(dissenting) — This appeal presents two
issues: (1) Does an apartment dweller “consent” to a warrantless search and seizure absent advice that he may decline; and, if so, (2) does a guest within the apartment have standing to object when he himself is the object of the unconstitutional search?
I would answer the first question in the negative based upon State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998), which limits the warrant requirement’s consent exception to a consent fully informed by an express admonition of the right to refuse; and I would answer the second question in the affirmative, recognizing the right of the guest to assert the constitutional rights of the resident pursuant to the automatic standing rule articulated in State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980).
Therefore the learned trial court’s decision to suppress evidence found on the person of the defendant should be affirmed, and I dissent from the majority’s contrary result.
I
Standing
To deal with the standing question we must first recall what the majority has apparently forgotten, viz., the pur*29pose of automatic standing is to protect all of our rights against unconstitutional search and seizure by removing the incentive, or profit, which prompts the unconstitutional act. Although in many, if not most, instances the evidence unconstitutionally seized is sought to be used against the person whose constitutional rights have been violated, there are also those situations where the fruit of the tree poisoned by the constitutional deprivation is sought to be used against a third person whose particular rights were not violated by the unconstitutional search of another. Granting the third person “automatic standing” to seek suppression of the unconstitutionally seized evidence therefore provides the government an incentive to refrain from unconstitutional conduct.
The majority admits automatic standing “still maintains a presence in Washington,” Majority at 22, because of the “continuing policy basis and firm state constitutional grounds for adherence to the automatic standing rule . . . already established under our state constitution . . . .” Simpson, 95 Wn.2d at 181 (citing State v. Michaels, 60 Wn.2d 638, 646-47, 374 P.2d 989 (1962)).
Automatic standing allows a remedy which protects us all in the end by protecting the accused in the beginning.5 Under this doctrine the defendant “has the right to invoke all the privacy interests that an individual properly in possession of the [property] could assert.” Simpson, 95 Wn.2d at 182. Denying protection to a defendant who meets the doctrine’s requirements “allows the invasion of a constitutionally protected interest to be insulated from judicial scrutiny by a technical rule of ‘standing’. The inability to assert such an interest threatens all of Washington’s citizens, since no other means of deterring illegal searches and seizures is readily available.” Id. at 180.
Although the majority cites the two-factor test for auto*30matic standing enunciated in Michaels in 1962 as determinative in the present case, a more recent reformulation of the rule is set forth in Simpson:
[A] defendant has “automatic standing” to challenge a search or seizure if: (1) the offense with which he is charged involves possession as an “essential” element of the offense; and (2) the defendant was in possession of the contraband at the time of the contested search or seizure.
Simpson, 95 Wn.2d at 181. The facts of the present case fit within the literal language of the Simpson rule.
Williams was charged with possession of a controlled substance under RCW 69.50.401(d). Possession is not only an essential element of the offense, it is the offense. See RCW 69.50.401(d) (“unlawful for any person to possess a controlled substance”). Without dispute Williams was in possession of the heroin at the time the search of the residence and seizure of his person took place. Thus, Williams is “entitled to the full protection of the automatic standing doctrine.” Simpson, 95 Wn.2d at 182.
However, the majority parses between the search for, and seizure of, Williams on the one hand and the search of his person incident to that seizure on the other. Majority at 23-24. The majority asserts the “ ‘fruits of the search’ [must] bear a direct relationship to the search the defendant seeks to contest,” claiming the distinction between the search for and seizure of Williams, and the subsequent search of his person, is constitutionally meaningful; the latter somehow not “directly” the result of the warrantless entry into the apartment. Majority at 23. Of course, absent that unconstitutional entry there would be no seizure of Williams, nor search of his person. The relationship between the seizure and search for Williams and the search of Williams is therefore so “direct” the search o/Williams would be impossible absent the search for Williams.
Thus the search yielding the contraband at issue was predicated upon and directly flowed from the constitutional *31infirmity.6 Although the majority would immunize a search of one’s person for contraband as the fruit of a different tree, Majority at 23-24, in reality the search incident to arrest was merely an extension of the same search which began at the front door. The legality of the search for contraband necessarily includes the manner by which the officers gained their opportunity to conduct that search. Addressing a similar issue the United States Supreme Court opined:
We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963) (emphasis added) (quoting James MacArthur Maguire, Evidence of Guilt 221 (1959)).
In Wong Sun the Court considered whether illegally obtained declarations required the exclusion of narcotics subsequently seized on the basis of those declarations. Much like the facts here the prosecutor “ ‘wouldn’t have found those drugs except that [the third party declarant] helped us to.’ ” Id. at 487. The Court held the narcotics were discovered by the exploitation of the original illegality and hence they could not be used against the defendant. Id. at 488.
