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     IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )
                                        )
                   Respondent,          )     No. 89965-7
                                        )
v.                                      )
                                        )     ENBANC
MICHAEL SHANE CATES,                    )
                                        )
                   Petitioner.          )     Filed:    JUL 0 2 2015
             ________________)
      YU, J.-One of the community custody conditions imposed as part of

Michael Shane Cates' sentence provides that upon release from total confinement,

he must consent to home visits to monitor his compliance with other community

custody provisions. Cates argues this condition violates article I, section 7 of the

Washington Constitution. We affirm the Court of Appeals' holding that his

challenge is not yet ripe for review.

                   FACTUAL AND PROCEDURAL HISTORY

      Following a jury trial, Cates was convicted of two counts of first degree rape

of a child and two counts of first degree child molestation. He was given a

standard-range sentence for each conviction, all to run concurrently, resulting in 25
State v. Cates, No. 89965-7


years of total confinement. He was further sentenced to 3 years of community

custody upon his release and prohibited from contacting the victim.

       The prosecutor proposed a community custody condition that would have

prohibited Cates from possessing or maintaining access to a computer without

explicit authorization from his community corrections officer (CCO). Clerk's

Papers (CP) at 18; 5 Verbatim Report ofProceedings (Apr. 24, 2012) (VRP) at

615. The trial court noted "that the computer ce1iainly can be used in terms of

contacting victims" but was "concern[ ed]" because there was "no evidence to

support any conclusion" that Cates would do so. 5 VRP at 615. Therefore, instead

of the prosecutor's recommended condition, the trial court entered a modified

condition providing, "You must consent to [Department of Corrections] home

visits to monitor your compliance with supervision. Home visits include access for

the purposes of visual inspection of all areas of the residence in which you live or

have exclusive/joint control/access, to also include computers which you have

access to." CP at 18; see 5 VRP at 615-16. The court orally stated that

       he will have to allow his ceo to have access to any computer used by
       him, and if he has found -- if there is any evidence that he is using it
       for improper purposes contacting children or accessing sexually
       explicit information or materials that he's already prohibited from,
       then he will be prohibited from using it. I will indicate that he can use
       a computer so long as it is subject to a search on request by his ceo,
       and if there is evidence that he's committing any violation by use of
       the computer, he will lose this right.




                                           2
State v. Cates, No. 89965-7


5 VRP at 615. This language was not incorporated into the written judgment and

sentence, either explicitly or by reference.

       The Court of Appeals affirmed Cates' convictions and sentence in an

unpublished opinion. State v. Cates, noted at 179 Wn. App. 1002 (2014). Cates

sought this court's review only as to the validity of the community custody

provision requiring him to consent to home visits.

                                        ISSUE

       Is Cates' challenge ripe for review on its merits?

                                     ANALYSIS

       Several years ago, a unanimous opinion of this court clarified the analysis

for determining whether a preenforcement challenge to a community custody

condition is ripe for review on its merits. State v. Sanchez Valencia, 169 Wn.2d

782, 786-91, 239 P.3d 1059 (2010). It is ripe '""ifthe issues raised are primarily

legal, do not require further factual development, and the challenged action is

final."'" !d. at 786 (quoting State v. Bah!, 164 Wn.2d 739, 751, 193 P.3d 678

(2008) (quoting First United Methodist Church of Seattle v. Hr 'g Exam 'r, 129

Wn.2d 238, 255-56, 916 P.2d 374 (1996))). Furthermore, "we must consider the

hardship to the petitioner[] ifwe refused to review [the] challenge on direct

appeal." !d. at 789. It is undisputed that the community custody condition is a

 final action and Cates' challenge raises primarily legal issues. We thus consider


                                               3
State v. Cates, No. 89965-7


only whether further factual development is required and the risk of hardship to

Cates if we decline to address the merits of his challenge at this time.

