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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 89965-7
)
v. )
) ENBANC
MICHAEL SHANE CATES, )
)
Petitioner. ) Filed: JUL 0 2 2015
________________)
YU, J.-One of the community custody conditions imposed as part of
Michael Shane Cates' sentence provides that upon release from total confinement,
he must consent to home visits to monitor his compliance with other community
custody provisions. Cates argues this condition violates article I, section 7 of the
Washington Constitution. We affirm the Court of Appeals' holding that his
challenge is not yet ripe for review.
FACTUAL AND PROCEDURAL HISTORY
Following a jury trial, Cates was convicted of two counts of first degree rape
of a child and two counts of first degree child molestation. He was given a
standard-range sentence for each conviction, all to run concurrently, resulting in 25
State v. Cates, No. 89965-7
years of total confinement. He was further sentenced to 3 years of community
custody upon his release and prohibited from contacting the victim.
The prosecutor proposed a community custody condition that would have
prohibited Cates from possessing or maintaining access to a computer without
explicit authorization from his community corrections officer (CCO). Clerk's
Papers (CP) at 18; 5 Verbatim Report ofProceedings (Apr. 24, 2012) (VRP) at
615. The trial court noted "that the computer ce1iainly can be used in terms of
contacting victims" but was "concern[ ed]" because there was "no evidence to
support any conclusion" that Cates would do so. 5 VRP at 615. Therefore, instead
of the prosecutor's recommended condition, the trial court entered a modified
condition providing, "You must consent to [Department of Corrections] home
visits to monitor your compliance with supervision. Home visits include access for
the purposes of visual inspection of all areas of the residence in which you live or
have exclusive/joint control/access, to also include computers which you have
access to." CP at 18; see 5 VRP at 615-16. The court orally stated that
he will have to allow his ceo to have access to any computer used by
him, and if he has found -- if there is any evidence that he is using it
for improper purposes contacting children or accessing sexually
explicit information or materials that he's already prohibited from,
then he will be prohibited from using it. I will indicate that he can use
a computer so long as it is subject to a search on request by his ceo,
and if there is evidence that he's committing any violation by use of
the computer, he will lose this right.
2
State v. Cates, No. 89965-7
5 VRP at 615. This language was not incorporated into the written judgment and
sentence, either explicitly or by reference.
The Court of Appeals affirmed Cates' convictions and sentence in an
unpublished opinion. State v. Cates, noted at 179 Wn. App. 1002 (2014). Cates
sought this court's review only as to the validity of the community custody
provision requiring him to consent to home visits.
ISSUE
Is Cates' challenge ripe for review on its merits?
ANALYSIS
Several years ago, a unanimous opinion of this court clarified the analysis
for determining whether a preenforcement challenge to a community custody
condition is ripe for review on its merits. State v. Sanchez Valencia, 169 Wn.2d
782, 786-91, 239 P.3d 1059 (2010). It is ripe '""ifthe issues raised are primarily
legal, do not require further factual development, and the challenged action is
final."'" !d. at 786 (quoting State v. Bah!, 164 Wn.2d 739, 751, 193 P.3d 678
(2008) (quoting First United Methodist Church of Seattle v. Hr 'g Exam 'r, 129
Wn.2d 238, 255-56, 916 P.2d 374 (1996))). Furthermore, "we must consider the
hardship to the petitioner[] ifwe refused to review [the] challenge on direct
appeal." !d. at 789. It is undisputed that the community custody condition is a
final action and Cates' challenge raises primarily legal issues. We thus consider
3
State v. Cates, No. 89965-7
only whether further factual development is required and the risk of hardship to
Cates if we decline to address the merits of his challenge at this time.
