I L En. This opinion was filed for record
X IN CLERKS OFFICE ^ _
8UPRBE COURT.SWIE OF 1«A8H9«3T0M at */('CO OnHn/} JlCh It) I'S
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ctnEF JUSTICE
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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent, No. 93845-8
V.
EN BANC
CURTIS LAMONT CORNWELL,
Petitioner. Filed: ^ ^
YU,J.—It is well established that an individual on probation has a reduced
expectation of privacy, and a community corrections officer(CCO)may conduct a
warrantless search if he or she suspects the individual has violated a probation
condition. The issue in this case is whether there are any limitations on the scope
of the CCO's search. We hold that article I, section 7 of the Washington
Constitution requires a nexus between the property searched and the suspected
probation violation. There was no nexus in the search at issue here. Accordingly,
we reverse the Court of Appeals and Comwell's convictions.
State V. Cornwell, No. 93845-8
FACTUAL AND PROCEDURAL BACKGROUND
In September 2013, petitioner Curtis Lament Cornwell was placed on
probation.^ His judgment and sentence allowed his probation officer to impose
conditions of his release, which included the following provision:
I am aware that I am subject to search and seizure of my person,
residence, automobile, or other personal property if there is reasonable
cause on the part ofthe Department of Corrections to believe that I
have violated the conditions/requirements or instructions above.
Ex. 4, at 3. Cornwell failed to report to the Department of Corrections(DOC)in
violation of his probation, and DOC subsequently issued a warrant for his arrest.
Cornwell first came to the attention of Tacoma Police Department Officer
Randy Frisbie and CCO Thomas Grabski because of a distinctive Chevrolet Monte
Carlo observed outside a house suspected of being a site for drug sales and
prostitution. CCO Grabski later spoke with the registered owner ofthe vehicle,
who said that she had given the car to Cornwell to drive but she wanted it back.
Unfamiliar with Cornwell, one of the officers conducted a records check and
determined he had an outstanding warrant.
In late November 2014, at approximately 1:00 a.m.. Officer Frisbie spotted
the Monte Carlo while on patrol with Officer Patrick Patterson, another member of
'The trial court judge did not make findings of fact or conclusions oflaw at the CrR 3.6
hearing, and so the following facts are based on testimony presented at the hearing unless
otherwise noted.
State V. Cornwell, No. 93845-8
the Tacoma Police Department. Officer Frisbie testified that he intended to stop
the vehicle because he believed Cornwell was driving it and he had an outstanding
warrant. He did not initiate the stop based on any belief that the car contained
drugs or a gun or because he observed a traffic violation.
Before Officer Frisbie could activate his police lights, the car pulled into a
driveway and Cornwell began to exit it. Cornwell ignored Officer Frisbie's orders
to stay in the vehicle, and Officer Frisbie believed Cornwell was attempting to
distance himself from the car. Officer Frisbie then ordered Cornwell to the ground.
Cornwell started to lower himself in apparent compliance before jumping up and
running. Cornwell was apprehended after both officers deployed their lasers. He
had $1,573 on his person at the time of arrest.
After securing Cornwell, Officer Patterson called CCO Grabski to the scene.
CCO Grabski testified that his job is "to help apprehend fligitives of[DOC]as well
as to look into violations of people that are on probation." 1 Verbatim Report of
Proceedings(VRP)(Dec. 16, 2014) at 82. He testified that he believed Comwell's
warrant was for his failure to report to DOC because "that's pretty much why
there's a warrant in the system is they failed to report to [DOC]." Id. at 113.
Asked if he could think of another reason a warrant would issue, he said,"I can't
think of anything that would be different." Id.
State V. Cornwell, No. 93845-8
Upon arrival at the arrest scene, CCO Grabski searched the Monte Carlo.
He described the basis for his search as follows:
When people are in violation of probation, they're subject to search.
So he's driving a vehicle, he has a felony warrant for his arrest by
[DOC] which is in violation of his probation. He's driving the
vehicle, he has the ability to access to enter the vehicle, so I'm
searching the car to make sure there's no further violations of his
probation.
Id. at 93. He explained,"If there is anything in the vehicle, whether it is in a
suitcase, clothing, I'm going to go through those items." Id. at 94. In this case,
CCO Grabski found a black nylon bag sitting on the front seat ofthe car. The bag
contained oxycodone, amphetamine and methamphetamine pills, sim cards, and
small spoons. A cell phone was also found in the car.
