by Sam Rutherford

The Court of Appeals of Washington, Division One, held that under the Washington Constitution, warrantless searches of parolees or probationers must have a nexus between the suspected violation of a probation condition and the place searched. Additionally, this nexus may not be expanded based on consideration of other factors unrelated to the suspected probation violation such as the probationer’s criminal history or gang affiliation.

Background

In October 2020, Roman James Allah, who was on probation for a firearm offense, was driving his car in Seattle’s Central District. A police officer pulled him over for suspicion of driving with a suspended license and, after learning Allah was on probation, contacted the Department of Corrections, asking that a Community Corrections Officer (“CCO”) be dispatched to the scene.

CCO Stephen Lambert was dispatched to the scene and, while en route, reviewed the conditions of Allah’s probation. He discovered that Allah was in violation of a geographic boundary probation condition excluding him from the Central District. The condition was imposed on Allah because he was listed in a security threat group database as a gang member with ties to the area.

Lambert searched Allah’s vehicle, specifically looking for a firearm. He located one under the driver’s seat, seized the firearm, and arrested Allah. Allah was charged with being a felon in possession of a firearm and subsequently moved to suppress the seizure of the firearm from his vehicle as resulting from an unconstitutional search. Allah’s attorney argued that there was an insufficient nexus between the vehicle search and the geographical boundary condition Allah violated. Lambert testified at the suppression hearing that the “geographic boundary [violation] alone wouldn’t necessitate a search,” so the “nexus for [his] search” was Allah’s “history of firearms possession.”

The trial court denied Allah’s motion. He was convicted following a jury trial and sentenced to 41 months in prison. He timely appealed.

Analysis

Article I, Section 7, of the Washington Constitution states that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Court described this constitutional provision as providing “a robust privacy right.” As such, warrantless searches and seizures are considered per se unreasonable except for a few “‘jealously and carefully drawn’ exceptions.” State v. Acrey, 45 P.3d 553 (Wash. 2002) (quoting State v. Kinzy, 5 P.3d 668 (Wash. 2000)). The State must prove that a warrantless search falls within one of these exceptions. Kinzy.

One such exception applies to parolees and probationers because they “have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls.” State v. Jardinez, 338 P.3d 292 (Wash. App. 2014). These individuals may be searched without a warrant “on the basis of a well-­founded or reasonable suspicion of a probation violation.” State v. Winterstein, 220 P.3d 1226 (Wash. 2009).

But warrantless searches of parolees and probationers are not unlimited under Article I, Section 7. Rather, the state Constitution “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.” State v. Cornwell, 412 P.3d 1265 (Wash. 2018) (emphasis added). This nexus requirement is intended to prevent “‘fishing expedition[s] to discover evidence of other crimes, past or present.’” Cornwell (quoting State v. Olsen, 399 P.3d 1141 (Wash. 2017)).

Washington courts employ a two-­part test to determine whether warrantless searches of probationers are valid under Article I, Section 7. First, the CCO must have “reasonable cause” to believe a probation violation has occurred before conducting the search. Id. (quoting RCW 9.94A.631(1)). Second, the search must be limited in scope “to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search. Id. The individual’s other property, which has no nexus to the suspected violation, remains free from search.” Id.

The question presented in this case was whether Lambert’s search of Allah’s car satisfied the foregoing legal standard. At the suppression hearing, Lambert testified that Allah’s violation of the geographically boundary condition by itself did not justify his search of Allah’s vehicle. Instead, Lambert relied on Allah’s “history of firearms possession,” reasoning that “it was reasonable to search for additional evidence of violation of firearms violation.”

The trial court, however, refused to consider Allah’s criminal history in upholding the search, ruling that the mere fact his car was within the geographical boundary provided all the nexus required to authorize Lambert’s search of the vehicle. The State did not endorse either theory on appeal. Rather, it contended that Lambert had “reasonable suspicion” to search the vehicle based on Allah’s geographic boundary violation, past gang affiliations, and prior firearm conviction.

The Court rejected each of these positions, concluding that “the geographic violation, without more, provides no reason why Allah may have had a firearm.” Lambert’s desire to uncover additional violations of probation conditions was irrelevant to determining whether a sufficient nexus between the probation condition Allah violated (the geographical restriction) and the place Lambert searched (Allah’s car) existed, the Court explained. Lambert’s search of Allah’s car was unconstitutional because “there was no evidence specifically indicating Allah may have a firearm in violation of his probation immediately prior to the search,” the Court concluded.

The State’s reliance on Allah’s prior firearm conviction and gang affiliation to provide “reasonable suspicion” for the search was similarly unpersuasive. The Court explained “[i]f a prior conviction, not to mention a prior arrest, should afford grounds for believing that an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he had reformed.” State v. Hobart, 617 P.2d 429 (Wash. 1980).

Thus, the Court stated that “neither CCO Lambert nor the State provide a sufficient explanation of why any person would reasonably believe Allah may have had a weapon immediately preceding the search. No matter how the constitutionality of the search is conceptualized—i.e., whether as requiring a nexus between the boundary violation and the vehicle searched, or as simply requiring reasonable suspicion—the logical gap remains.”

Conclusion

Accordingly, the Court vacated Allah’s conviction, reversed the trial court’s denial of his motion to suppress, and remanded the case for dismissal of the charge against him. See: State v. Allah, 2024 Wash. App. LEXIS 1220 (2024).

Writer’s note: It is important to understand that this case was decided on independent state law grounds, namely Article I, Section 7, of the Washington Constitution, which has long been interpreted as providing far greater protections that the Fourth Amendment to the U.S. Constitution. See State v. Gunwall, 720 P.2d 808 (Wash. 1986). In fact, the search of Allah’s car likely didn’t violate the federal Constitution because probationers have limited expectations of privacy under the Fourth Amendment. See United States v. Knights, 534 U.S. 112 (2001). Readers should review case law interpreting their respective state constitutions to determine if they provider greater protections against warrantless searches of parolees or probationers like the Washington Constitution.  

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