                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         April 23, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 50236-4-II

                               Respondent,

         v.

 DARIAN DEMETRIUS LIVINGSTON,                                UNPUBLISHED OPINION

                               Appellant.

        MELNICK, P.J. — Darian Demetrius Livingston appeals his convictions for two counts of

unlawful possession of a controlled substance and one count of unlawful possession of a firearm

in the first degree.

        Livingston previously appealed these convictions. In his first appeal, he argued that the

trial court erred by denying his motion to suppress the evidence discovered during the search of

his vehicle following his arrest on a Department of Corrections (DOC) warrant. We agreed and

remanded the matter back to the trial court. State v. Livingston, 197 Wn. App. 590, 592, 389 P.3d

753 (2017) (Livingston I).

        On remand, the trial court concluded a nexus existed between Livingston’s probation

violation and the vehicle searched. Livingston again appeals, this time contending that the State

argued matters outside the scope of this court’s remand directive in Livingston I and that no nexus

existed between the probation violation and the vehicle searched. We vacate Livingston’s

convictions and remand to the trial court for further proceedings.
50236-4-II


                                              FACTS1

I.     BACKGROUND

       On May 29, 2014, DOC Officer Thomas Grabski observed Livingston at a car wash.

Grabski knew that Livingston had an outstanding DOC arrest warrant. Grabski called for

assistance, and two Tacoma Police Department (TPD) officers arrived to assist him.

       When the additional officers arrived, Livingston was talking with a person on a motorcycle.

The person on the motorcycle drove away when the officers approached. Livingston was the only

person near the vehicle. After confirming Livingston’s identity and the warrant, the officers

arrested Livingston.

       The officers then asked Livingston about the vehicle he had been washing. Livingston told

them that it belonged to his girlfriend who had gone to a nearby store, but he later admitted that

his girlfriend was actually in Seattle and could not pick up the vehicle. Livingston also admitted

that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first

saw the officers.

       At the time of his arrest, Livingston was on active DOC probation. Grabski conducted a

search of the vehicle and located mail and other documents with Livingston’s name on them, a

single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, Grabski found a

black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and

more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying

a baggie of cocaine on his person.




1
 Unless otherwise indicated, the following facts derive from Livingston I, 197 Wn. App. at 593-
95.


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50236-4-II


       The State charged Livingston with unlawful possession of a firearm in the first degree;

unlawful possession of a controlled substance with intent to deliver, cocaine; bail jumping;

unlawful possession of a controlled substance, oxycodone; and unlawful possession of a controlled

substance, hydrocodone/dihydrocodeinone.

II.    FIRST SUPPRESSION MOTION

       Before trial, Livingston moved to suppress the evidence discovered during the vehicle

search. The trial court denied the motion to suppress. The court concluded that the vehicle search

was proper because Grabski had reasonable cause to believe that Livingston had violated a

condition or requirement of his sentence; therefore, the search of the vehicle was authorized under

RCW 9.94A.631. Additionally, the search was a probationary search and not an investigatory

search. Following a bench trial, the court convicted Livingston of all counts. Livingston appealed.

III.   LIVINGSTON I

       On appeal, we remanded the suppression order pertaining to the convictions for unlawful

possession of a firearm in the first degree, unlawful possession of oxycodone, and unlawful

possession of hydrocodone/dihydrocodeinone. We affirmed the other convictions. Livingston I,

197 Wn. App. at 600.

       We held “that the trial court erred when it failed to consider whether there was a nexus

between the violation and the searched property” and remanded “for further proceedings” on the

three counts. Livingston I, 197 Wn. App. at 599.2




2
  In Livingston I, the State argued for the first time that the vehicle search constituted a valid
inventory search. Livingston I, 197 Wn. App. at 600-01. We allowed the State to argue on remand
that an inventory search took place. On remand, the State conceded that no valid inventory search
occurred.


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50236-4-II


IV.    PROCEEDINGS ON REMAND

       After we remanded the case, the trial court held a suppression hearing. At the hearing,

Grabski testified that a TPD officer informed him that Livingston had a warrant for his arrest.