Here the police could not have constitutionally executed the arrest warrant, much less conducted a search incident to arrest, absent consent of the homeowner. See Steagald v. United States, 451 U.S. 204, 216, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). Regardless of the abstract legality of a search incident to arrest, this series of events began with a warrantless search of the apartment for the accused. Thus, “the fruits” of Williams’s claim must be considered when he *32objects to the foundational constitutional violation which inexorably led to seizure and the search of his person. Since the purpose of the automatic standing rule is to discourage unconstitutional searches by rendering their fruits inadmissible, even against a third person, it simply makes no sense to restrict the rule because the individual searched seeks to vindicate constitutional guaranties initially applicable to others. That is precisely the reason we have an automatic standing rule in the first place.
II
Warrantless Search Not Excused by Invalid Consent
“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!”
Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 1194, 2 L. Ed. 2d 1332 (1958) (quoting remarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in Parliament in March 1763).
The “consensual” invasion of a person’s home by police officers acting without benefit of search warrant is a “ ‘jealously and carefully drawn’ ” exception to the warrant requirement of article I, section 7, of our state constitution. Ferrier, 136 Wn.2d at 111 (some sources omitted) (quoting State v. Hendrickson, 129 Wn.2d 61, 72, 917 P.2d 563 (1996)). This is especially so because, “ ‘ “[w]here the police have ample opportunity to obtain a warrant, we do not look kindly on their failure to do so.” ’ ”7 Ferrier, 136 Wn.2d at 115 (quoting State v. Leach, 113 Wn.2d 735, 744, 782 P.2d *331035 (1989) (quoting United States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984))).
That a homeowner must be informed of the right to decline a warrantless “knock and talk” search by police was the holding in Ferrier. There we noted “ ‘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.’ ” Ferrier, 136 Wn.2d at 116 (emphasis added) (quoting State v. Johnson, 68 N.J. 349, 346 A.2d 66, 68 (1975)).
We held: “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,” Ferrier, 136 Wn.2d at 118, and continued:
[W]hen 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 [search] 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.... The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.
Id. at 118-19.
Without dispute the officers who seized Williams lacked a search warrant when they knocked at Jelinek’s door. But they were constitutionally required to have one, or at least fall within an exception to the warrant requirement, to constitutionally proceed to search for their object within the apartment’s interior.8 Equally undisputed is their failure to advise Jelinek of his right to refuse the search, a precondition to valid consent as per Ferrier.
The majority doesn’t expressly overrule Ferrier but might as well. The majority opines the search at issue here “does *34not resemble a ‘knock and talk’ warrantless search that Ferrier intended to prevent,” because of the “limited purpose of the police entry and that Jelinek acknowledged that he had guests inside.” Majority at 27-28. To the contrary, the rationale of the rule discerned in Ferrier is to protect us all from warrantless search absent consent freely given with full knowledge of the right to refuse.
“Knock and talk” was described in Ferrier as 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 ... .
“Once you’re inside, you talk about why you’re there and you ask for permission to search the premises.”
Ferrier, 136 Wn.2d at 107 (quoting 1 Verbatim Report of Proceedings at 24). We found the procedure constitutionally defective because (1) Ferrier was in her home when the police initiated contact with her; (2) the officers conducted the knock and talk in order to avoid the necessity of obtaining a warrant authorizing a search of the home; and, most importantly, (3) the officers did not advise Ferrier that she had the right to refuse to consent to the search of her home. Ferrier, 136 Wn.2d at 115.
Here the officers followed up on a tip from an informant in the course of a normal investigation. They went to the door of Jelinek’s residence and called out the defendant’s name, at which time Jelinek met them at the door. After asking whether Williams was inside, an officer “asked if it was alright to enter the apartment to make sure the defendant wasn’t inside.”9 Clerk’s Papers (CP) at 4. The officers never advised Jelinek that he could refuse consent, limit the search, or withdraw consent at any time. Such is clearly the predicate to consent required by Ferrier, as fully *35recognized by the trial court, which suppressed the fruits of the unconstitutional conduct.
The majority’s mischaracterization of the search for a person as constitutionally “limited” defies reason. General warrants issued in England also had a “limited” purpose— seditious libel, for example—but left the determination of places to be searched and persons to be arrested solely to the discretion of the executing officials. Steagald, 451 U.S. at 220. Likewise, writs of assistance issued in the Colonies were “limited” to any uncustomed goods but noted only the object of the search, leaving customs officials free to search any place they believed such goods might be found. Id. Such “limited” writs were the seeds from which the American Revolution grew,10 while the ill-considered words of our majority betray the victory so dearly won.
