             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
                   .COj •                     C^u?4^ Ca C^jU.
                                                  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
Madsen, J., dissenting




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