IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87163-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JOSEPH LEWIS JONES,
Appellant.
DÍAZ, J. — Our Supreme Court granted Joseph Lewis Jones’s Personal
Restraint Petition (PRP) in part after the State conceded the facial invalidity of two
conditions. At the subsequent hearing, the trial court adopted the State’s proposed
revisions to those conditions, over Jones’s objections. Jones now argues, in
pertinent part, that the conditions are unconstitutional because they are not
narrowly tailored. We agree and remand for the trial court to reconsider the
conditions consistent with the guidance in this opinion.
I. BACKGROUND
In 2010, a jury convicted Jones of rape of a child in the first degree. The
court sentenced Jones to 100 months’ confinement and community custody upon
Jones’s release from prison, with various conditions. Jones appealed his
conviction, which this court affirmed. He subsequently filed two PRPs, which this No. 87163-3-I/2
court dismissed in 2014 and 2016. In 2019, Jones was released from prison.
In July 2022, Jones filed another PRP, this time arguing inter alia that some
of his conditions of community custody were facially invalid. The State conceded
that conditions 13, 15, 22, and 23 were facially invalid, and proposed revisions for
each condition. Our Supreme Court granted the PRP in part based on the State’s
concessions and remanded the matter to the trial court to “make necessary
corrections.”
The trial court adopted the revisions that the State proposed. Specifically,
conditions 22 and 23 were modified as follows (where strike-through text
represents deletions and underlined text are additions):
22. Do not purchase, possess, or use consume alcohol (beverage or medicinal), and submit to testing and reasonable searches of your person, residence, property and vehicle by the Community Corrections Officer [(CCO)] to monitor compliance.
23. Do not use or access the Internet World Wide Web, including email, without the prior approval of your except as specifically authorized by the supervising [CCO] and sex offender treatment provider through approved filters. The CCO is permitted to monitor the filters for compliance with this condition.
Jones now challenges the constitutionality of the revised conditions 22 and 23. 1
1 In his pro se statement of additional grounds (SAG), Jones challenges the same
conditions challenged in his Appellant’s brief. Arguments adequately addressed in an opening brief are not proper for an SAG. See RAP 10.10(a); State v. Jackson, 129 Wn. App. 95, 98 n. 6, 117 P.3d 1182 (2005). He also challenges a “business frequency rule” and “travel restrictions” but does not clarify which additional community custody conditions he is referring to. We are not required to address a claim that is “too vague to allow us to identify the issue.” State v. Bluehorse, 159 Wn. App. 410, 436, 248 P.3d 537 (2011). To the extent that Jones cites authority supporting his claims, he does not explain how the authority supports his arguments. “It is not the responsibility of this court to attempt to discern what it is appellant may have intended to assert that might somehow have merit.” Port Susan Chapel of the Woods v. Port Susan Camping Club, 50 Wn. 2 No. 87163-3-I/3
II. ANALYSIS
As a preliminary matter, the State asserts that Jones’s challenge would
have required the trial court to exceed the scope of the mandate from our Supreme
Court. The State claims that our Supreme Court’s mandate required the trial court
to mechanically correct the conditions to match the revisions the State proposed.
We disagree.
Our Supreme Court remanded for the trial court to make necessary
corrections “based on the State’s concession,” meaning the remand was
necessary because the State conceded facial invalidity. Nothing in the order
indicates that our Supreme Court “found that the State’s proposed language . . .
adequately mended any constitutional invalidity.”
Our Supreme Court did not “clearly convey the intent to limit the scope” of
review, and so the trial court had the discretion to consider whether the conditions
violated Jones’s constitutional rights. State v. Dunbar, 27 Wn. App. 2d 238, 246,
532 P.3d 652 (2023) (citing State v. Hardy, 250 N.C. App. 225, 792, S.E.2d 564,
569 (2012)).
That said, the State is correct that, pursuant to RCW 10.73.100, the
argument that the conditions are not crime-related is time-barred, if not also
waived. We therefore exercise our discretion under RAP 2.5 to review only
whether each condition is valid on its face. In re the Pers. Restraint of Williams,
200 Wn.2d 622, 632, 520 P.3d 933 (2022). 2 Jones argues that both conditions
App. 176, 188, 746 P.2d 816 (1987). We therefore do not address the arguments raised in the SAG. 2 More specifically, the State claims that Jones’s arguments are waived because
3 No. 87163-3-I/4
violate his constitutional rights. We review constitutional questions de novo. State
v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019).
A. Condition 22
Jones argues that condition 22—which states, “Do not consume alcohol
(beverage or medicinal), and submit to testing and reasonable searches of your
person, residence, property and vehicle by the [CCO] to monitor compliance”—
violates his right to privacy and is not narrowly tailored. We remand so that the
trial court may clarify the scope of the “reasonable searches.”
