State v. Hastings , 119 Wash. 2d 229 ( 1992 )

Durham, J.

On November 4, 1986, two undercover Seattle police officers went to a house to buy drugs after receiving complaints. They knocked on the front door, stated their purpose, and were invited inside. Upon entry, they saw customers lined up before a table, at which sat Willie Hastings. When their turn came, each officer bought a small amount of rock cocaine from Hastings.

Based on information provided by the officers, police obtained a search warrant for the house. Police went to the house to serve the warrant at about 1:30 a.m. on November 5, 1986. The officers knocked on the door, identified themselves, announced that they had a search warrant, and demanded entry. From inside the house, the police heard people running away from the door. A few seconds later, the police forced the door open.

Inside, the police found approximately 18 people, including Hastings. Hastings and several other people were ordered to he down on the floor. The police subsequently discovered cocaine near Hastings, and arrested him for possession of a controlled substance.

Hastings was charged with two counts of unlawful deliveiy and one count of possession. Prior to trial, he moved to suppress evidence. Hastings primarily argued first, that the initial entry by undercover officers was an illegal warrant-less search, and second, that the subsequent search warrant was executed in violation of the knock and announce rule. The motion was denied, and a jury found him guilty of the delivery charges, but was unable to reach a verdict on the possession charge. The Court of Appeals affirmed the conviction. We accepted review, and we now affirm.

Warrantless Entry

The Court of Appeals correctly held that the initial entry here was permissible because no constitutionally protected expectation of privacy was involved. State v. Hastings, 57 Wn. App. 836, 839, 790 P.2d 645 (1990). This holding follows from the longstanding rule:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 210[, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966)] . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. . . .

(Citation omitted.) Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).

There is no reasonable expectation of privacy in a home where illegal business is openly conducted and, therefore, it is not entitled to Fourth Amendment protection.

[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.

Lewis v. United States, 385 U.S. 206, 211, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966), quoted in Hastings, at 839. As noted in a concurring opinion, the Fourth Amendment offers protection against intrusion into the sanctity of the home. "However, the occupant can break the seal of sanctity and waive his right to privacy in the premises." Lewis, at 213 (Brennan, J., concurring).¹

This court's cases offer further justification for this conclusion. As we have said, "the focus is whether the 'private affairs' of an individual have been unreasonably violated rather than whether a person's expectation of privacy is reasonable." State v. Boland, 115 Wn.2d 571, 580, 800 P.2d 1112 (1990). Hastings' private affairs are in no way implicated here. He was openly engaged in selling drugs when the officers entered. Business transactions with the public are not "private affairs".

Hastings argues that the rule from State v. Hashman, 46 Wn. App. 211, 729 P.2d 651 (1986), review denied, 108 Wn.2d 1021 (1987) should be applied here because the police used deception to gain entry.² In Hashman, at 216, the Court of Appeals held that the police must have a "justifiable and reasonable basis to suspect criminal activity" before they may effect a ruse entry. However, Hashman does not apply. See Hastings, 57 Wn. App. at 839. Where there is no expectation of privacy, the Fourth Amendment is not implicated. Moreover, the threshold requirement set forth in Hashman for using a ruse is an unnecessary limitation on undercover police investigations. This court has never utilized such a rule, and the proposed threshold requirement serves no valid purpose.

In sum, the Court of Appeals correctly held that the premises here were "a center for transacting unlawful business, and thus were not an area in which the occupants had a constitutionally protected expectation of privacy." Hastings, at 839. We adopt that reasoning.³

It is also worth noting that even if the Fourth Amendment did apply, our decision would be justified. The Fourth Amendment protects against unreasonable search and seizure. A search without a warrant is presumed to be unreasonable, "'. . . subject only to a few specifically established and well-delineated exceptions.'" Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (quoting Katz v. United States, supra at 357).

A search conducted pursuant to consent is proper, even absent a warrant. Schneckloth, 412 U.S. at 219; State v. Mak, 105 Wn.2d 692, 713, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). In any consent case, two issues are involved: was there a valid, voluntary consent by the defendant or a competent third party, and did the ensuing search exceed the scope of the consent?⁴ See generally 3 W. LaFave, Search and Seizure § 8.1, at 147-48 (2d ed. 1987). When consent is obtained by concealing the true identity of the entrants, we must determine if the ruse vitiated that consent.

