                                                                                                     FI'L D
                                                                                         COMRT OF APPEALS
                                                                                                Ci1' 1C1
                                                                                                   S
                                                                                       2013 NAY, 29 All- :
                                                                                                    30 9


     IN THE COURT OF APPEALS OF THE STATE OF WAS
                                                                                                 0
                                        DIVISION II

STATE OF WASHINGTON,                                               No. 42691 9 II
                                                                             - -


                              Respondent,

        V.




MICHAEL JAMES MANNING,                                       UNPUBLISHED OPINION

                              I1



        JOHANSON, A. . Michael James Manning appeals his conviction for possession of a
                  J.
                   C     —


 short-
      barreled shotgun contrary to RCW 9.1. The shotgun was seized by officers working
                                       190.
                                         4

 for the Department of Corrections (DOC) during a search of Manning's home that occurred

 when his wife violated the terms of her probation. Manning contends that the trial court erred by

 denying his motion to suppress evidence because the warrantless seizure of the shotgun was

unlawful.__
         Because the.DOC,-
                        officers who discovered the shotgun were acting under_
                                                                             statutory, _

 authority, we affirm.

                                             FACTS


                                         I. BACKGROUND


        In February 2010, Flo Elizabeth Frost, Manning's wife, was on probation with the DOC.

 As part of her supervision, Frost was required to sign a standard DOC conditions requirements
 and instructions form. This document   provided   that Frost would be   subject to search   and seizure
No. 42691 9 II
          - -



of her person, residence, automobile, or other personal property if the DOC had reasonable cause
to believe that she has violated a condition or requirement of her probation.

       Frost's probation arrangement also required her to inform the DOC where she was

residing and to report to the DOC daily for "day reporting." Verbatim Report of Proceedings

VRP)at 9.Frost was temporarily granted reprieve from the obligation to report while she sought

inpatient treatment, but she was to resume reporting upon her release.

       Shortly after Frost's release from treatment, a duty officer working for the DOC received

a phone call from David Frost, Frost's family member who had been watching her child while

she was in treatment. David indicated that he had concerns about Frost, including the possibility

that she was using drugs. Receiving this information prompted the duty officer to pull Frost's

case file. Upon reviewing her case, the duty officer determined that Frost had not satisfied her

obligation to report to the DOC after her release from treatment. The DOC obtained an arrest
warrant for Frost as a result of this violation.


        On February 8, Community Corrections Specialists (CCS)Fili Matua and Brian Ford and

Detective Spencer Harris of the Vancouver Police Department executed the arrest warrant at the
address Frost had listed    as   her residence with the DOC.     As the officers approached the

residence, CCS Matua observed Frost in the southeast bedroom through that room's window.

The officers then went to the front door of the residence, and Frost answered it. The officers

advised Frost that there was a warrant for her arrest and entered the home.

        While CCS Ford spoke with Frost in the living room, CCS Matua and Detective Harris
conducted     safety sweep" and
            a "                      a   search of the home. VRP at 27. When CCS Matua and


Detective Harris entered the southeast bedroom where they had previously seen Frost, they


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No. 42691 9 II
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observed a large safe. On top of the safe, the officers saw ammunition and a prescription pill

bottle bearing Frost's name. CCS Matua knew that Frost was allowed to reside in the home with

the gun safe but that she could not have access to any firearms.         CCS Matua's training and

experience told him that this was generally the type of safe used to store firearms. Needing to

determine whether the safe was locked, CCS Matua asked Detective Harris to check the safe

door. The door was unlocked and "opened right up."
                                                 VRP at 40. There were several firearms

inside the safe, including a double -barreled shotgun. It was apparent to Detective Harris that this

shotgun was short-
                 barreled because it was smaller than his boot, so the officers seized the

shotgun.   After   being   read her   Miranda' rights, Frost made a statement to the effect that the

bedroom where the safe was found was her "unk room."
                                         j         VRP at 41.

       Subsequently, Frost contacted Manning and asked him to come home to watch their child
while she went with the officers. When he arrived, Manning stated that the firearms, including

         barreled
the short-            shotgun, belonged      to   him.   The State charged Manning with unlawful

possession of a short-
                     barreled shotgun.

