Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65832-3
Title of Case: State of Washington V. Gus D. Walker
v.
State of Washington V. Ellen J. Walker
File Date: 10/22/98
Oral Argument Date: 05/27/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Grays Harbor County;
95-1-00093-5
Honorable Gordon L. Godfrey, Judge.
JUSTICES
--------
Authored by Gerry L. Alexander
Concurring: Barbara Durham
James M. Dolliver
Charles Z. Smith
Richard P. Guy
Barbara A. Madsen
Philip A. Talmadge
Dissenting: Richard B. Sanders
Charles W. Johnson
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
James G. Baker
Grays Harbor Co Deputy Pros Atty
P.O. Box 550
Montesano, WA 98563
Counsel for Respondent(s)
Jack L. Burtch
Attorney At Law
PO Box a
218 N Broadway St
Aberdeen, WA 98520-0247
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 65832-3
)
Petitioner, )
)
v. ) En Banc
)
ELLEN J. WALKER, )
)
Respondent. )
) Filed October 22, 1998
ALEXANDER, J. -- The only issue before us is whether the trial court
wrongly denied Ellen Walker's (Ellen) motion to suppress evidence obtained
in a search of her home to which she voluntarily consented. The Court of
Appeals held that the trial court erred in not granting her motion for the
reason that Ellen's spouse, who was also present at their home at the time
of the search, did not also consent to the search. We disagree with that
conclusion and hold that the failure of the police to obtain the consent of
Ellen's husband did not vitiate the search as to Ellen. We, therefore,
reverse the Court of Appeals and affirm Ellen's conviction.
Ellen's 12-year-old nephew was caught at Hoquiam Middle School with a
bag of marijuana. Following a telephone call by school authorities to the
Hoquiam Police Department, a police officer was dispatched to the school.
The investigating officer, Steve Hierholzer, was told by Ellen's nephew
that he lived with Ellen and her husband, that he had obtained the
marijuana from their home and that "there was more there at the residence."
Verbatim Report of Proceedings at 9. After the boy was arrested and taken
to the Hoquiam Police Department, Ellen was called at her place of work and
asked to come to the police station. Upon her arrival, Hierholzer and
another officer informed her that they thought they had probable cause to
obtain a search warrant authorizing a search of her home. They explained
that an alternative for Ellen was to consent to a limited search of her
home. Ellen then signed a permission to search form that was presented to
her by the officers. It provided as follows:
PERMISSION TO SEARCH
I, Ellen J. Walker 7-1-62, have been informed by Detective Blodgett and
Officer Hierholzer who made proper identification as (an) authorized law
enforcement officer(s) of the Hoquiam Police Department of my
CONSTITUTIONAL RIGHT not to have a search made of the premises and property
owned by me and/or under my care, custody and control, without a search
warrant.
Knowing of my lawful right to refuse to consent to such a search, I
willingly give my permission to the above named officer(s) to conduct a
complete search of the premises and property, including all buildings and
vehicles, both inside and outside of the property located at {property
address}.
The above said officer(s) further have my permission to take from my
premises and property, any letters, papers, materials or any other property
or things which they desire as evidence for criminal prosecution in the
case or cases under investigation.
This written permission to search without a search warrant is given by me
to the above officer(s) voluntarily without any threats or promises of any
kind, at 2:30 p.m. on this 1 day of February 1995, at HQPD . . . .
/s/ Ellen Walker
Pl.'s Ex. 1.
The police officers then drove Ellen to her home. Shortly after they
arrived at her house but prior to entering it, Ellen's husband, Gus Walker
(Gus), arrived at the premises. Without speaking to Gus, Ellen led Officer
Hierholzer to a bedroom she shared with Gus. She then retrieved a bag of
marijuana from a closet and handed it to him. Hierholzer then searched the
closet himself and found another bag of marijuana.
While the search was being conducted, another officer, Detective
Blodgett, informed Gus that Ellen had given them permission to search the
home. Although Gus was not asked to consent to a search of the house, he
did not voice any objection to the officer's activities. Gus later gave
his oral consent to a search of the garage, but no evidence was seized
there.
The State charged Ellen and Gus Walker separately with possession of
marijuana in excess of 40 grams. RCW 69.50.401. Shortly after the charges
were filed, the cases were consolidated for purposes of trial. The
defendants then filed a joint motion to suppress the marijuana obtained in
the search of their bedroom. Following a hearing on their motion, the
trial court entered findings of fact and concluded, therefrom, that
although Ellen had voluntarily consented to the search of the house, Gus
had not. Consequently, it granted Gus's suppression motion and dismissed
the charge against him. It denied Ellen's motion. At a bench trial, Ellen
was found guilty of the charge.
