FILED
NOVEMBER 18, 2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31308-5-111 Appellant, ) ) v. ) ) FELIPE RONALD JARDINEZ, ) PUBLISHED OPINION ) Respondent. )
FEARING, 1. - The State of Washington appeals the trial court's suppression, as
trial evidence, of a video found by a community corrections officer on parolee Felipe
Jardinez's iPod and a shotgun seized at his home. The appeal requires us to address the
scope ofRCW 9.94A.631(l), which under certain circumstances permits a warrantless
search of a parolee by a corrections officer. Since the search of the iPod did not relate to
a suspected parole violation and the seizure of the gun was the result of viewing a video
on the iPod, we affirm the trial court.
FACTS
Felipe R. Jardinez previously pled guilty to a drive-by shooting and second degree No. 31308-5-III State v. Jardinez
unlawful possession of a fireann. He served prison time followed by 18 months of
community supervision. The conditions of community custody included requirements to
report to his assigned community corrections officer and refrain from possession or
consumption of controlled substances except pursuant to a prescription.
On November 3,2011, Felipe lardinez missed a scheduled meeting with his
Community Corrections Officer, Roger Martinez. Martinez phoned lardinez, but
received no answer. On November 14, lardinez returned Martinez's call, and the two
scheduled to meet the next day. During the appointment, Martinez asked lardinez to
submit to a urinalysis test. lardinez admitted that the test would show marijuana use.
At the direction of Roger Martinez, Felipe lardinez emptied his pockets and
placed an iPod Nano onto a desk. Martinez later testified that the iPod interested him
because parolees occasionally take pictures of themselves with other gang members or
"doing something they shouldn't be doing." Report of Proceedings (RP) (Oct. 10,2012)
at 9. When Martinez handled the iPod, lardinez appeared nervous to Martinez. Martinez
asked lardinez ifhe would see something on the iPod's video that lardinez did not want
seen. lardinez replied that the iPod only held music. At the suppression hearing, Officer
Martinez stated that, other than lardinez appearing nervous, he lacked facts that the iPod
video player would show evidence of a crime or violation of the conditions of the
defendant's community custody.
Roger Martinez accessed the iPod, searched its content, and found a video
No. 31308-5-III State v. Jardinez
recorded earlier that morning. Martinez played the video, which showed Felipe Jardinez
pumping a shotgun in his bedroom. Jardinez prevaricated that the weapon in the video
was a BB gun. After Martinez offered to confirm the nature of the gun with a home visit,
Jardinez recanted and confessed that the weapon was a shotgun. After Jardinez's arrest,
Toppenish police and correction officers searched Felipe Jardinez's home for the
shotgun. The officers found a shotgun matching the one Jardinez held in the video.
PROCEDURE
The State of Washington charged Felipe Jardinez with first degree unlawful
possession of a firearm. Jardinez moved to suppress evidence obtained through Officer
Roger Martinez's search of his iPod, and all evidence seized as a result of law
enforcement officers searching his home as the spoiled fruit of the unlawful viewing of
the video on his iPod. In response, the State argued that, if an offender on community
custody evades a meeting with his corrections officer, the officer may search the J offender's home for any contraband, since the officer then has reasonable suspicion that
the probationer violated the terms of his community custody. According to the State, if !i I• the offender misses a scheduled meeting, a search requires no nexus to the missed
appointment.
The trial court granted Felipe Jardinez's motion to suppress. The court concluded
that a warrantless search of the iPod would be justified only if Officer Roger Martinez ! I~
had a reasonable suspicion based on articulated facts that the device contained evidence
3 It No. 31308-5-II1 State v. Jardinez
of past, present or future criminal conduct or violations of the defendant's conditions of
community custody. Since Officer Martinez testified he had no evidence to support his
search of the device, except for Jardinez acting nervous, the trial court concluded the
search was not proper. The trial court impliedly ruled that a community corrections
officer's reasonable suspicion must relate to the item or place to be searched. In response
to a motion for reconsideration, the trial court explicitly ruled that there must be a
"reasonable nexus between the suspected criminal activity and the search." RP (Nov. 2,
2012) at 2.
LAW AND ANAL YSIS
On appeal, the State of Washington assigns no error to any findings of fact
contained in the trial court's memorandum opinion. Therefore, we assume that
Corrections Officer Roger Martinez lacked reasonable suspicion that the iPod's video
player would show criminal activity. The rule in Washington is that unchallenged
findings entered after a suppression motion hearing are verities on appeal. State v.
