Supreme Court of the State of Washington                                                                                          
                            Opinion Information Sheet                                                                                                 
Docket Number:       64930-8                                                                                                                          
Title of Case:       State of Washington                                                                                                              
                     Debra M. Ferrier                                                                                                                 
File Date:           08/27/98                                                                                                                         
Oral Argument Date:  09/18/97                                                                                                                         
                                SOURCE OF APPEAL                                                                                                      
Appeal from Superior Court,                                                                                                                           
            Kitsap County;                                                                                                                            
            Honorable James D. Roper, Judge.                                                                                                          
Authored by Gerry L. Alexander                                                                                                                        
Concurring: James M. Dolliver                                                                                                                         
            Charles Z. Smith                                                                                                                          
            Charles W. Johnson                                                                                                                        
            Barbara A. Madsen                                                                                                                         
            Philip A. Talmadge                                                                                                                        
            Richard B. Sanders                                                                                                                        
Dissenting: Barbara Durham                                                                                                                            
            Richard P. Guy                                                                                                                            
                                COUNSEL OF RECORD                                                                                                     
Counsel for Petitioner(s)                                                                                                                             
            John P. Jensen                                                                                                                            
            Attorney At Law                                                                                                                           
            107 Tacoma Ave. N.                                                                                                                        
            Tacoma, WA  98403                                                                                                                         
Counsel for Respondent(s)                                                                                                                             
            Pamela B. Loginsky                                                                                                                        
            Kitsap Co. Deputy Pros. Atty.                                                                                                             
            614 Division St  Ms 35                                                                                                                    
            Port Orchard, WA  98366                                                                                                                   
IN THE SUPREME COURT OF THE STATE OF WASHINGTON                                                                                                       
STATE OF WASHINGTON,                             )                                                                                                    
                                                 ) No. 64930-8                                                                                        
          Respondent,                            )                                                                                                    
     v.                                          ) En Banc                                                                                            
DEBRA M. FERRIER,                                )                                                                                                    
          Petitioner.                            )                                                                                                    
                                                 ) Filed August 27, 1998                                                                              
     ALEXANDER, J. -- We granted Debra Ferrier's petition to review a Court                                                                           
of Appeals' decision affirming her conviction for manufacture of a                                                                                    
controlled substance.  At issue is the validity of a warrantless search of                                                                            
Ferrier's home by officers of the Bremerton Police Department.  One of                                                                                
Ferrier's contentions is that the so-called "knock and talk" procedure                                                                                
employed by the police officers to obtain her consent to the search is                                                                                
violative of both the state and federal constitutions.  She asserts,                                                                                  
additionally, that she did not voluntarily consent to the search that was                                                                             
conducted by the police officers.  We conclude that because Ferrier 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, the search was                                                                                       
unconstitutional and the evidence obtained as a result should not have been                                                                           
admitted into evidence.  We, therefore, reverse her conviction.

     On April 19, 1993, two officers of the Bremerton Police Department                                                                               
received information from Ferrier's son, who was then in detention at the                                                                             
Youth Services Center in Port Orchard, that his mother was conducting a                                                                               
marijuana grow operation at her house in Bremerton.  Because Ferrier's son                                                                            
had no record as an informant, the officers were unable to make any                                                                                   
judgment about his credibility.  They did, however, drive by the residence                                                                            
that was located at the address given to them by the youth and confirmed                                                                              
that a house matching the description given to them was at that location. 

     Possessed only with the information Ferrier's son had provided to them                                                                           
and knowledge of the location of Ferrier's home, the officers met with two                                                                            
other Bremerton police officers at a "covert police department location" to                                                                           
discuss a procedure whereby they could gain entry to the home.  Verbatim                                                                              
Report of Proceedings (VRP) (vol. II) at 151.  At this meeting they hatched                                                                           
a plan to conduct a "knock and talk" because they believed that they could                                                                            
not obtain a search warrant without disclosing "the name of the informant,                                                                            
and we could do a knock and talk without doing that."  VRP (vol. I) at 40. 

     According to one of the police officers who testified at a suppression                                                                           
hearing, a knock and talk is a procedure 

     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, which in this case there's                                                                                 
     a complaint of a marijuana grow.
          Once you're inside, you talk about why you're there and you                                                                                 
     ask for permission to search the premises.                                                                                                       
VRP (vol. I) at 24.  The officer also testified that police officers have a                                                                           
high rate of success in getting home dwellers to consent to a search during                                                                           
a knock and talk.  He indicated that "{v}irtually everybody allows you in.                                                                            
. . . I would say about half of them {knock and talks} were successful in                                                                             
terms of the fact that we found evidence of a crime."  VRP (vol. I) at 26.