The State appealed the trial court's order granting Gus's motion.
Ellen appealed the order denying her motion. The Court of Appeals affirmed
suppression of the evidence in the case against Gus, but reversed the trial
court's order denying Ellen's motion to suppress and remanded with
directions to dismiss the charge against her. State v. Walker, 86 Wn. App.
857, 941 P.2d 1 (1997), review granted, 134 Wn.2d 1006, 954 P.2d 277
(1998). The State sought review of the latter decision contending that the
Court of Appeals erred in concluding that the written consent to search
that was signed by Ellen and given to the Hoquiam police officers was
vitiated by the failure of the police to seek and obtain the consent of her
husband who was present at the home at the time it was searched. We
granted review.
Warrantless searches are per se unreasonable unless they fall within
an established and well-delineated exception to the warrant requirement.
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564
(1971); Jacobsen v. City of Seattle, 98 Wn.2d 668, 672, 658 P.2d 653
(1983). One of the exceptions to the warrant requirement is consent to a
search. State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989). The
burden, however, is on the State to show that a consent to search was
voluntarily given. State v. Shoemaker, 85 Wn.2d 207, 210, 533 P.2d 123
(1975). The State must meet three requirements in order to show that a
warrantless but consensual search was valid: (1) the consent must be
voluntary; (2) the person granting consent must have authority to consent;
and (3) the search must not exceed the scope of the consent. State v.
Nedergard, 51 Wn. App. 304, 308, 753 P.2d 526, review denied, 111 Wn.2d
1007 (1988); see also Robert F. Utter, Survey of Washington Search and
Seizure Law, 9 U. Puget Sound L. Rev. 1, 112 (1985).
The second factor, whether the person granting consent had authority
to do so, is the only issue that is in contention here.1 Clearly, as a
cohabitant with common authority over the premises, Ellen had authority to
consent to the search and that consent was valid as against an absent,
nonconsenting person with whom that authority was shared. United States v.
Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). The
more pertinent question and the one before us is whether her authority to
consent to a search evaporated when her cohabitant, Gus, arrived at the
premises just before the search was conducted.
The State contended in its petition for review and in argument to this
court that the Court of Appeals incorrectly concluded that a consent to
search given by an inhabitant of a dwelling is vitiated by the failure of
the police to obtain the consent of any cohabitant who was present at the
time the consent was obtained. In concluding that the failure of the
Hoquiam police to obtain Gus's consent to the search essentially vetoed
Ellen's otherwise voluntary consent, the Court of Appeals purported to rely
on our decision in Leach. In Leach, the police obtained consent to search
from the defendant's girlfriend who had equal control over the business
premises where the search was conducted. The record showed that when the
officers arrived at the place to be searched (a travel agency), the
defendant, Leach, was present. The officers arrested and handcuffed Leach
and placed him in a chair while they conducted the search of the premises.
When Leach was charged, he moved to suppress the evidence seized in the
search, arguing that he had not consented to the search. The trial court
denied his motion. On review, the Court of Appeals concluded that the
search was invalid, absent Leach's consent to it, and it remanded for an
evidentiary hearing to determine if he had consented. This court affirmed
the Court of Appeals in Leach, concluding that while a person with equal
control of a premise may consent to a search in the absence of the
defendant, "the police must obtain the consent of a cohabitant who is
present and able to object in order to effect a valid warrantless search."
Leach, 113 Wn.2d at 736.
We can understand how this quote from Leach, when viewed out of
context (i.e., that the evidence obtained in the search was entered into
evidence against the nonconsenting cohabitant), might give some solace to
Ellen. It does not, however, avail her here because Leach does not stand
for the proposition advanced by Ellen. Rather, the case supports the
proposition that "{w}here the police have obtained consent to search from
an individual possessing, at best, equal control over the premises, that
consent remains valid against a cohabitant, who also possesses equal
control, only while the cohabitant is absent." Leach, 113 Wn.2d at 744
(emphasis added). It follows from that opinion that because Ellen and Gus
were cohabitants and both present during the search, Ellen's consent to the
search was invalid as to Gus. Indeed the Court of Appeals so ruled in the
State's appeal from the trial court's order granting Gus's suppression
motion and the State did not seek review of that decision here.