Cates contends that no further factual development is required because he is
bringing a facial constitutional challenge: "Did the Court of Appeals err in
affirming a community custody condition that requires Mr. Cates to 'consent' to
searches by his CCO, merely upon the CCO's request, without specifying that the
search must be based on reasonable cause?" Pet. for Review at 1. Cates'
challenge has no basis in the language of the condition actually imposed. The
condition as written does not authorize any searches, and whether inspecting
Cates' residence or computer, the State's authority is limited to that needed "to
monitor [Cates'] compliance with supervision." 1 CP at 18. Any oral statement by
the trial court indicating otherwise has no legally binding effect and cannot form
the basis for a facial challenge. See State v. Friedlund, 182 Wn.2d 388, 394-95,
341 P.3d 280 (2015); Sanchez Valencia, 169 Wn.2d at 789 (considering a facial
vagueness challenge to "the condition as written"). Some future misapplication of
the community custody condition might violate article I, section 7, but that
"depends on the particular circumstances of the attempted enforcement." Sanchez
Valencia, 169 Wn.2d at 789. Further factual development is therefore needed-the
1
A CCO "may require an offender to submit to a search" but only "[i]f there is reasonable cause
to believe that an offender has violated a condition or requirement of the sentence." RCW
9.94A.631(1). That is a statutory provision distinct from the community custody condition here.
4
State v. Cates, No. 89965-7
State must attempt to enforce the condition by requesting and conducting a home
visit after Cates is released from total confinement.
Moreover, unlike the conditions considered in Sanchez Valencia, Bahl, and
United States v. Loy, 237 F.3d 251, 253 (3d Cir. 2001), the risk ofhardship here is
insufficient to justify review of Cates' challenge before it is factually developed.
In those cases, the conditions at issue prohibited possession of crime-related items
and "immediately restrict[ ed] the petitioners' conduct upon their release from
prison." Sanchez Valencia, 169 Wn.2d at 791. Compliance with those conditions
required the petitioners to immediately dispose of such items upon their release
and to refrain from obtaining new ones. Compliance here does not require Cates to
do, or refrain from doing, anything upon his release until the State requests and
conducts a home visit. Cates will not "suffer significant risk of hardship" if we
decline to review the merits at this time. Id. at 790 (citing State v. Massey, 81 Wn.
App. 198, 200,913 P.2d 424 (1996)). 2
CONCLUSION
Under the guidelines set forth in Sanchez Valencia, we affirm the Court of
Appeals' holding that Cates' preenforcement challenge is not yet ripe. Further
2
Massey incorrectly stated that a defendant challenging a community custody condition must
suffer actual harm before his or her claim is ripe. Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d
1042 (2013). Nevertheless, Massey "properly determined" that the defendant's challenge (which
was similar to the one Cates raises here) was not ripe. Sanchez Valencia, 169 Wn.2d at 790.
5
State v. Cates, No. 89965-7
factual development is needed, and Cates does not face a significant risk of
hardship by our declining to review the merits in the absence of developed facts.
6
State v. Cates, No. 89965-7
WE CONCUR:
7
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
No. 89965-7
FAIRHURST, J. (dissenting)-! dissent because Michael Shane Cates' facial
challenge to his community custody provision is ripe for review and because the
computer inspection component of the community custody condition authorizing
unrestricted access to Cates' personal computer by his community corrections
officer (CCO) violates article I, section 7 ofthe Washington Constitution. 1
Following his convictions for two counts of first degree rape and two counts
of first degree child molestation, the court imposed a community custody condition
that requires, "You must consent to DOC [(Department of Corrections)] home visits
to monitor your compliance with supervision. Home visits include access for the
purposes of visual inspection of all areas of the residence in which you live or have
exclusive/joint control/access, to also include computers which you have access to."
Clerk's Papers (CP) at 18. The court explained that
[Cates] will have to allow his CCO to have access to any computer used
by him, and ... if there is any evidence that he is using it for improper
purposes contacting children or accessing sexually explicit information
or materials that he's already prohibited from, then he will be prohibited
from using it. I will indicate that he can use a computer so long as it is
subject to a search on request by his CCO, and if there is evidence that
1
I would hold that the community custody condition permitting Cates' CCO to conduct
home visits and visual inspection of Cates' residence does not constitute prohibited governmental
intrusion into his private affairs under article I, section 7.
1
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
he's committing any violation by use of the computer, he will lose this
right.