Comwell moved pursuant to CrR 3.6 to suppress the evidence obtained
during the vehicle search. In denying the motion, the trial court stated that any
subjective expectation of privacy Comwell had "was not.. . objectively
reasonable" given that he was on probation and had signed conditions of release
that reflected his reduced expectation of privacy. /<i. at 141.
A jury convicted Comwell of three counts of unlawful possession of a
controlled substance with intent to deliver and one count of resisting arrest. In an
unpublished opinion, the Court of Appeals affirmed, holding that there need not be
a nexus between the property searched and the alleged probation violation. State v.
State V. Cornwell, No. 93845-8
Cornwell, No. 47444-1-II, slip op. at 7(Wash. Ct. App. Sept. 20, 2016)
(unpublished), http://www.courts.wa.gov/opinions/. Alternatively, the court held
that if such a nexus were required, it was satisfied in this instance. /<7. at 8. We
granted review only as to the lawfulness of the property search.
ISSUE
Was the search ofthe car Cornwell was driving an unlawful search requiring
suppression ofthe evidence obtained?
ANALYSIS
Issues of statutory interpretation and constitutional law are reviewed de
novo. State v. Evans, 177 Wn.2d 186, 191,
298 P.3d 724(2013).
A. Preservation ofthe issue
We first address the threshold question of issue preservation because the
State argues Cornwell failed to preserve his claim that there must be a nexus
between the property searched and the alleged probation violation. Ct. Ordered
Answer to Pet. for Review at 6-7. At the CrR 3.6 hearing, defense counsel
primarily relied on the theory that CCD Grabski knew that the car belonged to a
third party and he did not have authority to search property that did not belong to
Cornwell.
However, Cornwell did raise the nexus argument. Defense counsel asserted
that "the law does require considerably more nexus between the place being
State V. Cornwell, No. 93845-8
searched, in this case the car, and a probation violation." 1 VRP at 134. He also
raised the argument in response to a hypothetical question posed by the judge.. The
judge asked whether CCO Grabski would have had authority to search the car if
Cornwell had stolen it. Id. at 127. Defense counsel said no "because there's no
reason to believe that there's any nexus between that and any violation of his DOC
conditions." Id. at 128. In addition, both the State and Cornwell discussed the
meaning of RCW 9.94A.631, the legislature's codification of the probation
exception to the warrant requirement.
We conclude that the issue was properly preserved. Moreover, an ongoing
split in the Court of Appeals, as discussed further below, requires our review in
this case. RAP 13.4(b)(2). We therefore address the merits of Cornwell's claim.
B. Searches pursuant to article I, section 7
Article I, section 7 ofthe Washington Constitution provides a robust privacy
right. It states that "[n]o person shall be disturbed in his private affairs, or his
home invaded, without authority of law." Const, art. I, § 7. The "authority of
law" needed is generally a warrant,"subject to 'a few jealously and carefully
drawn exceptions.'" State v. Ladson, 138 Wn.2d 343, 349,
979 P.2d 833 (1999)
(internal quotation marks omitted)(quoting State v. Hendrickson,
129 Wn.2d 61,
70,917P.2d563 (1996)).
State V. Cornwell, No. 93845-8
However, individuals on probation are not entitled to the full protection of
article I, section 7. State v. Olsen, 189 Wn.2d 118, 124,
399 P.3d 1141 (2017).
They have reduced expectations of privacy because they are '"serving their time
outside the prison walls.'"
Id. at 124-25 (quoting State v. Jardinez,
184 Wn. App.
518, 523,
388 P.3d 292(2014)). Accordingly, it is constitutionally permissible for
a CCO to search an individual based only on a "well-founded or reasonable
suspicion of a probation violation," rather than a warrant supported by probable
cause. State v. Winterstein,
167 Wn.2d 620, 628,
220 P.3d 1226(2009). The
legislature has codified this exception to the warrant requirement at RCW
9.94A.631 The statute reads in relevant part,"If there is reasonable cause to
believe that an offender has violated a condition or requirement of the sentence, a
[CCO] may require an offender to submit to a search and seizure of the offender's
person, residence, automobile, or other personal property." RCW 9.94A.631(1).
