IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71522-4-1
Respondent,
DIVISION ONE
v.
LISA LIPPINCOTT, UNPUBLISHED OPINION
Appellant. FILED: June 29, 2015
Becker, J. — When this case went to the jury, an unnecessary element
was included in the to-convict instructions. Because the State failed to prove the
unnecessary element, appellant's eight convictions for second degree identity
theft must be reversed. A conviction for possession of stolen property must also
be reversed because it was the product of a warrantless probation search that
was not supported by reasonable suspicion.
Three officers set out to execute an arrest warrant for appellant Lisa
Lippincott. The warrant was issued because Lippincott failed to report to her
community custody officer as required by conditions imposed upon her by the
Department of Corrections.
The officers located Lippincott at a gas station in south Seattle.
Department of Corrections Officer Kristoffer Rongen arrested Lippincott and
immediately began to search her purse. He found keys and five gift and prepaid
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credit cards. Rongen knew that Lippincott had a prior conviction for identity theft,
and he had previously encountered Lippincott in an identity theft investigation.
Rongen also knew that Lippincott was unemployed. Seeing the gift and prepaid
credit cards caused Rongen to suspect that Lippincott was failing to report for
supervision because she had become involved in identity theft once again.
Rongen asked Lippincott where she lived. Lippincott said she lived with
her father in Renton. Rongen did not believe this answer because one of the
other officers had been told by a confidential informant that Lippincott lived at a
particular apartment in Federal Way. Rongen suspected that Lippincott was lying
about her residence in order to prevent the officers from searching the Federal
Way apartment. Rongen suspected that the Federal Way apartment was
Lippincott's true residence and that it was likely to contain evidence of new
identity theft offenses.
The officers took Lippincott with them to the Federal Way apartment to
search it. Lippincott admitted that she lived there. Inside, the officers found bags
full of identity documents including checks, bank statements, social security
cards, credit cards, passports, birth certificates, and other personal documents.
They also found thousands of pages of blank check-making paper. Rongen
determined that the front door at the Federal Way apartment could be operated
by a key obtained from Lippincott's purse.
The State charged Lippincott with 10 counts of second degree identity
theft and 1 count of possessing stolen property in the third degree. All charges
stemmed from items found within Lippincott's apartment. Eight of the 10 counts
No. 71522-4-1/3
of identity theft involved copies of canceled rent checks written by tenants who
lived at an apartment complex. The remaining two counts of identity theft
involved copies of drivers' licenses. The charge of possession of stolen property
related to paycheck stubs that were not Lippincott's.
Lippincott moved to suppress the fruits of the search of her Federal Way
apartment under CR 3.6. The trial court denied the motion, and the cause
proceeded to trial. A jury found Lippincott guilty as charged except for one of the
counts of identity theft. Lippincott appeals.
SUFFICIENCY OF THE EVIDENCE
Evidence is sufficient to support a conviction if, when viewed in the light
most favorable to the State, a trier of fact could find all elements of a crime were
proved beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992).
The crime of identity theft is set forth in RCW 9.35.020. The portion of that
statute relevant to this appeal states:
(1) No person may knowingly obtain, possess, use, or transfer a
means of identification or financial information of another person,
living or dead, with the intent to commit, or to aid or abet, any
crime.
(2) Violation of this section when the accused or an
accomplice violates subsection (1) of this section and obtains
credit, money, goods, services, or anything else of value in excess
of one thousand five hundred dollars in value shall constitute
identity theft in the first degree. Identity theft in the first degree is a
class B felony punishable according to chapter 9A.20 RCW.
(3) A person is guilty of identity theft in the second degree
when he or she violates subsection (1) of this section under
circumstances not amounting to identity theft in the first degree.
Identity theft in the second degree is a class C felony punishable
according to chapter 9A.20 RCW.
account];
No. 71522-4-1/5
(2) That the defendant acted with the intent to commit or to
aid or abet any crime;
(3) That the defendant obtained credit or money or goods or
services or anything else that is $1500 or less in value from the
acts described in element (1); or did not obtain any credit or money
or goods or services or other items of value; and
(4) That any of these acts occurred in the State of
Washington.
Ifyou find from the evidence that each of these elements
has been proved beyond a reasonable doubt, then it will be your
duty to return a verdict of guilty as to Count 1.
On the other hand, if, after weighing all of the evidence, you
have a reasonable doubt as to any one of these elements, then it
will be your duty to return a verdict of not guilty as to Count 1.
(Emphasis added.)
Element 3 was unnecessary. Ifan unnecessary element is included in a
to-convict instruction without objection, the State assumes the burden of proving
the added element. State v. Hickman, 135 Wn.2d 97, 102-03, 954 P.2d 900
(1998).
Lippincott contends the State failed to prove element 3. We agree. At
trial, the State focused only on the first two elements. The State elicited
evidence that Lippincott knowingly possessed copies of the canceled rent checks
and drivers' licenses with the intent to commit additional crimes. As the State
concedes, none of the evidence established that Lippincott used the stolen
identity information to obtain something valued at less than $1,500 or that she did
not obtain anything of value by possessing the information. The State did not
address the third element during its closing argument.
Because the State failed to prove the unnecessary element included in the
to-convict instructions for identity theft in the second degree, those convictions
must be reversed.
