but she invited them in anyway. The officers asked if anyone else was there, and she told them there were two people in the back bedroom. An officer observed a woman putting money on a table and the defendant holding a plastic bag with a rock-like substance. The defendant quickly put his hands under the table when the officer identified himself.
The officer said he asked the tenant if she was giving consent to search and advised her she could limit the search’s scope or stop it at any time. She signed a consent form.
The defendant moved to suppress the evidence obtained during his interaction with the officers in the apartment. He argued they had failed to provide Ferrier warnings before they entered. The trial court denied the motion, finding the officer had concerns for his safety because of the reports that there were others in the apartment. Furthermore, the tenant had consented to a protective sweep. The court found the protective sweep reasonable to prevent the officers from being ambushed while talking to the tenant.
The appeals court affirmed, and the Washington Supreme Court granted review.
The Washington Supreme Court found the officers were not required to provide Ferrier warnings before entering the home. Under Ferrier, the police are required to inform residents of their right to refuse consent to a warrantless search to prevent the inherently coercive nature of “knock and talks.” In subsequent cases, the Washington Supreme Court clarified that the warnings are not required when the police want to enter the home to question a resident while investigating a crime. In this case, the officer came to the apartment due to a reported robbery and assault. They did not approach the home with the intent of performing a search, but to question people about an alleged crime. They were invited in by a resident. They informed her she did not have to let them in. The Court found they were not required to give Ferrier warnings, since their intent in entering was to question her, rather than search the home.
The defendant argued the protective sweep exception to the warrant requirement is only valid if the sweep occurs incident to arrest. There are splits on this issue among the courts at both state and federal levels. The Court declined to address this issue, however, upon finding there was unequivocal consent to the search.
In Washington, there are three requirements for a valid, consensual search. First, the consent must be voluntary. Second, the party who gives consent must have authority to do so. Finally, the search cannot exceed the scope of the consent.
Here, the tenant of the apartment granted consent. As the tenant, she had the authority to do so. According to the record, she told the officers they could search everything. The defendant was not identified as a tenant or a person with a valid expectation of privacy in the apartment. The Court noted that these facts were unchallenged. There was nothing in the record indicating the tenant withdrew her invitation or consent or had in any way limited the scope of her consent. The Court found the consent met the consent exception to the warrant requirement, and the search was valid. The Court affirmed.
If you are facing drug charges, an experienced Washington criminal defense attorney can help you defend your rights. Contact Blair & Kim, PLLC by phone at (206) 622-6562 or through our website to discuss your case.
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