     At the conclusion of the meeting, the four police officers proceeded                                                                             
to Ferrier's residence.  They were all armed and each wore a black "raid                                                                              
jacket{}" which had the word "police" emblazoned in yellow letters across                                                                             
the front and back.  VRP (vol. I) at 28.  Upon arriving at Ferrier's                                                                                  
residence, two of the officers went to the back of the house in order to                                                                              
"secure the premises."  VRP (vol. I) at 45-46.  The others proceeded to the                                                                           
front entrance.

     The officers who initially went to the front door of Ferrier's home                                                                              
later testified at the suppression hearing that Ferrier opened the door in                                                                            
response to their knock.  They said that they immediately identified                                                                                  
themselves to Ferrier as police officers, whereupon she invited them into                                                                             
her house.  Upon entering the front room of Ferrier's home, the officers                                                                              
noticed that there were two infant children in the room.  According to both                                                                           
officers, they then radioed the officers at the rear of the home who                                                                                  
responded by entering the dwelling.  Upon their entry into the home, the 15-                                                                          
by 15-foot front room contained Ferrier, her two infant grandchildren and                                                                             
the four Bremerton police officers. 

     According to all three officers who testified at the suppression                                                                                 
hearing, Ferrier was told by them that they had information that a                                                                                    
marijuana grow operation was being conducted in the house, and that they                                                                              
wanted to search the home and seize the marijuana.  All of these officers                                                                             
indicated that Ferrier was then asked to consent to a search and that they                                                                            
went over a "consent to search" form with her before she signed it.  The                                                                              
form did not indicate that she had the right to refuse consent to the                                                                                 
search.  The officers conceded that Ferrier was not told by them that she                                                                             
had the right to refuse to consent to a search, nor was she informed of any                                                                           
other rights.  According to these officers, the consent form was signed by                                                                            
Ferrier within six or seven minutes after their entry into the home. 

     Ferrier, according to two of the officers, eventually led them                                                                                   
upstairs to a locked door, which she unlocked after retrieving a key.  The                                                                            
officers then entered the previously locked room and proceeded to search                                                                              
it.  One officer testified that Ferrier was crying during the time the                                                                                
police officers were searching the room.  Another officer indicated that                                                                              
Ferrier appeared frightened and nervous throughout the entire time they                                                                               
were at the premises. 

     Ferrier's testimony about the events leading to the search of her home                                                                           
varied in several respects from that of the police officers.  She testified                                                                           
that when the officers were at her front door they said they wanted to talk                                                                           
to her about her son, and that they then "stepped into the house while they                                                                           
said that."  VRP (vol. II) at 288.  She also stated that "I was terrified.                                                                            
I was scared.  They {the police officers} told me they were going to take                                                                             
my grandchildren to Child Protective Services."  VRP (vol. II) at 261.                                                                                
Ferrier indicated that she only signed the consent to search form                                                                                     
"{b}ecause I didn't want them to take my grandchildren away."  VRP (vol.                                                                              
II) at 264.  Ferrier confirmed that the police officers did not tell her                                                                              
that she could refuse to consent to a search nor did they inform her of any                                                                           
other rights. 

     The search of the upstairs room resulted in the seizure of 29 mature                                                                             
marijuana plants, 39 starter plants, and other evidence of a marijuana grow                                                                           
operation.  The police officers also seized $2,120 in cash from Ferrier's                                                                             
purse.  Ferrier was thereafter charged in Kitsap County Superior Court with                                                                           
manufacturing a controlled substance.1

     Ferrier moved, pursuant to CrR 3.6(a), to suppress all of the evidence                                                                           
obtained as a result of the search of her home.  Following a suppression                                                                              
hearing, the trial court denied her motion and entered findings of fact                                                                               
generally consistent with the State's version of the events leading to the                                                                            
seizure of the marijuana and other evidence.  Ferrier and the State then                                                                              
entered into a stipulation as to the facts and submitted them to the trial                                                                            
court which, following Ferrier's waiver of a jury trial, found Ferrier                                                                                
guilty of the charged crime.  Ferrier appealed the conviction to the Court                                                                            
of Appeals which affirmed.  State v. Ferrier, No. 19280-2-II, slip. op.                                                                               
(Wash. Ct. App. Nov. 27, 1996).  This court thereafter granted Ferrier's                                                                              
petition for review.2                                                                                                                                 