The question presented in this case is whether article I, section 7 requires a
nexus between the property searched and the alleged probation violation in order to
protect the reduced privacy interest of individuals on probation. While the parties
agree that we should determine the scope of a CCO's search consistent with RCW
^ A CCO's authority to conduct a property search is derived from an authorizing
probation condition in a valid, court-prdered judgment and sentence. However,the parties agree
that the probation condition, and any limitations on the scope of searches conducted pursuant to
its authorization, should be interpreted consistently with RCW 9.94A.631.
State V. Cornwell, No. 93845-8
9.94A.631, their positions on the nexus requirement reflect an ongoing split in the
Court of Appeals.
The State asks us to endorse the line of reasoning in State v. Parris, where a
Division Two panel concluded that "probationers do not have a reasonable
expectation of privacy in their residences, vehicles, or personal belongings." 163
Wn. App. 110, 123,
259 P.3d 331 (2011). Because they do not have a reasonable
expectation of privacy, the State argues, any probation violation warrants a search
of all the individual's property, regardless of whether it is likely to contain any
evidence of the alleged violation.
Meanwhile, Cornwell relies on the reasoning of Division Three in Jardinez,
184 Wn, App. 518. Concluding that RCW 9.94A.631 is silent on the nexus
requirement, the court used the following Sentencing Guidelines Commission
commentary on a predecessor statute as evidence of legislative intent:
"The Commission intends that Community Corrections Officers
exercise their arrest powers sparingly, with due consideration for the
seriousness ofthe violation alleged and the impact of confinement on jail
population. Violations may be charged by the Community Corrections
Officer upon notice of violation and summons, without arrest.
"JTze search and seizure authorized by this section should relate to the
violation which the Community Corrections Officer believes to have
occurred^
Id, at 529(quoting David Boerner,Sentencing in Washington: A Legal
Analysis of the Sentencing Reform Act of 1981, at app. 1-13 (1985). The
State V. Cornwall, No. 93845-8
court held the commentary "demands a nexus between the searched property and
the alleged crime," which it noted was also "consistent with general principles of
search and seizure law." Id.
We agree with Jardinez that RCW 9.94A.631 is silent on the nexus
requirement. We therefore resolve the question presented and the split in the Court
of Appeals by interpreting the statute in a manner that conforms to article I, section
7 as permitted by a reasonable reading ofthe statute's plain language. Utter ex rel.
State v.Bldg. Indus. Ass'n of Wash., 182 Wn.2d 398, 434,
341 P.3d 953 (2015).
It is already established that in accordance with article I, section 7,
individuals on probation do not forfeit all expectations of privacy in exchange for
their release into the community. Olsen, \%9 Wn.2d at 125. While the State may
closely supervise them to advance the probation system's goals of promoting
rehabilitation and protecting public safety, its authority is limited. Id. at 128-29.
Individuals' privacy interest can be reduced "only to the extent 'necessitated by the
legitimate demands of the operation ofthe [community supervision] process.'" Id.
at 125 (quoting Parm, 163 Wn. App. at 117).
When there is a nexus between the property searched and the suspected
probation violation, an individual's reduced privacy interest is safeguarded in two
ways. First, a CCO must have "reasonable cause to believe" a probation violation
has occurred before conducting a search at the expense ofthe individual's privacy.
State V. Cornwell, No. 93845-8
RCW 9.94A.631(1). This threshold requirement protects an individual from
random, suspicionless searches. Second, the individual's privacy interest is
diminished only to the extent necessary for the State to monitor compliance with
the particular probation condition that gave rise to the search. The individual's
other property, which has no nexus to the suspected violation, remains free from
search.
In contrast, allowing searches without a nexus between the property searched
and the alleged probation violation destroys what remains ofthe individual's
privacy. While a CCO must still have reasonable cause to believe there has been a
violation, no property is free from search and the CCO does not need to suspect
that the search will produce evidence of any particular probation violation. Much
like a suspicionless search, an open-ended probation search may be used as "'a
fishing expedition to discover evidence of other crimes, past or present.'" Olsen,
189 Wn.2d at 134(quoting State v. Combs, 102 Wn. App. 949,953,
10 P.3d 1101
(2000)).
For example, the defendant in Jardinez failed to report for a meeting and
admitted marijuana use, both violations of his conditions of release. 184 Wn. App.
at 521. The CCO used these violations as the basis for a search of Jardinez's iPod,
during which he found a photo of Jardinez with a firearm. The photo was admitted
as evidence at trial, which resulted in a firearm conviction, even though the CCO
10
State V. Cornwell,'Slo. 93845-8
"had no reason to believe . . . Jardinez possessed a firearm" before conducting the
search. Id. at 528. Such sweeping searches conflict with article I, section 7's
mandate that an individual's privacy right be reduced only when and to the extent
necessary. Olsen, 189 Wn.2d at 125.