5 Verbatim Record ofProceedings (Apr. 24, 2012) (VRP) at 615.
On appeal, Cates argued that the community custody condition violated article
I, section 7 and the Fourth Amendment to the United States Constitution because it
permitted Cates' CCO to conduct a search without reasonable cause in violation of
RCW 9.94A.631. 2 Cates also challenged the condition's computer inspection
component3 on statutory grounds, arguing that the component violated RCW
9.94A.703 4 because it was a noncrime related prohibition. Additionally, Cates
argued that the computer inspection component was unconstitutionally overbroad
under the First Amendment because it chilled his right to use a computer to store his
'"records, reflections, and conversations."' Appellant's Opening Br. at 28 (quoting
State v. Nordlund, 113 Wn. App. 171, 181-82, 53 P.3d 520 (2002)).
The Court of Appeals declined to address Cates' challenge to the community
custody condition because it found that Cates' challenge was not ripe for review
2
Former RCW 9.94A.195 (1984) was recodified as RCW 9.94A.631 in 2001 and provided,
in relevant part, that "[i]f there is reasonable cause to believe that an offender has violated a
condition or requirement of the sentence, an offender may be required to submit to a search and
seizure of the offender's person, residence, automobile, or other personal property."
3
I use the phrase "computer inspection component" to refer to the language "to also include
computers which you have access to" in the community custody condition. CP at 18.
4RCW 9.94A.703(3) provides, in relevant part, that "[a]s part of any term of community
custody, the court may order an offender to ... (f) [c]omply with any crime-related prohibitions."
2
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
unless and until the State subjected Cates to an improper search. State v. Cates,
noted at 179 Wn. App. 1002, 2014 WL 231550, at *5. Cates appealed, asserting the
community custody condition is unconstitutionally vague on its face. 5
The majority's holding, affirming the Court of Appeals, that the condition will
not be ripe until the State attempts to enforce the condition by conducting a home
visit deviates from our precedent regarding preenforcement challenges to
community custody provisions.
The community custody condition is ripe for review
To determine whether a preenforcement challenge to a community custody
condition is ripe for review, we must find that '"the issues raised are primarily legal,
do not require further factual development, and the challenged action is final."' State
v. Sanchez Valencia, 169 Wn.2d 782, 786,239 P.3d 1059 (2010) (internal quotation
marks omitted) (quoting State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008)). 6
As part of the ripeness analysis we also consider '"the hardship to the parties of
withholding court consideration."' !d. (internal quotation marks omitted) (quoting
Bahl, 164 Wn.2d at 751).
5
"[Cates] is challenging the constitutionality of the condition of community custody that
requires him to 'consent' to random, suspicionless searches or face arrest and jail." Suppl. Br. of
Pet'r at 16. Cates is not challenging the constitutionality or legality of a particular search. !d.
6
Sanchez Valencia provides the appropriate test for determining whether a preenforcement
challenge to a community custody provision is ripe for review.
3
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
In Sanchez Valencia, we found the defendants' preenforcement challenge to
their community custody conditions ripe for review. Id. at 786-91. We reasoned
that their challenge did not require further factual development because the question
presented was "not fact dependent; either the condition as written provides
constitutional notice and protection against arbitrary enforcement or it does not." I d.
at 789.
The Court of Appeals, relying on State v. Massey, 81 Wn. App. 198,200, 913
P.2d 424 (1996), stated that "[t]he unconstitutionality of a community custody
condition is not ripe for review unless the person is harmfully affected by the part of
the condition alleged to be unconstitutional." Cates, 2014 WL 231550, at *5. In
Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d 1042 (2013), we specifically rejected
the Massey "harmful effect" requirement, finding instead that "[c ]urrent hardship is
not a strict requirement for ripeness." I d. at 525 (emphasis added).
The Massey court appears to have conflated the justiciability requirements of
ripeness and standing. "In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues."
Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). In
contrast, ripeness seeks to prevent courts from resolving "possible, dormant,
hypothetical, speculative, or moot disagreement[s]," or entertaining disputes that are
4
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
merely "potential, theoretical, abstract or academic," by ensurmg that the
controversy has sufficiently developed to become suitable for judicial determination;
"otherwise the court steps into the prohibited area of advisory opinions." Diversified
Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973).
