       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 71522-4-1
                    Respondent,
                                                 DIVISION ONE
             v.



LISA LIPPINCOTT,                                 UNPUBLISHED OPINION

                    Appellant.                   FILED: June 29, 2015


       Becker, J. — When this case went to the jury, an unnecessary element

was included in the to-convict instructions. Because the State failed to prove the

unnecessary element, appellant's eight convictions for second degree identity

theft must be reversed. A conviction for possession of stolen property must also

be reversed because it was the product of a warrantless probation search that

was not supported by reasonable suspicion.

       Three officers set out to execute an arrest warrant for appellant Lisa

Lippincott. The warrant was issued because Lippincott failed to report to her

community custody officer as required by conditions imposed upon her by the

Department of Corrections.

       The officers located Lippincott at a gas station in south Seattle.

Department of Corrections Officer Kristoffer Rongen arrested Lippincott and
immediately began to search her purse. He found keys and five gift and prepaid
No. 71522-4-1/2



credit cards. Rongen knew that Lippincott had a prior conviction for identity theft,

and he had previously encountered Lippincott in an identity theft investigation.

Rongen also knew that Lippincott was unemployed. Seeing the gift and prepaid

credit cards caused Rongen to suspect that Lippincott was failing to report for

supervision because she had become involved in identity theft once again.

       Rongen asked Lippincott where she lived. Lippincott said she lived with

her father in Renton. Rongen did not believe this answer because one of the

other officers had been told by a confidential informant that Lippincott lived at a

particular apartment in Federal Way. Rongen suspected that Lippincott was lying

about her residence in order to prevent the officers from searching the Federal

Way apartment. Rongen suspected that the Federal Way apartment was

Lippincott's true residence and that it was likely to contain evidence of new

identity theft offenses.

       The officers took Lippincott with them to the Federal Way apartment to

search it. Lippincott admitted that she lived there. Inside, the officers found bags

full of identity documents including checks, bank statements, social security

cards, credit cards, passports, birth certificates, and other personal documents.

They also found thousands of pages of blank check-making paper. Rongen

determined that the front door at the Federal Way apartment could be operated

by a key obtained from Lippincott's purse.

       The State charged Lippincott with 10 counts of second degree identity

theft and 1 count of possessing stolen property in the third degree. All charges

stemmed from items found within Lippincott's apartment. Eight of the 10 counts
No. 71522-4-1/3



of identity theft involved copies of canceled rent checks written by tenants who

lived at an apartment complex. The remaining two counts of identity theft

involved copies of drivers' licenses. The charge of possession of stolen property

related to paycheck stubs that were not Lippincott's.

       Lippincott moved to suppress the fruits of the search of her Federal Way

apartment under CR 3.6. The trial court denied the motion, and the cause

proceeded to trial. A jury found Lippincott guilty as charged except for one of the

counts of identity theft. Lippincott appeals.

                         SUFFICIENCY OF THE EVIDENCE

       Evidence is sufficient to support a conviction if, when viewed in the light

most favorable to the State, a trier of fact could find all elements of a crime were

proved beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829

P.2d 1068 (1992).

       The crime of identity theft is set forth in RCW 9.35.020. The portion of that

statute relevant to this appeal states:

       (1) No person may knowingly obtain, possess, use, or transfer a
       means of identification or financial information of another person,
       living or dead, with the intent to commit, or to aid or abet, any
       crime.
            (2) Violation of this section when the accused or an
       accomplice violates subsection (1) of this section and obtains
       credit, money, goods, services, or anything else of value in excess
       of one thousand five hundred dollars in value shall constitute
       identity theft in the first degree. Identity theft in the first degree is a
       class B felony punishable according to chapter 9A.20 RCW.
               (3) A person is guilty of identity theft in the second degree
       when he or she violates subsection (1) of this section under
       circumstances not amounting to identity theft in the first degree.
       Identity theft in the second degree is a class C felony punishable
       according to chapter 9A.20 RCW.




      account];
No. 71522-4-1/5



                (2) That the defendant acted with the intent to commit or to
      aid or abet any crime;
             (3) That the defendant obtained credit or money or goods or
      services or anything else that is $1500 or less in value from the
      acts described in element (1); or did not obtain any credit or money
      or goods or services or other items of value; and
             (4) That any of these acts occurred in the State of
      Washington.
             Ifyou find from the evidence that each of these elements
      has been proved beyond a reasonable doubt, then it will be your
      duty to return a verdict of guilty as to Count 1.
                On the other hand, if, after weighing all of the evidence, you
      have a reasonable doubt as to any one of these elements, then it
      will be your duty to return a verdict of not guilty as to Count 1.

(Emphasis added.)

       Element 3 was unnecessary. Ifan unnecessary element is included in a

to-convict instruction without objection, the State assumes the burden of proving

the added element. State v. Hickman, 135 Wn.2d 97, 102-03, 954 P.2d 900

(1998).

       Lippincott contends the State failed to prove element 3. We agree. At

trial, the State focused only on the first two elements. The State elicited

evidence that Lippincott knowingly possessed copies of the canceled rent checks

and drivers' licenses with the intent to commit additional crimes. As the State

concedes, none of the evidence established that Lippincott used the stolen

identity information to obtain something valued at less than $1,500 or that she did

not obtain anything of value by possessing the information. The State did not

address the third element during its closing argument.