Meanwhile, there is no compelling argument that the '"legitimate demands'"
of the probation system require open-ended property searches.^ Id.(internal
quotation marks omitted)(quoting Parris, 163 Wn. App. at 117). Parris well
illustrates that requiring a nexus does not impede the State's ability to effectively
supervise individuals on probation. Derek Lee Parris was on probation after he
failed to register as a sex offender. Parris, 163 Wn. App at 113. He violated
numerous probation conditions, including contacting minors, failing a urinalysis
test, and failing to participate in treatment.
Id. at 113-14. His mother also
informed his CCO that he may have obtained a firearm in violation of his
probation.
Id. at 120.
The CCO searched Parris' room, where she found syringes, pornography,
empty alcohol bottles, and three memory cards, one of which was marked with the
^ Citing Olsen, the dissent asserts that searches without a nexus are constitutionally
permissible because, like random urinalysis(UA)testing of individuals on probation for driving
under the influence, they are a valid monitoring tool. Dissent at 7. The comparison is
unpersuasive. In Olsen, we upheld random UA testing because it was used to evaluate
compliance with a particular probation condition,that prohibited drug and alcohol use. 189
Wn.2d at 133. Here, a search without a nexus to an alleged violation is not directly linked to
evaluating compliance with a particular probation condition.
11
State V. Cornwell, No. 93845-8
name of a female minor. 7<i. at 115. When she viewed their contents, she found
sexually explicit videos of Parris and a minor as well as photographs of guns. Id.
A nexus between the memory cards and a suspected probation violation was
undoubtedly satisfied because the CCO "believed she might find evidence of[an
illegal firearm]" on the cards. Id. at 120. Thus,Parris shows that searches
tethered to a particular probation condition are a practical and effective tool that
further the State's interest in monitoring compliance and promoting public safety
while still protecting individuals from arbitrary searches.
In sum, we believe "[t]he goals ofthe probation process can ... be
accomplished with rules and procedures that provide both the necessary societal
protections as well as the necessary constitutional protections." State v. Lampman,
45 Wn. App. 228, 233,
724 P.2d 1092(1986). Limiting the scope of a CCO's
search to property reasonably believed to have a nexus with the suspected
probation violation protects the privacy and dignity of individuals on probation
while still allowing the State ample supervision. We therefore hold that article I,
section 7 permits a warrantless search of the property of an individual on probation
only where there is a nexus between the property searched and the alleged
probation violation.
Applying the nexus requirement to this case, we conclude CCO Grabski's
search of Comwell's car exceeded its lawful scope. While CCO Grabski may have
12
State V. Cornwell, No. 93845-8
suspected Comwell violated other probation conditions, the only probation
violation supported by the record is Comwell's failure to report."^ This court has
already determined that there is no nexus between property and the crime of failure
to report. State v. Patton, 167 Wn.2d 379, 395,
219 P.3d 651 (2009). Moreover,
CCO Grabski's testimony at the CrR 3.6 hearing confirmed that he had no
expectation that the search would produce evidence of Comwell's failure to report,
-and that he searched the vehicle only because Comwell "ha[d] a felony warrant for
his arrest... in violation of his probation [and][h]e's driving the vehicle." 1 VRP
at 93. He explained that his search was not limited in scope because "[i]f there is
anjhhing in the vehicle, whether it is in a suitcase, clothing, I'm going to go
through those items." Id. at 94. He also testified that he was looking for unrelated
probation violations because he searched the vehicle "to make sure there's no
violations of his probation." Id. at 93(emphasis added). CCO Grabski's
search was clearly '"a fishing expedition,"' which article I, section 7 does not
permit. Olsen, 189 Wn.2d at 134(quoting Combs, 102 Wn. App. at 953).
Because there was no nexus to Comwell's suspected probation violation, the
search of the car Comwell was driving was unlawful. The evidence seized
The dissent claims that there was a sufficient nexus in this case by inferring from the
record that Comwell violated other conditions of his probation. Dissent at 2-3. However,the
record indicates that the State failed to elicit testimony that established CCO Grabski had
reasonable cause to believe evidence of any probation violation would be found inside the car.
