The State of Washington, Appellant, v. Harlan M. Williams, Respondent, 142 Wash. 2d 17

Madsen, J. The State appeals a trial judge’s order suppressing the admission of heroin into evidence in this criminal proceeding. The suppression order relates to the legality of a police entry into a third party’s home to serve an arrest warrant on the defendant. Two Everett police officers arrested Harlan Williams, pursuant to an arrest warrant, while he was a guest in a friend’s home. During a search of the defendant incident to that arrest, the police officers discovered heroin in the defendant’s pocket. At trial, the defense moved to suppress the heroin.

The defendant asserted that under the decision of State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980), he had “automatic standing” to challenge the legality of the police officers’ entry into the apartment. The defense further argued that under the bright-line rule stated in State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), the police search of the apartment was invalid since the police officers failed to inform the tenant of his right to refuse consent to a police search absent a search warrant. The trial judge agreed and suppressed the heroin, which had the practical effect of terminating the case.

We hold that the defendant lacked standing.to contest the police entry into a third party’s home. We further conclude that even if the defendant does have standing to object to the officers’ entry, the police officers’ conduct in this case did not constitute a “knock and talk” search within the meaning of the Ferrier decision. FACTS During the afternoon of April 27,1998, a citizen contacted Everett police officer Jeff Katzer outside of the Snohomish County Jail and informed the officer that Harlan Williams, the defendant, had a warrant out for his arrest and that he was currently at a local residence.

The citizen also provided a description of the defendant’s clothing and green van. The officer confirmed that Williams had an outstanding felony arrest warrant, drove to the described residence, and identified the defendant’s green van parked outside in the parking lot. Officer Katzer requested further assistance, and Officer McAllister arrived on the scene. The two officers approached the apartment’s open door and called inside for Williams. The tenant, Alan Jelinek, appeared at the doorway. Officer Katzer told Jelinek that he was looking for the defendant, whose van was in the parking lot.

Jelinek said that he did not know the defendant or the owner of the green van. Officer Katzer advised Jelinek that there was a warrant for Williams’ arrest and asked for Jelinek’s consent to enter into the apartment to look for the defendant. Jelinek said yes and stepped back to allow the officers to enter. When the officers entered the apartment, they immediately spotted the defendant. The officers identified the defendant by the scars on his arms. The defendant shortly thereafter confirmed his identity. The officers placed the defendant under arrest.

In a search incident to the arrest, the officers found .8 grams of a black tar substance in the defendant’s pocket that field-tested positive for heroin. Later, Officer Katzer contacted Jelinek and confirmed that the defendant was not living at Jelinek’s apartment and that the defendant had just come over to help move some of Jelinek’s belongings with the van. He also confirmed that Jelinek had willingly given the officers permission to enter his home on April 27.

ANALYSIS The State challenges the trial court’s reliance on Simpson to grant the defendant automatic standing to challenge the validity of the search of Alan Jelinek’s apartment. The United States Supreme Court has rejected the doctrine of automatic standing in United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), and the State contends that Washington has never adopted the doctrine under

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section 7 of the Washington Constitution. This case requires revisiting the automatic standing doctrine and its applicability in this case. Automatic standing began as a unique method to deal with a particular problem in search and seizure cases where possession is an element of an offense. In Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled on other grounds by Salvucci, 448 U.S. 83 (1980), the Supreme Court perceived two distinct problems inherent in challenging police searches that produced contraband.

The first problem was “that a defendant charged with a possessory offense might only be able to establish his standing to challenge a search and seizure by giving self-incriminating testimony admissible as evidence of his guilt. . . .” Salvucci, 448 U.S. 83, 83 (Syllabus). The second “dilemma” was the “ Vice of prosecutorial self-contradiction’ whereby the Government would assert that the defendant possessed the goods in question while simultaneously asserting that he did not possess them for the purposes of claiming the protections of the Fourth Amendment. . . .” Id.

The Court in Jones attempted to eliminate these dilemmas by creating automatic standing, which allowed the defendant to challenge police searches without making self-incriminating statements, where the fruits produced evidence of a possessory offense. The Supreme Court abandoned the automatic standing doctrine in Salvucci. The Court recognized that Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), eliminated most of the defense and prosecutorial dilemmas which had led it to adopt the doctrine.

The defendant in Simmons challenged the government’s right to use, at trial, his incriminating statements made during a suppression hearing. The Court held that there is an “undeniable tension” created when a defendant must decide whether to sacrifice his Fifth Amendment right against self-incrimination in order to assert his equally valid Fourth Amendment right of protection from illegal searches and seizures. Simmons, 390 U.S. 377. The Court therefore held that a defendant’s testimony in a suppression hearing cannot be used as evidence to help establish guilt during the trial.

The Salvucci Court found that Simmons adequately protected the defendant’s Fourth and Fifth Amendment interests, and abandoned Jones and its automatic standing rule. The Court reasoned that “defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.” Salvucci, 448 U.S. 83, 85. Although defunct in the federal courts, automatic standing still maintains a presence in Washington. We first adopted automatic standing in State v.

