                                                                                                         C.'00T OF APPEqPLS
                                                                                                             Dl   tr   jv!.) J 1i

                                                                                                    2010 JUL 28 AN, 8: 28

                                                                                                         6ki cN
                                                                                                              - nV ASFIINGTVt114
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGY
                                                                                                               EILE MIT Y
                                                      DIVISION II

 STATE OF WASHINGTON,                                                                No. 46383 -1 - II


                                            Respondent.


         VIM



 SEBASTIAN J. HALLER,                                                         UNPUBLISHED OPINION




         SUTTON, J. —        Sebastian Haller appeals his conviction for heroin possession arguing that

the trial court erred in denying his CrR 3. 6 motion to suppress evidence discovered in his bedroom

during   a    search   of   his   residence.      The State concedes that the evidence should have been


suppressed.      Br.   of   Resp' t   at    1.   We   accept   the   concession.'   Pursuant to RAP 18. 14( a) 2 and

18. 14( e)( 2) 3, we reverse Haller' s heroin possession conviction and remand to the trial court to

dismiss the State' s charge.




 This matter was initially considered by a commissioner of this court pursuant to RAP 18. 14 and
subsequently referred to a panel ofjudges.

 RAP 18. 14( x)      provides  t] he appellate court may, on its own motion or on motion of a party,
                                  that "[

affirm or reverse a decision or any part thereof on the merits in accordance with the procedures
defined in this rule."


3 RAP 18. 14( e)( 2) provides as follows:
         A motion on the merits to reverse will be granted in whole or in part if the appeal
         or    any   part   thereof    is determined to be clearly           with   merit.   In making these
         determinations, the judge or commissioner will consider all relevant factors
         including whether the issues on review (a) are clearly controlled by settled law, (b)
         are factual and clearly not supported by the evidence, or (c) are smatters of judicial
         discretion    and   the   decision was clearly        an abuse of   discretion.
No. 46383 - 1 - II



                                                               FACTS


          At the time of the contested search, Haller was serving a 12 -month community custody',

term   supervised      by Community             Corrections Officer ( CCO)             Gary    Kilmer. As a condition of his


community custody, Haller'             s    home       was "    subject to search to ensure his compliance with


probation."     Clerk's Papers ( CP) at 17 ( Finding of Fact ( FF) 1. 2).

          Officer Adam       Haggerty           informed Kilmer that he had              received unspecified " reports"          or




 tips"   from    an   informant that Haller           was   dealing drugs from his             residence.   Verbatim Report of


Proceedings ( VRP) ( 1/ 15/ 14)            at   11, 38.     A few days later, Kilmer went to Haller' s residence as


part of   his   regular supervision schedule with                Officers      Lowrey      and   Haggerty   as    backup.     Kilmer


informed Haller that he "        needed         to   check"    Haller'   s   bedroom. VRP ( 1/ 15/ 14)       at    12.   Haller said


that a man and a woman were in the bedroom getting dressed and he provided the name of the

woman.




          About three minutes later, a couple emerged from the bedroom; they were later identified

as   Cassie Christensen         and   Robert Lusk.             Christensen       carried   a   backpack     and    a purse.    After


Christensen and Lusk gave the officers a false name as to Lusk, the officers arrested them for


providing false information.               The officers began to search the backpack Christensen had been


carrying, at which point the couple informed the officers that the backpack belonged to Haller.

          While Officers Lowrey and Haggerty questioned Lusk and Christensen, Kilmer searched

Haller'   s   bedroom     and   observed          syringes,     marijuana,       and    other    items that " appeared to be


something       you would use     for drugs."          VRP ( 1/ 15/ 14) at 16. After summoning Kilmer back to the

living room, the officers informed Kilmer that Christensen and Lusk reported that the backpack

belonged to Haller, and Kilmer searched the backpack. Inside, Kilmer found a scale with brown




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No. 46383 -1 - II



residue,    a methamphetamine pipe with residue, and small                        baggies.    Kilmer arrested Haller for


possession of drug paraphernalia.

        While Kilmer arrested Haller, Officer Haggerty phoned the Honorable James Buzzard to

request a warrant       to search and seize the backpack .and further                   search   Haller'   s   bedroom.    The


requested warrant was based upon what Kilmer observed in the initial search of the bedroom and

the objects      found in the backpack.           Judge Buzzard authorized a search warrant as Haggerty

requested. Pursuant to the warrant, the officers again searched the backpack and Haller' s bedroom.


In the bedroom, Officer Lowrey found heroin, hypodermic needles, metal melting pots, and scales

with tar residue.


           The State amended the information as to Haller; charging him with 1 count of procession

of a controlled substance (          heroin).    Pursuant to CrR 3. 6, Haller moved to suppress all of the


evidence obtained through the illegal search of his home. The trial court denied Haller' s motion,


concluding, " CCO Kilmer had authority to search [ Haller' s] residence and belongings due to [ his]

status as a parolee on       DOC     supervision."   CP     at   21 ( FF 2. 1).    Haller appeals. 4

                                                      ANALYSIS


           Haller argues that the trial court erred in denying his motion to suppress evidence because

Kilmer did not have reasonable cause to believe he had violated a condition of his community

custody. Haller contends that Kilmer relied solely on anonymous tips that Haller was engaged in

drug- related     activity to      justify    searching Haller'        s   bedroom.       The State concedes that the




4 Haller assigns error to the trial court' s denial of his CrR 3. 6 motion and also assigns error to
findings    of   fact 1. 2   and   1. 7   and conclusions    of      law 2. 4, 2. 5, 2. 6, 2. 7, 2. 8,   and   2. 9.   However,

because the State concedes that evidence discovered during the search of his residence was
improperly admitted, we do not address his assignments of error beyond the trial court' s denial of
his motion.

