dissenting. I am at a loss to know what Officer David Srite did wrong in this case. He was responding to a domestic violence call involving David Ellis. After patting Ellis down for weapons outside the house, he went to the front door and asked Rosa Beth Allen if he could talk to her about the matter. She opened the door, stepped back, and nodded. I view that as specific and unequivocal consent to enter. At this point, possession of illegal drugs by Perry Holmes was not even on Officer Srite’s radar screen. Everyone agrees that as he entered the house, his sole interest was domestic violence. After entering, he smelled marijuana.
My first problem with the opinion is that the majority analyzes this case as a consent-to-search case. It clearly is not. A consent to enter the house to talk is all that was involved. Other jurisdictions have recognized this important distinction between a consent to enter and a consent to search when there is no showing that the police officers gained entry by subterfuge to investigate another crime. See, e.g., State v. Pamer, 70 Ohio App.3d 540, 591 N.E.2d 801 (1990); Bell v. State, 676 S.W.2d 219 (Tex. Ct. App. 1984); Davis v. United States, 327 F.2d 301 (9th Cir. 1964). In Pamer, the facts are almost identical to this case. The sheriffs deputies were responding to a domestic disturbance and the appellant’s daughters let them inside the house at 1:30 a.m. Once inside, the officers saw marijuana in plain view. In refusing to suppress the marijuana, the Ohio Court of Appeals underscored the fact that the only intent of the deputies in entering the house was to assure that the daughters were safe — not to search for marijuana.
In Bell v. State, supra, the police officers were at the house to serve a protective custody order. A police officer knocked and a voice said, “come in.” The police officer entered and saw a woman injecting herself with a hypodermic needle. Next to where the woman was sitting was a plate of heroin. The Texas Court of Appeals refused to suppress the heroin and distinguished a consent to enter from a consent to search. The court specifically emphasized that there had been no showing that the police officers entered by fraud or deceit.
I distinguish these cases and the case before us from a situation where police officers have received a complaint of illegal activity and go to a residence with investigation or a search in mind without a search warrant. See, e.g., State v. Kennedy, 107 Wash. App. 972, 29 P.3d 746 (2001) (police investigating narcotics complaint saw plastic baggie with methamphetamine after consent to enter; drugs suppressed); State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50 (1995) (police investigating breaking and entering went to motel room where consent to enter given; court suppressed shoes in plain view used in the crime on basis consent not voluntarily given). Those fact situations are not the case before us.
What should Officer Srite have done differently? Should he have said, “I want to talk to you about Ellis and domestic violence, but if you have any illegal activity going on inside, don’t let me in.” That seems a highly unreasonable test for this court to invoke. Should he have had Ms. Allen sign a waiver of all rights before entering to talk, much like a Miranda waiver, or advised her that she did not have to consent? That approach might have more validity if this were a “knock-and-talk” case where consent to search was the issue from the beginning. See, e.g., State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927 (1998). But it is not. Again, the police officer only wanted to talk to her about Ellis and domestic violence, not Holmes and drugs. A consent to search for drugs was not on Officer Srite’s mind, when he was standing on the threshold of the house. I would not suppress the marijuana and drug paraphernalia under these facts.
For that reason, I respectfully dissent.
Corbin, J., joins.