                                              II.PROCEDURE


        Before trial, Manning moved to suppress all evidence seized as a result of the DOC

search of his residence,.
                        arguing that the search exceeded the authority granted to the officers on

the basis of Frost's arrest warrant, that the search could not be justified on the basis of a

protective sweep, and that the search violated DOC policy. The trial court found that there were
concerns   that Frost was    using drugs. Additionally, the trial court found that CCS Matua and


Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
                         S



                                                     3
No. 42691 9 II
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Detective Harris checked the residence for safety purposes and also conducted a standard DOC

search because Frost had violated her   probation. The trial court also entered findings that the

officers had an obligation to check the safe to determine if there were any additional violations

because the room appeared to be either Frost's room or a common room and that once the

officers opened the safe, the illegal nature of the shotgun was immediately apparent to Detective
Harris.

          Based on these findings, the trial court denied Manning's motion, concluding that the

search of Manning's residence was lawful because the officers had probable cause to believe that

Frost resided at the residence and they had reasonable suspicion that Frost had violated her

probation by failing to report. Moreover, the trial court concluded that there was a sufficient
basis to check the gun safe to determine if Frost was in further violation because the room

appeared to belong to Frost or,at the very least, was a common room of the residence.
          Manning was then tried on stipulated facts and convicted of possession of a short-

barreled shotgun pursuant to RCW 9.1.after a bench trial. Manning timely appeals.
                                 190
                                  4
                                           ANALYSIS


          Manning argues that the trial court erred in denying his motion to suppress. We affirm

Manning's conviction.

                                     I. STANDARD OF REVIEW


          We review conclusions of law relating to the suppression of evidence de novo. State v.

Winterstein, 167 Wn. d 620, 628, 220 P. d 1226 ( 2009). When reviewing the denial of a
                   2                  3




                                                 El
No. 42691 9 II
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suppression motion, we determine whether substantial evidence supports the findings of fact and

whether the findings support the conclusions of law. State v. Hill, 123 Wn. d 641, 644, 870 P. d
                                                                          2                  2

313 ( 1994). Substantial     evidence is "`
                                          evidence sufficient to persuade a fair -
                                                                                 minded, rational

person of the truth of the   finding. "' State v. Levy, 156 Wn. d 709, 733, 132 P. d 1076 ( 006)
                                                              2                  3        2

quoting State v. Mendez, 137 Wn. d 208, 214, 970 P. d 722 (1999)). give great deference
                               2                  2              We

to a trial court's resolution of differing accounts of the circumstances surrounding the encounter

set forth in its factual findings. Hill, 123 Wn. d at 646. Provided there is substantial evidence to
                                               2

support them,    we   view the trial court's    findings   as   verities.   Hill, 123 Wn. d at 647.
                                                                                        2

Unchallenged findings of fact are considered verities on appeal. Hill, 123 Wn. d at 644.
                                                                             2

       Warrantless searches and seizures are unconstitutional unless they fall within one of the

narrowly drawn exceptions to the warrant requirement. State v. Schlieker, 115 Wn. App. 264,

269 70,62 P. d 520 (2003); also State v. Ladson, 138 Wn. d 343, 349, 979 P. d 833 (1999).
    -      3             see                           2                  2

The State bears the burden of demonstrating that a warrantless search or seizure falls within an

exception   to the warrant   requirement by   clear and   convincing   evidence   State v. Garvin, 166


Wn. d 242,249, 207 P. d 1266 (2009).
  2                 3

                              II. THE SEARCH OF MANNING'S RESIDENCE


       Manning takes issue with the trial court's conclusion that CCS Matua and Detective

Harris legally conducted a security sweep and standard DOC check of a probationer's residence.

Manning argues that the authority to enter the residence and to arrest Frost was premised only on

the basis of her failure to report and therefore, the officers exceeded the scope of that warrant




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No. 42691 9 II
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when they did not promptly leave after making contact with Frost at the front door. Manning

argues further that the officer's search cannot be justified by the protective sweep exception.

Consequently, Manning claims the authority provided to the officers by Frost's arrest warrant

was   used   as   a    pretext in order   to   conduct   a   general   search of the residence.   Manning's

arguments are unavailing.

          As noted above, the Washington Constitution and the Fourth Amendment to the U. .
                                                                                       S

Constitution, prohibit warrantless searches in the absence of               a   recognized exception.   WASH.


CoNST. art. I,        § U. .CoNST. amend. IV;State v. Parris, 163 Wn.App. 110, 117, 259 P. d 331
                      7; S                                                               3

2011),
     review denied, 173 Wn. d 1008 (2012).But Washington law recognizes a warrantless
                          2

search exception to search a parolee or probationer including her home and personal effects

when there is a well -founded or reasonable suspicion of a probation violation and there is

probable cause to believe that the probationer resides at the residence to be searched.