O'Neill, 148 Wn.2d 564,571,62 P.3d 489 (2003); State v. Hill, 123 Wn.2d 641, 644, 870
P.2d 313 (1994). The State does not argue that Felipe Jardinez's implied confession to
use of marijuana justified the home search.
At issue is whether Officer Roger Martinez had legal authority to search the
content of Felipe lardinez's iPod when Martinez did not expect the search to yield
evidence related to either of the known parole violations, Jardinez's failure to appear, or
No.3l308-5-1I1 State v. Jardinez
his marijuana use. Unless an exception is present, a warrantless search is impermissible
under both article I, section 7 of the Washington Constitution and the Fourth Amendment
to the U.S. Constitution. WASH. CONST. art. I, § 7; U.S. CONST. amend. IV; 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 or the fruit of the poisonous tree
doctrine. Gaines, 154 Wn.2d at 716-17.
Although in some circumstances article 1, section 7 provides broader protections
than its federal counterpart, Washington law recognizes that probationers and parolees
have a diminished right of privacy that permits a warrantless search based on probable
cause. State v. Lucas, 56Wn. App. 236, 239-40, 783 P.2d 121 (1989). Parolees and
probationers 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.
Therefore, the State may supervise and scrutinize a probationer or parolee closely.
Lucas, 56 Wn. App. at 240. Nevertheless, this diminished expectation of privacy is
constitutionally permissible only to the extent necessitated by the legitimate demands of
the operation of the parole process. State v. Parris, 163 Wn. App. 110, 118,259 P.3d
331 (2011); State v. Simms, 10 Wn. App. 75, 86, 516 P.2d 1088 (1973).
RCW 9.94A.631 provides exceptions to the warrant requirement. We note that
one federal court has upheld the constitutionality of a forerunner to the statute. United
States v. Conway, 122 F.3d 841 (9th Cir. 1997). Since we hold the statute gave no
authority to Roger Martinez to search the iPod, we need not address the constitutionality
of the statute. RCW 9.94A.631(1) reads:
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, pending a determination by the court or by the
department. 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.)
We have construed the "reasonable cause" phrase in RCW 9.94A.631(1) to require
the officer to have a "well-founded suspicion that a violation has occurred." State v.
Massey, 81 Wn. App. 198,200,913 P.2d 424 (1996). "Analogous to the requirements of
a Terry stop, reasonable suspicion requires specific and articulable facts and rational
inferences." Parris, 163 Wn. App. at 119 (footnote omitted) (referring to Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868,20 L. Ed. 2d 889 (1968)). "Articulable suspicion" is defined
as a substantial possibility that criminal conduct has occurred or is about to occur. State
v. Kennedy, 107 Wn.2d 1,6, 726 P.2d 445 (1986). These principles do not answer the
question of what and where the community custody officer may search when he has f reasonable cause to believe a community custody violation occurred. f The State of Washington, relying on the ending language of RCW 9 .94A.631 (1),
argues that Officer Martinez's well-founded suspicion that probation violations had I f
I ! No.3l308-5-II1 State v. Jardinez
occurred justified the warrantless search of Jardinez's "person, residence, automobile, or
other personal property," regardless of whether the search might yield evidence related to
the violations. In essence, the State argues any parole violation justifies any search for
any other violation. The argument emphasizes that the statute allows a search of "other
personal property," which, according to the State, implies property other than the
property with a nexus to any criminal activity. (Emphasis added.)
Felipe Jardinez counters that every search, including those conducted under RCW
9.94A.631, must conform to the strictures of the Fourth Amendment, which provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. Jardinez cites multiple United States Supreme Court decisions
that limit the scope of a search to be commensurate with, but not exceed, the suspicion
that instigated it, Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 173 L. Ed. 2d 485
(2009); Terry v. Ohio, 392 U.S. 1,20,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968); and
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299,87 S. Ct. 1642, 18 L. Ed. 2d 782
(1967). Jardinez also cites Washington cases espousing the same principle: State v.
Hudson, 124 Wn.2d 107, 112,874 P.2d 160 (1994); and State v. B.A.S., 103 Wn. App.
549, 553, l3 P.3d 244 (2000).
We start our analysis with an interpretation of the unencumbered language of
RCW 9.94A.631(l), which excuses the warrant requirement under some circumstances.