No. 71522-4-1/6
ILLEGAL SEARCH
Lippincott also claims her motion to suppress the evidence found in the
Federal Way apartment was improperly denied because both her purse and the
apartment were searched without a warrant. The State relies on the probation
search exception to the warrant requirement.
Lippincott first contends that a probation search exception does not exist
under article I, section 7 of the Washington Constitution. We do not agree with
Lippincott's reading of the case law. Several cases have considered article I,
section 7 and have nevertheless held that it is not offended by permitting
warrantless searches of persons who are subject to conditions of probation if the
search is reasonable. See, e.g.. State v. Patterson, 51 Wn. App. 202, 204-05,
208, 752 P.2d 945. review denied, 111 Wn.2d 1006 (1988); State v. Lucas, 56
Wn.App. 236, 239-41, 783 P.2d 121 (1989), review denied. 114Wn.2d 1009
(1990); State v. Reichert, 158 Wn. App. 374, 386-87, 242 P.3d 44 (2010), review
denied, 171 Wn.2d 1006 (2011).
The second and more significant issue raised by Lippincott is whether the
search exceeded the permissible scope of a warrantless probation search. The
probation search exception to the warrant requirement is codified by statute. It
requires the searching officer to have "reasonable cause" to believe the offender
has violated a condition of sentence.
If there is reasonable cause to believe that an offender has violated
a condition or requirement of the sentence, a community
corrections officer may require an offender to submit to a search
and seizure of the offender's person, residence, automobile, or
other personal property.
No. 71522-4-1/7
RCW 9.94A.631(1). A warrantless search of a probationer is reasonable ifa
police or probation officer "has a well founded suspicion that a probation violation
has occurred." Patterson, 51 Wn. App. at 205; accord Lucas, 56 Wn. App. at
244.
At the suppression hearing, Rongen testified that he had the right to
search Lippincott's purse, car, and residence simply because he knew she was
on warrant status and that she was failing to report for supervision.
For Department of Corrections if somebody's on warrant status or
we believe there's information that they have violated their terms of
supervision, we have the right to search their person, place or
vehicle or residence, and that's what I was doing at the time she
was taken into custody.
Such testimony by itself is not enough to establish a reasonable suspicion. After
Lippincott's opening brief was filed in this appeal, this court issued an opinion
rejecting the State's argument that "any parole violation justifies any search for
any other violation." State v. Jardinez, 184 Wn. App. 518, 525, 338 P.3d 292
(2014). Jardinez makes the point that warrantless searches of probationers are
not unlimited in scope. Jardinez, 184 Wn. App. at 523-30.
Rongen also articulated a suspicion that Lippincott's failure to report
meant that she was likely reoffending. The trial court found that Rongen had a
reasonable suspicion that Lippincott was again engaged in identity theft based on
the presence of the gift cards and credit cards found in her purse. The court did
not separately find a justification for the search of the purse. The court stated its
reasoning in written findings and conclusions:
The Court finds that Officer Rongen's search of the
defendant's purse was justified, Officer Rongen had reasonable
No. 71522-4-1/8
suspicion that the defendant was in further violation of her
conditions of supervision and that evidence of further violation
would be found at the defendant's residence, and Officer Rongen
had probable cause to believe that the defendant lived at the
residence searched.
The defendant was under DOC supervision at the time, and
had outstanding warrants for which she was arrested. After
contacting the defendant and placing her under arrest, Officer
Rongen searched the defendant's purse. As a result of the search
of the defendant's purse, Officer Rongen located prepaid credit
cards and gift cards, as well as a key (which was later found to be
the key to the front door of the listed residence). Based on the
totality of the facts known to Officer Rongen at the time (including
his knowledge of the defendant, the defendant's criminal history
which included convictions for Identity Theft, as well as his training
and experience and knowledge of identity theft suspects and things
they commonly possess), Officer Rongen had a reasonable
suspicion that the defendant was in violation of her terms of
probation and that further evidence of fraudulent activity would be
found at the defendant's residence.
There must be a "nexus between the searched property and the alleged
crime." Jardinez, 184 Wn. App. at 529. Here, the State fails to establish a nexus
between the purse and any alleged crime that would justify the warrantless
search of the purse. The officers stopped Lippincott because she was wanted for
failure to report and there was a warrant for her arrest. No one claims that
evidence of the violation of failure to report was likely to be found in Lippincott's
purse. Her purse was searched based on a belief that it might contain evidence
of identity theft. The officer's reasoning—that a probationer who fails to report is
likely involved in the same type of criminal behavior as in the past and is trying to
avoid detection—is too attenuated to be considered a well-founded or reasonable
suspicion. Possibly, the search of the purse could have been justified on the
basis of a search incident to arrest, but as the State concedes, the record was
8
No. 71522-4-1/9
not developed on that theory and it does not establish where Lippincott's purse
was located at the time of arrest.
The warrantless search of the purse produced the gift cards and prepaid
credit cards, items pivotal to the trial court's decision to uphold the warrantless
search of the apartment. All items of evidentiary value found in Lippincott's purse
and apartment should have been suppressed as fruit of the poisonous tree.
Without that evidence, all of the convictions are unsupported.
Reversed.
vSecte&e.
WE CONCUR:
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State Of Washington v. Lisa Lippincott
Combined Opinion