The dissent asserts that this court squarely answered the question at
issue here when we stated in Leach that the police must obtain the consent
of a cohabitant who is present in order to effect a valid warrantless
search. Dissenting op. at 3. The dissent contends that this means that
since the Hoquiam Police failed to obtain Gus's consent to the search, it
was invalid as to Ellen. Dissenting op. at 4. This conclusion
misconstrues our holding in Leach. We did not, as the dissent suggests,
state there that a search is invalid as to the person who gave consent, if
that person's cohabitant did not consent to the search or merely kept
silent.2 It does not follow, therefore, that the officers' failure to ask
Gus to consent to the search makes Ellen's consent invalid as to her.
We believe, in short, that the Court of Appeals incorrectly extended
our holding in Leach when it concluded that a cohabitant who is present at
the time a search is conducted may revoke the other cohabitant's voluntary
waiver of his or her Fourth Amendment rights. Such a holding, as we have
noted, misinterprets Leach and flies in the face of settled law that Fourth
Amendment rights are personal rights that cannot be vicariously asserted.
Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 58 L. Ed. 2d 387
(1978). We agree, in that regard, with the view expressed by the Court of
Appeals in State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358, review
denied, 122 Wn.2d 1018, 863 P.2d 1352 (1993), that "one cannot invoke the
Fourth Amendment rights of others."
Although we recognize that the Court of Appeals expressed concern that
by failing to ask for Gus's permission to search, the police officers
denied Ellen an opportunity to revoke her consent based on his response, we
believe that view is somewhat patronizing toward Ellen. We should not
presume, as did the Court of Appeals, that Ellen would defer to Gus's lack
of consent, particularly in light of this record which reveals that Ellen
voluntarily signed a consent to search form that fully informed her of her
right not to consent to the search. It also discloses that Ellen knew that
Gus was at their home when the search was conducted. She did not, however,
endeavor to speak to him before taking the police officers to the closet
where the controlled substance was found. While we hesitate to draw any
conclusions about what Ellen was thinking at that time, it is logical to
presume that she felt capable of making up her own mind about whether or
not to consent to the search. Although Ellen clearly had rights of privacy
under the Fourth Amendment that deserved to be respected, her decision to
give up those rights should also be respected.
Ellen's counsel engaged in a Gunwall3 analysis in the brief he
presented to the Court of Appeals in support of his argument that Ellen was
entitled to heightened protection under article I, section 7 of our state
constitution. This argument overlooks our decision in State v. Mathe, 102
Wn.2d 537, 688 P.2d 859 (1984), in which we specifically adopted the
federal test for consent that is set forth in Matlock. In any case,
article I, section 7 provides only that one's private affairs not be
disturbed and that a person's home not be invaded without authority of law.
Although the Hoquiam police officers were not armed with a search warrant,
they had Ellen's freely-given permission to search her home and she cannot
be heard to complain, now, that the search was unlawful as to her or that
her privacy was disturbed.
CONCLUSION
In our judgment, the Court of Appeals extended our holding in Leach to
an extent we did not intend. While our decision in Leach supports the
notion that one's otherwise voluntary consent to a search is not valid as
against a cohabitant of the premises who is present when the search is
conducted, it does not support the view that this consent is not valid as
against the consenting person.
Affirmed.
WE CONCUR:
FOOTNOTES
1 Ellen contended at the Court of Appeals that she did not knowingly
and voluntarily consent to the search. She also assigned error to certain
of the trial court's findings of fact. Although the Court of Appeals held
that Ellen consented to the search, it did not address her challenge to the
trial court's findings. She did not, however, seek review of the Court of
Appeals' decision, nor did she present a brief in response to the State's
petition for review. We, therefore, have limited our decision to the issue
raised in the State's petition.
2 The dissent alleges that "{m}ost commentators also agree failure to
obtain the consent of present cohabitants renders the search itself illegal
(and not legal as to some and illegal as to others)." Dissenting op. at 7.
This assertion is arguable. See United States v. Donlin, 982 F.2d 31, 33
(1st Cir. 1992) ("Valid consent may be given by a defendant or a third
party with 'common authority' over the premises. Third party consent
remains valid even when the defendant specifically objects to it.")
(citation omitted); United States v. Childs, 944 F.2d 491, 495 (9th Cir.