In Lewis v. United States, supra, the Court found that a warrantless entry under almost identical circumstances to those here did not run afoul of the Fourth Amendment. The Court held that the undercover activity was permitted.⁵ It reasoned that the agent had been invited into the petitioner's home for the illegal purpose of purchasing drugs, and that the conduct involved did not exceed this invitation. Lewis, 385 U.S. at 210. An entry made onto the premises to transact the business being undertaken does not require a warrant. Significantly, the Court noted that to hold otherwise would render undercover operations virtually impossible. Lewis, at 210. Thus, under the Fourth Amendment, a warrantless entry which is made after consent is given is valid despite the use of a ruse.⁶

This conclusion is also supported by cases which hold that knowledge of one's Fourth Amendment rights is unnecessary to effect a valid consent. Consent must be voluntary, but this does not mean that it must be made with full knowledge of the right to refuse the entry or search. Schneckloth, at 229-31. In this way, the voluntariness involved in giving consent is distinct from the requirements for a knowing and voluntary waiver of rights implicated in the trial process. The Court has recognized this distinction:

Nor can it even be said that a search, as opposed to an eventual trial, is somehow "unfair" if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person's voluntarily allowing a search. The actual conduct of a search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment.

Schneckloth, at 242-43. The lack of knowledge on the part of the person who opened the door in this case that those who entered were actually police has no bearing on whether the entry was consensual. The decision to allow strangers to enter was made absent coercion by the police and with full knowledge of the illegal activity occurring within. The consent that was given was voluntary and, therefore, the entry was valid.

Knock and Announce

Hastings argues that the police violated the knock and announce rule when they executed the search warrant. RCW 10.31.040 provides:

To make an arrest in criminal actions, the officer may break open any outer or inner door, ... if, after notice of his [or her] office and purpose, he [or she] be refused admittance.

The remedy for a violation of the statute is suppression of the evidence seized. State v. Coyle, 95 Wn.2d 1, 14, 621 P.2d 1256 (1980). Here, the only evidence seized was related to the possession charge that was dismissed. Since the evidence pertinent to the convictions here was not involved, the execution of the search warrant is not at issue. Hastings' argument that the evidence prejudiced the jury in regard to the delivery charges is unconvincing. Clearly, in light of the testimony of the undercover officers, the untainted evidence offered in the delivery case was "so overwhelming that it necessarily leads to a finding of guilt." State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Thus, any error was harmless beyond a reasonable doubt.

Hastings also argues that the undercover officers' in-court identification should be suppressed, because it was based in part on the examination of photographs taken at the scene of the arrest. Relying again on the knock and announce rule, Hastings claims that the identifications were tainted by the fruit of an illegal search. We are not persuaded. The in-court identification had an independent basis due to the officers' interaction with Hastings when they bought the drugs. Thus, the identification is admissible, regardless of whether the warrant was executed properly. See State v. Mathe, 102 Wn.2d 537, 546-47, 688 P.2d 859 (1984).

We affirm the Court of Appeals and hold that there is no constitutionally protected privacy interest in a home where illegal business is openly conducted subject to certain limitations. In the alternative, we hold that the warrantless entry was permissible because it followed the occupants' consent.

The Court of Appeals is affirmed.

Dore, C.J., and Brachtenbach, Andersen, and Guy, JJ., concur.

1 Although Lewis holds that an occupant's expectation of privacy is abandoned when illegal business is conducted on the premises, the scope of any search must be limited to the "commercial" vicinity. An expectation of privacy in that portion of the premises not open to the public is retained by the occupant.

2 The State conceded on appeal to this court that Hashman applies. See Supplemental Brief of Respondent, at 7-8. However, we are not bound by this concession.

3 Hastings also argues that the Court of Appeals should he reversed, because under State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980), he has automatic standing to challenge the search. Our holding does not implicate standing; rather, we hold that the Fourth Amendment does not apply at all to the entry here.

4 There are cases in which ruses were employed which deal with the scope of consent. For instance, in a case cited in Lewis, the government agent ransacked the defendant's office and seized private papers. Gouled v. United States, 255 U.S. 298, 65 L. Ed. 647, 41 S. Ct. 261 (1921). Even though the entry, obtained by representing that the visit to the office was for social purposes only, was consensual, the Fourth Amendment was violated. Gouled, at 305-06. The salient point was the determination of the appropriate scope of consent. There is no claim in this case that the search exceeded the proper scope.

5 In a more recent case in another context, the Court said again: "there can be no dispute that the Government may use undercover agents to enforce the law.... Artifice and stratagem may be employed to catch those engaged in criminal enterprises.'

"Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs, and, if the offer is accepted, make an arrest on the spot or later." (Citations omitted.) Jacobson v. United States, _ U.S. _, 118 L. Ed. 2d 174, 184-85, 112 S. Ct. 1535 (1992).

6 In State v. Myers, 102 Wn.2d 548, 689 P.2d 38 (1984), we upheld the use of a ruse to gain entry. There the issue was whether the ruse was a violation of the knock and announce rule. The ruse was used to trick the defendant into opening his door. The officers did identify themselves as police but misrepresented their intention to arrest the defendant on drug charges. To determine if the entry was valid, we examined the knock and announce rule, not some distinct law of ruse.