Michaels, 60 Wn.2d 638, 646-47, 374 P.2d 989 (1962), where we approved of the Supreme Court’s reasoning in Jones. After Salvucci, we addressed the changes to federal law and a plurality of the Court determined that the Washington Constitution’s greater privacy protections required adherence to the automatic standing doctrine. State v. Simpson, 95 Wn.2d 170, 181, 622 P.2d 1199 (1980). The plurality recognized that “Simmons, as interpreted by the [Supreme C]ourt in Salvucci, does not provide sufficient protection against the self-incrimination dilemma.

In Washington, prior statements made by a defendant are admissible at trial for purposes of impeachment.” Simpson, 95 Wn.2d at 179-80 (citing State v. Peele, 10 Wn. App. 58, 67, 516 P.2d 788 (1973)). The plurality concluded that “[u]nder these circumstances, we discern both a continuing policy basis and firm state constitutional grounds for adherence to the automatic standing rule. The rule is already established under our state constitution and has served our state well for 17 years . . . .” Id. at 181 (citing Michaels, 60 Wn.2d at 646-47).

Although there may be ample support in this statement to conclude that our state constitution requires automatic standing, we agree with the State that this is not a proper case to apply automatic standing. In Michaels, we acknowledged that application of automatic standing is proper where (1) “[the defendant] is legitimately on the premises where a search occurred” and (2) “the fruits of the search are proposed to be used against him.” Michaels, 60 Wn.2d at 646-47; see Jones, 362 U.S. 257.

Based on that language, the trial court here concluded that automatic standing exists whenever there is a search and a subsequent seizure of contraband. We believe, however, that this is an overly broad

interpretation of the conditions for automatic standing outlined in Jones. Inherent in the conditions for automatic standing is the principle that the “fruits of the search” bear a direct relationship to the search the defendant seeks to contest. Here, the defendant fails to meet the criteria for application of the automatic standing doctrine. The defendant stipulated that the police officers found the heroin on his person. The defendant has standing to object to an illegal search of his person.

But, the defendant does not challenge the search of his person, which was a valid search incident to his arrest under a valid arrest warrant. He is challenging only the officers’ entry into a third party’s residence to serve the arrest warrant. The defendant’s ability to challenge that entry does not depend upon his admission to possession of contraband or to any other illegal activity. We cannot agree that the automatic standing rule as originally conceived by the Supreme Court would have any application where there is no conflict in the exercise of his Fourth and Fifth Amendment rights.

Moreover, as expressed by the plurality opinion in Simpson, the automatic standing rule may not be used where the defendant is not faced with “the risk that statements made at the suppression hearing will later be used to incriminate him albeit under the guise of impeachment.” Simpson, 95 Wn.2d at 180. Automatic standing is not a vehicle to collaterally attack every police search that results in a seizure of contraband or evidence of a crime.

Additionally, the defendant’s challenge to this police search would fail, even if we found that Williams had a sufficient expectation of privacy in Jelinek’s apartment to confer standing. The United States Supreme Court has held that an arrest warrant “authorizes a limited invasion of that person’s privacy interest when it is necessary to arrest him in his home.” Steagald v. United States, 451 U.S. 204, 214 n.7, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). The Court further held in Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L.

Ed. 2d 639 (1980), that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” The Court reasoned that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen.

If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law.* [] Id. at 602-03. Thus, even if Williams had standing in his own right, he would be unable to successfully challenge a police entry of his own home to serve an arrest warrant. We find no reason to confer additional privacy protections to suspects who are arrested in other persons’ homes.

We agree with the Ninth Circuit’s observation that “[i]f an arrest warrant and reason to believe the person named in the warrant is present are sufficient to protect that person’s fourth amendment privacy rights in his own home, they necessarily suffice to protect his privacy rights in the home of another.” United States v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983). The defendant argues, however, that the Washington Constitution offers more protective privacy rights under

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section 7 than the United States Constitution and cites to our recent decision in Ferrier. In that case, we adopted the standard of the New Jersey Supreme Court, which held that “ ‘where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.’ ” Ferrier, 136 Wn.2d at 116 (emphasis omitted) (quoting State v. Johnson, 68 N.J. 349, 346 A.2d 66, 68 (1975)).

The court went further to state the obvious—that the only sure way to give such a protection substance is to require a warning of its existence. If we were to reach any other conclusion, we would not be satisfied that a home dweller who consents to a warrantless search possessed the knowledge necessary to make an informed decision. That being the case, the State would be unable to meet its burden of proving that a knowing and voluntary waiver occurred Ferrier, 136 Wn.2d at 116-17. In light of that barrier, we adopted the rule that “article I,

section 7 is violated whenever the authorities fail to inform home dwellers of their right to refuse consent to a warrantless search.” Id. at 118. Thus, 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. Id.