1991) (holding "the valid consent of a person with common authority will
justify the search of a residence even if the co-occupant is physically
present") (emphasis added); United States v. Hendrix, 595 F.2d 883, 885
(D.C. Cir. 1979) (upholding the validity of a warrantless search where the
defendant was present and did not consent, but his wife did consent,
because the rule developed in Matlock did not depend on the defendant's
absence); People v. Sanders, 904 P.2d 1311, 1313 (Colo. 1995) ("The valid
consent of a person with 'common authority' will justify a warrantless
search of a residence despite the physical presence of a nonconsenting co-
occupant."); State v. Frame, 45 Or. App. 723, 609 P.2d 830, 833 (1980)
(holding that the consent to search given by the defendant's wife and
cohabitant was an effective consent because it was consistent with the
rationale set forth in United States v. Matlock); 3 Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment 8.3(d), at 730-32 (3d ed.
1996) (highlighting the disagreement in this area).
3 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517
(1986).
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65832-3
Title of Case: State of Washington V. Gus D. Walker
v.
State of Washington V. Ellen J. Walker
File Date: 10/22/98
Oral Argument Date: 05/27/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Grays Harbor County;
95-1-00093-5
Honorable Gordon L. Godfrey, Judge.
JUSTICES
--------
Authored by Gerry L. Alexander
Concurring: Barbara Durham
James M. Dolliver
Charles Z. Smith
Richard P. Guy
Barbara A. Madsen
Philip A. Talmadge
Dissenting: Richard B. Sanders
Charles W. Johnson
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
James G. Baker
Grays Harbor Co Deputy Pros Atty
P.O. Box 550
Montesano, WA 98563
Counsel for Respondent(s)
Jack L. Burtch
Attorney At Law
PO Box a
218 N Broadway St
Aberdeen, WA 98520-0247
Dissent by Sanders, J.
65832-3
SANDERS, J. (dissenting) The issue is whether this warrantless search of
the Walker home violated the Fourth Amendment. The majority concedes it
did but will not suppress the fruit of this poisoned tree.
Controlling precedent holds when authorities rely on consent to avoid the
warrant requirement, "the police must obtain the consent of a cohabitant
who is present and able to object in order to effect a valid warrantless
search." State v. Leach, 113 Wn.2d 735, 736, 782 P.2d 1035 (1989). But
here police failed to obtain the consent of Mr. Walker, a cohabitant who
was present and able to object. Accordingly the warrantless search of the
Walker home was unconstitutional. In such situations the door, in effect,
has multiple locks with each present cohabitant holding one key. But
without keys to each lock, the door may not be constitutionally opened.
State v. Leach squarely addressed the claimed co-occupant exception to the
warrant requirement. Prior to Leach we held a warrantless search of a
building based on the consent of one co-occupant without the consent of
absent co-occupants does not offend the constitution. See State v. Mathe,
102 Wn.2d 537, 541, 688 P.2d 859 (1984) (adopting United States v. Matlock,
415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)). The reciprocal
proposition is failure to obtain the consent of a present co-occupant is
inadequate to avoid the warrant requirement.
In Leach police conducted a warrantless search of a building based on the
consent of one co-occupant although the other co-occupant was present when
the police arrived to search but he was not asked for consent. The police
simply held him to one side and searched anyway.
Leach began by noting Matlock and Mathe had not definitively answered
whether the police need to obtain the consent of present co-occupants in
order to effect a warrantless search based on the consent of another
cohabitant and then noted a split in authority on the answer. Leach quoted
from the leading text to the effect that one line of authority allows the
police to make the search with the consent of only one of the present co-
occupants while the other line of authority holds "that the consent of both
is required when both are present." Leach, 113 Wn.2d at 740 (quoting 3
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
sec. 8.3(d) (3d ed. 1996) (hereinafter "3 LaFave, Search and Seizure").
Leach then opined that the line of authority requiring consent of both co-
occupants "'has somewhat greater appeal'" (Leach, 113 Wn.2d at 740 (quoting
3 LaFave, Search and Seizure at 252)), and adhered to the rule that "'When
two or more persons have equal use of a place in which both are present,
the consent of one does not normally eliminate the need for the consent of
the other(s) before a search is made . . . .'" Leach, 113 Wn.2d at 742
(quoting Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi.
L. Rev. 47, 63 (1974)). Finally, Leach squarely answered the question
presented: "We hold the police must obtain the consent of a cohabitant who
is present and able to object in order to effect a valid warrantless
search." Leach, 113 Wn.2d at 736 (emphasis added).1
Here, the police failed to obtain the consent of Mr. Walker even though he
was a cohabitant present and able to object. Under Leach the search was
invalid. Period.