                                                                 3
No. 46383 -1 - II




information relayed by Haggerty to Kilmer was insufficient to provide Kilmer with reasonable

cause to search Haller' s bedroom. We accept the State' s concession.


         The United States Constitution guarantees that individuals will remain secure in their

person and home from unreasonable searches and seizures. U.S. CONST. amend. IV. Washington' s

constitution states       that "[   n] o person shall be disturbed in his private affairs, or his home invaded,

without    authority     of   law." WASH. CONST.       art.   I, § 7. It is well-established that a warrantless search


is presumptively unreasonable unless the search falls under one of the exceptions to the warrant

requirement.        State   v.   Westvang,   184 Wn.   App.    1, 5- 6, 335 P. 3d 1024 ( 2014). In the event that the


State   cannot    demonstrate that the         search was      lawful, the " fruit   of   the   poisonous   tree"   doctrine


applies.    State   v.   Allen, 138 Wn.      App.   463, 469, 157 P. 3d 893 ( 2007). "` When anunconstitutional


search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree

and must     be   suppressed."'       Allen, 138 Wn. App. at 469 ( quoting State v. Ladson, 138 Wn.2d 343,

359, 979 P. 2d 833 ( 1999)).


           Law enforcement may search a parolee' s home without a warrant as a condition of

community custody             supervision under      RCW 9. 94A.631( 1).      A parolee has a reduced expectation


of privacy due to the State' s interest in supervising the parolee. State v. Jardinez, 184 Wn. App.

518, 523, 338 P. 3d 292 ( 2014).              When searching a parolee' s home, however, law enforcement

must possess " reasonable cause to believe that an offender has violated a condition or requirement




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No. 46383 -1 - II




of   the   sentence."       RCW 9. 94A. 631( 1) (          emphasis added).           The court has construed " reasonable


cause"     to   require     that law enforcement have                a "`   well- founded suspicion that a violation has


occurred."'      dardinez, 184 Wn. App. at 524 ( quoting State v. Massey, 81 Wn. App. 198, 200, 913

P. 2d 424 ( 1996)).             We analogize the " reasonable cause" standard to the " reasonable suspicion"


requirement. Jardinez, 184 Wn. App. at 524.

             Reasonable suspicion, like probable cause, is dependent upon both the content of


information      possessed         by   police and      its degree   of     reliability."'     State v. Lee, 147 Wn. App. 912,

917, 199 P. 3d 445 ( 2008) (            quoting State v. Randall, 73 Wn. App. 225, 229, 868 P. 2d 207 ( 1994)).

An informant' s tip may generate the requisite level of suspicion to justify the search of a parolee' s

home, but certain safeguards must be observed. State v. Lyons, 174 Wn.2d 354, 359, 275 P. 3d 314

 2012).     The informant' s tip must carry some indicia of reliability when assessed under the totality

of   the circumstances.            State v. Z. U.E., No. 89894- 4, Slip Op. at 8 ( Wash. S. Ct. July 16, 2015).

Specifically,        the    State     must    demonstrate that there             are "(   1)    circumstances establishing the

informant's reliability or ( 2) some corroborative observation, usually by the officers, that shows

either ( a) the presence of criminal activity or (b) that the informer's information was obtained in a

reliable    fashion."       Z.U.E., Slip Op. at 8.

           Here, the State concedes that Officer Haggerty' s testimony at the CrR 3. 6 hearing, that he

heard " reports" that Haller was dealing drugs from his residence, does not establish " reasonable

cause"     to believe that Haller            violated     his community custody           provision.    Br.   of   Resp' t   at   5.   The


record lacks any testimony " regarding the indicia of reliability of Officer Haggerty' s source( s)."

Br.   of   Resp' t    at   5.     Specifically, Haggerty presented no evidence to establish the informant' s

reliability,     nor   was       he   able   to   offer    any   corroborative       observations.      Instead, the tips were




                                                                     5
No. 46383 -1 - II




anonymous and consisted of conclusory assertions that Haller was dealing drugs. Thus, the State

concedes that " all evidence recovered is the fruit of the poisonous tree and must be suppressed."


Br. of Resp' t at 6. We agree.

         Kilmer' s initial search of Haller' s bedroom was unlawful because it was not based upon a

 reasonable cause"        to believe that Haller violated        a   term   of   his community custody. Therefore,


the drugs and drug paraphernalia that Kilmer obtained while at Haller' s home must be suppressed.

The search of the backpack that Christensen carried also was tainted because that search flowed

from Kilmer' s      unlawful     search of   Haller'   s   bedroom.      Had Kilmer not attempted to search the


bedroom, Christensen and Lusk would not have come out of the room with the backpack, and

Kilmer    would     not   have   searched    the backpack        and     found    contraband   in it.   Moreover, the


observations Kilmer made in Haller' s bedroom flowed from the initial unlawful search of the


bedroom.     Kilmer' s search and seizure of Christensen and Lusk, and the drugs and paraphernalia

Kilmer found in Haller' s bedroom, also formed the basis for Kilmer' s request for the search warrant

that was not based on reasonable cause. Because the initial search of Haller' s bedroom was unlawful,

all   subsequently   uncovered evidence must       be      suppressed.
No. 46383 -1 - II



        We reverse Haller' s heroin possession conviction and remand for the trial court to dismiss


the charge.



        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 2. 06. 040,


it is so ordered.




                                                        A-4LtMJ.
                                                     SUTTON, J.


 We concur:




 BJ            A.!
      RGr_;

                              i

 MELNICK, J.




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