Our state constitution provides 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 probationers have a more reduced expectation of
privacy than ordinary citizens because they are “persons whom a court has
sentenced to confinement, but who are serving their time outside the prison walls.”
State v. Olsen, 189 Wn.2d 118, 124-25, 399 P.3d 1141 (2017). But probationers
still retain their constitutional rights and “thus some authority of law must still justify
the intrusion into their reduced expectation of privacy.” Id. at 126. A balancing
test—whether a compelling interest, achieved through narrowly tailored means,
supports the intrusion into a probationer’s reduced privacy interests—is
appropriate to evaluate the constitutionality of the conditions. Id. at 127-28.
he did not raise these challenges before the trial court. Jones challenged the constitutionality of condition 23 both in his memorandum to the trial court, CP 51- 52, and at the hearing before the trial court, RP 9-11. In his brief, he argues that condition 22 is unconstitutional “[o]n its face” and therefore a manifest constitutional error. We therefore exercise our discretion under RAP 2.5(a) to consider both constitutional claims, which the State does not challenge on the merits. 4 No. 87163-3-I/5
The State has a compelling interest in monitoring compliance with valid
community custody conditions. State v.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87163-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JOSEPH LEWIS JONES,
Appellant.
DÍAZ, J. — Our Supreme Court granted Joseph Lewis Jones’s Personal
Restraint Petition (PRP) in part after the State conceded the facial invalidity of two
conditions. At the subsequent hearing, the trial court adopted the State’s proposed
revisions to those conditions, over Jones’s objections. Jones now argues, in
pertinent part, that the conditions are unconstitutional because they are not
narrowly tailored. We agree and remand for the trial court to reconsider the
conditions consistent with the guidance in this opinion.
I. BACKGROUND
In 2010, a jury convicted Jones of rape of a child in the first degree. The
court sentenced Jones to 100 months’ confinement and community custody upon
Jones’s release from prison, with various conditions. Jones appealed his
conviction, which this court affirmed. He subsequently filed two PRPs, which this No. 87163-3-I/2
court dismissed in 2014 and 2016. In 2019, Jones was released from prison.
In July 2022, Jones filed another PRP, this time arguing inter alia that some
of his conditions of community custody were facially invalid. The State conceded
that conditions 13, 15, 22, and 23 were facially invalid, and proposed revisions for
each condition. Our Supreme Court granted the PRP in part based on the State’s
concessions and remanded the matter to the trial court to “make necessary
corrections.”
The trial court adopted the revisions that the State proposed. Specifically,
conditions 22 and 23 were modified as follows (where strike-through text
represents deletions and underlined text are additions):
22. Do not purchase, possess, or use consume alcohol (beverage or medicinal), and submit to testing and reasonable searches of your person, residence, property and vehicle by the Community Corrections Officer [(CCO)] to monitor compliance.
23. Do not use or access the Internet World Wide Web, including email, without the prior approval of your except as specifically authorized by the supervising [CCO] and sex offender treatment provider through approved filters. The CCO is permitted to monitor the filters for compliance with this condition.
Jones now challenges the constitutionality of the revised conditions 22 and 23. 1
1 In his pro se statement of additional grounds (SAG), Jones challenges the same
conditions challenged in his Appellant’s brief. Arguments adequately addressed in an opening brief are not proper for an SAG. See RAP 10.10(a); State v. Jackson, 129 Wn. App. 95, 98 n. 6, 117 P.3d 1182 (2005). He also challenges a “business frequency rule” and “travel restrictions” but does not clarify which additional community custody conditions he is referring to. We are not required to address a claim that is “too vague to allow us to identify the issue.” State v. Bluehorse, 159 Wn. App. 410, 436, 248 P.3d 537 (2011). To the extent that Jones cites authority supporting his claims, he does not explain how the authority supports his arguments. “It is not the responsibility of this court to attempt to discern what it is appellant may have intended to assert that might somehow have merit.” Port Susan Chapel of the Woods v. Port Susan Camping Club, 50 Wn. 2 No. 87163-3-I/3
II. ANALYSIS
As a preliminary matter, the State asserts that Jones’s challenge would
have required the trial court to exceed the scope of the mandate from our Supreme
Court. The State claims that our Supreme Court’s mandate required the trial court
to mechanically correct the conditions to match the revisions the State proposed.
We disagree.
Our Supreme Court remanded for the trial court to make necessary
corrections “based on the State’s concession,” meaning the remand was
necessary because the State conceded facial invalidity. Nothing in the order
indicates that our Supreme Court “found that the State’s proposed language . . .
adequately mended any constitutional invalidity.”