     Ferrier contends that the knock and talk procedure, as employed here,                                                                            
is violative of her rights under the Fourth Amendment to the United States                                                                            
Constitution.3  Thus, she argues, the consent to search given by her is                                                                               
vitiated.  Because she cites no authority for her argument that her federal                                                                           
constitutional rights were violated, we are not obliged to consider the                                                                               
contention.4  See State v. Lord, 117 Wn.2d 829, 853, 822 P.2d 177 (1991).                                                                             
In any case, the failure of the police to warn an individual of their right                                                                           
to refuse to consent to a warrantless search has previously been found to                                                                             
be merely a factor, and not necessarily dispositive, in assessing the                                                                                 
voluntariness of the consent under a Fourth Amendment analysis.  State v.                                                                             
Shoemaker, 85 Wn.2d 207, 212, 533 P.2d 123 (1975) (citing Schneckloth v.                                                                              
Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); United                                                                             
States v. Heimforth, 493 F.2d 970 (9th Cir. 1974)). 


     Ferrier's principal contention is that the knock and talk procedure as                                                                           
employed here violated her right to privacy granted by article I, section 7                                                                           
of Washington's Constitution and thus invalidated the consent she gave to                                                                             
the officers to search her home.  Because Ferrier engages in the                                                                                      
independent analysis required by State v. Gunwall, 106 Wn.2d 54, 61-62, 720                                                                           
P.2d 808, 76 A.L.R.4th 517 (1986), we can consider her claim under our                                                                                
state constitution.  State v. Wethered, 110 Wn.2d 466, 472-73, 755 P.2d 797                                                                           

     Article I, section 7 of our state's constitution provides that "{n}o                                                                             
person shall be disturbed in his private affairs, or his home invaded,                                                                                
without authority of law."  This provision differs from the Fourth                                                                                    
Amendment in that "{u}nlike the Fourth Amendment, Const. art. 1, sec. 7                                                                               
`clearly recognizes an individual's right to privacy with no express                                                                                  
limitations.'"  State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994)                                                                               
(emphasis added) (quoting State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d                                                                               
1199 (1980)).

     Nevertheless, in order to determine whether article I, section 7                                                                                 
provides greater protection for Ferrier's privacy interests under the                                                                                 
present facts, we must apply the six nonexclusive criteria that were first                                                                            
identified in Gunwall, 106 Wn.2d at 58.  Because this court is examining                                                                              
the same constitutional provision that was at issue in Gunwall, we merely                                                                             
adopt the analysis of factors one, two, three, and five that we undertook                                                                             
there.5  See State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990).                                                                               
Thus, we need examine only factors four and six to decide whether the knock                                                                           
and talk procedure, as employed here, ran afoul of Ferrier's state                                                                                    
constitutional right to privacy.  Even this examination need not be                                                                                   
exhaustive because "{o}ur analysis of art. I, sec. 7 of the Washington                                                                                
Constitution begins with the proposition that warrantless searches are                                                                                
unreasonable per se."  State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563                                                                           
(1996).  While "consent" to a warrantless search is one of the "narrow                                                                                
exceptions" to the warrant requirement "{t}he burden rests with the State                                                                             
to prove" its presence.  Hendrickson, 129 Wn.2d at 71.  This is no easy                                                                               
task because "{t}he exceptions to the requirement of a warrant, including                                                                             
consent, are "`"jealously and carefully drawn."'"  Hendrickson, 129 Wn.2d                                                                             
at 72 (quoting State v. Bradley, 105 Wn.2d 898, 902, 719 P.2d 546 (1986)                                                                              
(citing Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S. Ct. 2022, 29 L.                                                                           
Ed. 2d 120 (1971))).

