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Washington Court Upholds Right to Privacy in the Home

On March 3, 2015 Division III of the Court of Appeals of Washington issued its decision in State v. Budd.  This is a significant decision regarding the right to privacy in a person's home.

The decision opens with a exchange between Senator Tallmadge and John Ehrlichman, one of Nixon's henchmen, during the Watergate era. The topic is the protection of even the humblest dwelling from invasion by minions of the Crown.

 Budd was being investigated by the police for possession of child pornography. Lacking probable cause for a warrant, the  police decided to employ an investigatory tactic know as  "knock and talk". They confronted Budd outside his home with their suspicions.  They asked for his consent to enter and seize his computer. The investigating officer said that if he refused, she would and could obtain a warrant to search the house. Budd apparently did not want his girlfriend to see any of the images on his computer. When the police agreed not to do that, he agreed to allow them to enter.

In State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), the Washington Supreme Court held that police seeking to enter a house in what became known as a "knock and talk" investigation had to inform a homeowner that he or she had the right to refuse entry to the police and revoke consent, if given, at any time The decision was premised on the idea  a warning or advisement of rights was necessary in order to give informed consent to the entry and search of the protected area of the home.

 

 In the Budd case, the detective initially claimed she advised him outside the house that he could  stop the search when he wanted to do so. Ultimately, she testified that he was not given "Ferrier" warnings until the police were already inside the house.

 

The prosecution argued that giving the warnings after the police were in the house was sufficient. The Court of Appeals disagreed. It noted that privacy interests are strongest in the home, and that the warnings needed to be given before  entry in order to have efficacy. The Ferrier court had been explicit that warnings about the right to refuse entry and to terminate the search had to be given before the police enter, not after they have already crossed the threshold. The Budd  court applied the Ferrier rule to this case, and dismissed the prosecution.

 

 Like Miranda warnings, which advise accused persons about their right to counsel and right to remain silent, Ferrier warnings are intended to inform citizens about their constitutional rights. The Budd decision is a welcome addition to this line of cases and will be an aid to criminal defense lawyers in Washington.

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