Our Supreme Court did not “clearly convey the intent to limit the scope” of
review, and so the trial court had the discretion to consider whether the conditions
violated Jones’s constitutional rights. State v. Dunbar, 27 Wn. App. 2d 238, 246,
532 P.3d 652 (2023) (citing State v. Hardy, 250 N.C. App. 225, 792, S.E.2d 564,
569 (2012)).
That said, the State is correct that, pursuant to RCW 10.73.100, the
argument that the conditions are not crime-related is time-barred, if not also
waived. We therefore exercise our discretion under RAP 2.5 to review only
whether each condition is valid on its face. In re the Pers. Restraint of Williams,
200 Wn.2d 622, 632, 520 P.3d 933 (2022). 2 Jones argues that both conditions
App. 176, 188, 746 P.2d 816 (1987). We therefore do not address the arguments raised in the SAG. 2 More specifically, the State claims that Jones’s arguments are waived because
3 No. 87163-3-I/4
violate his constitutional rights. We review constitutional questions de novo. State
v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019).
A. Condition 22
Jones argues that condition 22—which states, “Do not consume alcohol
(beverage or medicinal), and submit to testing and reasonable searches of your
person, residence, property and vehicle by the [CCO] to monitor compliance”—
violates his right to privacy and is not narrowly tailored. We remand so that the
trial court may clarify the scope of the “reasonable searches.”
Our state constitution provides 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 probationers have a more reduced expectation of
privacy than ordinary citizens because they are “persons whom a court has
sentenced to confinement, but who are serving their time outside the prison walls.”
State v. Olsen, 189 Wn.2d 118, 124-25, 399 P.3d 1141 (2017). But probationers
still retain their constitutional rights and “thus some authority of law must still justify
the intrusion into their reduced expectation of privacy.” Id. at 126. A balancing
test—whether a compelling interest, achieved through narrowly tailored means,
supports the intrusion into a probationer’s reduced privacy interests—is
appropriate to evaluate the constitutionality of the conditions. Id. at 127-28.
he did not raise these challenges before the trial court. Jones challenged the constitutionality of condition 23 both in his memorandum to the trial court, CP 51- 52, and at the hearing before the trial court, RP 9-11. In his brief, he argues that condition 22 is unconstitutional “[o]n its face” and therefore a manifest constitutional error. We therefore exercise our discretion under RAP 2.5(a) to consider both constitutional claims, which the State does not challenge on the merits. 4 No. 87163-3-I/5
The State has a compelling interest in monitoring compliance with valid
community custody conditions. State v. Nelson, 4 Wn.3d 482, 506-07, 565 P.3d
906 (2025). Testing for alcohol consumption is “narrowly tailored” to achieve this
compelling interest. Id. at 509.
For a search of an offender’s person, residence, property, or vehicle, the
CCO “must have ‘reasonable cause to believe’ a probation violation has occurred
before conducting a search at the expense of the individual’s privacy.” State v.
Cornwell, 190 Wn.2d 296, 304, 412 P.3d 1265 (2018) (quoting RCW
9.94A.631(1)). And the CCO should limit to the search “to the extent necessary
for the State to monitor compliance with the particular probation condition that gave
rise to the search.” Id. A CCO may not use a probation search as “‘a fishing
expedition to discover evidence of other crimes, past or present.’” Id. (quoting
Olsen, 189 Wn.2d at 134).
The trial court at Jones’s sentencing had discretion to order that the offender
“refrain from consuming alcohol,” even if the offense was unrelated to alcohol.
Former RCW 9.94A.703(3)(e) (2009). 3 Id. The State therefore has a compelling
interest in monitoring compliance by verifying that Jones is not consuming alcohol.
Nelson, 4 Wn.3d at 506–07; But the means of monitoring compliance must be
narrowly tailored to safeguard Jones’s right to privacy. Olsen, 189 Wn.2d at 127-
28.
Jones’s privacy should be safeguarded by requiring: (1) the CCO have
3 In 2015, the legislature amended RCW 9.94A.703 and the relevant statute now
permits the trial court to order an offender to refrain from both “possessing and consuming alcohol.” S.B. 5104, 64th Leg., Reg. Sess. (Wash. 2015). 5 No. 87163-3-I/6
“reasonable cause to believe” a violation occurred before conducting a search and
(2) the parolee’s privacy is diminished only to the extent necessary for the State to
monitor the parolee’s compliance. Cornwell, 190 Wn.2d at 304 (citing RCW
9.94A.631(1)). The current condition fails to meet either prong.