     We look first to the fourth Gunwall factor, preexisting state law,                                                                               
Gunwall, 106 Wn.2d at 61-62, in order to determine the degree of privacy                                                                              
protection that Washington has historically afforded to individuals in                                                                                
similar situations.  Numerous cases from this court have indicated that                                                                               
article I, section 7 goes further than the Fourth Amendment in protecting                                                                             
"against warrantless searches and seizures, with no express limitations" to                                                                           
this protection.  City of Seattle v. Mesiani, 110 Wn.2d 454, 456, 755 P.2d                                                                            
775 (1988) (citing Simpson, 95 Wn.2d at 178); see, e.g., Young, 123 Wn.2d                                                                             
at 188 (prohibiting warrantless infrared surveillance of home); Boland, 115                                                                           
Wn.2d at 578 (prohibiting warrantless search of curbside trash); Gunwall,                                                                             
106 Wn.2d at 63 (prohibiting the warrantless obtaining of phone records or                                                                            
installation of a pen register); State v. Chrisman, 100 Wn.2d 814, 818, 676                                                                      
P.2d 419 (1984) (finding article I, section 7 violation in warrantless                                                                                
intrusion into student's dormitory room).  Especially evident is the fact                                                                             
that "{i}n no area is a citizen more entitled to his privacy than in his or                                                                           
her home.  For this reason, `the closer officers come to intrusion into a                                                                             
dwelling, the greater the constitutional protection.'"  Young, 123 Wn.2d at                                                                           
185 (citation omitted) (quoting Chrisman, 100 Wn.2d at 820).6 

     In addition, our state Legislature has long provided protection                                                                                  
against unlawful government intrusions into the home, making it a gross                                                                               
misdemeanor "for any policeman or other peace officer to enter and search                                                                             
any private dwelling house or place of residence without the authority of a                                                                           
search warrant issued upon a complaint as by law provided."  RCW 10.79.040.

     We find that preexisting state law, the fourth Gunwall factor, amply                                                                             
supports independent review of this case under article I, section 7.  We,                                                                             
therefore, next look to the sixth Gunwall factor, which requires us to                                                                                
examine whether the privacy interest at issue is a matter of particular                                                                               
state or local concern.  Gunwall, 106 Wn.2d at 62.  Because of some                                                                                   
overlap, the discussion under the fourth factor also applies here.  See                                                                               
Gunwall, 106 Wn.2d at 67.

     Ferrier correctly cites Young for the proposition that the degree of                                                                             
privacy a Washington citizen has in the home is primarily a local concern,                                                                            
and that there is no need for national uniformity on this issue.  Indeed,                                                                             
her argument that the privacy right at issue is local in nature finds                                                                                 
support in this court's willingness, in other contexts, to forsake national                                                                           
uniformity by refusing to abandon our state's well-established protections                                                                            
against "unreasonable governmental intrusions."  State v. Jackson, 102                                                                                
Wn.2d 432, 443, 688 P.2d 136 (1984).

     However, the State cites two cases in arguing that "Washington courts                                                                            
that have considered whether a different standard of consent applies under                                                                            
Const. art. I, sec. 7, have rejected this contention."  Supplemental Br. of                                                                           
Resp't at 13 (citing State v. McCrorey, 70 Wn. App 103, 108 n.3, 851 P.2d                                                                             
1234, review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993); State v.                                                                                     
Williamson, 42 Wn. App. 208, 213, 710 P.2d 205 (1985), review denied, 105                                                                             
Wn.2d 1012 (1986)). 

     Both of these cases are distinguishable from the present, and not just                                                                           
because they predate our holding in Young concerning the protections                                                                                  
afforded the home dweller.7  To guide it in reaching its decision, Division                                                                           
One in McCrorey found only "precedent construing federal authority and not                                                                            
our own state constitution."  McCrorey, 70 Wn. App. at 110.  Because we had                                                                           
not yet spoken on whether a separate state constitutional analysis for                                                                                
voluntary consent applied under article I, section 7, Division One                                                                                    
concluded that we were in lockstep with the federal rule on this issue.                                                                               
Williamson dealt with the standard of consent to search under the Fourth                                                                              
Amendment; in fact, that opinion did not even refer to article I, section                                                                        
7.  Thus the State's citation to Williamson in support of its argument is                                                                             
inexplicable.  Furthermore, even where we have previously conducted only a                                                                            
Fourth Amendment analysis, we have found that one of three identified                                                                                 
factors used in determining the "voluntariness of a consent to search" is                                                                             
"whether the consenting person had been advised of his right not to                                                                                   
consent."  Shoemaker, 85 Wn.2d at 212.

