Opinion
No. 64212-0-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-04124-3, Michael J. Fox, J., entered September 23, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler and Spearman, JJ.
A warrantless search of the residence of an offender on post-release supervision is reasonable if the corrections officer has a well-founded suspicion that a violation of the terms of release has occurred, and has probable cause to believe the home to be searched is the offender's residence. The record in this case provides ample factual support for the trial court's determinations that the Washington State Department of Corrections (DOC) had a reasonable suspicion that supervisee Kenneth Klinger had violated a condition of his community custody, and that the home to be searched was his. The trial court is affirmed.
FACTS
Klinger was convicted in 2003 for possession of depictions of minors engaged in sexually explicit conduct and attempted second degree child molestation. The convictions were based on his Internet communications with an undercover police detective he believed to be a 13-year-old boy. His sentence included a term of community custody under DOC supervision. Conditions of Klinger's sentence required him to submit to polygraph and plethysmograph examinations and searches of computer equipment to which he had regular access. He was also prohibited from possessing or accessing pornographic materials, from accessing the Internet without permission of his supervising Community Corrections Officer (CCO), and from accessing computer "chat rooms."
The following facts, as set forth in the trial court's written findings of fact and conclusions of law on CrR 3.6 motion to suppress physical evidence, are undisputed for purposes of Klinger's appeal. On February 20, 2008, Klinger took a required polygraph exam. The polygraph indicated that Klinger was deceptive when he denied looking at pornography and accessing the Internet. As a result of the polygraph exam, CCO Jeremy Brown met with and questioned Klinger. Klinger denied viewing pornography and accessing the Internet. He told Jeremy that there were two computers at his house, his wife's and his own. He stated that his wife's computer had Internet access, but it was password protected and he could not use it. Klinger also stated that the computers were networked so that he and his wife could play games together. Jeremy told Klinger that DOC officers were going to his house to confiscate his computer, and asked if there was anything he wanted to tell him about. Klinger responded, "Nothing that is mine."
Unchallenged findings of fact are verities on appeal. State v. Valdez, 167 Wn.2d 761, 767, 224 P.3d 751 (2009).
Both Jeremy Brown and his twin brother and fellow CCO Jeffrey Brown had a role in Klinger's investigation and trial. To avoid confusion, we use their first names.
Based on Klinger's failed polygraph, conflicting statements, and underlying offenses, the DOC decided to search his residence and computers. Klinger was taken to his house by two DOC officers. On the way, Klinger told the officers that he had found pornographic material on the sidewalk when he was working, and put it in the trash. He denied viewing the pornography.
At the residence, DOC officers found five computers. Three computers were in the living room, connected by a router. The fourth was in a bedroom closet and the fifth in a nightstand. Klinger admitted that he had used two of the computers in the living room, but reiterated that only his wife was able to access the Internet. The officers seized the computers. Officers also found pornographic videos in the house.
On April 2, 2008, Renton Police Detective Tanya Gardanar obtained a search warrant for the computers. A forensic search revealed that one of the computers found in the living room contained 15 images of minors engaged in sexually explicit conduct. Klinger's resume, bills of sale, and letters in his name were found in the same file subdirectory that contained the child pornography. In addition, 48 images of young men and children involved in sexual activity or posing nude were found in a temporary Internet folder. Forensic software also revealed records of Internet "chat room" conversations in which the user identified himself as "Ken" and provided Klinger's home address as his own.
Eight of the images had been deleted, but were recovered by forensic software.
The images had been downloaded from the Internet on February 13, 2008.
A jury convicted Klinger of one count of possession of depictions of minors engaged in sexually explicit conduct. Klinger appeals.
ANALYSIS
Klinger asserts that the search of his residence and seizure of the computers was unconstitutional, and that the trial court erred in denying his CrR 3.6 motion to suppress the evidence discovered thereby. We disagree.
A warrantless search of a community supervisee is reasonable when the officer has a well-founded suspicion that a violation of the terms of supervision has occurred. A warrantless search of a supervisee's residence may be conducted upon a lesser standard than probable cause, but the officer must have a valid reason to believe that a violation has occurred. The officer's knowledge of the offender's terms of release and past history are potentially relevant factors to consider in determining whether the search is reasonable:
State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009) (applying reasonable suspicion standard to searches of residence of offender under community supervision by DOC); see also State v. Lucas, 56 Wn. App. 236, 240, 783 P.2d 121 (1989) (reasonable suspicion standard applies to DOC search of convicted offender released pending appeal); State v. Lampman, 45 Wn. App. 228, 233, 724 P.2d 1092 (1986) (reasonable suspicion standard applies to search of probationer); State v. Coahran, 27 Wn. App. 664, 666, 620 P.2d 116 (1980) (reasonable suspicion standard applies to parolees' homes and vehicles under community supervision).
State v. Simms, 10 Wn. App. 75, 516 P.2d 1088 (1973).