The officers employed this “knock and talk” procedure in Ferrier. Four officers, equipped in black raid jackets, approached Debra Ferrier’s home and asked permission to enter. Once inside, the officers observed two infant children and explained to Ferrier that they learned of a marijuana growing operation in her house and that they would like to search the house for marijuana. They then asked for consent to search the home and had her sign a consent form. Ferrier testified that she was never informed of her right to refuse a search nor advised of her Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.

Ct. 1602, 16 L. Ed. 2d 694 (1966)), and that she consented only after the officers told her that they would take her grandchildren away to Child Protective Services. Id. at 108. The officers “admitted that they conducted the knock and talk in order to avoid the necessity of obtaining a search warrant authorizing a search of the home.” Id. at 115. The court concluded that “[b]ased on these facts ... we conclude that the knock and talk, as carried out here, violated Ferrier’s state constitutional right to privacy in her home . .. .” Id.

The court found that this was a clear abuse of police power and then adopted the requirement that police officers inform a resident of their right to refuse consent to a police search when police use the inherently coercive “knock and talk.” We recently limited Ferrier to the kind of coercive searches the police employed there. State v. Bustamante-Davila, 138 Wn.2d 964, 983 P.2d 590 (1999). We rejected the contention that Ferrier was a “bright-line” rule required in every case where police obtain search authority by consent.

Rather, “[t]his court limited its holding in Ferrier to employment of a ‘knock and talk’ procedure.” Id. at 980. The police officers in Bustamante-Davila accompanied a United States Immigration and Naturalization Service (INS) agent serving a deportation order on the defendant at the defendant’s home. The court observed that the officers “merely accompanied the INS agent as backup, a standard practice in INS arrest and deportation matters.” Id. at 980.

At the defendant’s door, the defendant consented to entry into his home, where eventually the INS agent and police officers spotted an illegally held rifle in plain view. The court found that “Petitioner did not consent to a search, but consented to entry into his home by the INS agent.... Petitioner at least impliedly consented to entry by the local police officers accompanying the INS agent.” Id. at 980-81. We find that this situation is indistinguishable from Bustamante-Davila.

In this situation, the police officers did not seek to enter Jelinek’s apartment to look for contraband or to arbitrarily search a home for a hidden guest. The officers in this case first verified the accuracy of an informant’s statement and identified the defendant’s vehicle in front of Jelinek’s apartment, which allowed the officers to reasonably conclude that Williams was inside. Subsequently, when the officers spoke with Jelinek, the officers did not request permission to search the premises but asked only whether the defendant was inside.

Jelinek told the officers that there was a guest in his home and that he knew the guest by another name. He agreed to allow the police officers to come inside and confirm the identities of the persons inside. Considering the limited purpose of the police entry and that Jelinek acknowledged that he had guests inside, this case does not resemble a “knock and talk” warrantless search that Ferrier intended to prevent. We recognize that law enforcement officers need to enter people’s homes in order to provide their valuable services for the community on a daily basis.

We do not find it prudent or necessary to extend Ferrier to require that police advise citizens of their right to refuse entry every time a police officer enters their home. Police officers are oftentimes invited into homes for investigative purposes, including inspection of break-ins, vandalism, and other routine responses. We do not find a constitutional requirement that a police officer read a warning each time the officer enters a home to exercise that investigative duty.

To apply the Ferrier rule in these situations would unnecessarily hamper a police officer’s ability to investigate complaints and assist the citizenry. Instead, we limit the requirement of a warning to situations where police seek to conduct a search for contraband or evidence of a crime without obtaining a search warrant. We hold that the police officers’ entry into Jelinek’s home was valid and reverse the trial judge’s order suppressing the admission of heroin. We remand for further proceedings. Guy, C.J., and Talmadge, Ireland, and Bridge, JJ., concur. We stated in State v.

Carter, 127 Wn.2d 836, 841, 904 P.2d 290 (1995), that “[a] defendant who lacks automatic standing may still possess a legitimate expectation of privacy in the place searched or the thing seized, and on that basis be able to challenge the search or seizure.” See United States v. Salvucci, 448 U.S. 83, 86-87, 100 S. Ct. 2547, 2549-50, 65 L. Ed. 2d 619 (1980).

Considering that Jelinek’s apartment door was open when officers arrived and that the defendant stipulated he was a “casual visitor,” it proves difficult to reasonably conclude that the defendant had a “legitimate expectation of privacy” in Jelinek’s apartment. In Steagald v.

United States, the Court distinguished between the protections of the arrest and search warrants. “An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure.

A search warrant, in contrast, is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.” 451 U.S. at 213.

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article 7 of the Washington Constitution declares: “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The United States Constitution amendment IV provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A police officer testified that a “knock and talk” is “ ‘like any other follow-up investigation that a detective or police officer would do.

You go to the door, knock on the door, make contact with the resident, ask if you can come in to talk about whatever the complaint happens to be ... . Once you’re inside, you talk about why you’re there and you ask for permission to search the premises.’ ” Ferrier, 136 Wn.2d at 107.