Grabski assumed the warrant was for failure to report because in his experience that is “mostly”

why warrants are issued. 1 Report of Proceedings (RP) at 20. Also, at the hearing, the State sought

to introduce DOC records on Livingston. Livingston objected. The trial court sustained the

objection based on lack of foundation because there was no evidence Grabski had this information

before searching the vehicle. The court denied the motion and entered the following relevant

written findings of fact and conclusions of law:

                                 THE UNDISPUTED FACTS[3]

       5. Officer Young also recognized defendant as he grew up with him, although he
       could not immediately recall defendant’s name. Officer Young contacted
       defendant, and engaged him in a casual conversation. When Officer Young asked
       defendant his name, defendant did not want to provide it and questioned why.
       Officer Young informed defendant that he had a DOC warrant. Defendant’s head
       went down and he responded, “yeah.” Officer Young confirmed the DOC warrant
       and informed Officer Grabski of the warrant and that defendant was on supervision
       for Unlawful Possession of a Controlled Substance.

       ....

       8. Some of the other conditions of supervision which are imposed on defendants
       who are under supervision for narcotics offenses include reporting to the DOC,
       providing a valid address, a chemical dependency evaluation and follow up with
       treatment along with not using or possessing controlled substances. In Officer
       Grabski’s experience, these conditions are imposed on 100% of offenders who are
       being supervised for narcotics offenses.




3
 The trial court labeled the findings of fact “THE UNDISPUTED FACTS” and the conclusions
of law “REASONS FOR ADMISSIBILITY OR INADMISSIBILITY OF EVIDENCE.” Clerk’s
Papers (CP) at 43, 46


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50236-4-II


       The violation for which the DOC secretary warrant was issued for defendant’s
       arrest was failure to report to DOC (absconding from supervision) and failure to
       complete substance abuse treatment.

       ....

       12. Officer Grabski conducted a warrantless search of the vehicle pursuant to
       DOC’s authority to conduct compliance searches under RCW 9.94A.631.

       13. Officer Grabski believed that he would find documents inside the vehicle that
       would provide a current address where defendant was residing or staying. Officer
       Grabski also believed that he would find evidence that would verify whether or not
       defendant was using controlled substances such as controlled substances
       themselves and/or paraphernalia.

Clerk’s Papers (CP) at 44-45.

      REASONS FOR ADMISSIBILITY OR INADMISSIBILITY OF THE EVIDENCE

       ....

       2. The alleged violation in this case was Failure to Report to the Department of
       Corrections. The issue therefore is what does failure to report mean?

       3. The court focuses its analysis on what did Officer Grabski know and when did
       he know it based on Officer Grabski’s experience.

       ....

       8. The violation in this case was failure to report, not failure to appear. This type
       of DOC secretary’s warrant issues when someone has absconded from supervision.
       A compliance check is broader when a warrant is issued for this type of violation
       as the violation encompasses multiple issues.

       9. The compliance check was conducted to verify defendant’s residence and verify
       whether or not defendant had been using narcotics.

       ....

       11. Based on the evidence the court finds that there is a nexus between the alleged
       violation (of failure to report/absconding from supervision) and the search of the
       vehicle.




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50236-4-II


       12. Given the information known to Officer Grabski and taking into consideration
       Grabski’s experience, there was reasonable cause to believe that evidence of the
       violation of Failure to Report would be found in the vehicle. The search of the
       vehicle was therefore proper.

CP at 46-47. Livingston appeals.

                                           ANALYSIS

I.     MATTERS OUTSIDE REMAND ORDER

       Livingston first argues that the State argued matters outside this court’s remand instructions

in Livingston I by arguing that a nexus existed between the violation and the searched property.

He argues the sole issue on remand was whether there was a valid good faith inventory search.

We disagree.

       A.      Standard of Review

       “Following a mandate for further proceedings, a trial court must comply with that mandate,

and we review the trial court’s compliance for an abuse of discretion.”            Kruger-Willis v.

Hoffenburg, 198 Wn. App. 408, 414, 393 P.3d 844, review denied, 189 Wn.2d 1010 (2017). A

trial court abuses it discretion when its decision is based on untenable grounds or reasons. State

v. Quaale, 182 Wn.2d 191, 196, 340 P.3d 213 (2014). A trial court’s discretion on remand is

limited by the scope of the appellate court’s mandate. State v. Kilgore, 167 Wn.2d 28, 42, 216

P.3d 393 (2009).