     Moreover, the State's response ignores the crux of Ferrier's challenge                                                                           
to the constitutionality of the procedure employed here.  Ferrier does not                                                                            
argue that the voluntary standard of consent is unconstitutional under                                                                                
article I, section 7.  The core of her argument is that the police here                                                                               
violated her expectation of privacy in her home because they conducted the                                                                            
knock and talk in order to search her home, thereby avoiding the general                                                                              
requirement that a search warrant be obtained.  Indeed, Ferrier argues that                                                                           
the violation of her privacy right was one of the factors that made her                                                                               
eventual consent involuntary.  This right is clearly an interest of local                                                                             
concern under the sixth Gunwall factor due to "{t}he heightened protection                                                                            
afforded state citizens against unlawful intrusion into private dwellings                                                                             
{that} places an onerous burden upon the government to show a compelling                                                                              
need to act outside of our warrant requirement."  Chrisman, 100 Wn.2d at                                                                              
822 (emphasis added).

     Having satisfied the need for an independent analysis,8 we next                                                                                  
consider whether the police violated the greater privacy protection                                                                              
provided by article I, section 7 in the manner in which they conducted this                                                                           
knock and talk procedure in an effort to obtain Ferrier's consent to search                                                                           
her home.  It is significant to our analysis, in this regard, that it is                                                                              
undisputed that Ferrier was in her home when the police initiated contact                                                                             
with her.  In addition, 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.  This, especially, flies in the face of                                                                             
our previous admonition that "`{w}here the police have ample opportunity to                                                                           
obtain a warrant, we do not look kindly on their failure to do so.'"  State                                                                           
v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989) (quoting approvingly                                                                               
from United States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984)).                                                                                   
Finally, and most importantly, the officers concede that they did not                                                                                 
advise Ferrier that she had the right to refuse to consent to a search of                                                                             
her home.  Based on these facts, all of which were found by the trial                                                                                 
court, we conclude that the knock and talk, as carried out here, violated                                                                             
Ferrier's state constitutional right to privacy in her home and, thus,                                                                                
vitiated the consent she gave.  This is so because she was not advised,                                                                               
prior to giving her consent to the search of her home, that she could                                                                                 
refuse to consent.

     Central to our holding is our belief that any knock and talk is                                                                                  
inherently coercive to some degree.  While not every knock and talk effort                                                                            
may be accompanied by as great a show of force as was present here, we                                                                                
believe that the great majority of home dwellers confronted by police                                                                                 
officers on their doorstep or in their home would not question the absence                                                                            
of a search warrant because they either (1) would not know that a warrant                                                                             
is required; (2) would feel inhibited from requesting its production, even                                                                            
if they knew of the warrant requirement; or (3) would simply be too stunned                                                                           
by the circumstances to make a reasoned decision about whether or not to                                                                              
consent to a warrantless search.  In this context, Ferrier's testimony,                                                                               
which was supported by the officers, that she was afraid and nervous seems                                                                            
totally reasonable.  Indeed, we are not surprised that, as noted earlier,                                                                             
an officer testified that virtually everyone confronted by a knock and talk                                                                           
accedes to the request to permit a search of their home.

     We wish to emphasize that we are not entirely disapproving of the                                                                                
knock and talk procedure, and we understand that its coercive effects are                                                                             
not altogether avoidable.  They can, however, be mitigated by requiring                                                                               
officers who conduct the procedure to warn home dwellers of their right to                                                                            
refuse consent to a warrantless search.  This would provide greater                                                                                   
protection for privacy rights that are protected by the state constitution                                                                            
and would also accord with the state's Fourth Amendment burden of                                                                                     
demonstrating, by clear and convincing evidence, that consent to a search                                                                             
was voluntarily given.  State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975                                                                              
(1990) (citing Shoemaker, 87 Wn.2d at 210; State v. Nelson, 47 Wn. App.                                                                               
157, 163, 734 P.2d 516 (1987)).

     Our decision is also consistent with that of the New Jersey Supreme                                                                              
Court, which has held under article I, paragraph 7 of its state                                                                                       
constitution 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."9 
State v. Johnson, 68 N.J. 349, 346 A.2d 66, 68 (1975) (emphasis added).  We                                                                      
would simply go 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.  As the United States Supreme Court has noted in another                                                                             
context:  "For those unaware of the privilege, the warning is needed simply                                                                           
to make them aware of it -- the threshold requirement for an intelligent                                                                              
decision as to its exercise."  Miranda v. Arizona, 384 U.S. 436, 468, 86 S.                                                                           
Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1965).  After all,                                                                                       
"{a}ssessments of the knowledge that the defendant possessed . . . can                                                                                
never be more than speculation; a warning is a clearcut fact."  Miranda,                                                                              
384 U.S. at 468-69 (footnote omitted).

