The U.S. and Washington Constitutions generally protect individuals from unlawful searches. Although individuals on parole or probation have somewhat diminished privacy rights, there are still limitations on when they can be searched. A defendant recently appealed his conviction, arguing the search of his vehicle was improper.
According to the appeals court’s published opinion, the defendant was pulled over for suspicion of driving on a suspended license in October 2020. When the officer found out the defendant was on probation, he contacted the Department of Corrections and requested a community custody officer (“CCO”). The defendant’s probation arose from a previous firearm conviction.
Upon reviewing the conditions of the defendant’s community custody, the CCO found that the defendant was in violation of a geographic boundary condition which prevented him from being in the Central District of Seattle, where he was pulled over. The CCO testified that the geographic restriction had been requested because the defendant was listed in a police data base as a member of a gang associated with that area.
The CCO talked to the defendant and searched his vehicle for a firearm. He found a firearm under the driver’s seat.
The defendant was arrested and charged with one count of unlawful possession of a firearm in the first degree.
The defendant moved to suppress the firearm evidence. He argued there was not a sufficient nexus connecting the firearm to the violation of the geographic restriction.
At the suppression hearing, the CCO testified that the violation would not have necessitated a search, but the “nexus for [his] search” was instead the defendant’s “history of firearms possession.”
The trial court denied the motion, and a jury subsequently convicted the defendant. He was sentenced to 41 months incarceration.
The defendant appealed.
Article 1, section 7 of the Washington Constitution generally protects individuals from warrantless searches, with some limited exceptions. The privacy rights of individuals on parole or probation, however, are diminished as a result of their sentence. A CCO may search an individual on probation if there is a “reasonable cause to believe that an offender has violated a condition or requirement of the sentence. . .” RCW 9.94A.631. There still must be a nexus between the searched property and the alleged violation and property that does not have a nexus may not be searched.
The CCO testified that the nexus was the prior firearm conviction. The trial court, however, found that the car being in the restricted geographic area was a nexus. In its appellate brief, the state argued the nexus between the vehicle and the geographic violation was established by the defendant previously possessing firearms and associating with a gang in the Central District.
At oral arguments, the state asked the court to instead consider whether the CCO had a reasonable suspicion the defendant was in possession of a firearm. The state pointed to the geographic violation, the defendant’s previous affiliation with a gang, and his previous firearm conviction.
The appeals court concluded the search was unconstitutional under any of these theories. The appeals court concluded that the geographic violation did not provide any reason why the defendant may have been in possession of a firearm. There was no other evidence specifically suggesting the defendant may have had a firearm and the state had not provided a sufficient explanation of why it could reasonably be believed that he may have had one immediately before the search. The CCO acknowledged that the geographic boundary was not relevant to his decision to search the defendant. Under prior case law, past convictions with no other evidence are not sufficient to support a search of a probationer.
The appeals court noted the state did not argue the error had been harmless.
The appeals court reversed the denial of the defendant’s motion to suppress, reversed the conviction, and remanded the case to the trial court.
Although individuals on parole or probation have diminished rights to privacy, this case shows there are limits to law enforcement’s right to search them without a warrant. If you are facing criminal charges involving evidence found in a warrantless search, a knowledgeable Washington criminal defense attorney can review the facts of your case and fight for you to protect your rights. Call Blair & Kim, PLLC, at (206) 622-6562 for a consultation.