13
State V. Cornwell, No. 93845-8
therefore should have been suppressed in accordance with our well-established
exclusionary rule. State v. Ibarra-Cisneros, 172 Wn.2d 880, 885-86,
263 P.3d 591
(2011). We thus reverse the Court of Appeals and Comwell's convictions.
CONCLUSION
Individuals on probation have a limited, but constitutionally protected,
privacy interest that does not permit CCOs to conduct open-ended property
searches. For a search to be lawful, there must be a nexus between the property
searched and the alleged probation violation. In this case, the search of Comwell's
vehicle was unlawful because there was no nexus between the search and his
suspected probation violation offailure to report to DOC. The evidence seized
during the search should have been suppressed. Accordingly, we reverse the Court
of Appeals and Comwell's convictions.
14
State V. Cornwell, No. 93845-8
WE CONCUR:
'VaA-WV^-^
Jtr
15
State V. Cornwell (Curtis Lamont)
No. 93845-8
MADSEN,J.(dissenting)—The majority holds that a community corrections
officer's(CCO)search ofthe car that probationer Curtis Lamont Comwell was driving
was unlawful because there was no nexus between that search and his suspected
probation violation. I disagree. The imposition of a "direct nexus" requirement is
contrary to Comwell's status as a probationer, and it is not a requirement ofthe
controlling statute defining his susceptibility to search, RCW 9.94A.631(1). But, even if
an additional, direct nexus must be imposed beyond what is already required by the
statute, that requirement is met under the facts of this case. Therefore, I dissent.
Facts leading to the search
The majority identifies the probation violation that prompted Comwell's
apprehension, the arrest warrant, as the only probation violation supported by the record,
and thus the only probation violation that is relevant here. But the record also objectively
supports an additional basis for the search. Comwell's arrest warrant, coupled with the
pursuing Tacoma police officers' belief that Comwell was in possession ofthe Chevrolet
Monte Carlo that they had stopped, are the facts that prompted Comwell's apprehension.
But, additional facts developed from that point in time, which raised an objectively
No. 93845-8
Madsen, J., dissenting
reasonable basis to believe that Comwell, who was indeed driving the Monte Carlo in
question, had also violated the conditions of his probation concerning illegal drugs.^
First, Comwell ignored the police officers' directive to stay in the car when he was
stopped. Upon exiting the car, he again ignored the officers' directive to get on the
ground. Then, Comwell fled. When he was apprehended, officers found a large amount
of cash(more than $1,500) on his person. These facts added to the other information that
CCO Thomas Grabski already had: CCO Grabski had earlier observed the car Comwell
was driving at a known dmg house, and the car's owner had informed CCO Grabski that
she had given the car to Comwell but wanted it back. Taken together, there is ample
reason to believe that Comwell was likely in possession of and/or even dealing illegal
dmgs in violation of his probation. Restated, there is enough objective evidence in the
record to establish "reasonable cause" to believe that Comwell had violated the condition
of his probation that prohibited his possession of controlled substances.
At the time of the search, Comwell was subject to probation conditions, which
Comwell had acknowledged and agreed to abide by, including that he "[shall][ojbey all
laws," he "[shall] [r]eport to and be available for contact with assigned community
corrections officer," he "[shall] not consume alcohol," he "[shall] not associate with dmg
users or sellers," and he "[shall] not use/possess/consume any controlled substances."
Ex. 4, at 1-2. Additionally, commensurate with the requirements ofRCW 9.94A.631(1),
'In other words, the circumstanee here is similar to a traffic stop morphing into a Terry
investigation, see Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868,
20 L. Ed. 2d 889(1968), based on
developing circumstances that suggest to the officer that illegal activity is afoot and further
investigation is warranted.
No. 93845-8
Madsen, J., dissenting
he also expressly acknowledged,"I am aware that I am subject to search and seizure of
my person, residence, automobile, or other personal property if there is reasonable cause
on the part of the Department of Corrections to believe that I have violated the
conditions/requirements or instructions above."
Id. at 3. Based on this record, I would
hold that CCO Grabski's search of Comwell's car was justified under RCW
9.94A.631(1), with or without the additional nexus requirement imposed by the majority.