We have repeatedly held that "[a] litigant does not have standing to challenge
a statute on constitutional grounds unless the litigant is harmed by the particular
feature of the statute which is claimed to be unconstitutional." Kadoranian v.
Bellingham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992) (emphasis
added); see also, e.g., Bitts, Inc. v. City ofSeattle, 86 Wn.2d 395,397, 544 P.2d 1242
( 197 6) ("One who is not adversely affected by a provision of a statute or ordinance
has no standing to challenge the validity."); State v. McCarter, 91 Wn.2d 249, 253,
588 P.2d 745 (1978) (finding that "petitioner lacked standing to attack the
constitutionality ofthe statute" because "[o]ne cannot urge the invalidity of a statute
unless harmed by the particular feature which is challenged"), overruled on other
grounds by In re Det. of McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984). The
State has not challenged Cates' standing to raise his claims, and we have stated
unequivocally that "a criminal defendant always has standing to challenge his or her
sentence on grounds of illegality." Bah!, 164 Wn.2d at 750 (emphasis added).
5
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
I find that the Court of Appeals misplaced its reliance on Massey to resolve
the ripeness inquiry. The majority agrees that Massey incorrectly found that a
defendant challenging a community custody condition must suffer actual harm
before his or her claim is ripe. Majority at 5 n.l. However, the majority relies on the
court's reasoning in Massey to find that Cates' claim is not ripe and states that
Massey was ultimately decided correctly. See majority at 5. I find it important to
reject the language and test used in Massey and to proceed under the proper Sanchez
Valencia ripeness test.
Cates ' challenge does not require further factual development
The State concedes and the majority agrees that Cates' challenge is primarily
legal and that the challenged action is final. However, the State argues and the
majority holds that Cates' claims will not ripen until the State takes additional action
because reasonable cause is a legal conclusion that depends on the specific factual
circumstances of a search and because Cates has not yet been subject to a search, his
claims therefore require further factual development. Majority at 4. I disagree.
Cates' challenge does not require further factual development. Cates has not
challenged the legality of a particular search; rather, Cates contends that his
community custody computer condition, as written, violates distinct constitutional
provisions. The community custody condition requires Cates to consent to DOC's
6
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
inspection of his computer. Cates asserts that the community custody condition is
unconstitutionally vague. In contrast to the majority's assertion that Cates' challenge
rests on some future misapplication of the condition, whether the condition is valid
or violates the constitution is purely a question of law. The State need not conduct
an allegedly illegal search for us to determine whether the community custody
condition itself violates the constitutional provisions on which Cates relies. Such
factual development would be irrelevant to the legal question.
I also find that the condition imposes a hardship on Cates that counsels in
favor of our review. In Bahl, we found Bahl's preenforcement challenge to his
community custody condition ripe for review. 164 Wn.2d at 747-52. There, the State
argued that the conditions imposed no immediate hardship on Bahl because Bahl
was still in prison and the conditions did not yet apply to him. !d. at 7 51. We rejected
that argument. We noted that the conditions would immediately restrict Bahl upon
his release and that nothing could change before Bahl' s release that would affect our
analysis ofthe legal question presented. Id. at 751-52.
In Bahl, we cited with approval the Third Circuit's reasoning in United States
v. Loy, 237 F.3d 251,257 (3d Cir. 2001), that "the fact that a party may be forced to
alter his behavior so as to avoid penalties under a potentially illegal regulation is, in
itself, a hardship." The Loy court reasoned that a criminal defendant need not
7
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
"'expose himself to actual arrest or prosecution to be entitled to challenge a statute
that he claims deters the exercise of his constitutional rights."' !d. (quoting Steffel
v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974)).
The majority asserts that Cates' community custody condition is different
from the conditions imposed on the defendants in Bah!, Sanchez Valencia, and Loy.
In those cases, compliance with the conditions required the petitioners to
immediately remove certain items from their residence. See Bah!, 164 Wn.2d at 743;
Sanchez Valencia, 169 Wn.2d at 785; Loy, 237 F.3d at 253, 255. The condition here
requires Cates to consent to DOC inspecting his computer. According to the
majority, because Cates' condition does not immediately require him to do
something or to refrain from doing something, it does not impose a significant
hardship. Majority at 5.