The purpose of statutory interpretation is to determine and carry out the intent of the
legislature. State v. Sweat, 180 Wn.2d 156,159,322 P.3d 1213 (2014). If the words ofa
statute are clear, we end our inquiry. Sweat, 180 Wn.2d at 159. In discerning the plain
meaning of a provision, we consider the entire statute in which the provision is found, as
well as related statutes or other provisions in the same act that disclose legislative intent.
State v. Alvarado, 164 Wn.2d 556, 562, 192 P.3d 345 (2008). When a statute is
ambiguous after the plain meaning analysis, we may look to the legislative history of the
statute and the circumstances surrounding its enactment. State v. Johnson, 179 Wn.2d
534,542,315 P.3d 1090 (2014); State v. Evans, 177 Wn.2d 186,199-201,298 P.3d 724
(2013).
We cannot discern "plain meaning" in RCW 9.94A.631(l) for purposes of
addressing the scope of any search. The language could be read to allow an unlimited
scope of the search. The statute could be read to limit the search to areas or property
about which the community corrections officer has reasonable cause will provide
incriminating evidence.
Two Washington decisions address the applicability ofRCW 9.94A.63 1(1). In
State v. Parris, 163 Wn. App. 110, Derek Lee Parris appealed his conviction for
possession of depictions of a minor engaged in sexually explicit conduct. He argued that
the trial court erred in failing to suppress evidence discovered during a search of memory
cards seized without a warrant. Parris had earlier received a community custody sentence
for felony failure to register as a sex offender. Provisions of his community custody
prohibited him from having contact with minors, possessing pornography, and possessing
or using alcohol or illegal drugs and drug paraphernalia. His community custody also
required him to engage in drug and alcohol treatment, be employed, and comply with a
10:00 p.m. to 5:00 a.m. curfew. Parris violated several of his probationary requirements:
a urinalysis test revealed methamphetamine use; he failed to participate in a drug and
alcohol treatment program; and he failed to provide proof of work or legitimate income.
Parris's Community Corrections Officer, Nancy Nelson, received an electronic report that
Bremerton police arrested Parris for driving with a suspended license at 10:40 p.m. and
that an under aged young woman rode in the car. That same day, Nelson received a phone
call from Parris's mother, who expressed concern about Parris's drug use and
uncontrolled behavior. Parris's mother told Nelson that Parris had threatened to get a gun
if Department of Corrections staff tried to arrest him. After conferring with her
supervisor, Nelson decided to arrest Parris and to search his residence.
Nancy Nelson went to Derek Lee Parris's residence, accompanied by two other
corrections officers and two deputy officers from the Kitsap County Sheriffs office.
Parris lived in a small room off the side of his mother's garage. After knocking on
Parris's door for 10 to 15 minutes with no response, Nelson and her companions walked
around to the side of the building, which had two windows. As they looked in the
No. 31308-5-111 State v. Jardinez
windows, officers saw Parris and a young female hiding in the room and ordered them to
exit. Officers took the young female to another part of the property and identified her as
17-year-old D.L.S. Nelson and her fellow officers searched Parris's room. Nelson
noticed a large quantity of women's clothing, which appeared to belong to D.L.S. Nelson
identified several items that Parris's community custody conditions prohibited him from
having, including four syringes, an empty bottle of vodka, and pornography. In a small
zippered case, Nelson found two portable USB (universal serial bus) memory cards, used
to record digital images and videos. One of the memory cards listed the name ofD.L.S.
Nelson did not know what information might be on the memory cards but, thinking they
might show Parris's violation of probation, she seized them. Nelson viewed the memory
cards' contents the following day. Data on two of the memory cards included photos of
two guns in a case and a 17-minute video of sexual activity between Parris and D.L.S.
On appeal, Derek Lee Parris argued that Officer Nelson needed a warrant to search
the memory cards. This court disagreed. The court ruled that Nelson had reasonable
cause to believe that Parris violated community custody conditions and thus RCW
9 .94A.631 (1) authorized the search. A broad reading of Parris would support a search of
any offender's property upon violation of community custody conditions. Nevertheless,
the court noted that convicted sex offenders in Washington have a reduced expectation of
privacy because of the public's interest in public safety. State v. Parris, 163 Wn. App. at
118. The facts differ from the facts in Felipe Jardinez's appeal in that Nancy Nelson had
a compelling reason to go to Parris's home. She spotted Parris with a young lady inside
the home in violation of parole conditions, and, upon entering the home, saw a disk with
the minor's name thereon. Parris's mother told Nelson that he might have obtained a
fireann, and Nelson was concerned about whether Parris might be storing an illegal
fireann in his room. She believed she might find evidence of a fireann in a photograph,
video, or DVD (digital video disk). Here, Officer Roger Martinez had no reason to
believe Felipe Jardinez possessed a fireann before Martinez opened the iPod.