       B.      No Abuse of Discretion

       In Livingston I, we held “that the trial court erred when it failed to consider whether there

was a nexus between the violation and the searched property” and remanded “for further

proceedings” on the one count of unlawful possession of a firearm in the first degree and two




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50236-4-II


counts of unlawful possession of a controlled substance. 197 Wn. App. at 599. Based on our

holding, Livingston’s argument that we remanded solely on the issue of whether there was a valid

good faith inventory search is without merit.

II.    SUFFICIENT NEXUS BETWEEN SUSPECTED PROBATION VIOLATION AND PROPERTY
       SEARCHED

       Livingston next argues that the trial court erred by concluding a sufficient nexus existed

between his probation violation and the vehicle searched. We agree.

       A.      Standard of Review

       Following a suppression hearing, we review challenged findings of fact to determine

whether they are supported by substantial evidence. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d

489 (2003). Unchallenged findings are verities on appeal, and challenged findings supported by

substantial evidence are binding. O’Neill, 148 Wn.2d at 571.4 We review the trial court’s

conclusions of law following a suppression hearing de novo. State v. Homan, 181 Wn.2d 102,

106, 330 P.3d 182 (2014). We affirm conclusions of law that are supported by the findings of fact.

State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).

       B.      Legal Principles

       Unless an exception is present, a warrantless search is impermissible under article I, section

7 of the Washington Constitution. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).

The trial court suppresses evidence seized from an illegal search under the exclusionary rule.

Gaines, 154 Wn.2d at 716-17.




4
 Livingston also argues that substantial evidence does not support undisputed facts 5, 8, 12, and
13 and that the findings of fact do not support reasons for admissibility or inadmissibility of
evidence 2, 3, 8, 9, and 12. Based on our disposition of this case, we need not reach this issue.


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50236-4-II


         Probationers5 have diminished privacy rights because they are persons whom a court has

sentenced to confinement but who “are ‘serving their time outside the prison walls.’” State v.

Cornwell, 190 Wn.2d 296, 301, 412 P.3d 1265 (2018) (quoting State v. Olsen, 189 Wn.2d 118,

124, 399 P.3d 1141 (2017)). RCW 9.94A.631(1) states, “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.” This statute has been interpreted to mean that

it is constitutionally permissible for a community corrections officer (CCO) to search an individual

based on a reasonable suspicion of a supervision violation; but, to search the person’s property,

there must be “a nexus between the property . . . and the alleged probation violation.” Cornwell,

190 Wn.2d at 306.

         C.      State v. Cornwell

         Cornwell issued after the court denied Livingston’s suppression motion on remand. In

Cornwell, the defendant violated his supervision by failing to report to DOC, and DOC issued a

warrant for his arrest. 190 Wn.2d at 298. Cornwell’s CCO6 spotted a Chevrolet Monte Carlo that

Cornwell was known to drive outside a home suspected of being a site for drug sales and

prostitution. Cornwell, 190 Wn.2d at 298. A TPD officer conducted a records check on Cornwell

and learned he had an outstanding warrant. Cornwell, 190 Wn.2d at 298. No contact was made

at that time.




5
    We use this term to refer to individuals on community custody.
6
    Coincidentally, Cornwell’s CCO was also Grabski.


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50236-4-II


       Later, the same TPD officer spotted Cornwell driving the Monte Carlo. Cornwell, 190

Wn.2d at 298. The officer intended to stop the vehicle but before he could activate his lights, the

vehicle pulled into a driveway and Cornwell ran off. Cornwell, 190 Wn.2d at 299. He was later

apprehended. Cornwell, 190 Wn.2d at 298. Grabski arrived on the scene and searched the Monte

Carlo, finding a bag containing controlled substances, drug paraphernalia and other property.

Cornwell, 190 Wn.2d at 299. A jury found Cornwell guilty. Cornwell, 190 Wn.2d at 300.

       In reversing the convictions, the court held, “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.” Cornwell, 190 Wn.2d at 306. The court reasoned

that “individuals on probation do not forfeit all expectations of privacy in exchange for their release

into the community.” Cornwell, 190 Wn.2d at 303. Allowing searches without a nexus could

permit “‘a fishing expedition to discover evidence of other crimes, past or present.’” Cornwell,

190 Wn.2d at 304 (internal quotation marks omitted) (quoting Olson, 189 Wn.2d at 134).

“Individuals on probation have a limited, but constitutionally protected, privacy interest that does

not permit CCOs to conduct open-ended property searches.” Cornwell, 190 Wn.2d at 307.

