# State v. Bustamante-Davila > Washington Supreme Court · September 9, 1999 · 138 Wash. 2d 964 URL: https://www.frixlaw.com/law-library/cases/4711784 ## Case - **Full name:** The State of Washington v. Jorge Luis Bustamante-Davila - **Court:** Washington Supreme Court - **Decided:** September 9, 1999 - **Citations:** 138 Wash. 2d 964 - **Precedential status:** Published - **Opinion:** Dissent by Alexander - **Judges:** Alexander, Smith - **Cited by:** 69 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4711784 ## Opinion text Alexander, J. (dissenting) — In my view, the rifle that was seized from Jorge Luis Bustamante-Davila’s house by officers of the Cowlitz County sheriff and Longview police should have been suppressed. I reach that conclusion because none of these officers, or the Immigration and Naturalization Service agent who accompanied them, advised Bustamante-Davila that he need not admit them into his home. A requirement that such advice precede the officers’ entry into a home is consistent with the letter and spirit of *985 our recent ruling in State v. Ferrier, 136 Wn.2d 103 , 960 P.2d 927 (1998). There we concluded that a warrantless, albeit consensual, search of a home violated the state constitution because the home-dweller was not advised, prior to the search, that she need not consent to having her home searched. The facts of Ferrier were that four Bremerton police officers had gone to the home of the defendant, Ferrier, intending to engage in a so-called “knock and talk,” a procedure in which an officer or officers go to a suspect’s door, knock and make contact with the resident, ask to be admitted, and once inside ask for permission to search. Although the officers were not armed with a search warrant, it was clear that their overriding intent was to obtain Ferrier’s consent to search her home. They were not disappointed because once they gained entry to Ferrier’s home she consented to their request to permit them to conduct a search. The officers did not, however, advise Ferrier of her right to refuse to consent to the search. Relying on article I, section 7 of the state constitution, we concluded that this procedure was inherently coercive and that because of the heightened expectation of privacy in the home, the search was invalid due to the officers’ failure to inform Ferrier that she may lawfully refuse to consent to a search of her home. While the majority correctly observes that Ferrier is distinguishable, in that the plain view seizure of the rifle followed merely from the officers’ entry into Bustamante-Davila’s home rather than from a consent to search, the core privacy interest that we determined was protected by article I, section 7 of the constitution is identical to that which is at issue here. That interest is the protection of a private dwelling from intrusion without a warrant or compelling need. Ferrier, 136 Wn.2d at 114 . In further distinguishing Ferrier, the majority makes the point that the state officers were merely accompanying an Immigration and Naturalization Service agent who in good faith believed he was executing a valid deportation order. The fact that the federal agent thought he was enforcing a valid deportation order is not, in my view, significant because, as the *986 State concedes, a deportation order is issued by an administrative law judge and is not equivalent to an arrest or search warrant. The federal and state officers, in short, had no warrant and, as the State conceded at oral argument, Bustamante-Davila could have lawfully refused their request to enter into his home had he been aware of his right to do so. Moreover, the fact that State officers are in the company of a federal officer does not excuse their noncompliance with State statutes 100 or the state constitution. In an analogous case, the Court of Appeals stated: A law enforcement agency . . . cannot avoid the warrant requirement by asking to “tag along” on another agency’s warrant for its own purposes. Nor can an agency holding a warrant request unneeded assistance to enable another agency to conduct an otherwise illegal search. RCW 10.93.070 . . . should not be interpreted or used to circumvent the protections of the United States and Washington State Constitutions. State v. Bartholomew, 56 Wn. App. 617, 622 , 784 P.2d 1276 (1990). While I am not suggesting that the state officers’ participation in the visit to Bustamante-Davila’s residence was a mere ruse to gain entry into Bustamante-Davila’s home in order to see what was there to be seen, the power of the state officers is no greater than the authority of the federal officer who requested their participation. See United States v. Medlin, 842 F.2d 1194, 1196-97 (10th Cir. 1988). As indicated above, the state and federal officers had no right to search or even enter the house, absent the giving *987 of fully informed consent. The fact that the rifle was seized pursuant to the plain view exception to the warrant requirement avails the officers only if they had a right to be where they were when the contraband was viewed. See State v. Chrisman, 100 Wn.2d 814, 819 , 676 P.2d 419 (1984). Under the line of reasoning we announced in Ferrier, the officers should not have been in Bustamante-Davila’s home absent the rendering of advice that he need not admit them. Because they did not precede their entry with such advice, they should not be able to avoid the warrant requirement. The seizure of the rifle was, in my view, unlawful and, therefore, should not have been admitted into evidence. For these reasons, I dissent. Johnson, Madsen, and Sanders, JJ., concur with Alexander, J. RCW 10.93.070(3) states in pertinent part: “In addition to any other powers vested by law, a general authority Washington peace officer who possesses a certificate of basic law enforcement training or a certificate of equivalency or has been exempted from the requirement therefor by the Washington state criminal justice training commission may enforce the traffic or criminal laws of this state throughout the territorial hounds of this state, under the following enumerated circumstances: “(3). . .in response to the request of a peace officer with enforcement authority.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4711784. Public record. Not legal advice.