       Cates contends that no further factual development is required because he is

bringing a facial constitutional challenge: "Did the Court of Appeals err in

affirming a community custody condition that requires Mr. Cates to 'consent' to

searches by his CCO, merely upon the CCO's request, without specifying that the

search must be based on reasonable cause?" Pet. for Review at 1. Cates'

challenge has no basis in the language of the condition actually imposed. The

condition as written does not authorize any searches, and whether inspecting

Cates' residence or computer, the State's authority is limited to that needed "to

monitor [Cates'] compliance with supervision." 1 CP at 18. Any oral statement by

the trial court indicating otherwise has no legally binding effect and cannot form

the basis for a facial challenge. See State v. Friedlund, 182 Wn.2d 388, 394-95,

341 P.3d 280 (2015); Sanchez Valencia, 169 Wn.2d at 789 (considering a facial

vagueness challenge to "the condition as written"). Some future misapplication of

the community custody condition might violate article I, section 7, but that

"depends on the particular circumstances of the attempted enforcement." Sanchez

 Valencia, 169 Wn.2d at 789. Further factual development is therefore needed-the


 1
  A CCO "may require an offender to submit to a search" but only "[i]f there is reasonable cause
 to believe that an offender has violated a condition or requirement of the sentence." RCW
 9.94A.631(1). That is a statutory provision distinct from the community custody condition here.


                                                4
State v. Cates, No. 89965-7


State must attempt to enforce the condition by requesting and conducting a home

visit after Cates is released from total confinement.

       Moreover, unlike the conditions considered in Sanchez Valencia, Bahl, and

United States v. Loy, 237 F.3d 251, 253 (3d Cir. 2001), the risk ofhardship here is

insufficient to justify review of Cates' challenge before it is factually developed.

In those cases, the conditions at issue prohibited possession of crime-related items

and "immediately restrict[ ed] the petitioners' conduct upon their release from

prison." Sanchez Valencia, 169 Wn.2d at 791. Compliance with those conditions

required the petitioners to immediately dispose of such items upon their release

and to refrain from obtaining new ones. Compliance here does not require Cates to

do, or refrain from doing, anything upon his release until the State requests and

conducts a home visit. Cates will not "suffer significant risk of hardship" if we

decline to review the merits at this time. Id. at 790 (citing State v. Massey, 81 Wn.

App. 198, 200,913 P.2d 424 (1996)). 2

                                      CONCLUSION

        Under the guidelines set forth in Sanchez Valencia, we affirm the Court of

Appeals' holding that Cates' preenforcement challenge is not yet ripe. Further



2
 Massey incorrectly stated that a defendant challenging a community custody condition must
suffer actual harm before his or her claim is ripe. Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d
1042 (2013). Nevertheless, Massey "properly determined" that the defendant's challenge (which
was similar to the one Cates raises here) was not ripe. Sanchez Valencia, 169 Wn.2d at 790.


                                               5
State v. Cates, No. 89965-7


factual development is needed, and Cates does not face a significant risk of

hardship by our declining to review the merits in the absence of developed facts.




                                          6
State v. Cates, No. 89965-7




 WE CONCUR:




                              7
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)




                                        No. 89965-7

       FAIRHURST, J. (dissenting)-! dissent because Michael Shane Cates' facial

challenge to his community custody provision is ripe for review and because the

computer inspection component of the community custody condition authorizing

unrestricted access to Cates' personal computer by his community corrections

officer (CCO) violates article I, section 7 ofthe Washington Constitution. 1

       Following his convictions for two counts of first degree rape and two counts

of first degree child molestation, the court imposed a community custody condition

that requires, "You must consent to DOC [(Department of Corrections)] home visits

to monitor your compliance with supervision. Home visits include access for the

purposes of visual inspection of all areas of the residence in which you live or have

exclusive/joint control/access, to also include computers which you have access to."

Clerk's Papers (CP) at 18. The court explained that

        [Cates] will have to allow his CCO to have access to any computer used
        by him, and ... if there is any evidence that he is using it for improper
        purposes contacting children or accessing sexually explicit information
        or materials that he's already prohibited from, then he will be prohibited
        from using it. I will indicate that he can use a computer so long as it is
        subject to a search on request by his CCO, and if there is evidence that

        1
         I would hold that the community custody condition permitting Cates' CCO to conduct
home visits and visual inspection of Cates' residence does not constitute prohibited governmental
intrusion into his private affairs under article I, section 7.
                                                1
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



       he's committing any violation by use of the computer, he will lose this
       right.

5 Verbatim Record ofProceedings (Apr. 24, 2012) (VRP) at 615.

       On appeal, Cates argued that the community custody condition violated article

I, section 7 and the Fourth Amendment to the United States Constitution because it

permitted Cates' CCO to conduct a search without reasonable cause in violation of

RCW 9.94A.631. 2 Cates also challenged the condition's computer inspection

component3 on statutory grounds, arguing that the component violated RCW

9.94A.703 4 because it was a noncrime related prohibition. Additionally, Cates

argued that the computer inspection component was unconstitutionally overbroad

under the First Amendment because it chilled his right to use a computer to store his

'"records, reflections, and conversations."' Appellant's Opening Br. at 28 (quoting

State v. Nordlund, 113 Wn. App. 171, 181-82, 53 P.3d 520 (2002)).

        The Court of Appeals declined to address Cates' challenge to the community

custody condition because it found that Cates' challenge was not ripe for review




        2
          Former RCW 9.94A.195 (1984) was recodified as RCW 9.94A.631 in 2001 and provided,
 in relevant part, that "[i]f there is reasonable cause to believe that an offender has violated a
 condition or requirement of the sentence, an offender may be required to submit to a search and
 seizure of the offender's person, residence, automobile, or other personal property."
         3
           I use the phrase "computer inspection component" to refer to the language "to also include
 computers which you have access to" in the community custody condition. CP at 18.
         4RCW 9.94A.703(3) provides, in relevant part, that "[a]s part of any term of community

 custody, the court may order an offender to ... (f) [c]omply with any crime-related prohibitions."
                                                  2
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



unless and until the State subjected Cates to an improper search. State v. Cates,

noted at 179 Wn. App. 1002, 2014 WL 231550, at *5. Cates appealed, asserting the

community custody condition is unconstitutionally vague on its face. 5

       The majority's holding, affirming the Court of Appeals, that the condition will

not be ripe until the State attempts to enforce the condition by conducting a home

visit deviates from our precedent regarding preenforcement challenges to

community custody provisions.

The community custody condition is ripe for review

       To determine whether a preenforcement challenge to a community custody

condition is ripe for review, we must find that '"the issues raised are primarily legal,

do not require further factual development, and the challenged action is final."' State

v. Sanchez Valencia, 169 Wn.2d 782, 786,239 P.3d 1059 (2010) (internal quotation

marks omitted) (quoting State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008)). 6

As part of the ripeness analysis we also consider '"the hardship to the parties of

withholding court consideration."' !d. (internal quotation marks omitted) (quoting

Bahl, 164 Wn.2d at 751).



        5
         "[Cates] is challenging the constitutionality of the condition of community custody that
requires him to 'consent' to random, suspicionless searches or face arrest and jail." Suppl. Br. of
Pet'r at 16. Cates is not challenging the constitutionality or legality of a particular search. !d.
        6
         Sanchez Valencia provides the appropriate test for determining whether a preenforcement
challenge to a community custody provision is ripe for review.
                                                3
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



       In Sanchez Valencia, we found the defendants' preenforcement challenge to

their community custody conditions ripe for review. Id. at 786-91. We reasoned

that their challenge did not require further factual development because the question

presented was "not fact dependent; either the condition as written provides

constitutional notice and protection against arbitrary enforcement or it does not." I d.

at 789.

       The Court of Appeals, relying on State v. Massey, 81 Wn. App. 198,200, 913

P.2d 424 (1996), stated that "[t]he unconstitutionality of a community custody

condition is not ripe for review unless the person is harmfully affected by the part of

the condition alleged to be unconstitutional." Cates, 2014 WL 231550, at *5. In

Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d 1042 (2013), we specifically rejected

the Massey "harmful effect" requirement, finding instead that "[c ]urrent hardship is

not a strict requirement for ripeness." I d. at 525 (emphasis added).

          The Massey court appears to have conflated the justiciability requirements of

ripeness and standing. "In essence the question of standing is whether the litigant is

entitled to have the court decide the merits of the dispute or of particular issues."

Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). In

contrast, ripeness seeks to prevent courts from resolving "possible, dormant,

hypothetical, speculative, or moot disagreement[s]," or entertaining disputes that are


                                            4
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



merely "potential, theoretical, abstract or academic," by ensurmg that the

controversy has sufficiently developed to become suitable for judicial determination;

"otherwise the court steps into the prohibited area of advisory opinions." Diversified

Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973).

       We have repeatedly held that "[a] litigant does not have standing to challenge

a statute on constitutional grounds unless the litigant is harmed by the particular

feature of the statute which is claimed to be unconstitutional." Kadoranian v.

Bellingham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992) (emphasis

added); see also, e.g., Bitts, Inc. v. City ofSeattle, 86 Wn.2d 395,397, 544 P.2d 1242

( 197 6) ("One who is not adversely affected by a provision of a statute or ordinance

has no standing to challenge the validity."); State v. McCarter, 91 Wn.2d 249, 253,

588 P.2d 745 (1978) (finding that "petitioner lacked standing to attack the

constitutionality ofthe statute" because "[o]ne cannot urge the invalidity of a statute

unless harmed by the particular feature which is challenged"), overruled on other

grounds by In re Det. of McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984). The

State has not challenged Cates' standing to raise his claims, and we have stated

unequivocally that "a criminal defendant always has standing to challenge his or her

sentence on grounds of illegality." Bah!, 164 Wn.2d at 750 (emphasis added).




                                           5
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



       I find that the Court of Appeals misplaced its reliance on Massey to resolve

the ripeness inquiry. The majority agrees that Massey incorrectly found that a

defendant challenging a community custody condition must suffer actual harm

before his or her claim is ripe. Majority at 5 n.l. However, the majority relies on the

court's reasoning in Massey to find that Cates' claim is not ripe and states that

Massey was ultimately decided correctly. See majority at 5. I find it important to

reject the language and test used in Massey and to proceed under the proper Sanchez

Valencia ripeness test.

Cates ' challenge does not require further factual development

       The State concedes and the majority agrees that Cates' challenge is primarily

legal and that the challenged action is final. However, the State argues and the

majority holds that Cates' claims will not ripen until the State takes additional action

because reasonable cause is a legal conclusion that depends on the specific factual

circumstances of a search and because Cates has not yet been subject to a search, his

claims therefore require further factual development. Majority at 4. I disagree.

        Cates' challenge does not require further factual development. Cates has not

 challenged the legality of a particular search; rather, Cates contends that his

 community custody computer condition, as written, violates distinct constitutional

 provisions. The community custody condition requires Cates to consent to DOC's


                                           6
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



inspection of his computer. Cates asserts that the community custody condition is

unconstitutionally vague. In contrast to the majority's assertion that Cates' challenge

rests on some future misapplication of the condition, whether the condition is valid

or violates the constitution is purely a question of law. The State need not conduct

an allegedly illegal search for us to determine whether the community custody

condition itself violates the constitutional provisions on which Cates relies. Such

factual development would be irrelevant to the legal question.

       I also find that the condition imposes a hardship on Cates that counsels in

favor of our review. In Bahl, we found Bahl's preenforcement challenge to his

community custody condition ripe for review. 164 Wn.2d at 747-52. There, the State

argued that the conditions imposed no immediate hardship on Bahl because Bahl

was still in prison and the conditions did not yet apply to him. !d. at 7 51. We rejected

that argument. We noted that the conditions would immediately restrict Bahl upon

his release and that nothing could change before Bahl' s release that would affect our

analysis ofthe legal question presented. Id. at 751-52.

        In Bahl, we cited with approval the Third Circuit's reasoning in United States

v. Loy, 237 F.3d 251,257 (3d Cir. 2001), that "the fact that a party may be forced to

 alter his behavior so as to avoid penalties under a potentially illegal regulation is, in

 itself, a hardship." The Loy court reasoned that a criminal defendant need not


                                            7
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



"'expose himself to actual arrest or prosecution to be entitled to challenge a statute

that he claims deters the exercise of his constitutional rights."' !d. (quoting Steffel

v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974)).

       The majority asserts that Cates' community custody condition is different

from the conditions imposed on the defendants in Bah!, Sanchez Valencia, and Loy.

In those cases, compliance with the conditions required the petitioners to

immediately remove certain items from their residence. See Bah!, 164 Wn.2d at 743;

Sanchez Valencia, 169 Wn.2d at 785; Loy, 237 F.3d at 253, 255. The condition here

requires Cates to consent to DOC inspecting his computer.                 According to the

majority, because Cates' condition does not immediately require him to do

something or to refrain from doing something, it does not impose a significant

hardship. Majority at 5.

       However, the Bah! reasoning applies here. According to the community

custody condition, Cates must consent to visual inspections of his computer by a

CC0. 7 The community custody condition will immediately constrain Cates the

moment he is released; the fact that he may be forced to alter his behavior to avoid


        7
        The Court of Appeals has noted that the personal computer is a '"modern day repository
of a man's records, reflections, and conversations."' Nordlund, 113 Wn. App. at 181-82 (quoting
court record at 200). Because the computer contains such personal and private information, the
court in Nordlund noted that the search of a computer implicates both the First and Fourth
Amendments.Jd. at 182.

                                              8
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



violating that condition itself indicates a hardship. Even if the hardship imposed by

Cates' condition is not as significant as those in Bahl, Sanchez Valencia, and Loy,

this does not mean that we must decline review of the community custody computer

condition. The hardship imposed by withholding consideration must be considered.

See Sanchez Valencia, 169 Wn.2d at 786.

       The majority asserts that Cates' challenge has "no basis in the language of the

condition actually imposed" because the community custody condition, as written,

does not authorize a search. Majority at 4. The majority opines that the State's

authority to inspect Cates' computer is limited to that needed "'to monitor [Cates']

compliance with supervision."' I d. (alteration in original) (quoting CP at 18).

However, as written, the terms of the condition allow for a search without reasonable

cause. The condition allows the CCO to have access to Cates' computer for visual

inspection to monitor Cates' compliance with supervision. Given the amount of

personal and private information that can be stored on a computer and the ambiguity

regarding what constitutes "access" for visual inspection of a computer, the

condition may allow unconstitutional searches. Because I find Cates' challenge ripe

for review, I would proceed to the merits of Cates' claim.




                                           9
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



The computer inspection component of the community custody condition is
unconstitutional

       The Washington Constitution protects against illegal searches in article I,

section 7, which provides that "[n]o person shall be disturbed in his private affairs,

or his home invaded, without authority of law." Our court recognizes that the

protections in article I, section 7 are "grounded in a broad right to privacy and the

need for legal authorization in order to disturb that right," State v. Chacon Arreola,

176 Wn.2d 284, 291, 290 P.3d 983 (2012), and that "a person's home is a highly

private place," State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994).

       In this context, where Cates facially challenges his community custody

condition, rather than the propriety of a specific governmental action, we must

determine whether the condition facially authorizes an impermissible search.

Whether or not a governmental action constitutes an impermissible search requires

a two-part analysis. First, we ask whether the government has disturbed one's private

affairs; second, if, and only if, there has been such a disturbance, we ask whether

that disturbance was authorized by law. State v. Puapuaga, 164 Wn.2d 515, 522,

 192 P.3d 360 (2008).

        The private affairs inquiry protects only those pnvacy interests that

Washington citizens have held, and should be entitled to hold, safe from

 governmental trespass absent a warrant. Id. We do not consider the subjective

                                          10
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



privacy expectations of the individual in question because such expectations do not

illuminate those privacy interests that the citizens of this state have held or should

be entitled to hold. !d. Instead, we examine the historical treatment of the asserted

interest, analogous case law, and statutes and laws supporting the claimed interest.

State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007).

       At oral argument, the State asserted that the computer inspection component

permitted a CCO literally only to visually inspect Cates' computer. Wash. Supreme

Court oral argument, State v. Cates, No. 89965-7 (Sept. 30, 2014), at 19:50 to 25:20,

audio recording by TVW, Washington State's Public Affairs Network, available at

http://www.tvw/org. The State argued that a CCO could look at the computer,

perceive whatever content may be displayed on the monitor, and observe any notes

that may be near or attached to the computer. Id. The State did not argue that the

component permitted a ceo to actively inspect the digital contents and files stored

on the computer.

        I disagree with the State's characterization. The trial court clarified the

meaning of the computer inspection component by saying that it gave Cates' CCO

"access to any computer used by [Cates], and ... that [Cates] can use a computer so

 long as it is subject to a search on request by his CCO." 5 VRP at 615 (emphasis

 added). The court explained that the search was meant to allow the CCO to look for


                                          11
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



evidence to determine whether Cates was using the computer to contact children or

access sexually explicit materials. !d.

       The court's comments clearly indicate that it intended the computer inspection

component to permit Cates' CCO to search Cates' computer. I am not persuaded

that a search of a computer means merely beholding its presence; rather, a search of

a computer means scrutinizing the digital contents stored on the computer.

Similarly, in this context "access" means "freedom or ability to obtain or make use

of." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 11 (2002). One does not

make use of a computer by simply eyeing the physical frame. One most naturally

makes use of a computer by examining its digital contents.

       I also find the State's characterization unavailing because we would render

the computer inspection component superfluous if we imbued it with the meaning

assigned by the State. The inspection that it purports to permit would already be

permitted by the home visit component pursuant to the plain view doctrine. I

therefore find that the computer inspection component facially authorizes Cates'

CCO to inspect the contents of Cates' computer.

        I must now determine whether that inspection constitutes a disturbance of

Cates' private affairs. In State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007), we

held that a citizen's bank records fall under the private affairs umbrella due, in part,


                                          12
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



to the type of information they may contain. We considered that "[p]rivate bank

records may disclose what the citizen buys, how often, and from whom. They can

disclose what political, recreational, and religious organizations a citizen supports.

They potentially disclose where the citizen travels, their affiliations, reading

materials, television viewing habits, financial condition, and more." !d. at 246-47.

       Similarly, in State v. Hinton, we found that the contents of a person's text

messages constitute private affairs. 179 Wn.2d 862, 869-70, 319 P.3d 9 (2014). We

reasoned that text messages expose "'a wealth of detail about [a person's] familial,

political, professional, religious, and sexual associations.' Text messages can

encompass the same intimate subjects as phone calls, sealed letters, and other

traditional forms of communication that have historically been strongly protected

under Washington law." !d. (alteration in original) (citation omitted) (quoting United

States v. Jones, _U.S. _ , 132 S. Ct. 945, 955, 181 L. Ed. 2d 911 (2012)

(Sotomayor, J., concurring)).

        A computer raises, to an even greater degree, the same concerns that we

considered in Miles and Hinton. Not only does a computer contain the same type of

information that a bank record may reveal, but in our increasingly paperless world a

 computer likely contains an individual's actual bank records. A computer may also

 contain a person's e-mail correspondence, which implicate the same intimate


                                          13
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



subjects encompassed by one's text messages-and probably more. It is not a stretch

to say that as "'the modern day repository of a man's records, reflections, and

conversations,"' Nordlund, 113 Wn. App at 181-82 (internal quotation marks

omitted) (quoting court record at 200), the contents of a computer expose "a 'wealth

of detail about [a person's] familial, political, professional, religious, and sexual

associations,"' Hinton, 179 Wn.2d at 869 (alteration in original) (quoting Jones, 132

S. Ct. at 955).

       The computer inspection component in Cates' community custody condition

protects none of this information. On its face, the computer inspection component

does not limit the scope of the inspection. Instead, it purports to authorize unfettered

access to all of the contents on Cates' computer. While some of the information on

Cates' computer may be relevant to his compliance with his community custody

conditions, much of it is not. The computer inspection component does nothing to

protect this unrelated information.

        I realize that one's home, in general, may enjoy greater privacy protection

than even one's personal property and that an offender on community custody enjoys

substantially reduced privacy interests in both. However, it is not correct that such

an offender enjoys no privacy protections at all.          Cates' community custody

 condition does not violate his private affairs by authorizing a visual inspection of his


                                           14
 State v. Cates, No. 89965-7
 Fairhurst, J. (dissenting)



 home because the condition appropriately limits the scope of that inspection only to

 the extent necessary to monitor his compliance with the terms of his sentence. In

 contrast, the computer inspection component attempts to allow Cates' CCO access

 not only to information that may help monitor Cates' compliance with the terms of

 his sentence, but also to highly private information entirely unrelated to Cates' term

  of community custody.        I therefore would find that the computer inspection

  component facially authorizes an intrusion into Cates' private affairs.

        I also would find that this intrusion is not authorized by law. Normally, the

  State may obtain authority of law from a valid search warrant. Hinton, 179 Wn.2d

· at 868. A Washington court's authority to issue a search warrant must derive from

  specific statutory authorizations or court rules. City of Seattle v. McCready, 123

  Wn.2d 260, 274, 868 P.2d 134 (1994). Statutory authorization means a statute that

  authorizes a court to issue a warrant-a statute may not simply dispense with the

  warrant requirement. State v. Ladson, 138 Wn.2d 343,352 n.3, 979 P.2d 833 (1999).

  In the absence of a warrant, the State must show that the intrusion "falls within one

  of the jealously guarded and carefully drawn exceptions to the warrant requirement."

  Hinton, 179 Wn.2d at 869.

         The trial court did not have statutory authority to impose the computer

  inspection component on Cates. As we have stated, under the statutory scheme a


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State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



court may impose community custody conditions that in other circumstances might

qualify as a search-without any cause requirement-so long as the court limits

those procedures to the extent necessary to monitor the offender's compliance with

the terms of his sentence. But a court may not require an offender to accept an

unrestricted incursion into his private affairs, entirely divorced from the legitimate

demands of the community custody process, as the trial court did here. I can find no

statute authorizing a warrantless search of an offender on community custody

without restriction. A warrantless search of such an offender is permissible only if

the offender's    ceo can at least show reasonable cause to believe the offender has
violated his community custody conditions.

        The computer inspection component plainly permits a search of Cates'

computer without the reasonable cause required by RCW 9 .94A.631. The condition

states that the computer inspections shall be included in the visual inspections

permitted during the CCO's home visits. 8 The computer inspections necessarily

constitute a search.        By including the computer inspection component-which

necessarily requires at least reasonable cause-within an otherwise appropriate

 monitoring condition, the condition facially authorizes a search of Cates' computer



        8
          As noted, I agree the horne visits do not violate article I, section 7 because they qualify as
 an appropriate monitoring condition, which means that a CCO does not need any degree of cause
 to carry them out.
                                                   16
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



without any requisite suspicion that Cates has violated the terms of his community

custody. I find support for my reading of the condition in the statement from the

trial court that the component permits Cates to use a computer "so long as it is subject

to a search on request by his CCO." 5 VRP at 615 (emphasis added). The court's

statement does not indicate that it envisioned any degree of cause being necessary

for that search. The trial court may not authorize an otherwise baseless search of an

offender's private affairs.

       While the computer community custody condition purports to provide Cates'

consent, this language does not establish consent in a constitutional sense. State v.

Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004). One gives consent to a search

when (1) that person gives such consent voluntarily, (2) that person has authority to

grant such consent, and (3) the search does not exceed the scope of the consent. ld.

We require consent to be both meaningful and informed. State v. Schultz, 170 Wn.2d

746, 754, 248 P.3d 484 (2011).

        Cates' consent, if any, could arise only from the fact that he signed his

judgment and sentence. But I do not find this consent meaningful. Cates must

consent to the search of his computer or face the possibility of having his community

custody revoked and being returned to prison. And this consent was imposed on




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State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)



Cates by the trial court as a condition of his community custody-such consent is

not voluntary.

       Because the computer inspection component in Cates' community custody

condition purports to allow an intrusion into Cates' private affairs without authority

of law, I would hold that the computer inspection component facially violates the

protections in article I, section 7.     I would invalidate the computer inspection

component on that basis.

       Cates' challenge to the computer inspection of his community custody

provision is ripe for this court's consideration. We need not require Cates to suffer

the potential consequences of the condition to challenge its constitutional validity.

The State concedes that the issues are primarily legal and that the challenged action

is final. Cates' challenge satisfies the third requirement of ripeness because it does

not require further factual development. Ripeness does not require a current

hardship, and nothing will change prior to Cates' release that will alter the analysis

of whether the community custody condition, on its face, allows unconstitutional

searches. Therefore, I would reverse the Court of Appeals, reach the merits of Cates'

challenge, and hold that the computer inspection component of the community

custody condition is unconstitutional.




                                           18
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)




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