     In reaching the conclusion we reach here, we are aware that an                                                                                   
argument could be made that the rule we adopt today may be somewhat                                                                                   
redundant because an officer's request for consent to search already                                                                                  
implies that one has the right to refuse that request.  That argument is                                                                              
unpersuasive and self-defeating.  If we assume that the right to refuse                                                                               
consent is implicit in the request made by the police, then there is no                                                                               
harm in requiring them to explicitly inform the home dweller of that fact.                                                                            
Furthermore, we do not believe that requiring police officers to inform                                                                               
residents of their right to refuse consent to the search will seriously                                                                               
impede the ability of the police to use the knock and talk as an                                                                                      
investigative tool, considering that there are many cases where a suspect                                                                             
consented to the search after being informed of the right to refuse                                                                                   
consent.  See, e.g., State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239                                                                              
(1997) (defendant signed a written consent to search that contained "a                                                                                
clear statement that the Defendant had `the lawful right to refuse to                                                                                 
consent to such a search.'") (emphasis added), cert. denied, 118 S. Ct.                                                                               
1193 (1998); Smith, 115 Wn.2d at 790 (defendant "signed a written consent                                                                             
to the search which included specific language that documented his right to                                                                           
refuse consent.") (emphasis added); cf. Paul G. Cassell & Bret S. Hayman,                                                                             
Police Interrogation in the 1990s:  An Empirical Study of the Effects of                                                                              
Miranda, 43 U.C.L.A. L. Rev. 839, 859 (1996) (reporting study showing that                                                                            
83.7 percent of all criminal suspects waived their Miranda rights). 

     We believe that the expectation of privacy in the home is clearly "one                                                                           
which a citizen of this state should be entitled to hold," City of Seattle                                                                            
v. McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994), because "the home                                                                               
receives heightened constitutional protection."  Young, 123 Wn.2d at 185.                                                                             
In light of the importance that we attach to that right in Washington, we                                                                             
are satisfied that public policy supports adoption of a 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.  After                                                                             
all, as we noted earlier, we have already held that the failure to warn is                                                                            
a factor to be employed in assessing the voluntariness of consent under the                                                                           
more permissive Fourth Amendment standard.  See Shoemaker, 85 Wn.2d at 212.                                                                           
In our judgment, further protection for individuals in their home is                                                                                  
necessary because, unlike a search warrant, a search resulting from a knock                                                                           
and talk need not be supported by probable cause, or even reasonable                                                                                  
suspicion, and the constitutionality of the search might otherwise only be                                                                            
reviewed, if ever, months after the search was conducted at an optional CrR                                                                           
3.6 suppression hearing.   Moreover, unlike a search based upon a warrant,                                                                            
the scope of a consensual search is often not limited to specific areas.                                                                              
See 3 Wayne R. LaFave, Search and Seizure sec. 8.1, at 596-97 (3d ed.                                                                                 

     While we recognize that a home dweller should be permitted to                                                                                    
voluntarily consent to a search of his or her home, the waiver of the right                                                                           
to require production of a warrant must, in the final analysis, be the                                                                                
product of an informed decision.  We, therefore, adopt the following rule:                                                                            
that 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.  The failure to provide these warnings, prior to entering the                                                                               
home, vitiates any consent given thereafter.10 

     In light of our holding that the knock and talk procedure involved                                                                               
here was unconstitutional, we need not address Ferrier's argument that what                                                                           
followed, her consent to the search of her home, was involuntarily given.

     Finally, we have previously held that "{w}ithout an immediate                                                                                    
application of the exclusionary rule whenever an individual's right to                                                                                
privacy is unreasonably invaded, the protections of the Fourth Amendment                                                                              
and Const. art 1, sec. 7 are seriously eroded."  State v. White, 97 Wn.2d                                                                             
92, 111-12, 640 P.2d 1061 (1982).  Accordingly, we conclude that the trial                                                                            
court erred in failing to suppress the evidence obtained in the unlawful                                                                              
search of Ferrier's home.  Ferrier's conviction is, therefore, reversed.                                                                              
WE CONCUR:                                                                                                                                            

     1 RCW 69.50.401(a) provides in pertinent part: 
     "(a) Except as authorized by this chapter, it is unlawful for any                                                                                
person to manufacture . . . a controlled substance." 

     2 Ferrier also raised double jeopardy and right to counsel issues at                                                                              
the Court of Appeals.  She did not, however, raise these issues in her                                                                                
petition to this court.

