State v. Parris

• Decision Date: 09 August 2011
• Docket Number: No. 40236–0–II.,40236–0–II.
• Citation: 259 P.3d 331,163 Wash.App. 110
• Parties: STATE of Washington, Respondent,v.Derek Lee PARRIS, Appellant.
• Court: Washington Court of Appeals

163 Wash.App. 110

259 P.3d 331

STATE of Washington, Respondent,

v.Derek Lee PARRIS, Appellant.

No. 40236–0–II.

Court of Appeals of Washington, Division 2.

Aug. 9, 2011.

Michelle Bacon Adams, Law Office of Michelle Adams PLLC, Port Orchard, WA, for Appellant.Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

PART PUBLISHED OPINION

HUNT, J.

[163 Wash.App. 113] ¶ 1 Derek Lee Parris appeals his bench trial conviction for possession of depictions of a minor engaged in sexually explicit conduct, a crime committed against a family or household member. He argues that (1) the trial court erred in failing to suppress evidence discovered during an allegedly illegal search of memory cards ¹ found in his room, which were searched without a warrant issued following his community custody violations; and (2) the trial court made several erroneous findings of fact that the record does not support. We affirm.

FACTS

I. Probation Violation

¶ 2 Derek Lee Parris received a community custody sentence for felony failure to register as a sex offender. Provisions of his community custody, to which he agreed in writing, prohibited him from having contact with minors, possessing sexually explicit materials (such as pornography), and possessing or using alcohol or illegal drugs and drug paraphernalia. His community custody also required him to participate in drug and alcohol treatment, to be employed, and to comply with a 10 pm to 5 am curfew.

¶ 3 By June 2009, Parris had violated several of his probationary requirements: A urinalysis test revealed methamphetamine; he had failed to participate in a drug and alcohol treatment program; and he had failed to provide proof of work or legitimate income. On July 6, Parris's Community Corrections Officer (CCO), Nancy Nelson, received an electronic report that Bremerton police had arrested Parris for driving with a suspended license at 10:40 pm and that an underage young woman had been with him at the time. That same day, Nelson received a phone call from Parris's mother, who was concerned about Parris's drug use and described his behavior as “out of control.” Verbatim Report of Proceedings (VRP) (Nov. 16, 2009) at 9. Parris's mother told Nelson that Parris had threatened to get a gun if Department of Corrections (DOC) staff tried to arrest him. Based on these incidents, Nelson believed that Parris was at risk to harm himself or someone else. After conferring with her supervisor, she decided to arrest Parris and to search his residence.

¶ 4 Nelson went to Parris's residence, accompanied by two other CCOs and two deputy officers from the Kitsap County Sheriff's office. Parris lived in a small room off the side of his mother's garage. Nelson first met with Parris's brother, Jeremy Parris, who verbalized his concern that Parris was at risk to overdose. After knocking on Parris's door for 10–15 minutes with no response, Nelson walked around to the side of the building, which had two windows.

¶ 5 As they looked in the 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 questioned her, identifying her as 17–year–old DLS.² Officers arrested Parris on a DOC warrant for probation violations, handcuffed him, and put him in the back of the DOC car.

¶ 6 Nelson and her fellow officers searched Parris's room. Nelson noticed a large quantity of women's clothing, which appeared to belong to DLS. Nelson identified several items that Parris's community custody conditions prohibited him from having, including: four syringes, a “largely empty bottle of vodka,” and pornography in various formats such as magazines, DVDs, and videos. Clerk's Papers (CP) at 7. In a small zippered case, Nelson found two portable USB ³ electronic storage drives, used to download, to transfer, or to modify camera images to a computer; and three memory cards, used to record digital images and videos, one of the memory cards had DLS's first name written on it. Nelson did not know what information might be on the USB drives and memory cards but, thinking they might show Parris's violation of probation, she seized them.

¶ 7 Nelson viewed the USB drives' contents the following day. They contained no information. She then checked the three memory cards' contents. The record does not indicate that the either the USB drives or the memory cards prompted Nelson to enter a password or required Nelson to circumvent some other data privacy protection. The data on two of the memory cards included: photos of two guns in a case, a 17–minute video of DLS performing oral sex on Parris, and Parris sodomizing DLS. Nelson submitted a comprehensive report along with the two memory cards to the Kitsap County Sheriff's Office.