Although knowledge of an individual's prior conviction does not provide probable cause to believe that the individual is, at any time thereafter, engaging in criminal activity so as to support warrantless search, similar knowledge in the [community supervision] context may be considered, along with other facts, in support of a warrantless search of a [supervisee]. Given that the standard for the reasonableness of such a search is a well founded suspicion that a . . . violation [of the terms of release] has occurred, knowledge of the [conditions of release] and past history is an appropriate factor to consider in this determination of the reasonableness of the warrantless search.
Lampman, 45 Wn. App. at 234-35 (emphasis omitted) (citation omitted).
Klinger asserts that the trial court erred in concluding that the DOC officers had a reasonable suspicion that he violated his terms of release. His primary contentions are that the polygraph examination was the only basis for the search, and that the test, standing alone, did not support a reasonable suspicion that a violation occurred. But Klinger's assertion that the search and seizure was premised solely on his polygraph examination is contradicted by unchallenged findings of fact. As set forth in the trial court's unchallenged finding of fact 14, at least three factors contributed to the decision to search: "the decision was made to search . . . based on the failed polygraph, Klinger's conflicting statements, and Klinger's underlying offenses." Moreover, the trial court expressly based its conclusion on "the totality of the circumstances," including not only "the failed polygraph," but all of "Klinger's answers regarding the computers," both to the polygraph examiner and CCO Jeremy. These unchallenged findings reveal that the polygraph examination was not the only factor supporting the search.
Klinger assigns error to the trial court's finding of fact 7, insofar as it found that CCO Jeremy Brown questioned Klinger "further" after the polygraph examination. He argues that the post-polygraph questioning merely repeated and clarified his polygraph test responses, and was not a separate, independent investigation.
Klinger assigns error to the trial court's finding of fact 7, which states, "As a result of this finding by the polygrapher, Jeremy Brown, Klinger's assigned [CCO] questioned him further." Klinger argues that Jeremy did not question him "further," but simply continued the polygraph exam, albeit without the polygraph equipment. Klinger's argument is unsupported by the record. First, Jeremy was not present during the polygraph exam. Second, he asked different questions and obtained additional information from Klinger, including an admission that one of the computers at his home was connected to the Internet, and that another computer was connected to the computer with Internet access. The trial court's finding is supported by substantial evidence.
Klinger also challenges the trial court's conclusion of law 11, which states:
The totality of the circumstances of the failed polygraph combined with Klinger's answers regarding the computers, gave DOC reasonable cause to suspect there was evidence that Klinger had violated his conditions of supervision.
Fatal to Klinger's argument is the unchallenged fact that the DOC officers considered Klinger's polygraph results and his subsequent inconsistent statements together with their knowledge of his underlying offenses in forming their suspicion that he violated the conditions of his probation. These facts amply support a reasonable suspicion that a violation occurred.
The trial court's findings of fact are supported by substantial evidence, and in turn support the conclusion that the DOC had reasonable cause to suspect there was evidence that Klinger had violated his conditions of supervision.
Klinger also asserts that the search and seizure intruded on his wife's privacy interests. Before conducting a warrantless search of a supervisee's residence, law enforcement officials "`must have probable cause to believe that they are at the [offender's] residence.'" Klinger does not dispute that the DOC officers had probable cause to believe that they were at his residence, or that the computers belonged to him. Instead, he argues that the officers were required to have "probable cause" to believe that a violation occurred before they could search the house and seize the computers, simply because Klinger's wife also lived there. That is not the correct standard. A warrantless search of a supervisee's residence may be conducted if the parole officer has a well-founded suspicion that a parole violation has occurred, and has probable cause to believe the home to be searched is the supervisee's residence. The search at issue here satisfied both criteria.
Winterstein, 167 Wn.2d at 628-31 (quoting Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005)).
Winterstein, 167 Wn.2d at 628-31; Lampman, 45 Wn. App. at 233; Coahran, 27 Wn. App. at 666.
Finally, Klinger argues that the trial court deprived him of a fair trial by refusing to allow him to impeach two DOC officers, pursuant to ER 608(b), with reference to their prior DOC disciplinary proceedings. In exercising its discretion under ER 608(b), the trial court may consider whether the instance of misconduct is relevant to the witness's veracity and whether it is relevant to the issues presented at trial. Here, the trial court's conclusion that the evidence was not relevant to impeach the witnesses' credibility was well within its discretion.
ER 608 provides that specific instances of a witness's conduct, introduced for the purpose of attacking his or her credibility, may not be proved by extrinsic evidence, but may "in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness . . . concerning the witness'[s] character for truthfulness or untruthfulness."
In 2004, Jeffrey and Jeremy Brown allegedly sought special treatment from the police after an altercation in a nightclub. A DOC disciplinary proceeding was held, and the Browns were found to have abused their offices and were docked pay, demoted, and had letters of discipline placed in their files.
State v. O'Connor, 155 Wn.2d 335, 349-50, 119 P.3d 806 (2005); State v. Benn, 120 Wn.2d 631, 651, 845 P.2d 289 (1993) (witness's drug dealing "did not impact [his] ability to relate his discussions with Benn on the witness stand").
The judgment and sentence is affirmed.
WE CONCUR: