Reconsideration denied February 19, 2015.
Appeal from Yakima Superior Court. Docket No: 11-1-01662-1. Judge signing: Honorable Richard Bartheld. Judgment or order under review. Date filed: 11/02/2012.
James P. Hagarty, Prosecuting Attorney, and Tamara A. Hanlon, Deputy, for appellant.
Janet G. Gemberling (of Janet Gemberling PS ), for respondent.
Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Robert E. Lawrence-Berrey.
[184 Wn.App. 520] ¶ 1 The State of Washington appeals the trial court's suppression, as trial evidence, of a video found by a community corrections officer on parolee Felipe Jardinez's iPod and a shotgun seized at his home. The appeal requires us to address the scope of RCW 9.94A.631(1), which under certain circumstances permits a warrantless search of a parolee by a corrections officer. Since the search of the iPod did not relate to a suspected parole violation and the seizure of the gun was the result of viewing a video on the iPod, we affirm the trial court.
¶ 2 Felipe R. Jardinez previously pled guilty to a drive-by shooting and second degree unlawful possession of a firearm. He served prison time followed by 18 months of [184 Wn.App. 521] community supervision. The conditions of community custody included requirements to report to his assigned community corrections officer and refrain from possession or consumption of controlled substances except pursuant to a prescription.
¶ 3 On November 3, 2011, Felipe Jardinez missed a scheduled meeting with his community corrections officer, Roger Martinez. Martinez phoned Jardinez but received no answer. On November 14, Jardinez returned Martinez's call, and the two arranged to meet the next day. During the appointment, Martinez asked Jardinez to submit to a urinalysis test. Jardinez admitted that the test would show marijuana use.
¶ 4 At the direction of Roger Martinez, Felipe Jardinez emptied his pockets and placed an iPod Nano onto a desk. Martinez later testified that the iPod interested him because parolees occasionally take pictures of themselves with other gang members or " doing something they shouldn't be doing." Report of Proceedings (RP) (Oct. 10, 2012) at 9. When Martinez handled the iPod, Jardinez appeared nervous to Martinez. Martinez asked Jardinez if he would see something on the iPod's video that Jardinez did not want seen. Jardinez replied that the iPod only held music. At the suppression hearing, Officer Martinez stated that other than Jardinez appearing nervous, he lacked facts that the iPod video player would show evidence of a crime or violation of the conditions of the defendant's community custody.
¶ 5 Roger Martinez accessed the iPod, searched its content, and found a video recorded earlier that morning. Martinez played the video, which showed Felipe Jardinez pumping a shotgun in his bedroom. Jardinez prevaricated that the weapon in the video was a BB gun. After Martinez offered to confirm the nature of the gun with a home visit, Jardinez recanted and confessed that the weapon was a shotgun. After Jardinez's arrest, Toppenish police and correction officers searched Felipe Jardinez's home for the [184 Wn.App. 522] shotgun. The officers found a shotgun matching the one Jardinez held in the video.
¶ 6 The State of Washington charged Felipe Jardinez with first degree unlawful possession of a firearm. Jardinez moved to suppress ...