II. Procedure

¶ 8 The State charged Parris with one count of possession of depictions of a minor engaged in sexually explicit conduct and further charged a special allegation that Parris committed the crime against a family or household member. Parris filed a motion to suppress the evidence seized during the search of his residence. The trial court denied this motion.

[163 Wash.App. 116] ¶ 9 Parris proceeded to a bench trial on stipulated facts. The trial court found him guilty of possession of depictions of a minor engaged in sexually explicit conduct and also found that the Parris committed the crime against a family or household member. Parris appeals.

ANALYSIS

I. Search of Electronic Storage Media

¶ 10 Parris first argues that the trial court erred in denying his motion to suppress evidence discovered during Nelson's search of the memory cards found in his room, the search of which was authorized based on his alleged community custody violations; he contends that Nelson needed a warrant to search the memory cards. This argument fails.

A. Standard of Review; Burden of Proof

¶ 11 We review the validity of a warrantless search de novo. State v. Kypreos, 110 Wash.App. 612, 616, 39 P.3d 371 (2002). We review conclusions of law relating to the suppression of evidence de novo and findings of fact for substantial evidence. State v. Winterstein, 167 Wash.2d 620, 628, 220 P.3d 1226 (2009). Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Generally, we view trial court findings as verities, provided there is substantial evidence to support them. Hill, 123 Wash.2d at 647, 870 P.2d 313.

B. Community Corrections Officer's Search of Parris's room and possessions

1. Probationers, parolees, and sex offenders' diminished expectation of privacy

¶ 12 Parris argues that the trial court erred when it failed to suppress evidence discovered in Nelson's illegal search of electronic storage media (memory cards) found in Parris's room. The State responds that because Nelson had reasonable cause to believe that Parris violated community custody conditions, the law permits Nelson's search of Parris's residence and property. We agree with the State.

¶ 13 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.⁴ State v. Gaines, 154 Wash.2d 711, 716, 116 P.3d 993 (2005). Generally, the trial court suppresses evidence seized from an illegal search under the exclusionary rule or the fruit of the poisonous tree doctrine. Gaines, 154 Wash.2d at 716–17, 116 P.3d 993.

¶ 14 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 which, permits a warrantless search, based on probable cause. State v. Lucas, 56 Wash.App. 236, 239–40, 783 P.2d 121 (1989), review denied, 114 Wash.2d 1009, 790 P.2d 167 (1990). Parolees and probationers have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are simply serving their time outside the prison walls; therefore, the State may supervise and scrutinize a probationer or parolee closely. Lucas, 56 Wash.App. at 240, 783 P.2d 121. 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. Simms, 10 Wash.App. 75, 86, 516 P.2d 1088 (1973) (quoting In re Martinez, 1 Cal.3d 641, 646, 83 Cal.Rptr. 382, 463 P.2d 734 (1970)), cert. denied, 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970), review denied, 83 Wash.2d 1007, 1974 WL 45211 (1974).

¶ 15 Convicted sex offenders in Washington also have a reduced expectation of privacy because of the “public's interest in public safety” and in the effective operation of government. In re Det. of Campbell, 139 Wash.2d 341, 355–56, 986 P.2d 771 (1999) (internal quotation marks omitted) (quoting State v. Ward, 123 Wash.2d 488, 502, 869 P.2d 1062 (1994)), cert. denied, 531 U.S. 1125, 121 S.Ct. 880, 148 L.Ed.2d 789 (2001).⁵ Parris falls under both the sex offender and probationer exceptions to the otherwise constitutionally guaranteed privacy rights to be free from unreasonable searches and seizures.

2. Articulable Suspicion Search

¶ 16 RCW 9.94A.631 authorizes a warrant exception for a CCO to search a probationer's residence and “other personal property” when the CCO has reasonable cause to believe probationer has violated release conditions.⁶ State v. Massey, 81 Wash.App. 198, 199, 913 P.2d 424 (1996). A warrantless search of parolee or probationer is reasonable if an officer has well-founded suspicion that a violation has occurred. Massey, 81 Wash.App. at 200, 913 P.2d 424. Analogous to the requirements of a Terry stop,⁷ reasonable suspicion requires specific and articulable...