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Washington Supreme Court: Nexus Between Property Searched and Probation Violation Required for Warrantless Search of Probationer’s Property

by Dale Chappell

Probationers have a limited, but constitutionally protected, privacy interest that does not permit community correction officers (“CCO”) to conduct open-ended property searches. Instead, the warrantless search must be connected to a suspected violation of a probation condition, the Supreme Court of Washington held, settling a circuit split within the state.

After Curtis Cornwell failed to report to his CCO, a warrant was issued for his arrest. Police stopped Cornwell’s vehicle based solely on the warrant, and a CCO was called to search his property. The CCO found drugs in a bag in the vehicle, and Cornwell was arrested on new charges for the drugs, as well as the probation violation.

Cornwell moved to suppress evidence obtained during the search of his car. The trial court denied his motion, stating that any subjective expectation of privacy was not “objectively reasonable” since he was on probation and thus entitled to a reduced expectation of privacy.

At the trial, the CCO testified that he searched the vehicle “to make sure there’s no further violations of his probation.” He further testified that “if there’s anything in the vehicle, whether it is in a suitcase, clothing, I’m going to go through those items.” It was also found that the police stopped Cornwell’s vehicle for no other reason than the warrant. A jury convicted Cornwell, and the Court of Appeals affirmed, holding that a nexus between the property searched and the alleged probation violation was not necessary for such a broad search.

The Washington Supreme Court granted review to settle an ongoing split among the Courts of Appeals on the issue of whether a nexus between the property searched and the suspected probation violation is required for a CCO to conduct a warrantless search of all of a probationer’s property.

Washington Constitution article I, section 7, states that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” or without a search warrant, except in certain exceptions. Probationers have a “reduced expectation of privacy” because they are essentially doing their time outside prison walls. Thus, a CCO may search a probationer on “reasonable suspicion” of a probation violation, the Washington Supreme Court has held.

This exception has been codified in RCW 9.94A.631, which provides that a CCO may search a probationer’s property “if there is reasonable cause to believe that an offender has violated a condition” of his probation. The statute is silent on whether a nexus between the property searched and the alleged violation is required. As such, the Supreme Court interpreted the statute “in a manner that conforms with article I, section 7 as permitted by a reasonable reading of the statute’s plain language.”

The Supreme Court explained that in accordance with article I, section 7, “individuals on probation do not forfeit all expectations of privacy in exchange for their release into the community.” A CCO’s authority to search is “limited.” A probationer’s privacy interest can be reduced “only to the extent necessitated by the legitimate demands” of probation, the Court said.

First, a CCO must have “reasonable cause” to believe a violation has occurred. Second, privacy may be diminished only to the extent necessary to monitor a probationer’s compliance with the probation condition “that gave rise to the search,” the Court explained. However, a probationer’s property having no nexus to the suspected violation remains off-limits.

Therefore, the Court held that “article I, section 7 permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.”

Applying the newly announced nexus requirement to the present case, the CCO’s search was nothing more than a “fishing expedition” and thus “exceeded its lawful scope, the Court said. The only probation violation supported by the record is Cornwell’s failure to report, but the Court noted that it “has already determined that there is no nexus between property and the crime of failure to report.” The CCO admitted that he had no expectation that the search of Cornwell’s vehicle would produce any evidence related to Cornwell’s failure to report. Consequently, since there was no nexus between the property searched and the suspected probation violation, the search was unlawful, and the evidence seized should have been suppressed under Washington’s Exclusionary Rule.

Accordingly, the Supreme Court reversed the Court of Appeals and Cornwell’s convictions. See: State v. Cornwell, 412 P.3d 1265 (Wash. 2018). 


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State v. Cornwell



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