Winterstein, 167 Wn. d at 628, 630; State v. Campbell, 103 Wn. d 1, 22 23, 691 P. d 929
                   2                                         2         -        2

1984), denied, 471 U. . 1094 (1985).. exception is codified in RCW 9. ),
     cent.          S               This                           631( 4A.
                                                                      1
                                                                      9
which provides:

          1) 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, pending a determination by the court or by the department. If
          there is reasonable cause to believe that an offender has violated a condition or
          requirement of the sentence, a community corrections officer may require an
          offender to submit to a search and seizure of the offender's person, residence,
          automobile, or other personal property.



2
                                                                                                             1.
      legislature amended this statute in 2012. LAWS of 2012, 1st Spec. Sess.,ch.
    The                                                                                                 6§
Because the amendment is not relevant, we cite to the current version of the statute.




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No. 42691 9 II
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         Such a categorical exception to the warrant requirement exists because parolees and

probationers have a diminished right of privacy as "they are persons whom a court has sentenced

to confinement but who are simply serving their time outside the prison walls."Parris, 163 Wn.

App. at 117. Nevertheless, this diminished expectation of privacy is constitutionally permissible

only to the extent "necessitated by the legitimate demands of the operation of the parole

process."State v. Simms, 10 Wn. App. 75, 86, 516 P. d 1088 (1973),
                                                  2              review denied, 83 Wn. d
                                                                                     2

1007 (   1974). Furthermore, nonprobationers living with probationers are owed the full

protections of the Washington Constitution and the Fourth Amendment. State v. McKague, 143

Wn. App. 531, 544 45, 178 P. d 1035 (2008).Where a nonprobationer shares a residence with a
                  -        3

probationer, the search must be limited to common areas and areas the probationer is known to

occupy. McKague, 143 Wn. App. at 545.

         To support his assertion that the DOC. officers exceeded the scope of their authority in

searching his residence, Manning relies on State v. Hatchie, 161 Wn. d 390, 166 P. d 698
                                                                   2             3

2007).There, police went to Raymond Hatchie's home looking for another resident for whom

they had an arrest warrant. Hatchie, 161 Wn. d at 393. The court held, inter alia, that an arrest
                                           2
warrant constitutes authority of law which allows police the limited authority to enter a residence

for an arrest subject to several conditions including that the entry is not used as a pretext for

conducting    other unauthorized   searches   or   investigations.   Hatchie, 161 Wn. d at 392.
                                                                                    2

         Manning's reliance on Hatchie is misplaced because the entry into the residence in

Hatchie was predicated on the arrest warrant only. For this reason the entry was allowed only to
the extent necessary to effectuate the arrest. Hatchie 161 Wn. d at 402. Here, however, the
                                                             2


rules are different because of Frost's status as a probationer. Frost signed the DOC documents


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No. 42691 9 II
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regarding the conditions and requirements of her probation. In doing so,Frost acknowledged the

fact that those conditions meant that she was subject to DOC rules including a search of her

person, residence, automobile, or other personal property upon suspicion of a violation. RCW

631( 4A.
9. 1).
   9

       The fact that the DOC officers had actually obtained a warrant for Frost's arrest is

ultimately irrelevant as it pertains to the scope of the officer's entry and subsequent search of the

residence because the search was permitted under RCW 9. ).
                                                     631( 4A. The officers did not need
                                                        1
                                                        9

to rely on the protective sweep doctrine to justify their search. All that was required on behalf of

the officers to conduct a legal search of the residence based on these facts, was a reasonable

suspicion that Frost had violated the terms of her probation and probable cause to believe she

resided at the residence they sought to search.

        Probable cause exists when an .officer has reasonable and trustworthy information that

would lead a person of reasonable caution to believe that the probationer lives at the place to be

searched. Winterstein, 167 Wn. d at 630. Per the terms of her probation, Frost was required to
                             2

indicate to the DOC where she was going to reside. The DOC officers went to that listed address

upon receiving information that Frost was present. As they approached the .residence, officers

observed Frost inside through a bedroom window. This is enough information to lead a person
of reasonable caution to believe that Frost lived at the residence officers intended to search and

that she had access to the room containing the gun safe. Moreover, at the time of the search,

Frost's DOC file indicated that she had failed to report as ordered and that there were concerns

she was using drugs. These facts provided officers with the requisite suspicion that a violation

had occurred and justified a subsequent search of her residence.