     3 The Fourth Amendment provides:  "The 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 . . . ." 

     4 Regardless, "to apply the federal constitution before the Washington                                                                            
Constitution would be as improper and premature as deciding a case on state                                                                           
constitutional grounds when statutory grounds would have sufficed, and for                                                                            
essentially the same reasons."  State v. Coe, 101 Wn.2d 364, 374, 679 P.2d                                                                            
353 (1984).

     5 Those factors are:  (1) the state constitution's textual language;                                                                              
(2) significant textual differences between parallel state and federal                                                                                
constitutional provisions; (3) state constitutional and common law history;                                                                           
and (5) structural differences between the state and federal constitutions.                                                                           
Gunwall, 106 Wn.2d at 61-62.

     6 We can find a historical antecedent for this principle in a passage                                                                             
quoted in Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 2 L.                                                                            
Ed. 2d 1332 (1958), from a speech given in 1763 by William Pitt, the Earl                                                                             
of Chatham, during a debate in Parliament:  "`The poorest man may in his                                                                              
cottage bid defiance to all the forces of the Crown.  It may be frail; its                                                                            
roof may shake; the wind may blow through it; the storm may enter; the rain                                                                           
may enter; but the King of England cannot enter -- all his force dares not                                                                            
cross the threshold of the ruined tenement!'" 

     7 In Young we held that "in examining our state constitution's explicit                                                                           
protection of the home, the fact the search occurs at a home is central to                                                                            
the analysis."  Young, 123 Wn.2d at 185 n.2.

     8 The dissent contends that "we have already determined that federal                                                                              
precedent controls in evaluating consent cases under article I, section 7."                                                                           
Dissenting op. at 2.  Cited in support of this proposition are "common                                                                                
authority to consent to a search of a home" cases such as State v. Leach,                                                                             
113 Wn.2d 735, 782 P.2d 1035 (1989).  Dissenting op. at 2.  We disagree                                                                               
with that contention.  The question there was who can provide consent, not                                                                            
whether consent was voluntarily given.  See Leach, 113 Wn.2d 735.  Our                                                                                
holding here is in no way contrary to Leach.

     The dissent's more serious criticism of our holding is that "in a case                                                                           
very closely on point, we utilized an exclusively Fourth Amendment analysis                                                                           
to resolve an article I, section 7 challenge to the voluntariness of a                                                                                
person's consent to search his home."   Dissenting op. at 2-3 (citing                                                                                 
McNear v. Rhay, 65 Wn.2d 530, 534, 536-38, 398 P.2d 732 (1965)).  McNear is                                                                           
inapplicable here, though.  Not only does it predate Gunwall, but it even                                                                             
predates this court's first real articulation of the differences between                                                                              
the Fourth Amendment and article I, section 7.  See State v. Simpson, 95                                                                              
Wn.2d 170, 177-78, 622 P.2d 1199 (1980).  Article I, section 7                                                                                        
jurisprudence simply cannot be frozen in time as of 1965.  "{T}he                                                                                     
constitution was not intended to be a static document incapable of coping                                                                             
with changing times.  It was meant to be, and is, a living document with                                                                              
current effectiveness."  Seattle School Dist. No. 1 v. State, 90 Wn.2d 476,                                                                           
517, 585 P.2d 71 (1978).  McNear does mention, in passing, the defendant's                                                                            
assertions that article I, section 7, along with various other federal and                                                                            
constitutional rights, was violated.  See McNear, 65 Wn.2d at 534-35.                                                                                 
However, it does not disclose any effort at independent analysis of article                                                                           
I, section 7.  Indeed, after this court's sparse summary of the defendant's                                                                           
assertions McNear never again mentions article I, section 7.  Mere silence                                                                            
cannot signal the adoption, forevermore, of a Fourth Amendment voluntary                                                                              
consent analysis.  Accordingly, the dissent is left in the unsupported                                                                                
position of being unable to deny that a search of a home is governed by                                                                               
article I, section 7, but arguing that consent to that same search is                                                                                 
somehow governed by the Fourth Amendment alone.

     9 This decision was remarkable inasmuch as the court noted that New                                                                               
Jersey's article I, paragraph 7 (quite unlike Washington's article I,                                                                                 
section 7) "is taken almost verbatim from the Fourth Amendment and until                                                                              
now has not been held to impose higher or different standards than those                                                                              
called for by the Fourth Amendment."  Johnson, 346 A.2d at 68 n.2.  In                                                                                
contrast, we are faced with a clearer imperative.