The majority, however, seeks to validate this warrantless search without
overruling Leach or Fourth Amendment jurisprudence. It concedes under
Leach this search violated the Fourth Amendment but only as to Mr. Walker.
Majority at 7. But as to Mrs. Walker, the majority admits the fruits of
this unconstitutional search into evidence. This reasoning is flawed
because under the Fourth Amendment a search is either constitutional or it
is not constitutional. If the search is constitutional all evidence
discovered is admissible while, on the other hand, "all evidence which is
the product of an illegal search or seizure is suppressed." State v.
White, 97 Wn.2d 92, 101, 640 P.2d 1061 (1982) (citing Wong Sun v. United
States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). The issue is
the constitutionality of the search, not the status of the person who bears
the consequences. Here the majority concedes the search was
unconstitutional but will not suppress its poisoned fruit.
Not all jurisdictions have followed the approach taken by this court in
Leach. As the majority notes in its second footnote, some courts have
instead found that a search will be constitutional where consent is given
by a party with "common authority" over the premises, even though a co-
occupant is present but has not consented. United States v. Donlin, 982
F.2d 31 (1st Cir. 1992); United States v. Childs, 944 F.2d 491 (9th Cir.
1991); United States v. Hendrix, 595 F.2d 883 (D.C. Cir. 1979); People v.
Sanders, 904 P.2d 1311 (Colo. 1995); State v. Frame, 45 Or. App. 723, 609
P.2d 830 (1980). In each of these cases, the search in question was found
to be constitutional and the fruits admitted, despite the nonconsent of a
co-occupant. Donlin, 982 F.2d at 33-34; Childs, 944 F.2d at 495; Hendrix,
595 F.2d at 885; Sanders, 904 P.2d at 1315; Frame, 609 P.2d at 833-34.
However Leach considered relevant court opinions on this matter from other
jurisdictions and expressly refused to follow the legal route taken by the
court in Frame, emphatically stating:
Where the police have obtained consent to search from an individual
possessing, at best, equal control over the premises, that consent remains
valid against a cohabitant, who also possesses equal control, only while
the cohabitant is absent. However, should the cohabitant be present and
able to object, the police must also obtain the cohabitant's consent. Any
other rule exhalts {sic} expediency over an individual's Fourth Amendment
guaranties. Accordingly, we refuse to beat a path to the door of
exceptions.
Leach, 113 Wn.2d at 744 (emphasis added). While this court in Leach
steadfastly refused to embark upon a journey which would impair
constitutional rights, the majority in the instant case teeters in that
direction by obscuring the difference between the cases it cites in
footnote two and this court's decision in Leach. Although the majority
acknowledges that the search in the present case was found to be
unconstitutional (correctly following Leach), the majority nevertheless
finds the fruit of the search to be admissible against Mrs. Walker (citing
cases at footnote two for support). The fallacy of this position is that
it confuses and commingles two conflicting strands of case law which follow
opposing judicial routes. As noted above, in every case cited by the
majority in footnote two, the fruits of a search were deemed admissible
only after the search was found to be constitutional, i.e., distinctions as
to admissibility of the fruits of a particular search against the
consenting occupant and the nonconsenting occupant were never drawn. There
is no authority for the majority's proposition that the fruits of an
unconstitutional search should be admitted into evidence. Indeed such a
proposition violates one of the founding principles of the Fourth
Amendment. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9
L. Ed. 2d 441 (1963) (holding that evidence resulting from an
unconstitutional search or seizure must be suppressed).
Most commentators also agree failure to obtain the consent of present
cohabitants renders the search itself illegal (and not legal as to some and
illegal as to others). See, e.g., Laura L. Silva, State Constitutional
Criminal Adjudication in Washington Since State v. Gunwall: "Articulable,
Reasonable and Reasoned" Approach?, 60 Alb. L. Rev. 1871, 1883 n.74 (1997)
(Leach "held that the police must obtain the consent of a cohabitant who is
present and able to object in order to effect a valid warrantless
search."); Robert E. McBeth, Search and Seizure Notebook 427 (1991) ("When
one of two persons sharing control over certain premises consents to a
search of the premises and the other person, having equal or superior
control over the premises is present and able to object, police officers
may not make a warrantless search of the premises without the consent of
such other person.") (citing State v. Leach, 113 Wn.2d 735); Gregory S.