Now our majority invites the police to knock and talk their way across the city, searching hundreds of houses on the strength of a single arrest warrant and uninformed consent, as long as they merely ask to come in and look around “to make sure the defendant wasn’t inside,” never informing the homeowner that he has the right to refuse. CP at 4. The Ferrier rule, and its reason, is thus as surely *36defeated as would have been the case had its dissent mustered a constitutional majority. See, e.g., Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (enjoining police procedure under which 300 homes searched pursuant to arrest warrants for two fugitives).
Furthermore, any contraband belonging to Jelinek and discovered as a result of the “consensual” search could presumably be used against him as the basis for an independent and unrelated prosecution, thus gutting the warrant mandate in that context as well. Never having been offered the option to decline the search, Jelinek is deemed to have “consented” for the police to search his home, thereby opening the door to personal criminal responsibility for anything they might have found in plain view. The search of hundreds of homes on the power of a single arrest warrant can reasonably be expected to bear much more poisoned fruit than merely the arrestee himself. But were the court consistent with today’s result any challenges to the validity of those “limited” searches would meet the same demise as the rule in Ferrier apparently does today. Let the majority defend the fruits of the principle it harvests.
The majority also misreads State v. Bustamante-Davila, 138 Wn.2d 964, 983 P.2d 590 (1999), finding the present case “indistinguishable.” Majority at 27. But Bustamante-Davila itself distinguished Ferrier because “[t]he police officers . . . did not proceed to Petitioner’s residence with the intent to find contraband without obtaining a search warrant”; the officers merely accompanied a United States Immigration and Naturalization Service (INS) agent to back up the execution of a presumptively valid deportation order. Bustamante-Davila, 138 Wn.2d at 980.
Even more importantly, we noted the INS needs no warrant to detain a suspected illegal alien, id. at 976, citing Reno v. Flores, 507 U.S. 292, 307, 113 S. Ct. 1439, 1449, 123 L. Ed. 2d 1 (1993), thus INS officers, and therefore local police who accompanied them, did not proceed to the residence to effect a seizure within the scope of the Fourth *37Amendment, nor implicate the state constitutional guaranties which were the very basis of Ferrier.11 Moreover, unlike Bustamante, the officers here were operatives of the primary state agency, specifically requesting permission to conduct a warrantless search for, and seizure of, a person on the premises, squarely implicating the state constitutional rights recognized in Ferrier.
The majority would restrict the constitutional requirement that the homeowner be advised of his right to refuse entry to those “situations where police seek to conduct a search for contraband or evidence of a crime without obtaining a search warrant.” Majority at 28. This untenable distinction wants for an arguable basis in constitutional law or theory because it rests on the object of the search, not whether the consent exception to the warrant requirement has been met. See Steagald, 451 U.S. at 214 n.7 (“[T]he plain wording of the Fourth Amendment admits of no exemption from the warrant requirement when the search of a home is for a person rather than for a thing.”).
Inconsistently, under the majority’s analysis, the Ferrier rule would apply if police, acting on a tip and without a warrant, had arrived at the door and asked Jelinek “if it was alright to enter the apartment to make sure” there weren’t drugs or other contraband inside. Yet the majority decides not to “unnecessarily hamper a police officer’s ability to investigate complaints and assist the citizenry,” Majority at 28, in situations where “the search of a home is for a person rather than for a thing,” Steagald, 451 U.S. at 214 n.7. However in both cases the home is entered by state agents without a warrant; whereas in the former case the majority would hold valid consent requires advisement of the right to say no, in the latter situation no such advice is now constitutionally required. The distinction is without *38rational basis: whether the search is for a thing or a person, it is still an invasion of hallowed ground without authority of law,12 not excused by consent.
The claim that advising homeowners of the option not to consent creates hardship for officers “invited into homes for investigative purposes, including inspection of break-ins, vandalism, and other routine responses,” Majority at 27, assumes a search initiated at the homeowner’s request is equivalent to one initiated by the police. In the former, however, invitation, not consent, is the issue. Because the request for police assistance is initiated by the homeowner, advisement of the homeowner’s right to decline admittance to the police he has summoned would be a most curious result.