However, the Bah! reasoning applies here. According to the community
custody condition, Cates must consent to visual inspections of his computer by a
CC0. 7 The community custody condition will immediately constrain Cates the
moment he is released; the fact that he may be forced to alter his behavior to avoid
7
The Court of Appeals has noted that the personal computer is a '"modern day repository
of a man's records, reflections, and conversations."' Nordlund, 113 Wn. App. at 181-82 (quoting
court record at 200). Because the computer contains such personal and private information, the
court in Nordlund noted that the search of a computer implicates both the First and Fourth
Amendments.Jd. at 182.
8
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
violating that condition itself indicates a hardship. Even if the hardship imposed by
Cates' condition is not as significant as those in Bahl, Sanchez Valencia, and Loy,
this does not mean that we must decline review of the community custody computer
condition. The hardship imposed by withholding consideration must be considered.
See Sanchez Valencia, 169 Wn.2d at 786.
The majority asserts that Cates' challenge has "no basis in the language of the
condition actually imposed" because the community custody condition, as written,
does not authorize a search. Majority at 4. The majority opines that the State's
authority to inspect Cates' computer is limited to that needed "'to monitor [Cates']
compliance with supervision."' I d. (alteration in original) (quoting CP at 18).
However, as written, the terms of the condition allow for a search without reasonable
cause. The condition allows the CCO to have access to Cates' computer for visual
inspection to monitor Cates' compliance with supervision. Given the amount of
personal and private information that can be stored on a computer and the ambiguity
regarding what constitutes "access" for visual inspection of a computer, the
condition may allow unconstitutional searches. Because I find Cates' challenge ripe
for review, I would proceed to the merits of Cates' claim.
9
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
The computer inspection component of the community custody condition is
unconstitutional
The Washington Constitution protects against illegal searches in article I,
section 7, which provides that "[n]o person shall be disturbed in his private affairs,
or his home invaded, without authority of law." Our court recognizes that the
protections in article I, section 7 are "grounded in a broad right to privacy and the
need for legal authorization in order to disturb that right," State v. Chacon Arreola,
176 Wn.2d 284, 291, 290 P.3d 983 (2012), and that "a person's home is a highly
private place," State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994).
In this context, where Cates facially challenges his community custody
condition, rather than the propriety of a specific governmental action, we must
determine whether the condition facially authorizes an impermissible search.
Whether or not a governmental action constitutes an impermissible search requires
a two-part analysis. First, we ask whether the government has disturbed one's private
affairs; second, if, and only if, there has been such a disturbance, we ask whether
that disturbance was authorized by law. State v. Puapuaga, 164 Wn.2d 515, 522,
192 P.3d 360 (2008).
The private affairs inquiry protects only those pnvacy interests that
Washington citizens have held, and should be entitled to hold, safe from
governmental trespass absent a warrant. Id. We do not consider the subjective
10
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
privacy expectations of the individual in question because such expectations do not
illuminate those privacy interests that the citizens of this state have held or should
be entitled to hold. !d. Instead, we examine the historical treatment of the asserted
interest, analogous case law, and statutes and laws supporting the claimed interest.
State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007).
At oral argument, the State asserted that the computer inspection component
permitted a CCO literally only to visually inspect Cates' computer. Wash. Supreme
Court oral argument, State v. Cates, No. 89965-7 (Sept. 30, 2014), at 19:50 to 25:20,
audio recording by TVW, Washington State's Public Affairs Network, available at
http://www.tvw/org. The State argued that a CCO could look at the computer,
perceive whatever content may be displayed on the monitor, and observe any notes
that may be near or attached to the computer. Id. The State did not argue that the
component permitted a ceo to actively inspect the digital contents and files stored
on the computer.