RCW 9.94A.63U1). nexus, and the Washington State Constitution
I also disagree with the majority's view that an additional nexus requirement must
be added to the plain language ofRCW 9.94A.631(1)in order to ensure that CCOs do not
engage in improper fishing expeditions, or that such an addition is required by article I,
section 7 of our state constitution.^ First, as explained above, under the objective facts
contained in the record, CCO Grabski's search of Comwell's car cannot be accurately
described as an unwarranted fishing expedition because there was reasonable cause to
believe that Comwell had violated the illegal dmg prohibition condition of his probation.
More importantly, this case does not concem the privacy expectations of an
unconvicted citizen. Thus, our focus is more properly the parameters of a CCO's
authority to supervise a convicted felon as that felon serves a portion of his sentence in
the community on probation. Consideration of such parameters includes weighing the
CCO's authority to strictly supervise the felon in order to promote the felon's
^ The Washington State Constitution provides that "[n]o person shall be disturbed in his private
affairs, or his home invaded, without authority oflaw." WASH. CONST, art. I, § 7.
No. 93845-8
Madsen, J., dissenting
rehabilitation and to monitor compliance with community custody conditions to protect
the public against the felon's acknowledged limited expectations of privacy as a
probationer. In my view, the appropriate balance ofthese considerations is struck by the
legislature in the plain language ofRCW 9.94A.631(1), which provides in relevant part:
If an offender violates any condition or requirement of a sentence, a
community corrections officer may arrest or cause the arrest of the offender
without a warrant.... Ifthere is reasonable cause to believe that an
offender has violated a condition or requirement ofthe sentence, a
community corrections officer may require an offender to submit to a
search and seizure ofthe offender's person, residence, automobile, or other
personal property.
(Emphasis added.)
The statute's plain language directs that the availability of a search is triggered
only where "reasonable cause" exists that the probationer has violated "a" condition of
his or her sentence. Id. By requiring reasonable cause, the statute does not permit a CCO
to conduct random, harassing, unwarranted searches. Further, by requiring the
reasonable cause to concern only "a" violation, the statute gives the CCO the tools he
needs to closely monitor the probationer to both promote rehabilitation and protect the
public and provides the nexus required: that the search is triggered by a probation
violation.^ Under this plain reading, a probationer is encouraged to comply with all of
^ As the Ninth Circuit Court of Appeals observed when assessing RCW 9.94A.631(l)'s similarly
worded predecessor statute, "offenders enjoy a reduced expectation of privacy while on
supervised release, which the law protects by requiring reasonable grounds for a search." United
States V. Conway, 122 F.3d 841, 842(9th Cir. 1997)(citation omitted). Accordingly, the statute
"promotes the goal of rehabilitation and it enhances community safety by permitting the rapid
detection of contraband and criminal activity."
Id. (citations omitted).
No. 93845-8
Madsen, J., dissenting
the conditions of his or her probation in order to avoid triggering CCO searches tmder the
statute. This properly balances the various interests involved and avoids the "fishing
expeditions" that concern the majority.'^
As to whether article I, section 7 of our state constitution requires that a stricter
nexus component be added to RCW 9.94A.631, as the majority does here, I find our
recent decision in State v. Olsen, 189 Wn.2d 118,
399 P.3d 1141 (2017), instructive by
analogy. There, we held that random urinalysis testing of probationers for controlled
substances, as a condition of probation, does not violate article I, section 7 of our state
constitution. As this court explained,"probationers do not enjoy constitutional privacy
protection to the same degree as other citizens."
Id. at 124. "Probationers have a reduced
expectation of privacy because they are 'persons whom a court has sentenced to
confmement but who are serving their time outside the prison walls.'"
Id. at 124-25
(quoting State v. Jardinez,
184 Wn. App. 518, 523,
338 P.3d 292(2014)). The State
"may supervise and scrutinize a probationer more closely than it may other citizens." Id.
at 125. But'"this diminished expectation of privacy is constitutionally permissible only
to the extent necessitated by the legitimate demands of the operation ofthe parole
In Griffin v. Wisconsin,
483 U.S. 868, 873-75,
107 S. Ct. 3164,
97 L. Ed. 2d 709(1987), the
Supreme Court observed that, like incarceration, probation is a form of criminal sanction.
Accordingly, probationers do not enjoy the absolute liberty to which unconvicted citizens are
entitled, but only conditional liberty properly dependent on observance of special (probation)
restrictions, and such restrictions are meant to assure that the probation serves as a period of
genuine rehabilitation and the community is not harmed by the probationer being at large.
Id.
Such goals "require and justify the exercise of supervision to assure that the restrictions are in
fact observed."