          Because the State failed to prove the unnecessary element included in the

to-convict instructions for identity theft in the second degree, those convictions

must be reversed.
No. 71522-4-1/6



                               ILLEGAL SEARCH

      Lippincott also claims her motion to suppress the evidence found in the

Federal Way apartment was improperly denied because both her purse and the

apartment were searched without a warrant. The State relies on the probation

search exception to the warrant requirement.

       Lippincott first contends that a probation search exception does not exist

under article I, section 7 of the Washington Constitution. We do not agree with

Lippincott's reading of the case law. Several cases have considered article I,

section 7 and have nevertheless held that it is not offended by permitting

warrantless searches of persons who are subject to conditions of probation if the

search is reasonable. See, e.g.. State v. Patterson, 51 Wn. App. 202, 204-05,

208, 752 P.2d 945. review denied, 111 Wn.2d 1006 (1988); State v. Lucas, 56

Wn.App. 236, 239-41, 783 P.2d 121 (1989), review denied. 114Wn.2d 1009

(1990); State v. Reichert, 158 Wn. App. 374, 386-87, 242 P.3d 44 (2010), review

denied, 171 Wn.2d 1006 (2011).

      The second and more significant issue raised by Lippincott is whether the

search exceeded the permissible scope of a warrantless probation search. The

probation search exception to the warrant requirement is codified by statute. It

requires the searching officer to have "reasonable cause" to believe the offender

has violated a condition of sentence.

       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.
No. 71522-4-1/7



RCW 9.94A.631(1). A warrantless search of a probationer is reasonable ifa

police or probation officer "has a well founded suspicion that a probation violation

has occurred." Patterson, 51 Wn. App. at 205; accord Lucas, 56 Wn. App. at

244.

       At the suppression hearing, Rongen testified that he had the right to

search Lippincott's purse, car, and residence simply because he knew she was

on warrant status and that she was failing to report for supervision.

       For Department of Corrections if somebody's on warrant status or
       we believe there's information that they have violated their terms of
       supervision, we have the right to search their person, place or
       vehicle or residence, and that's what I was doing at the time she
       was taken into custody.

Such testimony by itself is not enough to establish a reasonable suspicion. After

Lippincott's opening brief was filed in this appeal, this court issued an opinion

rejecting the State's argument that "any parole violation justifies any search for

any other violation." State v. Jardinez, 184 Wn. App. 518, 525, 338 P.3d 292

(2014). Jardinez makes the point that warrantless searches of probationers are

not unlimited in scope. Jardinez, 184 Wn. App. at 523-30.

       Rongen also articulated a suspicion that Lippincott's failure to report

meant that she was likely reoffending. The trial court found that Rongen had a

reasonable suspicion that Lippincott was again engaged in identity theft based on

the presence of the gift cards and credit cards found in her purse. The court did

not separately find a justification for the search of the purse. The court stated its

reasoning in written findings and conclusions:

              The Court finds that Officer Rongen's search of the
       defendant's purse was justified, Officer Rongen had reasonable
No. 71522-4-1/8



       suspicion that the defendant was in further violation of her
       conditions of supervision and that evidence of further violation
       would be found at the defendant's residence, and Officer Rongen
       had probable cause to believe that the defendant lived at the
       residence searched.
              The defendant was under DOC supervision at the time, and
       had outstanding warrants for which she was arrested. After
       contacting the defendant and placing her under arrest, Officer
       Rongen searched the defendant's purse. As a result of the search
       of the defendant's purse, Officer Rongen located prepaid credit
       cards and gift cards, as well as a key (which was later found to be
       the key to the front door of the listed residence). Based on the
       totality of the facts known to Officer Rongen at the time (including
       his knowledge of the defendant, the defendant's criminal history
       which included convictions for Identity Theft, as well as his training
       and experience and knowledge of identity theft suspects and things
       they commonly possess), Officer Rongen had a reasonable
       suspicion that the defendant was in violation of her terms of
       probation and that further evidence of fraudulent activity would be
       found at the defendant's residence.

       There must be a "nexus between the searched property and the alleged

crime." Jardinez, 184 Wn. App. at 529. Here, the State fails to establish a nexus

between the purse and any alleged crime that would justify the warrantless

search of the purse. The officers stopped Lippincott because she was wanted for

failure to report and there was a warrant for her arrest. No one claims that

evidence of the violation of failure to report was likely to be found in Lippincott's

purse. Her purse was searched based on a belief that it might contain evidence

of identity theft. The officer's reasoning—that a probationer who fails to report is

likely involved in the same type of criminal behavior as in the past and is trying to

avoid detection—is too attenuated to be considered a well-founded or reasonable

suspicion. Possibly, the search of the purse could have been justified on the

basis of a search incident to arrest, but as the State concedes, the record was




                                           8
No. 71522-4-1/9



not developed on that theory and it does not establish where Lippincott's purse

was located at the time of arrest.


       The warrantless search of the purse produced the gift cards and prepaid

credit cards, items pivotal to the trial court's decision to uphold the warrantless

search of the apartment. All items of evidentiary value found in Lippincott's purse

and apartment should have been suppressed as fruit of the poisonous tree.

Without that evidence, all of the convictions are unsupported.

       Reversed.




                                                  vSecte&e.
WE CONCUR:




    t>-. ^Ho 1 , -j                            ^QjiW.ft;


                                                                                    fV




                                                                                O