     10 Although the police procedure involved here was constitutionally                                                                               
infirm, the general use of a "consent to search" form, such as the one                                                                                
signed by Ferrier and the ones found in Stenson and Smith, carries with it                                                                            
the advantage of creating evidence that avoids ambiguity over whether                                                                                 
consent was actually given.                                                                                                                           

State v. Ferrier (Debra M.) Majority by Alexander, J. Dissent by Durham, C.J. 64930-8 DURHAM, C.J. (dissenting) -- The majority holds that, under article I, section 7 of our state constitution, a person's consent to search his or her home is invalid unless the police expressly inform that person of the right to refuse consent. Because there is no basis for such a rule under our case law, I respectfully dissent. Ms. Ferrier challenges the validity of her consent under both article I, section 7 of the Washington State Constitution and the fourth amendment to the United States Constitution. The majority observes that this court will resort to independent state constitutional grounds rather than deferring to comparable federal constitutional provisions only when warranted in light of the Gunwall1 factors. Majority at 9. Given our extensive prior evaluation of article I, section 7 in light of the Gunwall factors, the majority focuses the inquiry on the degree of privacy protection our preexisting state law "has historically afforded to individuals in similar situations." Majority at 11. Yet, in justifying a separate state constitutional analysis, the majority fails to cite a single article I, section 7 case involving consent to search a home. Instead, the majority demonstrates only that this court has historically afforded broader state privacy rights against infrared surveillance and against searches of curbside trash, phone records, and dormitory rooms.2 Were we without any cases more closely on point, these cases might be sufficiently "similar situations" because of the common element of the home. However, we have already determined that federal precedent controls in evaluating consent cases under article I, section 7. For example, we have expressly adopted federal precedent as determinative in article I, section 7 cases regarding the common authority to consent to search of a home. See State v. Mathe, 102 Wn.2d 537, 543, 688 P.2d 859 (1984) (adopting United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) "as the proper guide to determine test questions of consent issues under Const. art. I, sec. 7"); State v. Leach, 113 Wn.2d 735, 739, 782 P.2d 1035 (1989) ("This court has expressly adopted the Matlock standard for determining issues of consent under Const. art. 1, sec. 7.")). And, in a case very closely on point, we utilized an exclusively Fourth Amendment analysis to resolve an article I, section 7 challenge to the voluntariness of a person's consent to search his home. McNear v. Rhay, 65 Wn.2d 530, 534, 536-38, 398 P.2d 732 (1965). Thus, our preexisting case law suggests that Fourth Amendment analysis is appropriate in evaluating the validity of consent to search a home under article I, section 7. Under the Fourth Amendment, the voluntariness of consent to search is a question of fact to be determined by considering the totality of circumstances surrounding the consent. State v. Smith, 115 Wn.2d 775, 801 P.2d 975 (1990). Factors to be considered include whether Miranda warnings had been given prior to obtaining consent, the degree of education and intelligence of the consenting person, and whether the consenting person had been advised of the right not to consent. Smith, 115 Wn.2d at 789; State v. Shoemaker, 85 Wn.2d 207, 212, 533 P.2d 123 (1975). The Courts of Appeals have also considered (1) whether the police made any express or implied claims of authority to search or enter; (2) previous illegal actions of the police; (3) the defendant's degree of cooperation; and (4) police deception as to identity or purpose. State v. McCrorey, 70 Wn. App. 103, 112, 851 P.2d 1234, review denied, 122 Wn.2d 1013 (1993); State v. Flowers, 57 Wn. App. 636, 645, 789 P.2d 333, review denied, 115 Wn.2d 1990 (1990). In the present case, the police did not give Miranda warnings and did not expressly inform Ms. Ferrier that she could refuse consent; but Ms. Ferrier had completed the 11th grade, the police did not claim authority to search or enter, the court found that Ms. Ferrier had cooperated with the police, and there was no indication of police deception or illegal activity. Indeed, the police made clear from the beginning that they wanted permission to search for illegal drug activity and that the fruits of the search would be used against her in court. Under these circumstances, Ms. Ferrier's consent was voluntary and the seized evidence was properly admitted at trial. I would affirm. FOOTNOTES 1 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). 2 Majority at 11-12 (citing State v. Young, 123 Wn.2d 173, 188, 867 P.2d 593 (1994); State v. Boland, 115 Wn.2d 571, 578, 800 P.2d 1112 (1990); Gunwall, 106 Wn.2d at 63; State v. Chrisman, 100 Wn.2d 814, 818, 676 P.2d 419 (1984)).