I disagree with the State's characterization. The trial court clarified the
meaning of the computer inspection component by saying that it gave Cates' CCO
"access to any computer used by [Cates], and ... that [Cates] can use a computer so
long as it is subject to a search on request by his CCO." 5 VRP at 615 (emphasis
added). The court explained that the search was meant to allow the CCO to look for
11
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
evidence to determine whether Cates was using the computer to contact children or
access sexually explicit materials. !d.
The court's comments clearly indicate that it intended the computer inspection
component to permit Cates' CCO to search Cates' computer. I am not persuaded
that a search of a computer means merely beholding its presence; rather, a search of
a computer means scrutinizing the digital contents stored on the computer.
Similarly, in this context "access" means "freedom or ability to obtain or make use
of." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 11 (2002). One does not
make use of a computer by simply eyeing the physical frame. One most naturally
makes use of a computer by examining its digital contents.
I also find the State's characterization unavailing because we would render
the computer inspection component superfluous if we imbued it with the meaning
assigned by the State. The inspection that it purports to permit would already be
permitted by the home visit component pursuant to the plain view doctrine. I
therefore find that the computer inspection component facially authorizes Cates'
CCO to inspect the contents of Cates' computer.
I must now determine whether that inspection constitutes a disturbance of
Cates' private affairs. In State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007), we
held that a citizen's bank records fall under the private affairs umbrella due, in part,
12
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
to the type of information they may contain. We considered that "[p]rivate bank
records may disclose what the citizen buys, how often, and from whom. They can
disclose what political, recreational, and religious organizations a citizen supports.
They potentially disclose where the citizen travels, their affiliations, reading
materials, television viewing habits, financial condition, and more." !d. at 246-47.
Similarly, in State v. Hinton, we found that the contents of a person's text
messages constitute private affairs. 179 Wn.2d 862, 869-70, 319 P.3d 9 (2014). We
reasoned that text messages expose "'a wealth of detail about [a person's] familial,
political, professional, religious, and sexual associations.' Text messages can
encompass the same intimate subjects as phone calls, sealed letters, and other
traditional forms of communication that have historically been strongly protected
under Washington law." !d. (alteration in original) (citation omitted) (quoting United
States v. Jones, _U.S. _ , 132 S. Ct. 945, 955, 181 L. Ed. 2d 911 (2012)
(Sotomayor, J., concurring)).
A computer raises, to an even greater degree, the same concerns that we
considered in Miles and Hinton. Not only does a computer contain the same type of
information that a bank record may reveal, but in our increasingly paperless world a
computer likely contains an individual's actual bank records. A computer may also
contain a person's e-mail correspondence, which implicate the same intimate
13
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
subjects encompassed by one's text messages-and probably more. It is not a stretch
to say that as "'the modern day repository of a man's records, reflections, and
conversations,"' Nordlund, 113 Wn. App at 181-82 (internal quotation marks
omitted) (quoting court record at 200), the contents of a computer expose "a 'wealth
of detail about [a person's] familial, political, professional, religious, and sexual
associations,"' Hinton, 179 Wn.2d at 869 (alteration in original) (quoting Jones, 132
S. Ct. at 955).
The computer inspection component in Cates' community custody condition
protects none of this information. On its face, the computer inspection component
does not limit the scope of the inspection. Instead, it purports to authorize unfettered
access to all of the contents on Cates' computer. While some of the information on
Cates' computer may be relevant to his compliance with his community custody
conditions, much of it is not. The computer inspection component does nothing to
protect this unrelated information.
I realize that one's home, in general, may enjoy greater privacy protection
than even one's personal property and that an offender on community custody enjoys
substantially reduced privacy interests in both. However, it is not correct that such
an offender enjoys no privacy protections at all. Cates' community custody
condition does not violate his private affairs by authorizing a visual inspection of his
14
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
home because the condition appropriately limits the scope of that inspection only to
the extent necessary to monitor his compliance with the terms of his sentence. In
contrast, the computer inspection component attempts to allow Cates' CCO access
not only to information that may help monitor Cates' compliance with the terms of
his sentence, but also to highly private information entirely unrelated to Cates' term
of community custody. I therefore would find that the computer inspection
component facially authorizes an intrusion into Cates' private affairs.