Fisher, Search and Seizure, Third-Party Consent: Rethinking Police Conduct
and the Fourth Amendment, 66 Wash. L. Rev. 189, 197 (1991) ("The {Leach}
court held that Armstrong's consent could not validate the search because
Leach was present when the police entered.") (citing Leach, 113 Wn.2d at
744).
Leach is on point and dispositive.
We might also bear in mind the dictates of Leach do not present an undue
burden for law enforcement. Absent consent from all co-occupants, a
warrant provides the necessary lawful authority.
Other Concerns
Here, the police conducted a warrantless search of a home without
justifying their failure to resort to a neutral magistrate for a warrant.
In general we require law enforcement to turn to a neutral magistrate
"so that an objective mind might weigh the need to invade that privacy in
order to enforce the law. The right of privacy was deemed too precious to
entrust to the discretion of those whose job is the detection of crime and
the arrest of criminals. . . . And so the Constitution requires a
magistrate to pass on the desires of the police before they violate the
privacy of the home."
Chimel v. California, 395 U.S. 752, 761, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969) (quoting McDonald v. United States, 335 U.S. 451, 455-56, 69 S. Ct.
191, 93 L. Ed. 153 (1948)). We only allow authorities to bypass the
neutral magistrate and conduct a warrantless search "'where the societal
costs of obtaining a warrant, such as danger to law officers of the risk of
loss or destruction of evidence, outweigh the reasons for prior recourse to
a neutral magistrate.'" State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d
563 (1996) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218
(1980)) (internal citations omitted). If the warrant rule is to retain its
vitality and meaning we must require authorities to obtain a warrant or
justify their failure to do so. See Chimel, 395 U.S. at 761 ("'We cannot
be true to that constitutional {warrant} requirement and excuse the absence
of a search warrant without a showing by those who seek exemption from the
constitutional mandate that the exigencies of the situation made that
course imperative.'") (quoting McDonald, 335 U.S. at 456). Cf. Leach, 113
Wn.2d at 744 ("'Where the police have ample opportunity to obtain a
warrant, we do not look kindly on their failure to do so.'") (quoting
United States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984)).2
Here the State has not offered any justification for failure to obtain a
valid search warrant. There were no exigencies. The search of the Walker
home occurred at midday on a weekday. The magistrate was available. There
were no concerns of officer safety nor fears of disappearing evidence.
During the suppression hearing the State's attorney asked Detective
Blodgett, "Why didn't you just get a search warrant in this instance?", to
which Detective Blodgett candidly responded, "Primarily because it's time-
consuming to get a search warrant." Direct examination of Detective
Blodgett, Verbatim Report of Proceedings (May 12, 1995) at 41.
Saving a few minutes is not a valid reason to bypass the warrant
requirement. If it is, there is no longer a warrant requirement in
Washington because obtaining a warrant always requires some effort. In
Leach we held the line and explained "we refuse to beat a path to the door
of exceptions." Leach, 113 Wn.2d at 744. But today the majority opens the
door to warrantless invasions of our privacy. The majority sets a
dangerous precedent while disregarding existing precedent which protects
our liberty. I dissent.
FOOTNOTES
1 We require the police to get the consent of each present occupant because
present occupants possess the highest degree of privacy from state
intrusion. This is so because in the case of a present occupant there is a
confluence of both privacy of presence (i.e., they are present) and privacy
of place (i.e., they are in legal possession of the premises). See Lloyd
L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 63
(1974).
2 See also Gregory S. Fisher, Search and Seizure, Third-Party Consent:
Rethinking Police Conduct and the Fourth Amendment, 66 Wash. L. Rev. 189,
207 (1991) ("Leach was correctly decided because the police needlessly
circumvented the warrant clause. The government has no justifiable purpose
for relying on third parties' consent when a warrant can be secured.");
Lloyd L. Weinreb, Generalities of the Fourth Amendment, supra, at 57 ("When
a search pursuant to a warrant would be constitutional, a warrant can
almost always be obtained. The wise course for the police is not to rely
on the consent of a private person unless they must. When the police do
rely on consent, either (1) they could not have obtained a warrant because
a constitutional requirement like probable cause was not met; or (2) they
could have obtained a warrant but did not; or (3) the constitutional
requirements were met, but the police could not obtain a warrant for other
reasons, such as the unavailability of a magistrate. In the first two
situations, the courts should place a heavy burden of proving consent on
the police.").