We addressed legitimate concerns attendant to a police-initiated search in Ferrier, where we wrote “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.” Ferrier, 136 Wn.2d at 117. The United States Supreme Court, discussing the even greater imposition of actually obtaining a warrant, put it somewhat more bluntly:
[T]he inconvenience incurred by the police is simply not that significant. First, if the police know of the location of the felon when they obtain an arrest warrant, the additional burden of obtaining a search warrant at the same time is miniscule. The inconvenience of obtaining such a warrant does not increase significantly when an outstanding arrest warrant already exists. . . . Finally, if a magistrate is not nearby, a telephonic search warrant can usually be obtained.
Steagald, 451 U.S. at 222.
*39The majority protests we would extend greater rights to Williams or a guest than to the homeowner if he himself were the object of the arrest warrant. Majority at 24. This is true. The distinction is well recognized in Supreme Court precedent that a suspect may be arrested in his own home with an arrest warrant although one’s home may only be involuntarily searched for a third person with a search warrant. Steagald, 451 U.S. at 213. That the majority apparently disagrees with this Supreme Court distinction is no license to disregard it. We must yield to higher authority that we be ruled by laws, not men.
Moreover, by comparing the current case to one in which authorities enter Williams’s own home on the power of a warrant to arrest him, the majority misses the point of Steagald. Regardless of the protections an individual would, or wouldn’t, have in his own home to oppose the execution of an arrest warrant, any search based on defective consent is as deficient as its necessity to first obtain a search warrant.
Williams’s claim stands not for the proposition that an individual can or should achieve extra rights in the house of another, but merely that governmental agents must abide by the constitution if their investigations are to yield evidence admissible in a court of law. As in Steagald, the power granted by the arrest warrant is immaterial when its exercise is based on the violation of a homeowner’s constitutional right to be free from warrantless invasion to search for the person of another.
These officers arrived at Jelinek’s apartment without a search warrant notwithstanding their sole objective was to seize and search Williams. By so doing the officers ignored the search warrant requirement of article I, section 7, then flaunted the “jealously and carefully drawn” exception to that requirement by failing to even attempt to acquire the informed consent required by Ferrier. The majority thus dispenses with the requirement that “the waiver of the right to require production of a warrant must, in the final *40analysis, be the product of an informed decision.” Ferrier, 136 Wn.2d at 118.
What is “limited” by the majority is the homeowner’s protection against warrantless invasion of the home by agents of the government absent informed consent. To protect us all, Williams must have standing to protect himself.
Smith, Johnson, and Alexander, JJ., concur with Sanders, J.
“[T]he exclusionary rule exists to deter future police misconduct systemically. The deterrent purpose extends to law enforcement as a whole, not merely to ‘the arresting officer.’ ’’Arizona v. Evans, 514 U.S. 1, 21, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (Stevens, J., dissenting) (citations omitted).
See “knock and talk” discussion, infra at 24-26.
Officer Katzer was approached by the citizen informant at 4:24 P.M. on a Monday afternoon as he left the Snohomish County Jail—one block away from the courthouse where presumably Katzer had “ample opportunity” to obtain a warrant to search for Williams. Instead, Katzer proceeded to Jelinek’s apartment, knocked on his door, and asked for permission to search the premises without a warrant to do so, intending to conduct a warrantless search based on Jelinek’s consent.
“[T]he plain wording of the Fourth Amendment admits of no exemption from the warrant requirement when the search of a home is for a person rather than for a thing.” Steagald, 451 U.S. at 214 n.7.
This is directly contrary to the majority’s assertion “the officers did not request permission to search the premises but asked only whether the defendant was inside.” Majority at 27.
Writing for the Court in Stanford v. Texas, 379 U.S. 476, 481-82, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965), Justice Stewart explained the words of the Fourth Amendment:
They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever “be secure in their persons, houses, papers, and effects” from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.” The historic occasion of that denunciation, in 1761 at Boston, has been characterized as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. ‘Then and there,’ said John Adams, ‘then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was bom.’ ”
(quoting Boyd v. United States, 116 U.S. 616, 625, 6 S. Ct. 524, 29 L. Ed. 746 (1886)).
In State v. Gwinner, 59 Wn. App. 119, 796 P.2d 728 (1990), the Court of Appeals held evidence independently and lawfully obtained by federal officers acting pursuant to federal law was admissible in state criminal proceedings, even though evidence obtained in a similar manner by state officers might have violated defendant’s state privacy rights. See also State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S. Ct. 1192, 140 L. Ed. 2d 322 (1998).
“The warrant requirement is especially important under article I, section 7, of the Washington Constitution as it is the warrant which provides the ‘authority of law’ referenced therein.” State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. Mesiani, 110 Wn.2d 454, 457, 755 P.2d 775 (1988)).