I also would find that this intrusion is not authorized by law. Normally, the
State may obtain authority of law from a valid search warrant. Hinton, 179 Wn.2d
· at 868. A Washington court's authority to issue a search warrant must derive from
specific statutory authorizations or court rules. City of Seattle v. McCready, 123
Wn.2d 260, 274, 868 P.2d 134 (1994). Statutory authorization means a statute that
authorizes a court to issue a warrant-a statute may not simply dispense with the
warrant requirement. State v. Ladson, 138 Wn.2d 343,352 n.3, 979 P.2d 833 (1999).
In the absence of a warrant, the State must show that the intrusion "falls within one
of the jealously guarded and carefully drawn exceptions to the warrant requirement."
Hinton, 179 Wn.2d at 869.
The trial court did not have statutory authority to impose the computer
inspection component on Cates. As we have stated, under the statutory scheme a
15
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
court may impose community custody conditions that in other circumstances might
qualify as a search-without any cause requirement-so long as the court limits
those procedures to the extent necessary to monitor the offender's compliance with
the terms of his sentence. But a court may not require an offender to accept an
unrestricted incursion into his private affairs, entirely divorced from the legitimate
demands of the community custody process, as the trial court did here. I can find no
statute authorizing a warrantless search of an offender on community custody
without restriction. A warrantless search of such an offender is permissible only if
the offender's ceo can at least show reasonable cause to believe the offender has
violated his community custody conditions.
The computer inspection component plainly permits a search of Cates'
computer without the reasonable cause required by RCW 9 .94A.631. The condition
states that the computer inspections shall be included in the visual inspections
permitted during the CCO's home visits. 8 The computer inspections necessarily
constitute a search. By including the computer inspection component-which
necessarily requires at least reasonable cause-within an otherwise appropriate
monitoring condition, the condition facially authorizes a search of Cates' computer
8
As noted, I agree the horne visits do not violate article I, section 7 because they qualify as
an appropriate monitoring condition, which means that a CCO does not need any degree of cause
to carry them out.
16
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
without any requisite suspicion that Cates has violated the terms of his community
custody. I find support for my reading of the condition in the statement from the
trial court that the component permits Cates to use a computer "so long as it is subject
to a search on request by his CCO." 5 VRP at 615 (emphasis added). The court's
statement does not indicate that it envisioned any degree of cause being necessary
for that search. The trial court may not authorize an otherwise baseless search of an
offender's private affairs.
While the computer community custody condition purports to provide Cates'
consent, this language does not establish consent in a constitutional sense. State v.
Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004). One gives consent to a search
when (1) that person gives such consent voluntarily, (2) that person has authority to
grant such consent, and (3) the search does not exceed the scope of the consent. ld.
We require consent to be both meaningful and informed. State v. Schultz, 170 Wn.2d
746, 754, 248 P.3d 484 (2011).
Cates' consent, if any, could arise only from the fact that he signed his
judgment and sentence. But I do not find this consent meaningful. Cates must
consent to the search of his computer or face the possibility of having his community
custody revoked and being returned to prison. And this consent was imposed on
17
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
Cates by the trial court as a condition of his community custody-such consent is
not voluntary.
Because the computer inspection component in Cates' community custody
condition purports to allow an intrusion into Cates' private affairs without authority
of law, I would hold that the computer inspection component facially violates the
protections in article I, section 7. I would invalidate the computer inspection
component on that basis.
Cates' challenge to the computer inspection of his community custody
provision is ripe for this court's consideration. We need not require Cates to suffer
the potential consequences of the condition to challenge its constitutional validity.
The State concedes that the issues are primarily legal and that the challenged action
is final. Cates' challenge satisfies the third requirement of ripeness because it does
not require further factual development. Ripeness does not require a current
hardship, and nothing will change prior to Cates' release that will alter the analysis
of whether the community custody condition, on its face, allows unconstitutional
searches. Therefore, I would reverse the Court of Appeals, reach the merits of Cates'
challenge, and hold that the computer inspection component of the community
custody condition is unconstitutional.
18
State v. Cates, No. 89965-7
Fairhurst, J. (dissenting)
19