State v. Corn Well, 031518 WASC, 93845-8

Docket Nº:93845-8
Opinion Judge:YU, J.
Party Name:STATE OF WASHINGTON, Respondent, v. CURTIS LAMONT CORN WELL, Petitioner.
Judge Panel:MADSEN, J. (dissenting)
Case Date:March 15, 2018
Court:Supreme Court of Washington




No. 93845-8

Supreme Court of Washington, En Banc

March 15, 2018

          YU, J.

         It is well established that an individual on probation has a reduced expectation of privacy, and a community corrections officer (CCO) may conduct a warrantless search if he or she suspects the individual has violated a probation condition. The issue in this case is whether there are any limitations on the scope of the CCO's search. We hold that article I, section 7 of the Washington Constitution requires a nexus between the property searched and the suspected probation violation. There was no nexus in the search at issue here. Accordingly, we reverse the Court of Appeals and Cornwell's convictions.


         In September 2013, petitioner Curtis Lamont Cornwell was placed on probation.1 His judgment and sentence allowed his probation officer to impose conditions of his release, which included the following provision: I am aware that I am subject to search and seizure of my person, residence, automobile, or other personal property if there is reasonable cause on the part of the Department of Corrections to believe that I have violated the conditions/requirements or instructions above.

Ex. 4, at 3. Cornwell failed to report to the Department of Corrections (DOC) in violation of his probation, and DOC subsequently issued a warrant for his arrest.

         Cornwell first came to the attention of Tacoma Police Department Officer Randy Frisbie and CCO Thomas Grabski because of a distinctive Chevrolet Monte Carlo observed outside a house suspected of being a site for drug sales and prostitution. CCO Grabski later spoke with the registered owner of the vehicle, who said that she had given the car to Cornwell to drive but she wanted it back. Unfamiliar with Cornwell, one of the officers conducted a records check and determined he had an outstanding warrant.

         In late November 2014, at approximately 1:00 a.m., Officer Frisbie spotted the Monte Carlo while on patrol with Officer Patrick Patterson, another member of the Tacoma Police Department. Officer Frisbie testified that he intended to stop the vehicle because he believed Cornwell was driving it and he had an outstanding warrant. He did not initiate the stop based on any belief that the car contained drugs or a gun or because he observed a traffic violation.

         Before Officer Frisbie could activate his police lights, the car pulled into a driveway and Cornwell began to exit it. Cornwell ignored Officer Frisbie's orders to stay in the vehicle, and Officer Frisbie believed Cornwell was attempting to distance himself from the car. Officer Frisbie then ordered Cornwell to the ground. Cornwell started to lower himself in apparent compliance before jumping up and running. Cornwell was apprehended after both officers deployed their Tasers. He had $1, 573 on his person at the time of arrest.

         After securing Cornwell, Officer Patterson called CCO Grabski to the scene. CCO Grabski testified that his job is "to help apprehend fugitives of [DOC] as well as to look into violations of people that are on probation." 1 Verbatim Report of Proceedings (VRP) (Dec. 16, 2014) at 82. He testified that he believed Cornwell's warrant was for his failure to report to DOC because "that's pretty much why there's a warrant in the system is they failed to report to [DOC]." Id. at 113. Asked if he could think of another reason a warrant would issue, he said, "I can't think of anything that would be different." Id.

          Upon arrival at the arrest scene, CCO Gfabski searched the Monte Carlo. He described the basis for his search as follows: When people are in violation of probation, they're subject to search. So he's driving a vehicle, he has a felony warrant for his arrest by [DOC] which is in violation of his probation. He's driving the vehicle, he has the ability to access to enter the vehicle, so I'm searching the car to make sure there's no further violations of his probation.

Id. at 93. He explained, "If there is anything in the vehicle, whether it is in a suitcase, clothing, I'm going to go through those items." Id. at 94. In this case, CCO Grabski found a black nylon bag sitting on the front seat of the car. The bag contained oxycodone, amphetamine and methamphetamine pills, sim cards, and small spoons. A cell phone was also found in the car.

         Cornwell moved pursuant to CrR 3.6 to suppress the evidence obtained during the vehicle search. In denying the motion, the trial court stated that any subjective expectation of privacy Cornwell had "was not. . . objectively reasonable" given that he was on probation and had signed conditions of release that reflected his reduced expectation of privacy. Id. at 141.

         A jury convicted Cornwell of three counts of unlawful possession of a controlled substance with intent to deliver and one count of resisting arrest. In an unpublished opinion, the Court of Appeals affirmed, holding that there need not be a nexus between the property searched and the alleged probation violation. State v. Corrmell, No. 47444-1-II, slip op. at 7 (Wash.Ct.App. Sept. 20, 2016) (unpublished), Alternatively, the court held that if such a nexus were required, it was satisfied in this instance. Id. at 8. We granted review only as to the lawfulness of the property search.


         Was the search of the car Cornwell was driving an unlawful search requiring suppression of the evidence obtained?


         Issues of statutory interpretation and constitutional law are reviewed de novo. State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013).

         A. Preservation of the issue

         We first address the threshold question of issue preservation because the State argues Cornwell failed to preserve his claim that there must be a nexus between the property searched and the alleged probation violation. Ct. Ordered Answer to Pet. for Review at 6-7. At the CrR 3.6 hearing, defense counsel primarily relied on the theory that CCO Grabski knew that the car belonged to a third party and he did not have authority to search property that did not belong to Cornwell.

         However, Cornwell did raise the nexus argument. Defense counsel asserted that "the law does require considerably more nexus between the place being searched, in this case the car, and a probation violation." 1 VRP at 134. He also raised the argument in response to a hypothetical question posed by the judge.. The judge asked whether CCO Grabski would have had authority to search the car if Cornwell had stolen it. Id. at 127. Defense counsel said no "because there's no reason to believe that there's any nexus between that and any violation of his DOC conditions." Id. at 128. In addition, both the State and Cornwell discussed the meaning of RCW 9.94A.631, the legislature's codification of the probation exception to the warrant requirement.

         We conclude that the issue was properly preserved. Moreover, an ongoing split in the Court of Appeals, as discussed further below, requires our review in this case. RAP 13.4(b)(2). We therefore address the merits of Cornwell's claim.

         B. Searches pursuant to article I, section 7

         Article I, section 7 of the Washington Constitution provides a robust privacy right. It states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Const, art. I, § 7. The "authority of law" needed is generally a warrant, "subject to 'a few jealously and carefully drawn exceptions.'" State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (internal quotation marks omitted) (quoting State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)).

          However, individuals on probation are not entitled to the full protection of article I, section 7. State v. Olsen, 189 Wn.2d 118, 124, 399 P.3d 1141 (2017). They have reduced expectations of privacy because they are '"serving their time outside the prison walls.'" Id. at 124-25 (quoting State v. Jardinez, 184 Wn.App. 518, 523,...

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