                                                  N
No. 42691 9 II
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        Further, there is no indication that the arrest warrant was used as a pretext for conducting

the search or that the police used a parole officer as a "stalking horse" as Manning alleges. Br.

of   Manning   at   9.   It was CCS Matua who received the information regarding the suspected

probation violation and who made the decision to contact Frost. It was also CCS Matua who

requested that Detective Harris check the safe to determine if it was properly secured. There is

no evidence suggesting that the corrections officers were used as stalking horses in order for the

police to conduct a general search of the residence.

        Because of Frost's status as a probationer, no additional justification was needed to

conduct the search of her home and personal property other than reasonable suspicion of a

probation violation and probable cause to believe that the residence belonged to her. Therefore,

substantial evidence supports the trial court's finding of fact on this issue and the trial court did

not err in concluding that the search was legal.

                                      III. Seizure of the Shotgun

        Manning also assigns error to the trial court's finding that the DOC officers had an

obligation to determine whether the safe was locked to see if there were other probation
violations. Manning suggests that the trial court found that the warrantless seizure of the shotgun

was based on the plain view exception to the warrant requirement. But the facts do not support

the application of such an exception in this case. Again,Manning's claims lack merit.

        As we have already stated, Frost had a diminished expectation of privacy because of her

status as a probationer. Parris, 163 -Wn. App. at 117. As a result, Frost's residence, person,




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No. 42691 9 II
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vehicles and other personal property were subject to a DOC search upon reasonable suspicion of

a probation violation as long as the search was limited to common areas and areas the

probationer   was   known to occupy. RCW            631( 4A. McKague,
                                                    9. 1);
                                                       9                         143 Wn.   App. 545.   The


officers observed Frost in the bedroom where the safe was found. They noticed that the door to

the bedroom was propped open, and CCS Matua testified that there was no indication that the

bedroom did not belong to Frost. A prescription pill bottle with Frost's name on it was on top of

the safe indicating Frost had dominion and control of at least some items located in the room.

Additionally, Frost made a statement to the officers to the effect that the bedroom was her " unk
                                                                                            j

room."VRP at 41. At the very least the bedroom appears to be a common room of the residence

which officers could     legally   search.   The search of the bedroom and safe did not require the

support of the plain view doctrine to justify its legality because the officers were searching

pursuant   to the   authority granted   to   them   by   statute.   Accordingly, the cases articulating the

scope of the plain view doctrine have no bearing on this case.

       With regard to the obligation to check for additional violations, Parris is instructive. In

Parris, officers searched the residence of a probationer whose community custody conditions

included prohibitions on contact with minors, possession of sexually explicit materials, and use

of drugs or alcohol. Parris, 163 Wn. App. at 120. Parris's mother also told the officers that

Parris might have obtained a firearm and that she feared he was "out of control."Parris, 163

Wn. App. at 120. During the search of his residence, officers found memory cards and other

digital storage devices. Parris,        163 Wn.     App. at   120.    The court ruled that under the facts




                                                                        0




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No. 42691 9 II
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present in that case, the officer had a well -founded and reasonable suspicion that the memory

cards might contain evidence of additional violations; therefore, the requirements of community
                                                                   "

custody necessitated the search [of the memory cards] both for Parris's safety and for the safety

of others."Parris, 163 Wn. App. at 120.

       The facts and circumstances surrounding the search here are similar to.those in Parris.

As in Parris, DOC officers received information from David Frost indicating that he was

concerned that Frost might be using drugs. The DOC conditions, requirements and instructions

form that Frost signed instructs probationers that they are not allowed to use, possess, or own

firearms. CCS Matua knew that Frost was allowed to reside in a home with a gun safe as long as

it was secured such that she had no access to firearms. CCS Matua testified that he was aware,

based on his training and expertise, that a safe of the size he observed in Frost's home was

capable of storing firearms. He testified further that part of a DOC search for someone subject to

Frost's probation conditions would include checking to see if a safe was locked and, once it was

determined to be unlocked, checking to see if it contained firearms.

       Accordingly, as in Parris, it was necessary for the DOC officers to ensure that the safe

was locked for the safety of all parties involved and because it was possible that the safe

contained evidence of additional violations. Parris, 163 Wn. App. at 120. There is no indication

that such a search should be considered excessive in light of the legitimate demands of the

operation of the community custody process. Simms, 10 Wn. App. at 86. Therefore, substantial

evidence supports the trial court's finding on this issue, and the trial court did not err in

concluding that the search of the safe and the.seizure of the shotgun were authorized.




                                                11
No. 42691 9 II
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      We affirm.

      A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0


                                                                        V



                                                             Johanson, A. .
                                                                       J.
                                                                        C
                                                                            ej   n




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