State v. Reichert
242 P.3d 44
| Wash. Ct. App. | 2010Background
- Reichert, on DOC probation, reported his living address to DOC.
- Detectives received an informant tip Reichert was selling marijuana and living at a different residence.
- DOC Officer Valley, a probation supervisor, coordinated and permitted detectives to accompany him on a compliance check.
- At the Sunde Road residence, Valley identified Reichert, who exited after ~20 minutes; marijuana odor led to a search warrant via telephonic approval.
- Det. Trogdon and Birkenfeld conducted the search; Brandenburg resided at the same address; seized marijuana and related paraphernalia were found.
- Trial court applied reasonable suspicion; on remand, the dispute focuses on whether there was probable cause to search the residence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the search was valid under Fourth Amendment due to pretext. | Reichert argues detectives used Valley as pretext. | Valley acted within probation supervision and safety; not a pretext. | Remand for suppression hearing; pretext issue unresolved. |
| What standard applies to searching the residence (probable cause vs reasonable suspicion). | Winterstein's reasonable suspicion standard governs the search of Reichert’s residence. | Probable cause is required under Winterstein for residence search. | Remand to determine probable cause before searching residence. |
| Whether Washington Article I, § 7 provides greater protection than the Fourth Amendment. | Article I § 7 grants more protection to probationers. | Probationers have reduced privacy; no greater protection beyond Fourth Amendment. | No greater protection beyond Fourth Amendment in this context. |
| Sufficiency of the evidence for possession with intent to deliver. | Evidence supports possession with intent to deliver. | Evidence insufficient for intent to deliver. | Evidence sufficient; conviction supported. |
Key Cases Cited
- State v. Winterstein, 167 Wash.2d 620 (2009) (probation officer must have probable cause to search residence; remand to determine.)
- United States v. Knights, 534 U.S. 112 (2001) (upheld probationer search with reasonable suspicion; purpose not controlling.)
- Griffin v. Wisconsin, 483 U.S. 868 (1987) (special needs of probation supervision justify warrantless searches.)
- Smith v. Rhay, 419 F.2d 160 (9th Cir. 1969) (parole officer cannot act as primary agent for police to evade warrant requirement.)
- United States v. Ooley, 116 F.3d 370 (9th Cir. 1997) (parole search cannot be sham; must be genuine probation search.)
- United States v. Jarrad, 754 F.2d 1451 (9th Cir.) (parole officer cannot be stalking horse for police.)
- State v. Campbell, 103 Wash.2d 1 (1984) (probation supervision rationale for search; privacy considerations.)
- State v. Simms, 10 Wash. App. 75 (1973) (probation search context; diminished privacy.)
- State v. Lucas, 56 Wash. App. 236 (1989) (probationary privacy expectations.)