State v. Reichert, 38954-1-II.

Citation242 P.3d 44,158 Wash.App. 374
Decision Date02 November 2010
Docket NumberNo. 38954-1-II.,38954-1-II.
PartiesSTATE of Washington, Respondent, v. Joseph Andrew REICHERT, Appellant.
CourtCourt of Appeals of Washington

Michelle Bacon Adams, Attorney at Law, Port Orchard, WA, for Appellant.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

BRIDGEWATER, P.J.

¶ 1 Joseph Andrew Reichert appeals his conviction for unlawful possession of marijuana with intent to manufacture or deliver. Officer Steve Valley, a Department of Corrections (DOC) employee, and two detectives visited a residence to determine whether Reichert was living where he had reported to DOC, as the terms of his probation required. We hold that detectives could accompany Officer Valley and that neither the law nor the facts support Reichert's claim that the detectives used him as pretext to evade the Fourth Amendment warrant requirement.

¶ 2 The trial court applied the reasonable suspicion standard and upheld the search of Reichert's person and the search of the residence. We hold that the trial court should have first evaluated the evidence to determine whether Officer Valley had a reasonable suspicion that Reichert hadviolated his probation by residing at an undisclosed location so as to allow the search of his person, and, second, whether Officer Valley had probable cause to believe that Reichert resided at the residence so as to allow the search of the residence. We reverse and remand for an evidentiary hearing using the correct standard for search of the residence.

FACTS

¶ 3 In 2008, Reichert was on probation under DOC supervision and had reported where he was to be living to DOC, as required. In May 2008, Kitsap County Sheriff detectives received a tip from an informant that Reichert was selling marijuana and was living in a different residence on Sunde Road. The detectives contacted DOC Officer Valley to determine whether Reichert was under active DOC supervision. Officer Valley confirmed that Reichert was under DOC supervision and gave the detectives a couple of addresses to visit, which the detectives checked but were unable to locate Reichert.

¶ 4 Only when the detectives had the informant take them to the Sunde Road residence did the detectives find evidence of Reichert's whereabouts. Specifically, the detectives saw a vehicle registered to Reichert parked in front of the residence.

¶ 5 The detectives contacted Officer Valley to report that Reichert did not appear to be living at the address on file with DOC. A month and a half later, they again contactedOfficer Valley to request the status of his investigation. Officer Valley was not Reichert's assigned community corrections officer (CCO) but, as a community corrections specialist, he had authority to help supervise probationers.1

He asked the detectives to accompany him on a compliance check at the Sunde Road residence. They agreed.

¶ 6 At the Sunde Road residence, Officer Valley identified himself, saw Reichert through the door window, and announced that he was conducting a compliance check to verify Reichert's residence. Reichert refused to come out for about 20 minutes before he finally stepped out and said, "Take me to jail." 1 VRP (Dec. 17, 2008) at 62.

¶ 7 Officer Valley handcuffed Reichert and asked to be shown around the house. The detectives searched him for weapons, found and removed a set of keys, and read him his Miranda 2 warnings. Officer Valley then used the keys found on Reichert to open the door to the residence. Officer Valley did not step into the residence but could smell the odor of marijuana emanating from inside.

¶ 8 Based on the marijuana odor, the detectives obtained a telephonic warrant to search the residence. Before searching, the detectives had a special weapons and tactics team (SWAT) clear the house. As the SWAT team was about to enter, Roy Brandenburg 3 came out.

ANALYSIS
I. Pretext

¶ 9 Reichert argues that substantial evidence does not support the trial court's finding that Officer Valley asked the detectives to assist his own legitimate objectives. He challenges the trial court's conclusion of law based on that finding, namely, that the detectives did not use Officer Valley as pretext to evade the warrant requirement or toobtain evidence to support a search warrant. No Washington court has directly decided the issue.

A. Fourth Amendment

¶ 10 Reichert first contends that the Fourth Amendment prohibits a probation officer from conducting a warrantless search of a probationer when the probation officer acts on the request of law enforcement officials for the purpose of assisting a criminal investigation. He relies on one California Court of Appeals case and a line of Ninth Circuit federal court cases.

