State v. Patterson

• Decision Date: 21 April 1988
• Docket Number: No. 8070-6-III,8070-6-III
• Citation: 752 P.2d 945,51 Wn.App. 202
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Keith M. PATTERSON, Appellant.

Page 202

51 Wn.App. 202

752 P.2d 945

STATE of Washington, Respondent, v. Keith M. PATTERSON, Appellant.

No. 8070-6-III.

Court of Appeals of Washington Division 3, Panel One.

April 21, 1988.

Jeffrey Barker, Wenatchee, for appellant.

Mary Ann Brady, Deputy Pros. Atty., Ephrata, for respondent.

McINTURFF, Chief Judge.

Mr. Patterson was convicted of first degree robbery and three counts of second degree assault following denial of his motion to suppress evidence. We affirm.

A man, armed with a revolver, robbed the Jackpot Service Station (Jackpot) in Ephrata, on November 9, 1985. At this time three youths were in the store playing video games. When the robber left the store on foot, the youths followed him but returned to tell the clerk the robber had fired a gun at them. The police arrived and took a description of the suspect.

On December 10 or 11 an anonymous telephone caller told the police department the suspect they were looking for in the armed robbery was being held in Chelan County for the burglary of a Save-Mart store. A photograph of Mr. Patterson, a suspect in the Save-Mart burglary, was obtained from Chelan County and used in photo montages.

The clerk on duty in the Jackpot at the time of the robbery was shown two sets of six photos including both profile and frontal views. Mr. Patterson's profile was the only one looking to the right. The clerk could not identify the suspect from the profile pictures, but did identify him tentatively from the frontal views. Subsequently, he picked Mr Patterson out of a lineup as well. Mr. Patterson was the only person who appeared in both the photo montages and the lineup.

Mr. Patterson was a parolee and in jail in Chelan County on a charge of burglary at the time his car was searched by a parole officer without a warrant in connection with the Jackpot robbery. A Ruger firearm was found in the car. Conditions of Mr. Patterson's parole included not possessing firearms and submitting to a search of his person, residence, vehicle, and possessions whenever requested by his probation and parole officer.

The court denied Mr. Patterson's motion to suppress the evidence seized in the search of his car and the identifications based on the photo montages and lineup, but did exclude Mr. Bedient's identification because it was tainted by Mr. Horn's selection. (Mr. Bedient and Mr. Horn were two of the youths in the store at the time of the robbery.)

The first issue is whether Mr. Patterson's Fourth Amendment rights, or article 1, section 7 rights under our state constitution were violated by the warrantless search of his vehicle. The State argues Mr. Patterson, as a parolee in custody, has a diminished expectation of privacy, such that the warrantless search of his vehicle was not an unreasonable search and seizure.

A. Article 1, Section 7.

Article 1, section 7 of our state constitution provides broader protections than the Fourth Amendment. State v. Stroud, 106 Wash.2d 144, 148, 720 P.2d 436 (1986). The purpose of article 1, section 7, is to protect an individual's right to privacy rather than curb governmental actions. State v. Lampman, 45 Wash.App. 228, 232, 724 P.2d 1092 (1986).

A series of appellate cases establish an exception to the warrant requirement for searches of parolees. A probationer has a diminished right to privacy; a warrantless search of a probationer is reasonable if a police officer or a probation officer has a well founded suspicion that a probation violation has occurred. Lampman, at 233, 724 P.2d 1092; State v. Coahran, 27 Wash.App. 664, 666, 620 P.2d 116 (1980); State v. Simms, 10 Wash.App. 75, 516 P.2d 1088 (1973), review denied, 83 Wash.2d 1007 (1974).

A warrantless search of a parolee's residence, upon an anonymous tip that controlled substances were in the residence, was held unreasonable. Simms, at 87, 516 P.2d 1088. Although a warrantless search of a parolee's residence may be conducted upon less than probable cause, before a police officer may forceably enter the residence of a parolee without a warrant, on a tip of an informant, the information on which the officer acts must carry some indicia of reliability to support the inference that the informant is telling the truth and the officer must have a well founded suspicion a parole violation has occurred. ¹ Simms, at 87-88, 516 P.2d 1088.

State v. Campbell, 103 Wash.2d 1, 22-23, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985) held the warrantless search of an inmate's car by a work release supervisor did not violate either the Fourth Amendment or Const. art. 1, § 7, rejecting the contention that a second search of the car pursuant to a search warrant was tainted by an earlier search in which the work release supervisor was acting as an agent of the State. The search by the work release supervisor was reasonable to obtain the raincoat of a fellow resident in the work release program which was believed to contain evidence of alcohol use. At the time of the searches of Campbell's car, he had been taken into custody and his work release suspended.

B. Fourth Amendment.

Griffin v. Wisconsin, 483 U.S. ----, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) held the warrantless search of a probationer's home, pursuant to a Wisconsin regulation of placing the standard of probable cause by "reasonable grounds", satisfied the Fourth Amendment. ² The Court carefully limited its holding to searches of probationers carried out pursuant to rules and regulations that satisfy the Fourth Amendment's reasonableness requirement and did not hold that any search of a probationer's home by a probation officer satisfied the Fourth Amendment as long as a parole officer had "reasonable grounds". Griffin, 107 S.Ct. at 3167. ³

Other states have also considered variations on the Fourth Amendment reasonableness requirement to search probationers and parolees. People v. Coffman, 2 Cal.App.3d 681, 82 Cal.Rptr. 782 (1969) held 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. Where a parole agent is not engaged in administering his supervisory functions but rather his presence was a ruse, calculated to supply color of legality to a warrantless entry of a private dwelling, the search is not reasonable under the Fourth Amendment. Coffman, 82 Cal.Rptr. at 786.

But in People v. Burgener, 41 Cal.3d 505, 224 Cal.Rptr. 112, 127, 714 P.2d 1251 (1986), police relayed information to a parole agent who authorized a search of the apartment of the woman with whom Mr. Burgener was staying; the search was made on the evening following Mr. Burgener's arrest. The court balanced the parolee's privacy interest with the societal interest in public safety in determining the proper scope of the warrantless search condition as a term of parole. People v. Bravo, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, 341 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1074, 99 L.Ed.2d 234 (1988). ⁴

Mr. Patterson cites People v. Pelow, 59 Misc.2d 424, 299 N.Y.S.2d 20, 23 (1969) (a parolee charged with crimes other than violation of parole prior to intervention by a parole officer and in custody at the instance of judicial authority rather than due to apprehension by his parole officer is not within the jurisdiction of the division of parole. A parole officer had no authority to search his premises without a warrant). Mr. Patterson also cites State v. Cullison, 173 N.W.2d 533, 537, (Iowa), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970) (a parolee has the same Fourth Amendment rights as any other citizen--the warrantless search of his apartment by a parole officer with a police officer assisting him, absent probable cause, was unreasonable).

We conclude that under our Washington Constitution there exists an exception to the warrant requirement which allows a search based on reasonable suspicion. Our courts have not addressed whether the exception would permit a warrantless search of a parolee's car while the parolee was in custody. But, we agree with the analysis of the California court in People v. Burgener, supra, that a balancing of the parolee's privacy interest with the societal interest in public safety is necessary to determine the proper scope of the warrantless search condition in Mr. Patterson's parole agreement, assuming reasonable suspicion existed to search Mr. Patterson's car.

Mr. Patterson's parole officer testified he made the decision to search the car although he was encouraged to do so by a police contact. Further, the parole officer was still acting in a supervisory capacity (although assisting the police in their investigatory capacity) because there was a parole hold on Mr. Patterson and the parole officer needed information, such...