       Applying the court’s nexus requirement to Cornwell’s search, the court concluded “CCO

Grabski’s search of Cornwell’s car exceeded its lawful scope.” Cornwell, 190 Wn.2d at 306.

While CCO Grabski may have suspected that Cornwell violated other probation conditions, the

only probation violation supported by the record was Cornwell’s failure to report. And there is no

nexus between failing to report and searching a vehicle. Cornwell, 190 Wn.2d at 306.




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50236-4-II


       The court in Cornwell cites State v. Parris, 163 Wn. App. 110, 259 P.3d 331 (2011) as an

example of where a nexus between the violation and the property exists to warrant a search. Parris

was on probation after he failed to register as a sex offender. Cornwell, 190 Wn.2d at 305 (citing

Parris, 163 Wn. App at 113). He violated numerous probation conditions, including contacting

minors, failing a urinalysis test, and failing to participate in treatment. Cornwell, 190 Wn.2d at

305 (citing Parris, 163 Wn. App at 114). Parris’s mother also informed Parris’s CCO that he may

have obtained a firearm in violation of his probation. Cornwell, 190 Wn.2d at 305 (citing Parris,

163 Wn. App at 120). Parris’s CCO searched his room, where the CCO found syringes,

pornography, empty alcohol bottles, and three memory cards. Cornwell, 190 Wn.2d at 305 (citing

Parris, 163 Wn. App at 115). The CCO searched the memory cards and found sexually explicit

videos of Parris and a minor as well as photographs of guns. Cornwell, 190 Wn.2d at 305 (citing

Parris, 163 Wn. App at 115). The court held, “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.” Cornwell, 190 Wn.2d at 305 (quoting Parris, 163 Wn. App

at 120). The court in Cornwell noted that a search “tethered to a particular probation condition”

furthers the State’s interest in monitoring compliance with community custody conditions “while

still protecting individuals from arbitrary searches.” Cornwell, 190 Wn.2d at 305.

       D.      Suppression motion

       Applying the nexus requirement to this case, we conclude Grabski’s search of the vehicle

at the car wash was unlawful. While Grabski may have suspected Livingston violated other

probation conditions (narcotics use, keeping DOC apprised of current address), the only probation

violation that Grabski was “mostly” certain about was Livingston’s failure to report. 1 RP at 20.

Grabski testified that a TPD officer told him Livingston had a warrant for his arrest and that



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50236-4-II


Grabski assumed it was for failure to report. Cornwell determined that there is no nexus between

failing to report and searching a vehicle. Cornwell, 190 Wn.2d at 306. Because there was no

nexus to Livingston’s suspected probation violation, the search of the car in Livingston’s case was

unlawful. The evidence seized, therefore, should have been suppressed in accordance with the

exclusionary rule. See Gaines, 154 Wn.2d at 716-17. The court’s findings of fact relating to

Grabski’s justification for searching the vehicle do not support the court’s conclusion of law that

a nexus existed between the probation violation and the vehicle searched.

       E.      Fellow Officer Rule

       Alternatively, the State argues the search was justified under the fellow officer rule. When

examining the reasonableness of the officer’s suspicion, the trial court may consider the collective

knowledge of the police when they are working as a unit; this is known as the fellow officer rule.

State v. O’Cain, 108 Wn. App. 542, 550-51, 31 P.3d 733 (2001). The State appears to argue that

because DOC had complete information on Livingston this information would be imputed to

Grabski and would provide the necessary nexus between a probation violation and the searched

vehicle. The State bootstraps this argument to its argument that the trial court erred in excluding

DOC’s records. The State, however, did not cross-appeal the trial court’s evidentiary ruling as

required for us to review this issue. RAP 5.1(d). Because the State failed to file a notice of cross-

appeal and because we do not have the DOC documents in our record to properly analyze the

State’s argument, we decline to address this issue further.




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50236-4-II


III.    CONCLUSION

        Because a nexus did not exist between Livingston’s suspected probation violation and the

car at the car wash, the search was unlawful. The evidence seized should have been suppressed.

We, therefore, vacate Livingston’s convictions for unlawful possession of oxycodone, unlawful

possession of hydrocodone/dihydrocodeinone, and unlawful possession of a firearm in the first

degree and remand to the trial court for further proceedings.

        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.




                                                                Melnick, P.J.

We concur:




        Sutton, J.




        Cruser, J.




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