Id. at 875. The Griffin Court further observed that "research suggests that more
intensive supervision can reduce recidivism."Id.(citing Joan Petersilia, Probation and Felony
Offenders, 49 FED.Prob. 9(June 1985)).
No. 93845-8
Madsen, J., dissenting
process.'" Id.(internal quotation marks omitted)(quoting State v. Parris,
163 Wn. App.
110, 117,
259 P.3d 331 (2011)). As we explained, the government indeed has "a
compelling interest in disturbing [a probationer's] privaey interest in order to promote her
rehabilitation and protect the publie," the random testing was narrowly tailored to
monitor complianee with a validly imposed probation condition, and "the judgment and
sentence constitutes sufficient 'authority of law' to require random [urinalysis testing]."
Id. at 126. "[B]eeause probationers have a redueed expectation of privacy, the State does
not need a warrant, an applicable warrant exception, or even probable cause to search a
probationer." Id.
Explaining the particular status of probationers, we observed that the probationer
at issue "was convicted of a erime and is still in the State's legal custody. She has a duty
to engage in her rehabilitation in exchange for the privilege of being relieved from jail
time and ^should expect close scrutiny ofher conduct.' Her privaey interests are more
constrained than those of[an unconvicted citizen]." Id. at 127(emphasis added)
(citations omitted)(quoting State v. Lucas, 56 Wn. App. 236, 241,
783 P.2d 121 (1989)).
Probation is "not a right, but 'an act ofjudicial grace or lenience motivated in part by the
hope that the offender will become rehabilitated.'"
Id. at 128 (quoting Gillespie v. State,
17 Wn. App. 363, 366-67,
563 P.2d 1272(1977)).
Commenting on the need for proper tools in the probation context, we observed
that "[t]he State has a duty not just to promote and assess the rehabilitation of a
probationer, but also to protect the public." Id. at 129. Accordingly, a "sentencing court
No. 93845-8
Madsen, J., dissenting
has great discretion to impose conditions and restrictions of probation to 'assure that the
probation serves as a period of genuine rehabilitation and that the community is not
harmed by the probationer's being at large.'" Id. at 128 (quoting Griffin v. Wisconsin,
483 U.S. 868, 875,
107 S. Ct. 3164,
97 L. Ed. 2d 709(1987)).
We recognized that "the State has a compelling interest in closely monitoring
probationers in order to promote their rehabilitation," and that because "probation
officers' role is 'rehabilitative rather than punitive in nature,' they must, then, have tools
at their disposal in order to accurately assess whether rehabilitation is taking place." Id.
at 128 (quoting State v. Reichert,
158 Wn. App. 374, 387,
242 P.3d 44(2010)). We held
that random urinalysis testing was such a tool, reasoning that "[r]andom testing seeks to
deter the probationer from consuming drugs or alcohol by putting her on notice that drug
use can be discovered at any time. It also promotes rehabilitation and accountability by
providing the probation officer with 'a practical mechanism to determine whether
rehabilitation is indeed taking place.'"
Id. at 131 (quoting Macias v. State,
649 S.W.2d
150, 152(Tex. Crim. App. 1983)). We concluded that the random urinalysis testing as a
condition of probation was a constitutionally permissible form of close scrutiny of the
probationers because it was a narrowly tailored monitoring tool imposed pursuant to a
valid prohibition on drug and alcohol use, and was directly related to a probationer's
rehabilitation and supervision. Id. at 134.
As written, RCW 9.94A.631(1) is likewise a constitutionally permissible tool in
the hands of a CCO. It is limited by its terms to reasonable cause. Where reasonable
No. 93845-8
Madsen, J., dissenting
cause does exist that a probationer has violated a condition of his sentence, a CCO's
authority to conduct a search is triggered. Such close supervision promotes a
probationer's rehabilitation and aeeountability and also proteets the publie. By contrast,
the majority's imposition of a direct nexus requirement impermissibly adds language to
an unambiguous statute. The added requirement is both unnecessary and harmful
because the statute itself contains sufficiently limiting language and the additional nexus
requirement dilutes the effeetiveness of a CCO's ability to closely monitor probationers,
promote rehabilitation, and protect the public. The majority's approach undermines and
complieates a straightforward and effeetive monitoring proeess and likely will result in
increased challenges to the underlying violation supporting a CCO's legitimate
compliance searehes.
For these reasons, I dissent.
No. 93845-8
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