Although the condition states that the CCO may conduct “reasonable
searches,” it is not clear that any search must be triggered by “reasonable cause
to believe” that Jones has consumed alcohol. Cornwell, 190 Wn.2d at 304. The
condition also does not state that the searches are limited to the extent necessary
to monitor compliance. Id. Any search of Jones’s person, home, vehicle, or
property should be limited to ensure that Jones has not consumed alcohol. Id.
For these reasons, we remand this condition of community custody for the
trial court to add the requirement that his CCO must have reasonable suspicion of
a probation violation, and to make clear that the search will only be conducted to
the extent necessary “for the [CCO] to monitor compliance with the particular
probation condition that gave rise to the search.” Cornwell, 190 Wn.2d at 304.
B. Condition 23
Jones argues that condition 23 violates both his First Amendment rights and
WASH. CONST. art. I, § 5. The revised condition 23 reads, “Do not use or access
the World Wide Web, including email, except as specifically authorized by the
supervising CCO through approved filters. The CCO is permitted to monitor the
filters for compliance with this condition.” We agree that the condition is
unconstitutionally vague and remand for the trial court to clarify so that the
approved filters are “narrowly tailored to the dangers posed by the specific
6 No. 87163-3-I/7
defendant.” State v. Johnson, 197 Wn.2d 740, 745, 487 P.3d 893 (2021).
“Restrictions on Internet access have both due process and First
Amendment implications.” Johnson, 197 Wn.2d at 744. The United States
Supreme Court has emphasized the importance of internet access, noting that “to
foreclose access to social media altogether is to prevent the user from engaging
in the legitimate exercise of First Amendment rights.” Packingham v. North
Carolina, 582 U.S. 98, 108, 137 S. Ct. 1730 (2017) (citing State v. Padilla, 190
Wn.2d 672, 678, 416 P.3d 712 (2018)).
But “the First Amendment permits a State to enact specific, narrowly
tailored laws that prohibit a sex offender from engaging in conduct that often
presages a sexual crime, like contacting a minor or using a website to gather
information about a minor.” Id. at 107.
A community custody condition is unconstitutionally vague if “it does not
provide sufficiently ascertainable standards to protect against arbitrary
enforcement.” Padilla, 190 Wn.2d at 677. A community custody condition which
implicates material protected under the First Amendment is held to a stricter
standard of definiteness to prevent a chilling effect on the exercise of those rights.
State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008).
Courts have held that community custody conditions which require further
definition by a CCO are unconstitutionally vague. Padilla, 190 Wn.2d at 682; State
v. Reedy, 26 Wn. App. 2d 379, 395, 527 P.3d 156 (2023). In Bahl, the condition
prohibiting access or possession of pornographic materials “as directed by the
supervising Community Corrections Officer,” did not adequately protect against
7 No. 87163-3-I/8
arbitrary enforcement. Bahl, 164 Wn.2d at 754. The CCO’s discretion to
determine the extent of the condition “only makes the vagueness problem more
apparent, since it virtually acknowledges that on its face it does not provide
ascertainable standards for enforcement.” Id. at 758.
Condition 23 does not provide enforcement guidance to the CCO regarding
the use of which filters are appropriate and thus does not protect against arbitrary
enforcement. It is unclear which websites or categories of websites the CCO
should prohibit Jones from viewing, and the condition places no limitation on the
CCO’s discretion. It is also unclear what happens if there is a disagreement with
the CCO about which websites or filters are appropriate. Without more clarity, the
condition infringes on Jones’s first amendment rights and is unconstitutionally
vague. See Reedy, 26 Wn. App. 2d at 395.
In Johnson, our Supreme Court upheld a similar condition limiting internet
access through “filters approved by his community custody officer.” 197 Wn.2d at
742. The filters must be “narrowly tailored to the dangers posed by the specific
defendant.” Id. at 745. The court held that the condition should be read “in a
commonsense fashion in the context of the judgment and sentence, and related
documents that will be available to [the offender]’s future community corrections
officer” and found such documents offered “sufficient benchmarks to prevent
arbitrary enforcement.” Id. at 748.
The State does not argue that similar documents will be available to Jones’s
CCO, and we find no such guidance for Jones’s CCO in the record before us. 4
4 The State argues there is insufficient information in the record for the court to
8 No. 87163-3-I/9
Therefore, we remand for the court to clarify which websites or categories of
websites the CCO should prohibit Jones from viewing, which filters the CCO will
impose, and any other appropriate limitations or guidance on the CCO’s discretion.
III. CONCLUSION
We remand this matter for the trial court to modify the custody conditions
consistent with this opinion.
WE CONCUR:
determine whether the internet was related to Jones’s crime. A complete record of proceedings and clerk’s papers from Jones’s trial is not before us, but the record is sufficient for this court to address the unconstitutional lack of narrow tailoring. 9