Derek Lee Parris did not challenge Nelson's well-founded suspicion to support the
search of his room. The Parris court did not expressly rule that all property of the
offender may be searched.
In State v. Reichert, 158 Wn. App. 374,242 PJd 44 (2010), a community
corrections officer and sheriff deputies went to premises suspected to be Joseph
Reichert's home. Reichert had failed to report his current address. An infonnant warned
officers that Reichert engaged in a marijuana grow operation. The officers arrested f Reichert outside his house, found keys on his person, used the keys to open the front
door, and smelled marijuana without entering the home. The officers obtained a search I warrant before entering the home. This court mentioned RCW 9.94A.631(l) allowed
search ofa parolee's property, but did not otherwise analyze the statute. The court
remanded for a hearing to determine if the officers had probable cause to believe that
No. 31308-5-I11 State v. Jardinez
Reichert resided in the searched premises. This remand suggests that the court deemed a
nexus between the searched premises and the suspected crime was necessary.
Since we cannot resolve the issue at hand by a reading of the statute, we base our
decision principally upon the Sentencing Guidelines Commission (Commission)
comment about RCW 9.94A.631(1). The Commission wrote as its official comment
behind the statute:
The Commission intends that Community Corrections Officers
exercise their arrest powers sparingly, with due consideration for the
seriousness of the 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.
The search and seizure authorized by this section should relate to
the violation which the Community Corrections Officer believes to have
occurred.
DA VID BOERNER, SENTENCING IN WASHINGTON: A LEGAL ANALYSIS OF THE
SENTENCING REFORM ACT OF 1981, at app. 1-13 (1985) (formatting omitted) (emphasis
added). The comment's latter sentence demands a nexus between the searched property
and the alleged crime. This demand is consistent with general principles of search and
seizure law previously outlined.
The Commission's comments are not legislative history in a traditional sense, but
we nonetheless rely on the Commission's comment to aid statutory interpretation. The i Sentencing Reform Act of 1981 ch. 9.94A RCW established the Commission as an
independent agency. Former RCW 9.94A.040 (1986). The Commission advised the I f ~ f
I 12 Ii i No. 31308-5-111 State v. Jardinez
governor and the legislature on issues relating to adult and juvenile sentencing policies
and practices, until reorganized in 2011 into the case load forecast council and sex
offender policy board. LAWS OF 2011, 1st Spec. Sess., ch. 40, §§ 27, 37. Courts may
look to the comments of the Commission in interpreting the Sentencing Reform Act of
1981. In re Post Sentencing Review o/Charles, 135 Wn.2d 239,250,955 P.2d 798
(1998); State v. Pedro, 148 Wn. App. 932, 947 n.4, 201 P.3d 398 (2009). Our reviewing
courts have repeatedly relied on the Commission's comments as indicia of the
legislature's intent. See In re Pers. Restraint o/Carrier, 173 Wn.2d 791,815-16,272
P.3d 209 (2012); State v. Moeurn, 170 Wn.2d 169, 175-76,240 P.3d 1158 (2010); State
v. Armendariz, 160 Wn.2d 106, 114, 156 P.3d 201 (2007); In re Pers. Restraint o/Caley,
56 Wn. App. 853, 857, 785 P.2d 1151 (1990); and State V. Sullivan, 47 Wn. App. 81, 84
85, 733 P.2d 598 (1987). Our Supreme Court similarly relied on a book from Professor
David Boerner to obtain the Commission's comments in State V. Breazeale, 144 Wn.2d
829,838,31 P.3d 1155 (2001).
CONCLUSION
RCW 9.94A.631 did not authorize Officer Roger Matinez's warrantless search of
the contents of Felipe Jardinez's iPod. The trial court correctly interpreted and applied
RCW 9.94A.631. We affirm the trial court's suppression of the evidence of Felipe
Jardinez's unlawful possession of a firearm.
No. 31308-5- III
State v. Jardinez
WE CONCUR:
J.