¶ 11 Reichert relies on People v. Coffman, 2 Cal.App.3d 681, 82 Cal.Rptr. 782 (1969), overruled by People v. Burgener, 41 Cal.3d 505, 536, 224 Cal.Rptr. 112, 714 P.2d 1251 (1986), overruled on other grounds, People v. Reyes, 19 Cal.4th 743, 80 Cal.Rptr.2d 734, 968 P.2d 445 (1998). Coffman held that a warrantless search of a parolee's apartment by a parole officer, at the request of a police officer while the parolee was in jail, violated the Fourth Amendment. Coffman, 2 Cal.App.3d at 687, 689, 82 Cal.Rptr. 782. The court reasoned that a search is not reasonable under the Fourth Amendment where a parole agent is not engaged in administering his supervisory functions but, rather, his presence is a ruse, calculated to supply color of legality to a warrantless entry of a private dwelling. Coffman, 2 Cal.App.3d at 689, 82 Cal.Rptr. 782.

¶ 12 Reichert fails to recognize that the California Supreme Court rejected Coffman's reasoning in Burgener, 41 Cal.3d at 536, 224 Cal.Rptr. 112, 714 P.2d 1251, In Burgener, police relayed information that the defendant was engaged in criminal activity to his parole agent who, based on the information, authorizeda search of the apartment where the defendant was living. Burgener, 41 Cal.3d at 536, 224 Cal.Rptr. 112, 714 P.2d 1251. The court balanced the parolee's privacy interest with society's interest in public safety and concluded that the search was reasonable under the Fourth Amendment. Burgener, 41 Cal.3d at 536, 224 Cal.Rptr. 112, 714 P.2d 1251. In finding that public safety outweighed the parolee's privacy interest, thecourt reasoned that effective parole supervision, needed to protect the public, demanded that the parole officer investigate; that law enforcement officers conducted the search for law enforcement purposes was irrelevant. Burgener, 41 Cal.3d at 536, 224 Cal.Rptr. 112, 714 P.2d 1251.

¶ 13 Similar to the California cases, a line of Ninth Circuit cases holding that the purpose of the search as the relevant inquiry was eventually rejected. In Smith v. Rhay, 419 F.2d 160, 162 (1969), the Ninth Circuit first articulated the rule that a parole officer may not conduct a warrantless search of the parolee while acting on a prior request of law enforcement officials and in concert with them. In Smith, the police enlisted the parole officer to locate the parolee as part of their criminal investigation. Smith, 419 F.2d at 162-63. The police then accompanied the parole officer on the search at their own request. Smith, 419 F.2d at 162-63. The court rejected the practice of police enlisting a parole officer to assist them because the parole officer cannot act as the "agent of the very authority upon whom the requirement for a search warrant is constitutionally imposed." Smith, 419 F.2d at 162-63.

¶ 14 Other Ninth Circuit cases, some of which Reichert cites, have recognized that a probationary search that is subterfuge for a criminal investigation violates the Fourth Amendment. United States v. Ooley, 116 F.3d 370, 372 (9th Cir.1997) ("the legality of a warrantless search depends upon a showing that the search was a true probation search and not an investigation search"); United States v. Jarrad, 754 F.2d 1451, 1453 (9th Cir.) (probation officer may not act as a "stalking horse" for the police to evade the Fourth Amendment warrant requirement), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985); see e.g., United States v. Merchant, 760 F.2d 963 (9th Cir.1985) (search that was not a genuine attempt to enforce probation but rather attempt to avoid Fourth Amendment warrant requirement was unlawful), cert. dismissed, 480 U.S. 615, 107 S.Ct. 1596, 94 L.Ed.2d 614 (1987). But the United States Supreme Court rejected the Ninth Circuit's reasoning in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

¶ 15 In Knights, the Court reversed a Ninth Circuit case that had invalidated a warrantless search of a probationer's house because the search was not for probationary purposes but was, instead, a mere subterfuge for a criminal investigation. United States v. Knights, 219 F.3d 1138, 1145 (9th Cir.2000), rev'd, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The Court held that the Fourth Amendment requires no more than reasonable suspicion to conduct a search of a probationer's house and that the search at issue was lawful because the searching officer had a reasonable suspicion that the probationer was engaged in criminal activity. Knights, 534 U.S. at 121-22, 122 S.Ct. 587. To reach the reasonable suspicion standard, it reasoned that Knight's status as a probationer subject to a search condition informed both sides of the degree to which the search intruded the probationer's privacy and the degree to which the search was necessary to promote legitimate government interests. Knights, 534 U.S. at 119, 122 S.Ct. 587. On one hand, the probationer knew, based on the probation order, that he was subject to warrantless searches and, thus, had a significantly diminished reasonable expectation of privacy. Knights, 534 U.S. at 119-20, 122 S.Ct. 587. On the other hand, the government has a legitimate interest in protecting society from probationers, who are more likely to violate the law and who have more...

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